Appeal No. 2004-0378
Application No. 09/765,675
amphiphilic lipid selected from several enumerated types. Thus, claim 20 reads on the
composition made obvious by Restle and Ziegler, because that composition comprises
an oil, a nonionic amphiphilic lipid (see Ziegler at column 6, lines 15-40; Restle, page 4,
second paragraph), 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 one composition within the scope of claim 20, the
claimed composition is unpatentable under 35 U.S.C. § 103.
Again, since our rationale for affirming the rejection of claim 20 differs from that
of the examiner, we designate our affirmance with respect to this rejection as a new
ground of rejection under 37 CFR § 1.196(b).
5. Claims 64-67
The examiner rejected claim 64-67 as obvious in view of the combined teachings
of Restle, Ziegler, Simonnet, Matzik, and Decoster. Claim 64 is directed to the
nanoemulsion composition of claim 1, further comprising an aminosilicone.4
The examiner acknowledge that none of Restle, Ziegler, Simonnet, or Matzik
suggest adding aminosilicone to an oil-in-water nanoemulsion. The examiner
characterized Decoster as “teach[ing a] cosmetic detergent composition comprising 0.5-
5 weight % of aminosilicone along with anionic surfactant, amphoteric surfactants and
cationic polymers.” Paper No. 5, mailed August 16, 2001, page 5. The examiner
concluded that “[i]t would have been obvious to one of ordinary skill in the art at the time
the invention was made to have modified the composition of the combined references
4 According to the specification, “the term at least one ‘aminosilicone’ means any silicone comprising at
least one amine chosen from primary, secondary, and tertiary amines or at least one quaternary
ammonium group.” Page 36. In addition, the terms “‘silicone’ and ‘polysiloxane’ are synonymous.” Id.
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