Appeal No. 2004-0383 Page 4
Application No. 09/703,279
chitosan microparticles (Yoshhide, p. 7, ll. 16-18). Therefore, at a minimum, the powder
composition contains 50% chitosan particles. The level of chitosan in the powder composition
of Yoshihide is, therefore, much higher than the about 0.01 to about 10% by weight level of the
powder composition of the claims.
Second, the Examiner finds that Toshiya teaches a skin makeup composition containing
chitosan in an amount of 0.1-10%, but has ignored the fact that the compositions of Toshiya are
not described as powder compositions. The “skin makeup” compositions of Toshiya are solid
soaps, liquid soaps, ointments and creams (Toshiya, p. 1, ¶ 0002, ll. 1-2). Moreover, Toshiya
blends chitosan with a charge of skin makeup in the state of a solution (Toshiya, p. 2, ¶ 0008, ll.
1-2). Toshiya provides no teaching with respect to powder compositions. The disclosure in
Toshiya of a concentration of chitosan in a non-powder formulation does not provide sufficient
evidence of a reason, suggestion, or motivation to modify the level of chitosan in the powder
composition of Yoshihide.
We agree with Appellant that the combined teachings of Yoshihide and Toshiya, as
applied by the Examiner, fail to teach or suggest a powdered composition having the required
level of chitosan particulate concentration (Brief, p. 3). Nor has the Examiner established the
obviousness of the process of treating skin with such a powder composition. We conclude that
the Examiner has not established a prima facie case of obviousness with respect to the subject
matter of claims 1-3, 5-10, 14-16, and 18-23, the claims on appeal.
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