Appeal No. 2002-1559 Page 5
Application No. 09/282,708
of separate gel particles which have been formed by subjecting the polymer to
shear while gel formation takes place, with a second phase therein. See claim 1.
Brown, as set forth by the rejection, teaches “a liquid-based composition
comprising at least one gelling polysaccharide capable of forming a reversible
gel,” and also teaches that the composition can comprise two or more phases.
See Brown, pages 2 and 4. Thus, Brown teaches all of the components required
by the claimed composition.
Appellants do not argue that Brown does not teach a composition
comprising a first phase comprising at least one naturally derived polymer which
is capable of forming a reversible gel, which polymer is present in the
composition as a shear gel having a multiplicity of separate gel particles which
have been formed by subjecting the polymer to shear while gel formation takes
place, with a second phase therein. Rather, appellants argue that while Brown
states that the gel composition may be used to create a product for personal
care, such as a hair gel, Brown teaches that such products may be obtained if
the right ingredients are added thereto, and Brown fails to teach what those right
ingredients may comprise.
This argument is not found to be convincing because the claim only
requires the gel composition, and does not require those other “right ingredients.”
The statement in the preamble of “[a] hair treatment composition”
Moreover, even if we were to read the preamble as breathing life into the
body of the claim, Brown, although admittedly teaching the use of the gel
composition in a broad range of products, specifically teaches that the gel
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