Appeal No. 2001-1151 Page 4
Application No. 08/605,651
Murphy’s product by encapsulating the perfume or fragrance ingredient with a starch
hydrolyzate acid ester, per the teachings of Morehouse, “to improve stability against
oxidation” (Examiner’s Answer, page 4, second paragraph). By modifying Murphy’s
cosmetic stick product in this manner, the examiner argues, a person having ordinary
skill in the art would have arrived at the subject matter sought to be patented in claim 3.
We disagree.
In our judgment, the examiner’s analysis is flawed. The only apparent reason a
person having ordinary skill would have looked to Morehouse’s technology, to improve
Murphy’s product, is if the perfume or fragrance of Murphy were subject to an
undesirable degree of oxidation. In other words, if the perfume or fragrance ingredient
were subject to oxidation in Murphy’s cosmetic stick product, producing an undesirable
odor, then a person having ordinary skill would have looked to the technology disclosed
by Morehouse to resolve that problem. In that event, it would have been logical to apply
the teachings of Morehouse to encapsulate the perfume or fragrance of Murphy in the
manner proposed by the examiner.
On this record, however, the examiner has not entered a finding that perfume or
fragrance, in the cosmetic stick product of Murphy, is subject to an undesirable degree
of oxidation. Nor is it apparent that this would be the case, in view of the solid organic
matrix disclosed by Murphy. We therefore find that the combination of Murphy and
Morehouse, essential to the rejection of all the appealed claims, is improper. The
remaining references relied on by the examiner, Barr and Deckner, do not cure the
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