Appeal No. 2005-0149 Page ~ PAGE ~4~
Application No. 10/214,632
facie case of obviousness is established when the teachings from the prior art
itself would appear to have suggested the claimed subject matter to a person of
ordinary skill in the art.” In re Bell, 991 F.2d 781, 782, 26 USPQ2d 1529, 1531
(Fed. Cir. 1993). On this record, the examiner fails to identify any teaching in the
combination of prior art relied upon that would suggest a skin lightening product
as set forth in appellants’ claimed invention. Particularly, wherein the amount of
steric acid present in the skin lightening composition is higher in the first chamber
than in the second chamber of a dual chamber package.
We recognize the examiner’s assertion (Answer, page 5), “optimizing the
amounts of a carrier such as stearic acid with an expectation to readily apply and
evenly distribute the active agent on the skin would have been obvious for one of
… ordinary skill in the art.” The assertion, however, does not take into account
that the claimed invention requires two skin lightening compositions, which differ
in the amount of stearic acid present in each. The examiner has not identified
any evidence on this record that suggests two skin lightening compositions which
differ in the amount of stearic acid present in each.
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