Appeal No. 2001-1489 Page 5
Application No. 09/177,695
the skin treatment regime over Van Scott, Dutch Patent, German Patent and the
Jacqueline Cochran Advertisement. In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d
1443, 1444 (Fed. Cir. 1992).
To meet the burden of establishing a prima facie case of obviousness, we are
directed to Paper No. 5 for the grounds of rejection (see Examiner’s Answer, top of p.
4). We reproduce in its entirety the factual statements in support of examiner’s prima
facie case of obviousness (taken from p. 3 of Paper No. 5):
The instant application is claiming a method for cosmetically improving the skin
using two separate containers where two different compositions are stored, where
the containers are stacked above one another and the colors of the containers are
different ans [sic] applicants are also claiming skin regime product using the above
containers.
DE translated text teaches set of containers for storing cosmetics. See page 3 of
the text, see page 5 see Fig.5.
The Dutch patent also teaches containers for holding toiletry products such as
creams and perfumes. See page 2 last paragraph, page 3, lines 1-10, see page 4
and see the claims. The difference between the references and the instant
application is that the references do not specifically teach the method for improving
skin. The article in the N.Y. Times [Jacqueline Cochran Advertisement] teaches
beauty kit with stack able [sic: stackable] containers which holds different
components [sic: .] Thus the cited art teaches the concept of stack able [sic:
stackable] containers for holding the cosmetics. With respect to claim 9 the Vanscott
[sic: Van Scott] patent teaches treating skin with the active ingredients claimed.
On this basis, examiner (p. 3 of Paper No. 5) concludes:
Accordingly it would have been obvious to one of ordinary skill in the art at the time
the invention was made to use stack able [sic: stackable] containers for holding two
different compositions taught by the translated patents and the article and use to
treat the skin by using the active ingredients of Vanscott [sic: Van Scott] Patent
expecting aesthetic advantage. This is a prima facie case of obviousness.
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