Appeal No. 2001-1177 Page 11
Application No. 08/781,868
different use, and therefore claim 35 is unpatentable under 35 U.S.C. § 103.
Claims 37, 38, and 44 fall with claim 35.
B. N’Guyen, Burke, and Levin
The examiner rejected claim 43 as obvious over N’Guyen, Burke, and
Levin. Claim 43 is directed to the composition of claim 35, with the additional
component tissue respiratory factor. As the examiner noted, Levin teaches
topical compositions comprising tissue respiratory factor for treating skin
wrinkles, among other things. See Levin, column 1, lines 34-35 and 65-68. The
examiner concluded that it would have been obvious to combine the tissue
respiratory factor disclosed by Levin with the composition comprising glutathione
and selenoamino acids taught by the combination of N’Guyen and Burke.
We agree. Levin teaches that tissue respiratory factor is useful in treating
skin wrinkles, and Burke teaches that wrinkles are one of the symptoms of
photoaging. Thus, it would have been obvious to combine Levin’s tissue
respiratory factor with the composition suggested by N’Guyen and Burke. See
Kerkhoven, 626 F.2d at 850, 205 USPQ at 1072 (“It is prima facie obvious to
combine two compositions each of which is taught by the prior art to be useful for
the same purpose, in order to form a third composition which is to be used for the
very same purpose.”).
Appellant argues that “Levin teaches a topical composition including an
anti-inflammatory agent and live yeast cell derivative to ameliorate the neuralgic
pain associated with herpes infection when applied to an area of the skin
proximate the pain. Once again, the combination of Levin with the principal
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