Appeal No. 2006-3254
Application No. 10/347,982
and “free acid” in equilibrium with one another (“partially neutralized
acid”/“free acid” = Ka1/[H+]) and therefore provides a solution containing
“fully neutralized acid,” “partially neutralized acid,” and “free acid.”
Appellants provide no support for their allegations that “free acid can
only co-exist with a partially neutralized salt” and that “[d]ifferences in pKa
would have any alkali first neutralize free acid before it would double
neutralize both carboxylic functions.” We conclude that these unsupported
allegations are insufficient to rebut the Examiner’s prima facie case that
claim 1 would have been obvious.
In addition, Appellants argue that their invention “is directed at
combating the signs of skin aging” and that they “have discovered that
certain salts of malonic acid control [the] formation of fine lines, wrinkles,
sagging, tone and age spots.” (Br. 6.) In particular, Appellants state that
Example 1 of their application shows “that a malonate salt mixture was as
effective as the well known alpha-hydroxy (ammonium glycolate) product.”
(Id.)
In contrast, Appellants argue, Jokura “is focused upon achieving
moisturization. There is no suggestion that their compositions or any of
their components can treat the signs of aging.” (Id.) In addition, Appellants
argue that Günter does not remedy this deficiency. (Br. 8.)
Appellants also argue that “[n]o one had expected a non-alpha-
hydroxy acid to have any anti-aging effect.” (Br. 6.) “[I]t was an
extraordinary discovery that malonic acid salts (which do not have . . . an
alpha-hydroxy group) were found to be as effective.” (Br. 9.) In addition,
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