Appeal No. 2002-0099 Page 5
Application No. 08/864,009
DISCUSSION
The examiner argues that Krzysik discloses every feature of the subject matter
sought to be patented in claims 1 through 46 except for a rheologically effective amount
of a solid monocarboxylic acid having a number average molecular weight between
about 300 and about 3,000. According to the examiner, Krzysik’s lipstick products
contain one or more emollients, which are “functionally equivalent” (Paper No. 19, page
6). Turning to the UNICID reference, the examiner notes that UNICID discloses
polymeric carboxylic acids “for use in the cosmetic industry as an emollient.”1 The
examiner argues that a person having ordinary skill would have found it obvious to
substitute UNICID’s polymeric carboxylic acids for any of the “functionally equivalent”
emollients disclosed by Krzysik. As stated in Paper No. 19, paragraph bridging pages 4
and 5, “it would have been obvious to one of ordinary skill in the art to use the emollient
taught by UNICID in the invention of Krzysik to obtain a composition containing an
emollient because emollients are soothing, softening, less harsh and less abrasive to
the skin.” Therefore, in view the combined disclosures of Krzysik and UNICID, the
examiner argues that a person having ordinary skill in the art would have arrived at the
subject matter sought to be patented in claims 1 through 46 including the recited,
effective amount of a solid monocarboxylic acid having a number average molecular
weight between about 300 and 3,000. We disagree.
We first address the examiner’s conclusion that “it would have been obvious to
one of ordinary skill in the art to use the emollient taught by UNICID in the invention of
1 Commercially available high molecular weight solid carboxylic acids having the formula RCOOH,
wherein R is a branched chain or linear saturated hydrocarbyl radical, may be used in applicants’ claimed
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