Appeal No. 2005-0095
Application No. 10/127,776
Appellants argue, Brief pages 8-9, that a comparison of the SPF of
example 2 would have been inappropriate because the amount of
sunscreen agent employed in example 2 of Niedbala exceeds the amount
required by the claimed invention. This argument is not persuasive. As
stated above, Niedbala is concerned with low viscosity compositions. A
person of ordinary skill in the art would have been capable of adjusting the
amount of sunscreen agent, as disclosed in Niedbala, to achieve the
appropriate SPF. Moreover, testing compositions having low viscosity, such
as 130 cps, with low levels of sunscreen agent would be more probative to
the patentability determination in the present record.
Appellants argue that the subject matter of claim 10 is patentable
because the claimed invention comprises no higher that 3% by weight of
an alcohol such as ethanol. (Brief, p. 10).
The Examiner has determined that Niedbala discloses that the
amount of alcohol contained in the composition must be controlled to
avoid destabilization of the emulsion. (Answer, p. 7). Niedbala discloses
that the composition can comprise about 5% of ethanol. Niedbala also
discloses lower amounts of alcohol will have an effect on the solubilization
of the UV absorber, i.e., sunscreen agent. (Col. 6, ll. 21-23). A person of
-8-
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 Next
Last modified: November 3, 2007