Ex Parte Faryniarz et al - Page 5

                Appeal No. 2006-3254                                                                         
                Application No. 10/347,982                                                                   

                and that these ranges encompass or overlap “with Appellants preferred pH of                  
                from about 4 to about 7.”  (Answer 17.)  The Examiner concludes that “as                     
                Jokura et al. teaches a pH range that meets and/or overlaps with the range                   
                . . . used by Applicants to achieve a ratio of partially to fully neutralized salt,          
                it is considered that the composition of Jokura et al. does have an amount of                
                ‘fully neutralized’ acid salt form present in the solution.”  (Id.)                          
                      The Examiner also argues that it would have been obvious “to vary                      
                and/or optimize the pH and/or the ratio of salt form to free acid form as                    
                taught by Jokura et al. (column 3, lines 50-65) and thus simultaneously vary                 
                and/or optimize the ratio of partially neutralized to fully neutralized salt.”               
                (Answer 17.)                                                                                 
                      The Examiner states that Jokura “does not specifically teach that the                  
                salt of malonic acid is a mono-hydroxy substituted amine salt.”  (Answer 6.)                 
                However, the Examiner states that “Günter teaches compounds that are                         
                suitable for use in cosmetics comprising quaternary ammonium salts of                        
                acids, wherein the ammonium salt is mono-hydroxy substituted (see abstract                   
                and formula (1) . . .),” and “that the mono-hydroxy substituted quaternary                   
                salts can be formed with an organic acid, such as a di-carboxylic acid having                
                from 1 to 4 carbon atoms (see column 2, lines 15-28 . . . ).”  (Answer 6.)                   
                The Examiner concludes that “one of ordinary skill in the art would have                     
                been motivated to provide [the] quaternary mono-hydroxy substituted                          
                ammonium salts of Günter et al. as the salts of malonic acid in the cosmetic                 
                composition of Jokura et al, with [the] expectation of providing a quaternary                
                mono-hydroxy substituted ammonium salt of a malonic acid that is suitable                    
                for cosmetic use.”  (Answer 7.)                                                              


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