Appeal No. 2005-0095
Application No. 10/127,776
Appellants’ arguments regarding the content of the sunscreen
phase are not persuasive. The present specification identifies one
component as present in the sunscreen phase, specifically a sunscreen
agent. The specification does not identify other components that are
included in the sunscreen phase. Thus, in order to compare the sunscreen
phase of the present invention with sunscreen phase of Niedbala we will
consider only the sunscreen agent. As stated above, there is no dispute
that the suitable amount of sunscreen agent disclosed by Niedbala
overlaps the claimed invention. Appellants have not argued that the
particular sunscreen agents of Niedbala are different from the claimed
invention. The properties of the sunscreen phase of Niedbala must be the
same as the claimed invention because the sunscreen agent of Niedbala
is the same as required by the claimed invention. We further note that the
claim language does not indicate that the sunscreen phase is the only oil
phase.
Appellants argue that the criticality of the viscosity has been
established in the present record. (Brief, p. 8).
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