Appeal No. 2002-0099 Page 6
Application No. 08/864,009
Krzysik to obtain a composition containing an emollient because emollients are
soothing, softening, less harsh and less abrasive to the skin” (Paper No. 19, paragraph
bridging pages 4 and 5). That conclusion, we believe, is an example of ipse dixit
reasoning. After all, the lipstick products of Krzysik already contain one or more
emollients. See column 2, lines 44 through 64, disclosing numerous emollient oils
which may be employed in Krzysik’s “lip care cosmetic composition.” Where, as here,
Krzysik discloses numerous emollient oils for use in lipstick products, it is unclear why a
person having ordinary skill would have wanted to use the particular emollient of
UNICID in the lipstick of Krzysik “to obtain a composition containing an emollient.”
Again, the lipstick products of Krzysik already contain one or more emollients which,
according to the examiner, “are soothing, softening, less harsh and less abrasive to the
skin.”
Second, as pointed out by applicants, Krzysik discloses the use of emollient oils
in a lip care cosmetic composition (column 2, lines 44 through 64). UNICID discloses a
solid monocarboxylic acid for use in the cosmetics industry as an emollient. Applicants
argue, and it stands to reason, that “[t]he use of a solid emollient, rather than a liquid
emollient, in the Krzysik composition presents significant challenges associated with
solubility and homogeneity” (Paper No. 18, page 8, last paragraph). On this record, the
examiner does not adequately address that argument. The examiner does not establish
adequate reason, suggestion, or motivation stemming from the prior art which would
have led a person having ordinary skill to use the solid emollient of UNICID rather than
invention. Such carboxylic acids are sold by Petrolite Polymers Division of Petrolite Corporation as
UNICID carboxylic acids. See the instant specification, page 5.
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