Appeal No. 2003-1308
Application No. 09/287,176
who provides the teaching of using direct dyes in composition
with oxidation compositions and, furthermore, Mockli provides no
teaching that the cationic direct dyes cannot be used in an
oxidation composition. Hence, we do not subscribe to appellant's
argument that Mockli presents a "teaching away" from oxidation
dyeing but, rather, Mockli teaches that effective dyeing can be
achieved without the known disadvantages of oxidation dyes by
using the disclosed direct dyes. We are satisfied that one of
ordinary skill the art would have found it obvious to use the
direct dyes of Mockli in composition with oxidation dyes with the
expectation of experiencing the disadvantages attendant with the
use of oxidation dyes. We note that appellant has presented no
argument, let alone objective evidence, which demonstrates that
the claimed compositions, which may include oxidation dyes, do
not exhibit the toxicological risks discussed by Mockli.
We now turn to the rejection over Kao in view Mockli.
Appellant does not dispute the examiner's factual determination
that Kao, like appellant, discloses a composition for dyeing
keratin fibers comprising direct dyes and substantive
conditioning polymers claimed by appellant. Kao does not
disclose appellant's cationic direct dyes. However, for the
reasons discussed above, we concur with the examiner that it
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