Appeal No. 2001-1242
Application No. 08/530,650
According to the examiner, Buchalter discloses (Answer, page 3):
formulations for treating tissue papers. The formulations comprise
petrolatum (instant A), fatty alcohols (instant B), sorbitan esters (instant C)
and dioctyl sodium sulphosuccinate (instant D).... As is evident from column
3, line 30 et seq., the oily component which includes petrolatum and
isopropyl palmitate (a fatty acid ester) is from 1-99 %) and the emulsifier’s
amount is from 1-70%. Buchalter however, does not teach the amounts of
specific surfactants. In the absence of a showing of unexpected results, the
amounts are deemed to be parameters which an artisan manipulates to
obtain the best possible results. An artisan would be motivated to use the
instant amounts, particularly in view of Dake and Lavash who teach the use
of the combination of emollients and surfactants in instant amounts for
treating tissue papers (note the abstract, columns 9-10 and examples of
Dake; column 6 and examples of Lavash.)
The examiner also acknowledges that none of the references teach silicone
polyethers as the additional surfactant (Claims 22 and 24). However, the examiner
argues the references teach generic surfactants and the use of an art known surfactant
would be obvious to an artisan with the expectation of similar results.
In response to this rejection, appellants argue that the examiner has failed to
establish a prima facie case of obviousness as the examiner has failed to identify the
motivation for combining the various teachings within the Buchalter reference to arrive at
appellants’ claimed invention. Appellants punctuate this point arguing, ?there was simply
no motivation in any of the these references to combine two surfactants within the
descriptions of Appellants' components (C) and (D). And finally there was no motivation to
combine this surfactant system with an emollient and an immobilizing [agent] per the
limitations of Appellants' claims.” Brief, page 6.
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