Appeal No. 2001-1177 Page 12
Application No. 08/781,868
references of N’Guyen and Burke represents a classic case of hindsight.”
Appeal Brief, page 13. Appellant also argues that “even if such a composition
was to be made, the composition, taken as a whole, would teach nothing about
applicant’s composition.” Id.
This argument is not persuasive. First, Levin teaches that “live yeast cell
derivative” is another name for tissue respiratory factor. See column 1, lines
21-24 (“LYCD as utilized herein . . . is the acronym for Live Yeast Cell Derivative.
The material is also known as . . . Tissue Respiratory Factor (TRF).”). Levin also
teaches that tissue respiratory factor is “suitable for the treatment of various
ailments and physical conditions of the skin such as . . . wrinkles.” Column 1,
lines 65-68. See also column 12, lines 1-62 (headed “Anti-Skin Wrinkling
Compositions”). Thus, we do not agree with Appellant’s characterization of Levin
as limited to compositions for treating pain associated with herpes virus
infections.
Nor do we agree that the references could only be combined with the
benefit of hindsight. As discussed above, all of the references disclose topical
compositions for treating skin aging or a symptom thereof. It would therefore
have been obvious to combine the active ingredients of the three prior art
compositions in order to create a topical composition for treating skin aging
comprising glutathione, selenoamino acids, and tissue respiratory factor. Such a
composition meets all the limitations of claim 43, which is therefore unpatentable
under 35 U.S.C. § 103.
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