Appeal No. 2004-2205 Page 8
Application No. 09/766,403
skilled in the art generally expected thickeners for aqueous composition to be
inapplicable to oil-in-water emulsions or oil-in-water nanoemulsions. Thus, the evidence
of record does not support Appellants’ argument that those skilled in the art would not
have been motivated to combine Casperson with Cervantes because they would not
have expected Aculyn 46 to thicken an oil-in-water nanoemulsion.
The references cited by the examiner support a prima facie case of obviousness
with respect to claim 1, which has not been rebutted by the examiner. We affirm the
rejection of claim 1. Claims 2-9, 11-21, 23-25, 30, 33, 50, 51, and 55-69 fall with claim 1.
2. Claims 70-72 and 75-84
Appellants split claims 70-72 and 75-84 into four groups and argue them
separately. The arguments are substantially the same, however, so to avoid repetition
we will address them together.
Claim 71, 75, 79, and 80 are representative of Appellants’ claim groupings:
• Claim 71 is directed to a “composition for caring for a keratin material”
(including hair), comprising the same nanoemulsion as defined by
claim 1.
• Claim 75 is directed to a “non-therapeutic care process for a keratin
material comprising applying to said keratin material” the
nanoemulsion defined by claim 1.
• Claim 79 is directed to a “process for thickening oil-in-water
nanoemulsions comprising including at least one nonionic polymer
comprising at least one hydrophobic block and at least one hydrophilic
block” in the nanoemulsion, along with an oil and an amphiphilic lipid.
• Claim 80 is directed to the same nanoemulsion as defined by claim 1,
except that in claim 80, the nanoemulsion is said to contain “at least
one oily phase” instead of “at least one oil.”
Since the references relied on by the examiner suggest a hair conditioning
composition comprising the ingredients in claim 1, the references also support a prima
facie case of obviousness with respect to claims 71, 75, 79, and 80. That is, they
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