Appeal No. 2003-0934 Page 3
Application No. 08/769,596
the treatment of burns, skin grafts and skin lacerations.” “[V]arious preparations for
application to the human skin [include], for example, creams, lotions, gels, ointments,”
etc. (column 2, lines 16-35). Example 2 describes aqueous DMDM Hydantoin-
containing creams for the treatment of acne which also include 1.0-5.0% Carbopol®
and 0.35-1.5% triethanolamine.
While neither reference “expressly [teaches] the . . . specific amounts of
ingredients” required (paper no. 13, page 3), “discovery of an optimum value of a result
effective variable in a known process is ordinarily within the skill of the art.” In re
Boesch, 617 F.2d 272, 276, 205 USPQ 215, 219 (CCPA 1980) (citations omitted).
According to Andermann, “[f]ormulations with DMDM Hydantoin . . . may contain DMDM
Hydantoin concentrations of anything up to approximately 30%, depending on the
intended use of the particular formulation . . . but concentrations from 0.5 percent to 10
percent by weight are preferred” (column 2, lines 45-53). We think it is fair to say that
Andermann identifies the concentration of DMDM Hydantoin as a “result effective
variable,” and we agree with the examiner that certain of “[t]he amount[s] of ingredients
[required by the claims] are similar to the prior art” (e.g., water, carbomer, propylene
glycol, triethanolamine) and “the optimization of amounts of [certain other] ingredients
to be employed is [ ] within the skill of [the] artisan” (e.g., DMDM Hydantoin). Paper no.
13, page 4.
Nevertheless, neither Cornell nor Andermann describes wound gels which
additionally include chondroitin sulfate and animal protein. The examiner relies on
Rosenthal to make up this deficiency, but we cannot agree that Rosenthal’s teachings
would have “motivated [one skilled in the art] to modify the gel or composition in [the]
prior art by the addition of chondroitin and animal protein” (paper no. 13, page 4) as the
examiner proposes.
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