Appeal No. 2003-0402
Application No. 09/569,924
softening composition wherein particles formed from the at least one nonionic fabric
softening agent, the at least one anionic surfactant, and the cationic polymer have a net
negative charge and the composition comprises no more than 1% by weight non-polymeric
cationic surfactant and/or cationic fabric softening compounds. The Examiner has argued
that it would have been obvious to make the claimed composition, because WO ‘594 teaches
that all of the ingredients recited by appellants are suitable for inclusion in a surfactant
composition. While WO ‘594 may disclose the components are suitable for surfactant
compositions, there is no disclosure of the charge of the composition. There is no indication
that a composition with a net negative charge would have been suitable for the intended
purpose of the WO ‘594 reference as a personal cleansing composition that demonstrate
excellent skin feel characteristics, good cleansing ability and conditioning performance.
(WO ‘594, p. 4). The Examiner has not provided a reason to provide the composition of
WO ‘594 with a net negative charge. The mere fact that the prior art could be modified as
proposed by the Examiner is not sufficient to establish a prima facie case of obviousness.
See In re Fritch, 972 F.2d 1260, 1266, 23 USPQ2d 1780, 1783 (Fed. Cir. 1992). The
Examiner must explain why the prior art would have suggested to one of ordinary skill in the
art the desirability of the modification. See Fritch, 972 F.2d at 1266, 23 USPQ2d at 1783-
84. The Examiner has not provided such an explanation.
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