Appeal No. 2005-0095
Application No. 10/127,776
water phase. (Answer, p. 3). The Examiner asserts that a person of ordinary
skill in the art would have discovered the optimum ranges for the water
phase and sunscreen phase through routine experimentation. (Answer,
p. 4).
Appellants argue that the distinction between the invention of
Niedbala and the present invention is in the sunscreen phase. Specifically,
the Appellants argue that “[t]his [sunscreen] phase of the present invention
has a maximum presence of about 5%. It constitutes an immiscible phase
(i.e., the “oil phase”) of water and oil emulsion. Niedbala requires
considerably more than about 5% of sunscreen (oil) phase.” (Brief, p. 6).
This argument is not persuasive because the amount of sunscreen
agent used in Niedbala overlaps the amount required by the claimed
invention. Appellants acknowledge this fact on page 6 of the Brief.
Appellants argue that the sunscreen phase of Niedbala is different
from the claimed invention. In particular, Appellants argue that the
sunscreen phase of Niedbala comprises at least about 5% of an alcohol
such as ethanol and other components that total at least 8.5% of the
formula. (Brief, pp. 6-7).
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