Appeal 2007-0321
Application 10/669,547
As stated in In re Oetiker, 977 F.2d 1443, 1445-1446, 24 USPQ2d
1443, 1444-1445 (Fed. Cir. 1992):
[T]he examiner bears the initial burden, on review of the prior
art or on any other ground, of presenting a prima facie case of
unpatentability. If that burden is met, the burden of coming
forward with evidence or argument shifts to the applicant.
. . . .
[T]he conclusion of obviousness vel non is based on the
preponderance of evidence and argument in the record.
We agree with the Examiner that one of ordinary skill would have
considered the method recited in claim 1 prima facie obvious in view of
LaHann and Michaels.
Specifically, LaHann discloses that “[c]apsaicin and/or its salt(s) can
be applied before and/or after treatment of the depilated area with the
thioglycolate depilatory agent to prevent or reduce irritation caused thereby”
(LaHann, col. 2, ll. 47-52). LaHann discloses that the anti-irritant
pretreatment compositions can be in the form of creams that contain “from
about 5% to about 50% . . . of an emollient . . .” (id. at col. 5, ll. 48-51).
LaHann discloses that suitable emollients include mineral oil (id. at col. 3, ll.
40-41).
Michaels discloses that a composition comprising mineral oil and an
emollient has “a soothing effect on skin” when it is used to remove paint
from the skin, or as a shaving pretreatment (Michaels, col. 1, ll. 6-45).
Michaels discloses that “[t]o assist in the deposition of the mineral oil as a
film on the skin, there is added to said oil a minor amount of an anhydrous,
low-molecular weight, monohydric aliphatic alcohol of from one to four
carbon atoms . . .” (id. at col. 2, ll. 37-41). Michaels states that “[i]t is a
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