Appeal No. 2003-1428 Page 6
Application No. 09/468,777
comprising “an amphipathic lipid having an average particle size of 0.5 to 150 µm
as a solid particulate,” see claim 19.
As pointed out by appellants, Nakamura teaches that the lipid (component
A) and surfactant (components B and/or C) are melted together, after which the
aqueous phase is added. According to the reference, “[a]n anisotropic liquid
crystal phase is formed which, after cooling to room temperature a lipid
microdispersion is obtained which is suitable for cosmetic composition
application.” Nakamura, page 3, lines 18-20. Similarly, Dubief teaches that:
The cationic dispersions . . . can be prepared by forming a
paste of the cationic surface-active agent and of the ceramide,
followed by melting the mixture at a temperature of approximately
80°C. and then adding hot water (80°-90°C.) with vigorous stirring
using an Ultraturrax.
Dubief, col. 3, lines 38-43.
The claim limitation that the lipid is present as a solid particulate requires
that the lipid be dispersed in the surfactant, and the aqueous solution, if present,
and thus excludes the compositions of Nakamura and Dubief, wherein the lipid
and surfactant have been melted together and are present together in the same
phase, i.e., an anisotropic crystal phase wherein the lipid is present in
conjunction with the surfactant.
We also agree that the combination based on Pillai does not teach a
composition, “wherein said amphipathic lipid has an average particle size of 0.5
to 150 µm as a solid particulate,” see claim 11, or a composition comprising “an
amphipathic lipid having an average particle size of 0.5 to 150 µm as a solid
particulate,” see claim 19.
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