Appeal No. 2005-1428 Page 8
Application No. 09/930,320
We agree with Appellants that the specification defines a thickener as a possible
constituent of the base composition, not a performance agent or (in Rath’s terms) an
enhancing additive. We do not see how that issue affects the outcome of the analysis,
however. Even if Rath’s thickener is considered a part of the base and not an
enhancing additive, the method suggested by Rath meets all of the limitations of instant
claim 1.
3. Obviousness – claim 24
The examiner rejected claims 23 and 24 under 35 U.S.C. § 103 as obvious in
view of Rath, Rigg, Stewart, and Tartaglione.4 As noted above, claim 23 will stand or
fall with claim 24. Claim 24 is directed to the method of claim 1, where the container
has a volume of less than one liter, and has a neck and a cap without an orifice.
Tartaglione discloses a bottle with a neck (see Figure 2) that is threaded “to receive a
removable cap.” Col. 3, lines 39-41. The “cap 14 is integrally molded so that it can be
bent down to close the hole 13” (col. 3, lines 56-58) that is, the cap lacks an orifice.
Although Tartaglione is silent with respect to the volume of the disclosed bottles, it
states that they are suitable for shampoo (col. 4, lines 2-3); we can take official notice
that shampoos are typically packaged in containers of one liter or less.
A person of ordinary skill in the art would have found it obvious to mix Rath’s
customized shampoo or conditioner compositions in a container having a volume of less
than one liter, having a neck, and having a cap without an orifice, such as the bottles
taught by Tartaglione. Such bottle shapes and sizes are typical of those used for
4 Tartaglione et al., U.S. Patent 4,851,062, issued July 25, 1989.
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 Next
Last modified: November 3, 2007