Appeal No. 2002-0608 Page 6
Application No. 09/294,173
The rejection asserted that 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. The examiner,
however, provided no evidence to support that statement, and such conclusory
statements are not sufficient to support a prima facie case of obviousness. See
In re Lee, 277 F.3d 1338, 1343-44, 61 USPQ2d 1430, 1433-34 (Fed. Cir. 2002)
(in reviewing an obviousness rejection, the court noted that “conclusory
statements” as to teaching, suggestion or motivation to arrive at the claimed
invention “do not adequately address the issue.”).
CONCLUSION
Because the rejection fails to set forth a prima facie case of obviousness,
we reverse.
REVERSED
Toni R. Scheiner )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
Donald E. Adams )
Administrative Patent Judge ) APPEALS AND
)
) INTERFERENCES
)
Lora M. Green )
Administrative Patent Judge )
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