Appeal 2007-1135
Application 09/986,264
ordinary skill in the art would have recognized that the subject matter of
claim 52 is taught by the combination of Bechmann, Beck, and
Gruenbacher. See KSR, 127 S. Ct. at 1741, 82 USPQ2d at 1396 (It is proper
to “take account of the inferences and creative steps that a person of ordinary
skill in the art would employ.”). See also id. at 1742, 82 USPQ2d at 1397
(“A person of ordinary skill is also a person of ordinary creativity, not an
automaton.”).
On reflection, we affirm the rejection of claim 52 under 35 U.S.C.
§ 103(a) as unpatentable over the combination of Bechmann, Beck, and
Gruenbacher. Claims 53-57, 64-75, and 77-81 fall together with claim 52.
Claim 58:
Appellant groups and argues claims 58-62 together; therefore these
claims will stand or fall together. 37 C.F.R. § 41.37(c)(1)(vii). Accordingly,
we limit our discussion to representative claim 58. Claim 58 ultimately
depends from and further limits the article of claim 52 by requiring that the
first cosmetic composition is located in a first portion of the first substrate
layer and the second cosmetic composition is located in a second portion of
the first substrate layer.
Appellant asserts that “there is nothing in the combination of cited art
for providing two compositions with different portions of the substrate
layers” (Br. 26). We are not persuaded by Appellant’s argument. In
addition, while Appellant asserts that “[b]ecause the ingredients can be
applied separate from, e.g., a surfactant, the user can better control the
amount of the additional ingredients to be applied . . . ,” this concept is
taught by Beck (FF 8, 11, and 12).
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