Appeal 2006-3047
Application 09/820,934
Teleflex Inc., 127 S. Ct. 1727, 1741, 82 USPQ2d 1385, 1396 (2007). The
Court reiterated “the need for caution in granting a patent based on the
combination of elements found in the prior art” (id. at 1739, 82 USPQ2d at
1395), particularly where there is “no change in their respective functions”
(id). In other words, “[t]he combination of familiar elements according to
known methods is likely to be obvious when it does no more than yield
predictable results” (id.).
Here, there is evidence of record that cationic conditioning agents
comprising at least two quaternary ammonium groups (including the
polyquaternium-10 taught by Niemiec), and C3 to C5 monosaccharides
substituted with at least one C1 to C22 carbon chain (like the economically
advantageous non-ionic alkyl pentoside surfactants taught by Bertho), were
both conventional, familiar components of cleansing and conditioning
shampoos at the time of the invention (see e.g, FFs 1 and 3). In addition,
there is evidence of record that it was conventional to combine cationic
conditioning agents with non-ionic surfactants (see e.g., FFs 2, 3, 5, and 10)
in cleansing and conditioning shampoos, with the individual components
retaining their respective functions. Moreover, while not mentioned by the
Examiner, nor necessary for our decision, we nevertheless note that Bertho
explicitly teaches that alkyl pentosides can be used in shampoos which also
include “the usual additives” (Bertho, col. 17, ll. 44-48), such as cationic
conditioning agents like “cationic cellulose derivatives (POLYMER JR400®
. . .)” (id. at col. 18, ll. 32-40) (see FF 10).
Inasmuch as there is no evidence on this record that the claimed
combination of conventional, familiar components of conditioning
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