Appeal No. 1998-0654
Application No. 08/522,874
aqueous composition comprising equivalent anionic
surfactants and hair styling polymers yield a
shampoo with both cleansing and hair setting
characteristics.
See page 4 of Answer, second full paragraph. In a somewhat
different approach, the examiner concludes that "[i]t would
have been obvious to incorporate the water-insoluble polymer
particles of Tsaur et al[.] into the aqueous shampoo of
Gerstein to provide a composition with superior hair setting
by virtue of the interaction between the hair fixative polymer
and water-insoluble polymer particle latex" (page 4 of Answer,
last paragraph).
We do not subscribe to the examiner's rationale for the
following reasons. First, if it is the examiner's position
that Gerstein discloses hair styling polymers that are
equivalent to the latex particles of Tsaur, and this is not
clear from the Examiner's Answer, the examiner has not
established on this record such an equivalency in the shampoo
art. In any event, the examiner's conclusion of obviousness
is based on what could have been performed by one of ordinary
skill in the art rather than on the requisite suggestion in
the disclosures of Tsaur and Gerstein. In re Gordon, 733 F.2d
-5-
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