Appeal No. 2004-0378
Application No. 09/765,675
because the components are known,” and that “the Office’s rational[e] is so broad that it
would encompass essentially the modification of any composition by adding the two
components of Ziegler for the purposes taught by Ziegler.” Appeal Brief, pages 15 and
16 (emphases in original).
We disagree. For the reasons discussed above, we agree with the examiner that
those skilled in the art would have found it obvious to combine the relevant components
of the compositions disclosed by Restle and Ziegler. Whether or not a skilled artisan
would also have found it obvious to add Ziegler’s components to compositions other
than those taught by Restle is an issue that is irrelevant to the obviousness of the
instant claims.
Appellants also argue that the references support, at best, and obvious-to-try
rationale. Specifically, Appellants argue that
Ziegler does not recognize the differences between different emulsions,
such as microemulsions and nanoemulsions. As shown in the paragraph
bridging pages 1-2 of Appellants’ specification, differences between
nanoemulsions and microemulsions do exist.
Thus, while Ziegler may have made it obvious to try the components
suggested therein to arrive at the claimed invention, such an obvious to try
standard does not support a rejection under Section 103.
Further, the unpredictability of adding polymers to nanoemulsions has
been shown by Appellants. For example, Appellants recite, “[w]hen such
polymers [e.g., optionally crosslinked polymers] are used in compositions
in the form of nanoemulsions, some of such nanoemulsions may tend to
exhibit a decrease in at least one characteristic, such as stability and
transparency.”
Appeal Brief, page 19 (citing the specification, page 3). Appellants also point to the
working example in the specification, which shows that Quatrisoft LM 200 and Carbopol
Ultrez have different effects on nanoemulsions.
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