Appeal No. 95-3981
Application 08/099,880
Rejection Under 35 U.S.C. § 103
The claims on appeal are directed to a composition for forming a peelable
cosmetic mask which comprises a specified polyvinyl alcohol polymer and a specified
hydrophobically-modified acrylate of methacrylate polymer. Appellant has not directly
contested the examiner’s determination that the three references relied upon establish
a prima facie case of obviousness. Rather, appellant’s position in this appeal is
summarized at page 9 of the Appeal Brief as follows:
Appellant has provided comparative experiments to demonstrate the
unexpectedly good results achieved by a combination of PVA and a
hydrophobically-modified acrylate or methacrylate polymer. These
comparative experiments (TABLE II and the Declaration) are considered
by Appellants as overcoming any prima facie case of obviousness.
The examiner’s response to this evidence of nonobviousness is set forth on
pages 5-6 of the Examiner’s Answer as follows:3
Then a declaration was filed under 37 CFR 1.132 on May 2, 1994.
Appellant[’]s position is that the declaration is commensurate with the
scope of the claims. The examiner[’]s position is that in the declaration
the testing is very limited two PVA polymers, namely (i) polyvinyl alcohol
polymer having an average molecular weight of 7000 and (ii) polyvinyl
alcohol polymer having an average molecular weight of 186,000.
However claim 1 is not limited to this [sic, these] specific polymers but a
range of 5,000 to about 200,000.
3The examiner cites the following case at the end of the second paragraph of
this portion of the Examiner’s Answer: “In re Kuelling 15 USPQ (2) 1056.” We have
been unable to locate a case by that name in volume 15 of the USPQ, second series.
3
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