Appeal No. 2003-0615
Application No. 09/319,165
skin damage.7 Such a substitution would produce the appellants’
claimed invention.
The appellants point out that Tsujino teaches that there is
a tradeoff between dyeing properties and other properties, and
argue that there is no evidence of record that if Andrillon’s
hydrogen peroxide were replaced by Tsujino’s enzyme, the
improvement in other properties would outweigh the resulting
reduction in dyeing properties (brief, pages 12-22).
In support of this argument the appellants rely upon Winner
Int’l Royalty Corp. v. Wang, 202 F.3d 1340, 53 USPQ2d 1580 (Fed.
Cir. 2000), wherein the Federal Circuit held that the district
court did not clearly err in finding that one of ordinary skill
in the art would not have reasonably elected trading the benefit
of security of a dead bolt lock on an automobile steering wheel
anti-theft device for the convenience of a self-locking
ratcheting mechanism. Winner, 202 F.3d at 1349, 53 USPQ2d at
1587. It is significant that the Federal Circuit did not
consider the district court to be in error in finding that the
7 The appellants argue that “no evidence of record indicates
the particular compositions of Andrillon will cause either hair
damage or skin damage” (brief, pages 17-18). That evidence is
provided by Tsujino, who indicates that hydrogen peroxide
inevitably causes hair damage to some degree (col. 3, lines 18-
21).
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