Appeal No. 2002-0938 Page 5
Application No. 08/958,182
In rejecting claim 8, which depends from claim 7 and further calls for the gel to
contain aloe vera, the examiner relies upon the additional teachings of Peters and
concludes that it would have been obvious “to provide Gold with the aloe vera gel as
taught by Peters, since it has been held to be within the general skill of a worker in the
art to select a known material on the basis of its suitability for the intended use as a
matter of obvious design choice” (non-final action mailed June 6, 2000, page 3). The
flaw in the examiner’s analysis is that Peters teaches a pre-packaged anti-septic
towelette treated with an alcohol solution containing aloe vera gel and cocoa butter for
use as a moisturizing disinfectant hand-wipe (column 1, lines 15-18), not for use in peri-
anal hygiene. While Peters does teach distribution of the towelettes in locations such
as bathrooms, restrooms and washrooms of restaurants and hotels (column 4, lines 20-
24), Peters provides absolutely no teaching or suggestion to use these towelettes on
any other area of the body except the hands. As for the examiner’s reference to “Purell
Instant Hand Sanitizer with Aloe” in the footnote on page 4 of the answer, we note, at
the outset, that the examiner has neither incorporated this reference in the statement of
the rejection3 nor provided any supporting documentation describing the product and its
use. Accordingly, we have not considered it as evidence of obviousness in our
decision. In any event, the examiner’s footnote appears to indicate that the product
3 Where a reference is relied on to support a rejection, whether or not in a "minor capacity," there
would appear to be no excuse for not positively including the reference in the statement of rejection. In re
Hoch, 428 F.2d 1341, 1342 n.3, 166 USPQ 406, 407 n.3 (CCPA 1970).
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