Appeal No. 2004-0744 Page 5
Application No. 09/671,188
Claim 1, the broadest claim on appeal, calls for an antidandruff composition for
treating the hair and scalp comprising three essential ingredients in a cosmetically
acceptable medium. These ingredients are: (A) at least one pyridinethione salt; (B) at
least one insoluble conditioner, and (C) at least one acrylic terpolymer containing
specified monomers in specified amounts. In the ELECTION OF SPECIES UNDER 37
C.F.R. §1.143 received August 16, 2001 (Paper No. 8), applicants elected the following
species for prosecution in this application: (A) zinc pyridinethione (claim 40) as the “at
least one pyridinethione salt;” (B) polydimethylsiloxane sold under the name “Mirasil®
DM 500,000" (specification, page 34, Example II) as the “at least one insoluble
conditioner;” and (C) Structure® Plus (claim 6) as the “at least one acrylic terpolymer.”
In the examiner’s statement of rejection, Cardin serves as the “jumping off” point.
The examiner argues that Cardin discloses an antidandruff shampoo composition for
treating the hair and scalp, comprising zinc pyridinethione in a cosmetically acceptable
medium. Further, according to the examiner, Cardin discloses a polydimethylsiloxane
conditioner in the composition; and the examiner argues that Cardin’s polydimethyl-
siloxane reasonably appears to be insoluble based on its disclosed viscosity.
Accordingly, the examiner takes the position that Cardin discloses every feature of the
antidandruff composition recited in claim 1 except for the “at least one acrylic
terpolymer.” See Paper No. 22, page 3 (“The [Cardin] reference fails to teach . . .
acrylic terpolymers”).
In an effort to bridge the gap between Cardin’s antidandruff shampoo
composition and the composition recited in claim 1 on appeal, the examiner invites
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