Appeal No. 2004-0744 Page 8
Application No. 09/671,188
composition suggested by the combined disclosures of Cardin and Coffindaffer. In
other words. the examiner argues, it would have been obvious to add Structure® Plus to
an antidandruff composition for treating the hair and scalp comprising, in a cosmetically
acceptable medium, zinc pyridinethione; insoluble polydimethylsiloxane conditioner; and
a soluble cationic polymer stabilizing agent. The examiner concludes that the
antidandruff composition recited in claim 1 on appeal would have been obvious to a
person having ordinary skill in the art at the time the invention was made based on the
combined disclosures of Cardin, Coffindaffer, and Cardinali. We disagree.
“It is impermissible within the framework of section 103 to pick and choose from
any one reference only so much of it as will support a given position, to the exclusion of
other parts necessary to the full appreciation of what such reference fairly suggests to
one of ordinary skill in the art.” In re Hedges, 783 F.2d 1038, 1041, 228 USPQ 685, 687
(Fed. Cir. 1986); In re Wesslau, 353 F.2d 238, 241, 147 USPQ 391, 393 (CCPA 1965).
That, however, is what the examiner has done here. As previously discussed, the
examiner relies on the Coffindaffer ‘666 patent for its disclosure of a stabilizing agent for
particulate antidandruff agents, e.g., zinc pyridinethione. Coffindaffer discloses that the
stabilizing agent is a shampoo soluble cationic polymer (column 12, lines 9 through 17).
The linchpin of the examiner’s argument is that it would have been obvious to a person
having ordinary skill in the art to modify Cardin’s antidandruff shampoo composition, per
the teachings of Coffindaffer, by adding a soluble cationic polymer stabilizing agent for
the zinc pyridinethione antidandruff agent disclosed by Cardin. However, the examiner
avoids reliance on Coffindaffer’s disclosure of suitable conditioning agents (column 16,
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