Appeal No. 2001-0914 Page 2
Application No. 08/869,381
selecting an area of skin from which a reduced rate of hair growth is desired; and
applying to said area of mammalian skin a non-depilatory composition including
a hair growth reducing effective amount of a sulfhydryl active compound selected from
the group consisting of 2,3-dimercapto-1-propanesulfonic acid, 3,30-thiodipropionic acid,
isethionic acid, 3-(methylthio)-propylamine, 3,30-thiodipropionic acid dilauryl ester, allyl
sulfide, DL-methionine-S-methyl-sulfonium chloride, penicillamine disulfide, S-2-
aminoethyl-L-cysteine, and diethyldithiocarbomic acid.
Claims 1 through 4, 11, and 22 through 41 stand rejected under the judicially
created doctrine of obviousness-type double patenting over claims 1 through 4 and 21
through 31 of U.S. Patent No. 5,411 991 ('991 patent). We affirm.
Background
This application is stated to be a continuation of application 08/414,992 which in
turn is stated to be a continuation of application 07/995,037. The '991 patent issued
from application 07/995,037. Claim 1 of the '991 patent reads as follows:
1. A process of reducing the rate of mammalian hair growth, comprising
selecting an area of skin from which a reduced rate of hair growth is desired; and
applying a non-depilatory composition including a hair growth reducing effective
amount of a sulfhydryl active compound to said area of mammalian skin, said sulfhydryl
active compound penetrating into the hair follicles in said area of mammalian skin to
interfere with the formation of new hair causing a reduction in the rate of hair growth
from said area of mammalian skin.
As the prosecution unfolded in this application, the examiner instituted the
present obviousness-type double patenting rejection based upon the claims of the '991
patent. Appellants did not file a Terminal Disclaimer to overcome this rejection during
prosecution nor did appellants contest the merits of the examiner's rejection in the
Appeal Brief (Paper No. 23, November 24, 1999). Rather, their position on appeal is
there are two policy rationales behind the doctrine of obviousness-type double
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