Appeal No. 2004-0902 Page 8
Application No. 09/780,060
arrays (including but not limited to lamellar liquid crystals) that do undergo a
phase transition to a crystalline lamellar phase.” Id. (emphasis in original).
The above arguments are also not found to be convincing, as Kawada
does not look at the ability of the compositions taught by that reference to
crystallize when applied to mammalian skin. As noted above, the specification
specifically teaches that
[a]pplication to the skin results in a rapid series of changes to the
composition, all or some of which are responsible for inducing the
phase transition of the lamellar arrangement. These changes
include pH change, drying, packing and pressure changes, ionic
strength change, temperature change; fusion of liposomes in close
proximity; all of these changes may influence hydration state of the
composition. All or some of these changes drive conversion from
the non-crystalline phase to the crystalline phase.
Specification, page 9.
The above passage demonstrates that it is application to mammalian skin
that drives the phase change of the composition, and the teachings of Kawada
demonstrating that their liquid crystals do not crystallize when heated and cooled
in a sealable silver pan do not address the issue of whether the reference’s
compositions would adopt a crystalline lamellar phase when applied to
mammalian skin.
With respect to claims 6, 7 and 15, appellants argue that Kawada does
not teach that liposomes form, or that “lipid particles of any particular type or size
form.” Appeal Brief, page 6. Appellants assert that “[t]he secondary reference
teaches the formation of multilamellar liposomes of the asserted size range by
shaking a mixture of phosphatidyl choline (egg lecithin), cholesterol and an acid
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