Appeal No. 2001-2397 Page 8
Application No. 08/855,779
We do not find the examiner’s explanation to provide us with an adequate
basis for reviewing the rejection. The claims that the examiner rejected as
obvious require, in addition to a hydrophobically modified polysaccharide, an
“active personal care ingredient,” a “solvent,” and whatever other components
are required by the various preambles (“shampoo,” “conditioner,” etc.). Yet the
only disclosure that the examiner points to in the reference is a suggestion to use
a hydrophobically modified polysaccharide as a thickener in cosmetics and
shampoos.
The examiner’s rationale in support of the rejection does not explain what
specific other components (active personal care ingredients, solvents, etc.) would
have been obvious to combine with the disclosed polysaccharide, such that the
reference would have rendered obvious all of the various compositions recited in
claims 11-43. Nor does the examiner rely on other prior art or any other
evidence to show that the claimed compositions would have been obvious to a
person of ordinary skill in the art, based on the disclosure of Sau. Thus, the
examiner’s rejection does not provide us with an adequate basis on which to
decide whether or not the claimed compositions would have been obvious to a
person of ordinary skill in the art at the time they were made.
Upon return of this application, the examiner should consider whether
Sau’s suggestion to use the disclosed polysaccharides in cosmetics and
shampoos, in combination with other prior art disclosures and the knowledge of
the ordinary artisan, would have rendered obvious any of the compositions now
claimed by Appellant. In considering the obviousness of the claimed
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