Appeal No. 2004-0378
Application No. 09/765,675
disclosed in the Restle reference in fact include polymers such as polysiloxane.”
Examiner’s Answer, page 4. This argument is not a sufficient rebuttal: even assuming
that the references would have suggested including “polymers such as polysiloxane” in
a nanoemulsion composition, the examiner has made no effort to show that such
polymers claim 78’s limitation of “comprising at least one hydrophobic block and at least
one hydrophilic block.” Since the examiner has not shown that the references would
have suggested a composition within the scope of the claims, the rejection of claims 78-
82 is reversed.
3. Claims 23-29 and 63
The examiner rejected claims 23-29 and 63 as obvious in view of Restle, Ziegler,
and Simonnet. We agree that the composition of claim 23 would have been obvious to
those skilled in the art, although not for the reason advanced by the examiner. Rather,
we conclude that claim 23 would have been obvious in view of Restle and Ziegler, for
the same reason discussed above with respect to claim 1.
Claim 23 is directed to the composition of claim 1, further comprising an
additional amphiphilic lipid, which is either a cationic lipid or one of several listed anionic
lipids. That is, claim 23 is directed to the nanoemulsion composition of claim 1,
comprising an oil, an amphiphilic lipid (anionic, cationic, or nonionic), and an appropriate
cationic polymer, and additionally comprising a cationic amphiphilic lipid. Thus, claim
23 reads on the composition made obvious by Restle and Ziegler, because that
composition comprises an oil, a nonionic amphiphilic lipid, an appropriate cationic
polymer, and a cationic amphiphilic lipid (specifically, a quaternary ammonium
functionalized phosphate ester). Since the prior art would have made obvious at least
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