Appeal No. 2002-0535 Page 2
Application No. 09/303,413
The references relied upon by the examiner are:
Suffis et al. (Suffis) 5,378,468 Jan. 3, 1995
Wolf et al. (Wolf) 5,443,855 Aug. 22, 1995
GROUND OF REJECTION
Claims 1-25 stand rejected under 35 U.S.C. § 103 as being unpatentable
over Wolf in combination with Suffis.
We reverse.
DISCUSSION
According to the examiner (Answer, pages 3-5), Wolf discloses a
composition that moisturizes skin comprising all of the elements of appellants’
claimed invention but for an inorganic skin protectant, specifically “calamine,
kaolin, zinc oxide or zinc carbonate.” The examiner relies on Suffis to make up
for this deficiency in Wolf. According to the examiner (Answer, page 5), Suffis
disclose “a fragranced ointment comprising zinc oxide (see example H, column
19).” Based on this evidence, the examiner concludes (id.), “[i]t would have been
obvious to one of ordinary skill in the art at the time of the invention to substitute
zinc oxide as taught by … [Suffis] for the inorganic pigment of … [Wolf] with the
reasonable expectation of obtaining a skin care composition with suitable
pigmentation.” The examiner finds that a person of ordinary skill in the art would
have been motivated to combine the references “to obtain skin care
compositions with suitable pigmentation” and/or “to obtain skin care
compositions with the skin protectant properties of zinc oxide.” Answer, bridging
paragraph, pages 5-6.
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