Appeal No. 2004-0378
Application No. 09/765,675
and any cationic polymer, in any amount, that has at least one hydrophobic block and at
least one hydrophilic block. Appellants have provided no evidence to show that those
skilled in the art would have expected the specification’s exemplary composition to be
representative of the properties of the full scope of compositions encompassed by claim
1. Even if the properties of the specification’s exemplary composition were
unexpectedly superior, therefore, Appellants have not presented evidence of
unexpected results commensurate with the scope of the claims, as would be necessary
to overcome the prima facie case of obviousness.
We therefore affirm the rejection of claim 1 as obvious in view of Restle and
Ziegler. Claims 2-19, 21, 22, 30-62, 68-77, and 83 fall with claim 1.
2. Claims 78-82
The examiner included claims 78-82 in the rejection based on Restle and Ziegler.
Each of these claims is directed to a nanoemulsion composition like that of claim 1, but
including a nonionic polymer rather than a cationic polymer. The examiner’s rejection
did not specifically address this limitation of the claims.
Appellants argue that “[n]either Restle nor Ziegler teaches or suggests at least
one nonionic polymer comprising at least one hydrophobic block and at least one
hydrophilic block as presently claimed. . . . Accordingly, the Examiner has not and
could not have demonstrated a prima facie case of obviousness over claims 78-82.”
Appeal Brief, page 10.
We agree with Appellants that the examiner has not shown that claims 78-82
would have been obvious in view of the cited reference. In response to Appellants’
argument with respect to these claims, the examiner argued that “[t]he nonionic lipids
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