Appeal No. 2003-0845 Page 5
Application No. 09/689,818
Id. at Column 9, lines 6-12.
The examiner asserts that:
[I]t is apparent the recited “dispersion” is cosmetic composition, not
a minor ingredient of a cosmetic composition. Claim 1 of Dubeif
reads “An aqueous dispersion intended for the cosmetic treatment
of hair or the skin and/or in dermatology, which contains at least an
organopolysiloxane, and a crosslinked ammonium
acrylate/acrylamide copolymer, in a cosmetically or physiologically
acceptable aqueous medium” (note no limitation regarding the
amount of crosslinked polymer), and claim 18 reads “composition
according to claim 1, intended for the treatment of hair which is in
the form of shampoo, or rinsing product, to be applied before or
after dyeing or bleaching, or as unrinsed styling products.” This
clearly indicates that the “dispersion” reads on cosmetic
composition. Or the cosmetic composition is in the form of
dispersion. (See also, column 9, lines 12-40). There is nothing in
Dubeif reference to remotely suggest that the “dispersion” is merely
a fraction of the final composition, as alleged by appellants.
Examiner’s Answer, page 5.
We find that the examiner has improperly looked to the claims for a
definition of “dispersion” rather than looking to the teachings of the specification.
See, e.g., In re Benno, 768 F.2d 1340, 1346, 226 USPQ 683, 686 (Fed. Cir.
1985) (“The scope of a patent’s claims determines what infringes the patent; it is
no measure of what it discloses.”). Looking to the examples of Dubeif, the
examples employ a concentration of copolymer that is significantly lower than
that required by the claims. Example 1 teaches a final concentration of
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