Appeal No. 2002-1559 Page 10
Application No. 09/282,708
Similarly, with respect to claim 7, the rejection does not address the
limitation of the amount of cationic surfactant in the hair treatment composition
as required by the claim, nor did it address the amount of fatty alcohol as set
forth by the claim. Again, all we have is the conclusory statement of the
examiner, with no supporting evidence, that the disclosure of Brown teaches the
use of fatty esters and oils “used for the same art-recognized purpose as fatty
alcohols,” and that “it would have been obvious to one having ordinary skill in the
art at the time of the invention to employ fatty alcohols with the reasonable
expectation of deriving the same cosmetic effect as set forth in the references.”
Examiner’s Answer, page 5.
Therefore, because the rejection fails to set forth a prima facie case of
obviousness, the rejection of claims 6 and 7 under 35 U.S.C. § 103(a) over
Brown is reversed.
3. Rejection under 35 U.S.C. § 103(a) over Brown and Vermeer
Claims 4, 5 and 9 stand rejected under 35 U.S.C. § 103(a) as being
obvious over the combination of Brown and Vermeer.
Again, we note that appellants assert that claim 9 does not stand or fall
with claims 4 and 5. See Appeal Brief, page 11. Appellants, do not, however,
separately argue the patentability of those claims, so we focus our analysis on
claim 4.2 See 37 CFR 1.192(c)(7); see also In re Dance, 160 F.3d 1339, 1340
n.2, 48 USPQ2d 1635, 1636 n.2 (Fed. Cir. 1998) (noting that dependent claims
2 Claim 9 is dependent on claim 4.
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 Next
Last modified: November 3, 2007