Appeal No. 1997-3900
Application 08/258,024
BACKGROUND
The invention is described by applicants, at page 1 of the specification, as being
directed to a composition in the form of a stable oil-in-water emulsion which consists
essentially of at least one vegetable oil with a high linoleic acid content, a surface active
agent based on fatty alcohols and of a gelling agent. The composition is stated to be
useful in various cosmetic and dermatological applications.
DISCUSSION
The rejection under 35 U.S.C. § 103
In rejecting claims under 35 U.S.C. § 103, the examiner bears the initial burden of
presenting a prima facie case of obviousness. In re Oetiker, 977 F.2d 1443, 1445, 24
USPQ2d 1443, 1444 (Fed. Cir. 1992). Only if that burden is met, does the burden of
coming forward with evidence or argument shift to the applicants. (Id.) In order to meet that
burden the examiner must provide a reason, based on the prior art, or knowledge
generally available in the art as to why it would have been obvious to one of ordinary skill in
the art to arrive at the claimed invention. Ashland Oil, Inc. v. Delta Resins & Refractories,
Inc., 776 F.2d 281, 297 n.24, 227 USPQ 657, 667 n.24 (Fed. Cir. 1985). On the record
before us, the examiner has not met the initial burden of establishing why the prior art,
relied on, would have led one of ordinary skill in this art to modify the oil-in-water emulsions
of Brancq in a manner to arrive at the presently claimed composition. The examiner
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