Appeal No. 2005-0702 Page 7
Application No. 09/443,505
of an oxidation dye composition comprising an oxidation dye precursor, couplers are not the
only means for modifying the shade or color of an oxidation dye composition.” (Brief, p. 12).
But the fact that there might be other methods does not somehow nullify the obviousness of
using the known method using known couplers. Nor does the fact that different oxidation bases
give different colors nullify obviousness where that fact was known in the art. (Answer, p. 9;
Claussen, col. 5, ll. 41-68).
Appellant further draws our attention to Examples 3 and 4 reported on page 18 of the
specification (Brief, p. 12). According to Appellant, a comparison of these two examples
indicates that the composition of Example 3 which contains an oxidation base outside the scope
of the invention with Example 4 which contains an oxidation base within the scope of the claim
shows that the color is less fast for the Example 3 oxidation base. Appellants then argue that
given the general unpredictability of the hair dye art and the results of Examples 3 and 4 “there
would not even have been an expectation of success for choosing one para-aminophenol
derivative from among the para-aminophenol derivatives disclosed in Lim, let alone simply
choosing one from among the many optional ingredients disclosed in Lim.” (Brief, p. 13). This
argument is not persuasive because the comparison sheds little light on the interaction of the
oxidation base and coupler combination in the context of the Lim composition. The Lim
composition has additional oxidation base and coupler components present.
Appellant further argues that Claussen “teaches away” from the use of other substituted
para-aminophenols (Brief, p. 14). But Claussen does not disclose that other substituted para-
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