Appeal 2007-0321
Application 10/669,547
capsaicin, in LaHann’s compositions demonstrates that it is a chemically
active agent, whereas the lipophilic materials in the claimed process “are
believed to coat the skin thereby serving as a blanket protection against the
subsequent application of caustic depilatory. The depilatory ‘sees’ the
keratin fibers but is shielded by the lipophilic materials from contact with
underlying skin” (Br. 8). Appellants argue that because LaHann “attenuates
irritation through the chemical means of capsaicin” as opposed to using “a
physical blanket of lipophilic materials to separate the harsh depilatory from
the skin but not from the keratin fiber . . .[,] LaHann et al. does not
appreciate the physical approach nor suggest[] using extremely high levels
of lipophilic materials” (id. at 9).
We are not persuaded by these arguments. It is well settled that
“[n]on-obviousness cannot be established by attacking references
individually where the rejection is based upon the teachings of a
combination of references. . . . [The reference] must be read, not in
isolation, but for what it fairly teaches in combination with the prior art as a
whole.” In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
In the instant case, LaHann is relied on in combination with Michaels.
As discussed above, although LaHann does not teach using a composition
containing claim 1’s amount of lipophilic material as a chemical depilation
pretreatment, Michaels discloses that a composition containing lipophilic
material in a percentage very close to that recited in claim 1 has a soothing
effect on skin when used as a paint remover or shaving pretreatment. Thus,
because claim 1 has been rejected over the combination of LaHann and
8
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
Last modified: September 9, 2013