Appeal No. 2002-1559 Page 7
Application No. 09/282,708
Appeal Brief, pages 12-13. Appellants conclude that Brown does not disclose all
the categories of final products to which it makes reference, therefore it does not
fairly disclose the claimed compositions. See id. at 13.
We agree that Brown would fairly anticipate those other products if all that
those products required was the gel composition taught by Brown. If the claim
required additional ingredients, the burden would be on the office to demonstrate
that the inclusion of those additional ingredients would have been obvious to one
of ordinary skill in the art.
Moreover, Appellants appear to be arguing that the only way Brown could
anticipate the claimed hair treatment composition is if it specifically provided an
example of such a hair care composition. A reference need not have reduced to
practice an invention, however, in order to serve as an anticipatory reference.
See In re Siveramakrishnan, 673 F.2d 1383, 1384, 213 USPQ 441, 442 (CCPA
1982); In re Donohue, 766 F.2d 531, 533, 226 USPQ 619, 621 (Fed. Cir. 1985).
The rejection of claims 1, 2, 3, 10 and 14 under 35 U.S.C. § 102(b) over
Brown is therefore affirmed.
2. Rejection under 35 U.S.C. § 103(a) over Brown
Claims 6 and 7 stand rejected under 35 U.S.C. § 103(a) as being obvious
over Brown.
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