Appeal No. 2004-2205 Page 9
Application No. 09/766,403
suggest a “composition for caring for a keratin material” (i.e., a hair conditioning
composition), a “non-therapeutic care process for a keratin material” (i.e., conditioning
hair by applying the composition to hair), a “process for thickening oil-in-water
nanoemulsions” (i.e., adding Casperson’s Aculyn 46 to Cervantes’ composition as a
thickener), and a nanoemulsion containing an oily phase (which does not appear to
differ in substance from a composition containing an oil).
With regard to claims 70-72, Appellants argue that “neither the [Cervantes]
reference nor [Casperson] teach the claimed nanoemulsion, let alone for the purposes
recited in claims 70-72.” Appeal Brief, page 11. With regard to claims 75-78,
Appellants argue that “neither the [Cervantes] reference nor [Casperson] teach the
claimed nanoemulsion, let alone for the purposes recited in claims 75-78.” Appeal Brief,
page 13. With regard to claim 79, Appellants argue that “neither the [Cervantes]
reference nor [Casperson] teach the claimed nanoemulsion and thus cannot teach a
process for thickening such nanoemulsions.” Appeal Brief, page 14. With regard to
claims 80-84, Appellants argue that “there is no teaching or suggestion for the elements
set forth in claims 80-84. Indeed, as the combination of references do not teach or
suggest the nanoemulsion of claim 80, it certainly does not teach or suggest
[dependent] claims 81-84.” Appeal Brief, page 15.
None of these arguments are persuasive. While it is true that neither reference
by itself teaches the claimed composition, the combined references would have
suggested it to those of skill in the art, and also would have suggested the additional
limitations in claims 71, 75, 79, and 80. The rejection of claims 71, 75, 79, and 80 is
affirmed. Claims 70, 72, 76-78, and 81-84 fall with claims 71, 75, 79, and 80.
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