Appeal No. 96-0419
Application No. 07/928,063
to application of liquid No. 2 containing the oxidizing agent and the chlorophyll (see Amari
pages 36), we agree with appellant that Amari fails to disclose or suggest including chlorophyll
as part of liquid No. 1 containing the reducing agent or as part of the permanent waving method’s
reducing step (Brief, page 10). Secondly, the examiner has not presented evidence or a reasoned
statement as to why one of ordinary skill in the art would have reasonably expected chlorophyll to
provide the same benefits in a reducing environment which is not only chemically opposite the oxidizing
environment described by Amari, but also designed to have the opposite effect on hair, i.e., breaking S-
S bonds rather than reforming S-S bonds in hair keratin, as argued by appellant (Brief, page 11; Reply
brief, pages 4-5). Finally, there is no evidence of record disclosing or suggesting that chlorophyll is a
conventional hair conditioner. Notably, the
examiner does not rely on Merck for disclosing or suggesting that chlorophyll should be included in a
permanent waving solution or used as a hair conditioner. Thus, we agree with appellant that Merck4
does not cure the deficiencies of Amari (Brief, page 10).
Therefore, we find that the examiner has relied on impermissible hindsight in making her
determination of obviousness. W.L. Gore & Assoc. v. Garlock, Inc., 721 F.2d 1540, 1553, 220
USPQ 303, 312-13 (Fed. Cir. 1983), cert. denied, 469 U.S. 851 (1984). Accordingly, the rejection
4 Merck discloses that commercial chlorophyll is used as colorants, color film sensitizers, antiknock agents
in gasoline, rubber vulcanizing accelerators and in deodorants (page 275, col. 1).
6
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