Appeal 2007-1156
Application 10/459,070
Claims 1, 2, 11, and 13-18 stand rejected under 35 U.S.C. § 103(a) as
being obvious over the combination of Trinh, Franklin, Ha, and Rerek.
The Examiner’s rejection is set forth at page 14-17 of the Examiner’s
Answer. We find, however, that the Examiner has not set forth a prima facie
case of obviousness, and the rejection is reversed.
Specifically, the Examiner relies on Ha and Rerek to meet the claim
limitation of a crystalline gel structurant comprising a surfactant and a co-
surfactant, wherein the structurant is nonionic and the surfactant comprises
“a C1-C200 polyethoxy or polypropoxy alcohol ester of a C10-C22 fatty acid
and the co-surfactant comprising a mixture of C10-C22 fatty alcohol, a
glyceryl ester of a fatty acid and a C10-C22 unesterified fatty acid.”
The non-ionic surfactant-co-surfactant system of claim 1 thus also
requires four components: 1) a C1-C200 polyethoxy or polypropoxy alcohol
ester of a C10-C22 fatty acid; 2) a C10-C22 fatty alcohol; 3) a glyceryl ester of
a fatty acid; and 4) C10-C22 unesterified fatty acid.
Ha is relied upon by the Examiner as set forth above (Answer 14-15).
In particular, according to the Examiner, Ha teaches “that the emulsion
composition can comprise a surfactant such as PEG-100 stearate, which is a
C1-C200 polyethoxy or polypropoxy alcohol ester of a C10-C22 fatty acid”
(component 1, a C1-C200 polyethoxy or polypropoxy alcohol ester of a C10-
C22 fatty acid) (id. at 15). The Examiner thus asserts Ha teaches “providing
the nonionic surfactant recited in claim 1 in the composition,” i.e., Ha
teaches component 1 of the nonionic surfactant of claim 1. (Id.) The
Examiner notes that Ha, as combined with Trinh and Franklin, does not
teach “a composition comprising the specific nonionic co-surfactant mixture
of claim 1.” (Id.)
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