Appeal No. 2002-0523
Application No. 09/117,918
35 U.S.C. § 103
Claims 7-10, 13, 16-19, 22, 25 and 26 stand rejected under 35 U.S.C. § 103(a)
as obvious over Barsky in view of Menz.
In rejecting claims under 35 U.S.C. § 103, the examiner bears the initial burden
of presenting a prima facie case of obviousness. See In re Rijckaert, 9 F.3d 1531,
1532, 28 USPQ2d 1955, 1956 (Fed. Cir. 1993). It is well-established that the
conclusion that the claimed subject matter is prima facie obvious must be supported by
evidence, as shown by some objective teaching in the prior art or by knowledge
generally available to one of ordinary skill in the art that would have led that individual to
combine the relevant teachings of the references to arrive at the claimed invention.
See In re Fine, 837 F.2d 1071, 1074, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988).
The examiner relies on Barsky for the disclosure of “a process of producing a
modified glyceride oil by reacting a vegetable oil with a triglyceride of one or more fatty
acids having 6-12 carbon atoms...” Answer, page 3. The examiner concludes that the
“composition that is suitable for medicinals and foodstuffs would also be suitable for
cosmetics.” Id. According to the examiner, Barsky does not teach “the ratio of
diglycerides to triglycerides, the amount of monoglycerides, the cloud point, the molar
ratio of vegetable oil, fatty acid and glycerol combination or a cosmetic composition.”
Id.
3
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