Appeal No. 2005-0545
Application No. 09/989,019
(3) an L-carnitine, (4) a xanthine such as theophylline,
theophylline salt, caffeine, or theobromine, (5) Coleus Forskohli
plant extract, and (6) solubilizing and (7) emulsifying agents
useful in formulating oil-in-water emulsions therewith for topical
treatment of localized fat accumulation, cellulite and cellulitis
associated therewith. The prior art need not explicitly direct the
combination of each component of the composition with every other or
every other combination of components. It is sufficient that the
examiner concluded that persons having ordinary skill in the art
reasonably would have expected success in treating localized fat
accumulation, cellulite and/or resultant cellulitis using each one
or subcombinations of previously disclosed active agents to
establish that a combination of all the previously disclosed active
agents prima facie would have been obvious for a common purpose.
See In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA
1980):
It is prima facie obvious to combine two compositions
each of which is taught by the prior art to be useful for
the same purpose, in order to form a third composition
which is to be used for the very same purpose. . . .
[T]he idea of combining them flows logically from their
having been individually taught in the prior art.
Prima facie obviousness under 35 U.S.C. § 103 has been
established in this case because the prior art teachings, considered
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