Appeal No. 2004-2205 Page 4
Application No. 09/766,403
roughly the same amount1 of “Carbopol Ultrez, a composition which is not thickened,
not transparent (turbidity > 1000 NTU) and not stable on storage is obtained.” Id.
Discussion
Appellants have grouped the claims into six groups. See the Appeal Brief, page
4. We will consider claims 1, 71, 73, 75, 79, and 80 as representative. 37 CFR
§ 1.192(c)(7).
1. Claims 1-9, 11-21, 23-25, 30, 33, 50, 51, and 55-69
Claim 1 is representative of Appellants’ first group of claims. Claim 1 is directed
to an oil-in-water nanoemulsion (i.e., an emulsion in which the oil globules have an
average size of less than 150 nm), comprising an oil, an amphiphilic lipid, and a
“nonionic polymer comprising at least one hydrophobic block and at least one
hydrophilic block.” The specification states that amphiphilic lipids are also known as
surfactants, emulsifiers, or surface agents (page 2) and that a wide variety of such
compounds can be used in the claimed composition (see pages 10-36). The
specification also states that nonionic polymers having the recited properties include
“the products Aculyn 44 and Aculyn 46 from the company ROHM and HAAS.” Page 7.
The examiner rejected all of the pending claims as obvious in view of Cervantes
and Casperson. The examiner noted that Cervantes teaches oil-in-water
nanoemulsions meeting all the limitations of instant claim 1, except for the nonionic
polymer. See the Examiner’s Answer, pages 3-4. The examiner cited Casperson as
“teach[ing] the use of polyether-polyurethane block copolymers [e.g., Aculyn 46] in hair
1 “0.75 g AM” of Aculyn 46 versus “1% AM by weight” of Carbopol Ultrez; AM appears to be an
abbreviation for “active material.”
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