Appeal No. 2003-0944 Page 2
Application No. 09/577,955
Carr et al. (Carr) WO 98/18432 May 7, 1998
Claims 8 through 14 and 16 stand rejected under 35 U.S.C. § 103 as
unpatentable over Carr.
We affirm the examiner’s rejection of the claims.
DISCUSSION
Initially we note appellant’s statement on page 11 of the Brief that “[i]ndependent
claim 8, and dependent claims 9, 10, 11, 12, 13 and 14 stand or fall by themselves[,]”
as opposed to “[d]ependent claim 16 [which] stands or falls by itself.” Inasmuch as no
argument has been made for the separate patentability of claims 8-14, we understand
appellant’s position to be that claims 8 through 14 stand or fall together, but separately
from claim 16. Therefore, we shall limit our consideration of the issues raised by this
appeal as they pertain to claims 8 and 16. See 37 CFR § 1.192(c)(7) (1999).
Claim 8 is directed to a “method for topically treating hair” comprising contacting
the hair with a combination of (i) an amino acid with an aliphatic side chain, and (ii) an
amino acid with a basic side chain. Claim 16 depends from claim 8 and specifies that
(i) is isoleucine and (ii) is lysine.
Carr describes methods and hair treatment compositions for “modify[ing] or
nourish[ing] the hair or hair root,” wherein the “hair treatment compositions . . . contain
amino acid actives” (page 1). “Particularly preferred” amino acids are “cysteine,
arginine, serine, glutamic acid, glutamine, isoleucine, lysine, methionine and valine,”
and “[m]ixtures of the amino acids . . . may also be used” in the hair treatment
compositions (pages 4 and 5).
The initial burden of presenting a prima facie case of obviousness rests on the
examiner. In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir.
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