Appeal No. 2004-0902 Page 7
Application No. 09/780,060
required by claim 3. While the declaration states that both compositions 26 and
27 of Kawada contain cholesteryl sodium sulfate, which, according to their
research does not crystallize to the same extent as cholesterol, cholesteryl
sodium sulfate is the component that is present in the smallest amount in those
compositions. With respect to the presence of the cholesteryl sodium sulfate as
well as the use of 2-oleoylaminooctadecane-1,3-diol as the ceramide, as set
forth by the specification, a crystalline phase formulation is defined where 70%
or more of lipids by mass are in a crystalline phase, and therefore complete
crystallization is not required. Moreover, the declaration does not present
evidence demonstrating that when applied to the skin, the compositions of
Kawada do not achieve the property of adopting a crystalline lamellar phase to
that extent. Finally, the specification teaches that several changes occur when
the composition is applied to the skin, such as drying, pH changes, etc., all of
which may affect the hydration state of the composition. Appellants have not
supplied any data demonstrating that compositions 26 and 27 of Kawada would
not adopt a crystalline lamellar phase and that the amount of hydration of the
composition is a critical factor.
Appellants argue further that Kawada provides data at column 14, lines
18-19, and column 13, lines 51-58, to show that the reference’s liquid crystals do
not crystallize. See Appeal Brief, page 5. Appellants conclude that “the
compositions of Kawada are lamellar liquid crystals that do not crystallize,
whereas the claimed invention is directed to non-crystalline phase lamellar lipid
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