Appeal No. 2002-0089
Application No. 09/331,647
however, does not expressly disclose the specific combination of appellants’ claimed invention
of a wax ester in combination with a triglyceride, a partial triglyceride and a fatty alcohol
polyglycol ether. Given the picking and choosing among the various waxes and oils, Wahle does
not “clearly and unequivocally” direct those skilled in the art to appellants’ claimed invention.
Accordingly, we reverse the examiner’s rejection of claims 8-12 and 14-19 as anticipated by
Wahle.2
c. The Rejection under U.S.C. § 103(a)
Claims 8-20 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Schambil.
According to the examiner, Schambil teaches all the limitations contained in appellants’ claims
with the possible exception of adding the emulsion to a cosmetic composition. The examiner
holds that it would have been obvious to one skilled in the art to add the emulsion of Schambil to
a cosmetic composition to produce a cosmetic composition with increased stability and low
viscosity. (Examiner’s Answer, p. 7).
Appellants state that Schambil teaches 25 to 50% wax ester when using the minimum
amount of water disclosed in the Schambil reference. Yet, appellants argue that Schambil does
not render the claimed invention obvious as Schambil fails to teach or suggest using the claimed
wax ester in an amount of 30 to 40% by weight of the emulsion. (Brief, pages 7-8 and Reply
2It may well be that the claims are unpatentable under 35 U.S.C. §103(a) over Wahle.
Such a rejection, however, is not before us. Upon consideration of this decision, the examiner is
free to make such a rejection if it is deemed appropriate.
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