Appeal No. 2006-0438
Application No. 10/319,905
record does not teach or disclose a process for dying hair
wherein the process requires a pre-treating step as claimed.”
However, claim 10, as well as dependent claims 11 and 12, recites
a process comprising: “if desired, applying a pretreatment
preparation to the fibers” (emphasis added). Manifestly, the
pretreatment step which is the basis for the examiner’s allowance
is an optional step that is not required by claims 10-12.
Accordingly, the application is remanded to the examiner to
consider the obviousness of claims 10-12 over the cited prior
art, and any other art that comes to the attention of the
examiner. We also observe that it is notoriously well known to
use a pretreatment step, such as washing, before applying a dying
composition to the hair.
In conclusion, based on the foregoing, the examiner’s
decision rejecting the appealed claims is affirmed. Also, this
application is remanded to the examiner for the purpose of
reevaluating the patentability of claims 10-12.
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