Appeal No. 2001-2395 Page 6
Application No. 09/433,198
on teachings found in Müller. We disagree.
Müller does not disclose or suggest applicants' water-based composition, recited
in each claim on appeal. On the contrary, Müller discloses, in relevant part, hair rinses
containing a zwitterionic polymer; a fatty alcohol with 12 to 22 carbon atoms; a cationic
surfactant; and water (page 12, lines 11 through 15). Müller does not disclose or
suggest an aqueous preparation for cleaning and care of hair containing a zwitterionic
polymer; a fatty alcohol; an alkyl polyglycoside; and water. Again, as pointed out by the
examiner, Müller discloses that "alkyl(oligo)-glucosides" are nonionic surfactants. See
footnote 1, supra. It is only with the benefit of hindsight, we believe, using applicants'
specification as a blueprint, that a person having ordinary skill would have arrived at the
water-based composition recited in claims 13 through 19.
For these reasons, we conclude that the examiner failed to establish a prima
facie case of obviousness of claims 13 through 19 over Müller. We find it unnecessary
to discuss the Hensen declaration, filed under the provisions of 37 CFR § 1.132, relied
on by applicants as rebutting any such prima facie case.
The rejection of claims 13 through 19 under 35 U.S.C. § 103(a) as unpatentable
over Müller is reversed.
Other Issue
One further matter warrants attention.
On return of this application to the examining corps, we recommend that both
applicants and the examiner re-evaluate the patentability of claims 13 through 19 in
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