Appeal No. 1997-2750
Application 08/191,734
As previously indicated, claims 11 through 22 also would have been prima facie
obvious in view of the combined disclosures of Kligman and the SALCARE SC92
brochure. Again, applicants do not rely on objective evidence of non-obviousness, for
example, a showing of substantial, actual differences in properties between the claimed
composition and closest prior art composition which would serve to rebut the prima facie
case.
Accordingly, we affirm the examiner's decision rejecting claims 11 through 22 under
35 U.S.C. § 103. In so doing, we note that the examiner did not include Kligman in
rejecting these claims and that we rely on the combined disclosures of Kligman and the
SALCARE SC92 brochure. This being the case, we advise applicants that they
may, if desired, treat our “affirmance” of the examiner's rejection of claims 11 through 22
as though it were a new ground of rejection under the provisions of 37 CFR
§ 1.196(b).
Claim 23 depends from claim 4 and recites a topical pharmaceutical composition
wherein the pharmaceutical active is a sunless tanning agent selected from the group
consisting of dihydroxyacetone, indole derivatives, and mixtures thereof. Claim 24
depends from claim 23 and recites that the topical composition further comprises a
sunscreen active. In our judgment, the combined disclosures of the references cited and
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