Appeal No. 2003-0824 Page 5
Application No. 09/713,974
In addition, while Sampino teaches that the disclosed lotion can comprise
other “non-essential ingredients”, those ingredients do not include irritation
reducing agents. See column 2, lines 50-52 (“preservatives . . ., fragrances,
emulsifiers, colors, and surfactants (shampoo).”). Thus, Sampino does not
suggest adding an irritation-reducing agent to the disclosed composition.
And, even if a skilled artisan would have been motivated to add an
irritation-reducing agent to Sampino’s shaving lotion, the examiner has not
adequately shown that it would have been obvious to choose one of those
disclosed by Sine. Sine lists chitosan among a number of known irritation-
reducing agents. That, in itself, is not fatal to the examiner’s case. See Merck &
Co. Inc. v. Biocraft Laboratories Inc., 874 F.2d 804, 807, 10 USPQ2d 1843, 1846
(Fed. Cir. 1989) (“Disclos[ure of] a multitude of effective combinations does not
render any particular formulation less obvious.”).
However, Sine’s composition is a skin-sanitizer intended to prevent
passage of germs between individuals. See column 1, lines 13-40. Sine does
not address the use of irritation-reducing agents in shaving lotions. Neither Sine
nor Sampino compare skin irritation caused by shaving to other types of skin
irritation, including the types of irritation intended to be treated or avoided by the
agents in Sine’s composition. The examiner has cited no other evidence to show
that those skilled in the art would have considered the irritation-reducing agents
listed by Sine to be suitable for combination with “chitosonium pyrrolidone
carbonxylate” in shaving lotions.
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