Appeal No. 2002-0608 Page 3
Application No. 09/294,173
surfactant and a cationic deposition polymer, and teaches the use of a blend of
emulsified particles, wherein the particles have an average particle size of less
than about 2 microns and an average particle size of greater than about 5
microns.
The rejection concludes:
Neither Reid nor Baravetto teach a blend (two components)
of silicone particles with the claimed average particles of 0.15 to 30
microns and less than 0.10 microns. However, the prior art
recognizes the combination of cationic deposition polymers,
cleansing surfactants, and emulsified silicone particles in aqueous
shampoo formulations. The prior art recognizes that the
combination improves hair conditioning effects in shampoo
compositions. As to the emulsified silicone particles, such
preformed silicone microemulsions are commercially available as
conditioning additives in shampoo compositions, and one of
ordinary skill in the art would have expected similar conditioning
results with one or more of these silicone microemulsions. Further,
the selection of an optimal species to obtain the art recognized
effect (i.e. improving the conditioning of the hair during a shampoo
treatment) is within the ambit of ordinary skill in the art.
Examiner’s Answer, pages 3-4.
Appellants argue that Reid taken by itself does not teach or suggest a
dual particle size composition. See Appeal Brief, page 12. Appellants argue
that Baravetto does not remedy the deficiency because Baravetto
makes no disclosure or teaching of the use of a microemulsion of
0.10 micron particle size or less in conjunction of another emulsion
of particles of 0.15 to 30 microns. In fact, Baravetto, which recites
a number of varying particle size ranges at column 11, lines 35-58,
never captures the presently recited ranges of particle sizes.
Appeal Brief, page 13. We agree.
The burden is on the examiner to make a prima facie case of
obviousness, and the examiner may meet this burden by demonstrating that the
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