Appeal 2007-0321
Application 10/669,547
good practice to employ . . . from about 15 to 25% of the anhydrous alcohol
in conjunction with from about 75 to about 85% of the mineral oil” (id. at
col. 2, ll. 42-45). Michaels states that other additives,“[f]or instance,
emollients, such as lanolin . . ., can all be added in small amounts not to
exceed 3% by weight of each component added as specified hereinabove”
(id. at col. 2, ll. 54-63).
We agree with the Examiner that one of ordinary skill, advised by
LaHann that the irritation caused by chemical depilatories can be
ameliorated by pre-treating skin with a composition containing up to 50%
lipophilic emollients, and being further advised by Michaels that a
composition having as much as 87% lipophilic material has a soothing effect
on the skin when used as a shaving pretreatment or paint remover, would
have considered it obvious to pre-treat an area to be chemically depilated
with a composition having high amounts of lipophilic materials, such as
Michaels’ skin-soothing composition. We also agree with the Examiner that
it would have been obvious to include 90% lipophilic materials in Michaels’
compositions, in view of Michaels’ teachings that the skin-soothing
composition may contain “about 85% of the mineral oil” (Michaels, col. 2,
ll. 44-45, emphasis added) and as much as 2-3% (id. at col. 1, l. 19; col. 2, ll.
61-62) of an emollient such as lanolin. It is well settled that determining the
optimal value of a result-affecting variable is normally obvious, unless the
claimed process condition produces an unexpected result. See Pfizer Inc. v.
Apotex Inc., 480 F.3d 1348, 1368-69 (Fed. Cir. 2007).
Appellants argue that LaHann differs fundamentally from the claimed
process because the relatively low concentration of the active ingredient,
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