Appeal No. 2004-2247 Page 4
Application No. 09/835,701
Woodruff, 919 F.2d 1575, 1578, 16 USPQ2d 1934, 1936-37 (CCPA 1976); In re Malagari, 499
F.2d 1297, 1303, 182 USPQ 549, 553 (CCPA 1974); see also In re Peterson, 315 F.3d 1325,
1329, 65 USPQ2d 1379, 1382 (Fed. Cir. 2003).
We next turn to the argument directed to viscosity. Appellants acknowledge that
Albacarys discusses viscosity (Brief, p. 7). But Appellants contend that Albacarys emphasizes
increasing the viscosity of the chemical composition deposited on the substrate without a
teaching of how viscous the material should become (Id.). Appellants argue that it would appear
to the ordinary skilled chemist that the higher the viscosity, the better the results whereas
Appellants have found that not to be the case (Id.). According to Appellants, Albacarys does not
appreciate the importance of a critical viscosity range and does not convey such to those of
ordinary skill in the art (Id.).
Again, we do not agree with Appellants’ interpretation of the Albacarys reference.
Albacarys discloses several ways in which to increase viscosity so that the skin care actives in the
composition remain substantially on the surface of the substrate (Albacarys, col. 48, l. 51 to col.
49, l. 53). That is not a teaching of increasing viscosity without limit, rather, it is a teaching of
increasing viscosity so the desired location on the substrate is maintained. There would be no
need to increase viscosity beyond the point at which the composition remains on the surface.
Albacarys is simply indicating that viscosity is a variable to be optimized through routine
experimentation.
Here, the claimed viscosity range of about 100 to about 200,000 cps encompasses a wide
range of viscosities. Albacarys describes a substantially dry cleansing product with the same
basic structure as that claimed, i.e., a substrate impregnated with a cleansing composition
containing a lathering surfactant and water. The cleansing product is used in the same way, i.e.,
by wetting the dry article with water and contacting the skin with the article. Viscosity is
understood to have an impact on properties of the product (Albacarys, col. 48, l. 51 to col. 50, l.
23). Optimization of viscosity would have been within the skill in the art. In such a situation a
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