Appeal 2007-0849
Application 10/106,649
prior art) (citing In re Cruciferous Sprout Litig., 301 F.3d at
1351; MEHL/Biophile, 192 F.3d at 1366).
Perricone, 432 F.3d at 1376, 77 USPQ2d at 1326.
On this record, the claimed method requires a single step - adding an
anti-microbial composition that contains at least 30% by weight of one or
more active perfuming ingredients to a personal care article or functional
product.3 As discussed above, Hill teaches this method. Specifically, Hill
adds a composition that contains at least 30% by weight of n-nonanal to a
personal care article or a functional product. Stated differently, Hill teaches
the addition of the same composition to the same article or product as set
forth in Appellant’s claim 18. The only difference is that Hill does not
expressly teach that this method will impart or enhance the anti-microbial
activity personal care article or a functional product. However, we find that
whether or not a person of ordinary skill in the art would have appreciated it,
when a composition that contains at least 30% by weight of n-nonanal is
added to a personal care article or functional product as taught by Hill, the
composition will inherently impart an anti-microbial activity on or enhance
the anti-microbial activity of the article for personal care or functional
product. Accordingly, absent evidence to the contrary, of which there is
none, the method taught by Hill is inherently the same as and therefore
anticipates Appellant’s claimed method.
We recognize Appellant’s assertion that “[i]mparting an aroma and
imparting or enhancing an anti-microbial activity are two completely
different and unrelated uses, and neither use is obvious in view of the other”
3 The remainder of the claim, defines the activity of the anti-microbial agent
and how this activity is to be determined.
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