Appeal No. 2002-1559 Page 8
Application No. 09/282,708
Brown is relied upon as set forth above, and also for teaching the use of
emulsifiers and cationic polymers. See Examiner’s Answer, page 4.
According to the Examiner’s Answer:
Brown [ ] do[es] not specifically teach shampoo
compositions as claimed in Claim 6. However, the overall
disclosure in Brown [ ] would have suggested to the artisan of
ordinary skill that their compositions could be modified, depending
on the desired properties of the final product. For example, Brown
[ ] teach[es] that “in addition to the above ingredients conventionally
used in products for personal care, the compositions according to
the invention can optionally comprise ingredients such as
colourant, preservative, antioxidant, in amounts which are
conventional in the cosmetics, pharmaceutical etc.” See p.5, line
[sic] 52-54. In addition, Brown [ ] exemplif[ies] a cleanser gel. See
p.10, Example 12.
Therefore, the reference clearly gives one a reasonable
expectation of success for modifying the reference’s composition in
order to make a shampoo composition of the instant invention.
With respect to claim 7 of the instant invention, Brown [ ]
do[es] not teach fatty alcohol. However, Brown [ ] teach[es] fatty
ester (e.g. isopropyl myristate) and oils used for the same art-
recognized purpose as fatty alcohols. Therefore, it would have
been obvious to one of ordinary skill in the art at time of the
invention to employ fatty alcohols with the reasonable expectation
of deriving the same cosmetic effect as set forth in the references.
Id. at 4-5.
Appellants argue that claim 6, which is drawn to shampoos having specific
ranges of surfactant and cationic deposition agent is not suggested by Brown.
With respect to claim 7, appellants argue that while Brown suggests adding fatty
esters, the reference does not teach or suggest the addition of a fatty alcohol.
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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