Appeal No. 1997-3900
Application 08/258,024
[I]t would have been obvious to one having ordinary skill in the
art at the time of the invention to select the claimed vegetable
oils for use in the Brancq emulsion with the reasonable
expectation of deriving a cosmetic composition with emollient
properties. The motivation lies in the selection of species
within the Brancq generic disclosure in view of the disclosed
use and advantage of such species by the secondary
references. While the primary reference includes fatty
alcohols, it would have been within the skill of the art to include
a fatty acid or fatty alcohol as the claimed “coemulsifier” in
view of the disclosed use of such as either emulsifiers or
emollients by the secondary references. The motivation lies in
achieving an emollient or additive emulsifier effect. The
inclusion of a gelling agent within Brancq is also within the skill
of the art in view of the secondary reference teaching of the
thickening ability and conventional use of such. [Examiner's
Answer, pp. 4-5]
What is missing from the examiner's discussion of the rejection are those facts or
evidence which would have directed one or ordinary skill in this art to modify the teaching
of Brancq in the manner required to arrive at the claimed invention. As urged by appellants
(Principal Brief, page 7):
In order to arrive at the presently claimed composition,
starting from example 3 of Brancq et al, one of ordinary skill in
the art would have had to, at a minimum, take the following
steps:
Step 1: increase the amount of vegetable oil, i.e., of
sweet almond oil of Brancq et al, from 5% up to an amount
between 15-50% by weight.
Step 2: replace the sweet almond oil by the same
amount of a vegetable oil containing at least 40% linoleic acid
triglycerides.
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