Appeal No. 2001-1151 Page 3
Application No. 08/605,651
DELIBERATIONS
Our deliberations in this matter have included evaluation and review of the
following materials:
(1) the instant specification, including all of the claims on appeal;
(2) applicants’ Appeal Brief (Paper No. 20);
(3) the Examiner’s Answer (Paper No. 21); and
(4) the above-cited prior art references.
On consideration of the record, including the above-listed materials, we reverse the
examiner's rejections under 35 U.S.C. § 103.
DISCUSSION
We agree with the examiner’s finding that Murphy here constitutes the closest
prior art. Murphy discloses every feature of the subject matter sought to be patented in
claim 3 except the limitation “(2) between about 0.1-20 weight percent of discrete
crystallites of a fragrance ingredient; and wherein the crystallites are in the form of
polymer surface-coated particles.” As pointed out by the examiner, a perfume or
fragrance may be included in the cosmetic stick product of Murphy (column 7, lines 14
through 18; column 9, lines 51 through 57; column 10, lines 20 through 23; column 10,
lines 27 through 48). Murphy does not, however, disclose discrete crystallites of a
fragrance ingredient where the crystallites are in the form of polymer surface-coated
particles.
In an effort to bridge that gap, the examiner relies on Morehouse. The examiner
argues that a person having ordinary skill would have been motivated to modify
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