Appeal No. 1997-0003
Application No. 08/342,614
to the treatment of psoriasis and other skin diseases would have been suggested the
treatment of seborrhea to those of ordinary skill in the art. We further direct attention to our
discussion with respect to claim 32 and Biener’s express teaching of the treatment of
acne. Biener, col. 3, lines 28-31.
Claims 22 and 35 are directed to a method of treating acne or seborrheic
dermatitis using compositions having the limitations of claims 21 and 34 and which further
comprise surface active agents. Claim 22 further requires the presence of sufficient
surface active agents to form a shampoo. Here, we agree with the appellant that
shampoos and surface active agents are not expressly disclosed by Biener; however, as
discussed above, a reference must also be considered in light of what it would have fairly
suggested to those of ordinary skill in the art. In re Betz, 418 F.2d at 947, 163 USPQ at
695 (CCPA 1969). Here, because one common location for the occurrence of seborrheic
dermatitis is the scalp, we find that the suggested use of the claimed compounds for
seborrhea by Biener would have fairly suggested the addition of surface active agents for
topical application as a shampoo.
The appellant argues that Biener discloses a composition which is analogous to the
composition of Dead Sea water and the use of said composition to treat psoriasis. Brief,
p. 4. According to the appellant, one of ordinary skill in the art would not look to the Biener
composition and expect it to be useful for the treatment of acne or seborrheic dermatitis.
Id., p. 5. The appellant relies on the declaration of Dr. Peter which states that he has not
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