Appeal No. 2004-0378
Application No. 09/765,675
the beneficial properties of both compositions (specifically, storage stability, freeze-thaw
stability, and moisture retention after water washing). That is, Restle teaches that a
composition having superior storage stability results when a nonionic amphiphilic lipid
and a cationic amphiphilic lipid are included in an oil-in-water nanoemulsion, while
Ziegler teaches that superior freeze-thaw stability results from combining a cationic
polymer with a quaternary ammonium functionalized ester (as the primary surfactant) in
emulsions, including oil-in-water emulsions, that can also contain nonionic surfactant(s).
Thus, those skilled in the art would have expected that combining all three
ingredients in a single composition would result in a composition having all these
properties. The references would have supported a reasonable expectation of
achieving this result, since the components of the emulsions disclosed by Restle and
Ziegler are very similar. Although Restle’s composition is in the form of a nanoemulsion
(with very small oil globules), Restle does not disclose any properties of nanoemulsions
that would have been expected to interfere with an expectation of achieving a
composition with freeze-thaw stability or moisture retention properties.3
Appellants argue that those of skill in the art would not have been motivated to
combine Ziegler’s cationic polymers (with or without a quaternary ammonium phosphate
ester) with Restle’s nanoemulsion composition. Appellants argue that the examiner’s
“statements amount to a conclusion that the addition of cationic surfactants and skin-
conditioning cationic polymers to nanoemulsions is prima facie obvious, even without
any specific motivation to select and combine the particular components merely
3 For example, Restle discloses that prior art oil-in-water nanoemulsions, like other oil-in-water emulsions,
had poor storage stability. See page 3, first paragraph, and page 2, last paragraph.
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