Appeal No. 2003-1076
Application No. 09/779,873
In rejecting the claims, the examiner relies on appellant’s admitted prior art as found in
the specification:
The invention seeks to improve known packaging, an applicator devices that
use a porous structure for application purposes or for wiping an applicator
so as to reduce the quality of preservative (as) contained in substance to as
little as possible.” See page 1, lines 15-19.
Thus, contrary to what appellant asserts, the admitted prior art relied upon by the examiner is not
limited to devices for applying cosmetics or to devices where in the applicator comes in direct
contact with a human body (see, e.g., Reply Brief, pages 4 and 5). Thus, as stated in our
decision, we are in agreement with the examiner that one of ordinary skill in the art, upon
considering known packaging and applicated devices that use a porous structure, would have
been motivated to look to Kellett, Battice et al. and Gettings et al., all of which are directed to
porous structures containing biocides in attempting to reduce the quality of preservative required
in such devices. See In re Kronig, 539 F.2d 1300, 1304, 190 USPQ 425, 427-428 (CCPA 1976)
(obviousness does not require that references be combined for the reasons contemplated by the
inventor, rather, all that is required is that the prior art as a whole provide some motivation or
suggestion to combine the references).
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