Appeal No. 2002-0441 Page 4
Application No. 09/273,152
Appellants argue that because Greczyn is drawn to a wax based system,
it is not combinable with Lee. We agree.
“In rejecting claims under 35 U.S.C. § 103(a), the examiner bears the
initial burden of presenting a prima facie case of obviousness. Only if that
burden is met, does the burden of coming forward with evidence or argument
shift to the applicant.” In re Rijckaert, 9 F.3d 1531, 1532, 28 USPQ2d 1955,
1956 (Fed. Cir. 1993). The test of obviousness is “whether the teachings of the
prior art, taken as a whole, would have made obvious the claimed invention.” In
re Gorman, 933 F.2d 982, 986, 18 USPQ2d 1885, 1888 (Fed. Cir. 1991).
Lee teaches cosmetic, antiperspirant compositions, while containing a
silicone gel material, contain “no conventional waxy materials.” Id. at Col. 2,
lines 46-47; see also Col. 4, lines 48-52. The cosmetic, antiperspirant
composition of Greczyn, on the other hand, requires in addition to the surface
active agent, “one or more low melting wax-like materials in an amount in total of
from about 12 to 20 percent by weight.” Id. at Col. 5, lines 36-40. Thus, when
the prior art of record is considered as a whole, one of ordinary skill in the art
would not combine the teachings of Lee, which teaches away from the use of
waxy substances, with the teachings of Greczyn, which requires the use of a
waxy substance.
Moreover, as also argued by appellants, Greczyn teaches a broad range
of surfactants, wherein the only criteria used in the choice of the nonionic
surfactant is that it is a non-ionic ether or ester having an HLB value greater than
10. The examiner points to the teaching of polypropyleneglycol-5-ceteth-20
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