Appeal No. 2001-2397 Page 6
Application No. 08/855,779
polysaccharide and an “active personal care ingredient.” The specification states
that the active personal care ingredient “must provide some benefit to the user’s
body.” Page 6. Thus, the preamble’s recitation of a “personal care composition”
limits the compositions defined by the claims to those that are appropriate for
application to the human body. The preamble therefore recites a claim limitation
which should be construed as if it appeared in the body of the claims.
None of the prior art references discloses a composition, comprising a
hydrophobically modified polysaccharide and other ingredients, that would be
appropriate for application to the human body. The compositions disclosed by
Angerer and Sau are latex paints (see the examples in each patent), while the
composition disclosed by t’Sas is a building composition intended as a substitute
for concrete (see column 1, lines 1-18; column 2, lines 17-23).
None of the disclosed compositions would appear to be appropriate for
application to the human body. Therefore, none of them appear to be a
“personal care composition,” as required by our interpretation of the claims.
“Under 35 U.S.C. § 102, every limitation of a claim must identically appear in a
single prior art reference for it to anticipate the claim.” Gechter v. Davidson, 116
F.3d 1454, 1457, 43 USPQ2d 1030, 1032 (Fed. Cir. 1997). Since none of
Angerer, t’Sas, or Sau disclose a composition meeting all of the limitations of the
claims, as properly construed, the claims are not anticipated by these references.
The rejections under 35 U.S.C. § 102(b) are reversed.
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