Appeal No. 2001-1242
Application No. 08/530,650
The examiner responds to appellants' arguments regarding lack of motivation,
suggesting that, ?since all the claimed components A-D are taught by Buchalter and the
secondary references are suggestive of the combination of Buchalter’s components in the
instant amounts”, a prima facie case has been established and the motivation for
combination of the references articulated. Answer, pages 6-7.
On the facts and record before us, we find that the examiner has not established a
prima facie case of obviousness. To begin, we find the examiner has mischarac-terized
the disclosure of Buchalter. Buchalter describes an article impregnated with skin-care
formulations comprising an oil phase. The article may include tissue or toilet tissue.
Column 3, lines 27-29. The oil phase which is in the form of a dry non-oily solid carried by
the article of the invention comprises from about 1 to about 99% and preferably from about
30 to about 70% of an oily material and from about 99 to about 1% and preferably from
about 70 to about 30% of an emulsifier. Column 3, lines 30-35. Thus, the formulation of
Buchalter has primarily two components, an oil phase and an emulsifier. Examples of the
oily material include petrolatum. Column 3, line 37. The emulsifying agent may include
anionic emulsifiers, cationic emulsifiers and non-ionic emulsifiers. Examples of
emulsifiers include cetyl alcohol as well as any one of those classified in four listed groups.
Column 3, lines 42-50. These groups include long chain fatty acid partial esters of a
hexitol anhydride, polyoxyalkylene derivatives of any one or any mixture of the indicated
hexitol anhydride long chain fatty acid partial esters, polyoxylalkylene derivatives of glycol
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