Appeal 2007-0321
Application 10/669,547
As noted above, Michaels discloses that a skin-soothing composition
can contain up to “about 85% of the mineral oil” (id. at 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. In our view, one of ordinary skill, being a
person of ordinary creativity, would have inferred from the qualifying
“about” language that a composition having slightly greater than 85%
mineral oil, such as the claimed 90%, would also have skin-soothing
properties. Moreover, in view of LaHann’s disclosure that chemical
depilatories can cause irritation that can be alleviated by pretreatment with
compositions having up to 50% lipophilic emollients, we agree with the
Examiner that one of ordinary skill would have considered it obvious to pre-
treat a chemical depilation site with a composition having 90% lipophilic
material.
We therefore agree with the Examiner that LaHann and Michaels
would have rendered claim 1 prima facie obvious to one of ordinary skill,
and affirm the Examiner’s rejection of claim 1 over those references.
Claims 2-6, 10, and 11 fall with claim 1 because they were not argued
separately. 37 C.F.R. § 41.37(c)(1)(vii).
Appellants argue claim 16 separately (Br. 11-12). Claim 16 recites
“[t]he method according to claim 1 wherein the skin pretreatment
composition consists essentially of from 90 to 100% of lipophilic materials
by weight of the pretreatment composition, the lipophilic materials
protecting skin from redness/erythema.” Appellants argue that the Examiner
should not have interpreted the transitional phrase “consisting essentially of”
in the same manner as the term “comprising” because the clinical trials in
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