Appeal No. 2002-2036
Application 09/486,558
adding a diaminopyrazole to the dye composition of Kalopissis.1
(answer, page 4).
Appellants argue that Clausen teaches away from a dye
composition having both p-aminophenol and diaminopyrazole because
Clausen teaches that diaminopyrazole is superior to p-aminophenol
(e.g., that 4-aminophenol has been criticized for not being
physiologically tolerated)2, and because Kalopissis states that
p-aminophenol (or another of the specifically identified bases)
is essential in the dye composition of Kalopissis. (brief, pages
6-8 and reply brief, page 5).
1 We note that appellants provide arguments at length about
inconsistencies in the examiner’s position regarding whether the
diaminopyrazole is substituted for the p-aminophenol of Kalopissis or
added in combination with the p-aminophenol of Kalopissis. Our focus
in this decision is on the teachings of the applied art and therefore
we address these arguments indirectly by our discussion of the
teachings of the applied art. In this context, we note that, as
mentioned, supra, Kalopissis states that a heterocyclic oxidation base
such as 2,5-diaminopyridine or 2-hydroxy-5-aminopyri can be used
rather than a paraphenylenediamine or a paraaminophenol. Under this
circumstance, the addition of “several oxidation bases” such as
diaminopyrazole, rather than the substitution of p-aminophenol with
diaminopyrazole, is a viable suggestion found in the combination of
applied art. Alternatively, if the selection from Kalipissis is
paraphenylenediamine or a paraaminophenol, because Kalopissis teaches
that other oxidation bases can be added, the addition of “several
oxidation bases” such as diaminopyrazole, is also a viable suggestion
found in the combination of applied art, and we also refer to our
reasonings set forth, infra on this issue.
2 Appellants argue that a dye composition having p-aminophenol would be
toxic. However, given the fact that both Kalopissis and Clausen
indicate the use of a dye composition having p-aminophenol or 4-
aminophenol, we are uncertain whether the level of toxicity is such
that this compound would be banned from a dye composition. In view of
the fact that appellants have not provided evidence showing that the
level of toxicity is such that this ingredient absolutely cannot be
used in a dye composition, we rely upon the facts set forth in the
applied references which are that p-aminophenol is used in a dye
composition and that 4-aminophenol has been criticized for not being
physiologically tolerated.
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