Appeal No. 2004-2081 Page 5
Application No. 09/799,601
purposes of Grollier’s compositions. Thus, it would have been obvious to a person of
ordinary skill in the art to substitute a nonionic guar gum such as Jaguar HP60 for the
cationic guar gum in the composition of Grollier’s Example 15 or 16. In doing so, the
skilled artisan would have made a composition comprising Gantrez ES 425, a nonionic
guar gum, and less than 4% by weight of surface active agent. Therefore, a
composition within the scope of instant claim 1 would have been obvious to a person of
ordinary skill in the art based on Grollier.
Appellants argue that the examiner erred in giving no weight to the “non-
washing” language in the preamble. See the Appeal Brief, pages 5-7.
This argument is not persuasive. We agree that the examiner erred in stating
that “[t]he phrase ‘non-washing’ is not afforded patentable weight because the recitation
occurs in the preamble.” Examiner’s Answer, page 3. However, that error was
harmless since the examples in Grollier that the examiner relied on were in fact non-
washing compositions, in that they contained less than 4% by weight of surface active
agent.
Appellants also argue that Grollier would not have motivated those skilled in the
art to “leave out the second polymer (cationic or amphoteric) required by Grollier” and
that “there is no suggestion in Grollier that his invention can be carried out without the
xanthan gum.” Reply Brief, pages 3-4.
While it is true that Grollier would not have led those skilled in the art to make a
composition lacking a cationic/amphoteric polymer or xanthan gum, those modifications
are not required by the present claims. Claim 1 is directed to a composition
“comprising” an anionic polymer and nonionic guar gum. The claim is therefore open to
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