Appeal No. 2001-2395 Page 5
Application No. 09/433,198
a fatty alcohol with 12 to 22 carbon atoms; a cationic surfactant; and water (page 12,
lines 11 through 15). Müller does not describe a hair rinse containing (1) a zwitterionic
polymer, a fatty alcohol, a nonionic surfactant, and water or (2) a zwitterionic polymer,
a fatty alcohol, an alkyl polyglycoside, and water.2
Rejections under 35 U.S.C. § 102 are proper only when the claimed subject
matter is identically described in the prior art. Here, for the examiner's rejection to have
been proper, Müller must clearly and unequivocally disclose the claimed process
without any need for picking, choosing, and combining various disclosures not directly
related to each other by the teachings of the cited reference. Such picking and
choosing may be proper, on the particular facts of a given case, in making a § 103
obviousness rejection; but have no place in making a § 102 anticipation rejection. In re
Arkley, 455 F.2d 586, 587-88, 172 USPQ 524, 526 (CCPA 1972).
The rejection of claims 13 through 19 under 35 U.S.C. § 102(b) as described by
Müller is reversed.
35 U.S.C. § 103(a)
The examiner argues that the process sought to be patented in claims 13
through 19 would have been obvious within the meaning of 35 U.S.C. § 103(a) based
2 As pointed out by the examiner (Answer, page 6, first full paragraph), Müller
discloses that his "alkyl (oligo)-glucosides" are nonionic surfactants. See Müller, page
11, lines 13 and 14.
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