Appeal No. 2004-2205 Page 6
Application No. 09/766,403
polyurethane for use in the compositions . . . is commercially available from Rohm and
Haas under the tradename Aculyn 46.” Page 5, lines 5-10.
We agree with the examiner that, based on these disclosures, a person of
ordinary skill in the art would have found it obvious to modify the nanoemulsion
composition taught by Cervantes by including in it the Aculyn 46 nonionic polymer
disclosed by Casperson. Motivation to so modify Cervantes’ composition is provided by
Cervantes’ suggestion to include a thickener in the nanoemulsion composition, together
with Casperson’s teaching that Aculyn 46 “provide[s] superior rheological and
conditioning benefits” in a composition to be applied to hair.
Appellants argue that those skilled in the art would not have been motivated to
combine the references because Cervantes’ composition is an oil-in-water emulsion
while Casperson’s composition is aqueous. Appellants note that Cervantes suggests
using Carbopol, among other things, as a thickener in the disclosed nanoemulsions,
Appeal Brief, page 8, but the instant specification provides an example in which
replacing Aculyn 46 with Carbopol Ultrez results in “a composition which is not
thickened, not transparent . . . and not stable on storage.” Appeal Brief, page 8.
Appellants argue that
while it is clear that [Casperson] contemplates the use of polyether-
polyurethane polymers as thickeners, the polymers are for use in aqueous
systems. See page 6, line 23. . . . There is absolutely no suggestion of
using these polymers in emulsions, nanoemulsions, or in the presence of
oil, as is claimed. . . . [T]here is no suggestion or motivation that such
polymers would be viable with the oil-in-water emulsions of the
[Cervantes] reference. . . . Nor would one have expected that the
polyether-polyurethane would function successfully in that different
environment.
Appeal Brief, pages 8-9.
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