Appeal No. 2006-2655
Application No. 10/750,810
applied to a human body, i.e., used in a personal care compositions as
claimed in claim 18, much less possibly ingested in oral compositions as
claimed in claim 19.” Br. 5 and 8-9. They also argue that the acetone
solution described in Muhlbauer could not safely be applied to a human
body, and provide evidence that it is not cosmetically acceptable, including a
data sheet that “acetone is a target organ and reproductive toxin.” Br. 6.
An obviousness determination under 35 U.S.C. § 103 requires
consideration of “the scope and contents of the prior art” in the context of
the level of skill of the person of ordinary skill in the art. Graham v. John
Deere Co., 383 U.S. 1, 13-14 (1966). The Examiner’s rejection of claims 18
and 19 is based on the finding that the skilled worker’s level of skill would
have made it routine for a person of ordinary skill in the art to have added an
antimicrobial agent, such as the fungicide disclosed in Muhlbauer, to
personal care and oral compositions. Answer 4. For this reason, the
Examiner concludes that the claimed subject matter would have been
obvious to the ordinary skilled worker. After reviewing the record before
us, we find that the Examiner’s conclusion is supported by the totality of the
evidence.
As asserted by the Examiner, the cited prior art indicates that the
fungicides and other antimicrobial agents were considered “customary
additives” in personal care and oral formulations. See Lang, col. 3,
ll. 37-44. Lang states that fungicides can be added to its hair treatment
composition, but – presumably because they were well-known – did not find
it necessary to specify nor list any particular fungicidal compounds. Blank
also teaches that antimicrobial agents were widely used to prevent
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