Appeal No. 2002-0089
Application No. 09/331,647
determine the appropriate amount of phase-inversion emulsion to be added to the personal
cosmetic composition such that the refatting properties of the cosmetic are enhanced.
Specifically, the examiner has failed to sufficiently demonstrate that one skilled in the art would
not be able to determine the amount of emulsion necessary to bring about an enhancement of the
refatting properties of the cosmetic.
b. The Rejections under U.S.C. § 102
1. The Rejection over Schambil
Claims 8-12 and 14-19 stand rejected under 35 U.S.C. § 102(b) as anticipated by
Schambil. According to the examiner, Schambil teaches a process for producing an oil-in-water
emulsion having 12.5 to 50 wt% of a wax ester, a triglyceride, mono- or diesters and water.
(Examiner’s Answer, p. 4). Schambil is said to teach the use of the emulsion in cosmetic
compositions.
Appellants argue that Schambil fails to anticipate the claimed invention as Schambil fails
to teach all of the claimed limitations. Specifically, appellants argue that Schambil teaches that
the use of the triglyceride is optional and that Schambil does not disclose the claimed 30 to 40%
by weight wax ester. (Reply Brief, Paper No. 14, p. 4).
While anticipation requires that each limitation of a claim be found in a single reference,
“the disclosure of a small genus may anticipate the species of that genus even if the species are
not themselves recited.” Bristol-Myers Squibb Co. v. Ben Venue Laboratories, Inc., 246 F.3d
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