Appeal No. 1996-2731
Application No. 08/240,862
21. A water-based hair preparation containing as its essential cosmetically
active ingredients from about 78.1 to about 60.6 weight percent of hydrolyzed wheat
protein and wheat oligosaccharide, from about 6.3 to about 12.1 weight percent of wheat
amino acids, from 15.6 to about 24.3 weight percent panthenol; and from about 0 to about
3 weight percent of panthenyl ethyl ether.
The references relied upon by the examiner are:
Maes et al. (Maes) 4,705,681 Nov. 10, 1987
Syed et al. (Syed) 5,348,737 Sep. 20, 1994
(filed July 21, 1993)
BROOKS INDUSTRIES inc. (Brooks), Cosmetic Ingredients & Ideas®, “PLANT
PROTEINS, Versatile Alternative Cosmetic Grade Proteins”, (Spring 1992).
GROUNDS OF REJECTION ON APPEAL
Initially, we note that the issue of whether the examiner properly required appellant to
cancel “new matter” from the specification relates to a petitionable matter and not to an
appealable matter. See, In re Hengehold, 440 F.2d 1395, 169 USPQ 473 (CCPA 1971),
see also, MPEP § 1002.02(c), item 3(b). Accordingly, we will not review this issue raised
by appellant on pages 5-7 of the brief. We further note the examiner’s statement at page 4
of the Examiner’s Answer (Paper No. 12, mailed September 25, 1995), “[c]laim 13 is
allowable of the prior art of record. Claims 17 and 18 are objected to as being dependent
upon a rejected base claim.” Therefore, we will not address claims 13, 17 and 18. In
addition, we note that the examiner withdrew the final rejection of claims 1-18 under 35
U.S.C. § 112, first paragraph, as the disclosure is enabling only for claims limited to the
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