Appeal No. 2003-0845 Page 3
Application No. 09/689,818
According to the examiner, as set forth in the Examiner’s Answer:
Dubeif [ ] shows those insoluble silicone claimed herein are useful in
combination with a insoluble crosslinked polymer aqueous dispersion as hair
treating composition (See particularly the abstract and the claims). The
composition may further comprise surfactants, and other adjuvants such as
polymers, synthetic oils, propellants conditioning agents. See, particularly, page
column 9 [sic], lines 19-67. The composition pH is about 6-8. See the
examples. The Dubeif reference and the claimed invention differ only in that
Dubeif reference does not employ the particular polymer herein claimed in the
selected concentration. However, Hatfield shows the particular polymer herein
employed are old and well-known for theirexcellent [sic] properties imparted to
hair, and are particularly useful in the form of aqueous dispersion in hair treating
composition, and the concentration of polymer in the hair treating composition
may be up to 25% by weight, well within the claimed concentration (See,
particularly, the examples 38-46 and the claims therein). Also see page 5, lines
11-34. Yahagi reference show[s] [sic] the general state of art that employment of
polymer particles in the form of aqueous dispersion with insoluble silicone is well
known. In view of the teachings, and the state of art, it would be prima facie
obvious to make a simple substitute of the polymer in Dubeif reference with the
polymer in Hatfield in the form of aqueous dispersion for a hair spray
composition. One of ordinary skill in the art would be motivated to make this
substitution because of the excellent characteristics of the polymer herein,
knowing the fact that polymer in particulate dispersion, along with silicone, is
well-known for hair treating composition. There is absolutely no issue of
destruction, or destroying of the original intended function.
Examiner’s Answer, pages 3-4.
Appellants argue that “the prior art of record simply does not teach the
combination of insoluble polymer particles in the claimed concentration and at
least one insoluble silicone.” Appeal Brief, page 6. Specifically, appellants
argue that Dubeif teaches that the copolymer is present in a concentration
between 0.1 and 10% by weight relative to the total weight of the dispersion, and
the dispersion is only a part of the total composition. Therefore, appellants
assert that the concentration of copolymer in the entire cosmetic composition as
taught by Dubeif is much lower that appellants claimed composition. Because
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