Appeal No. 2004-2205 Page 10
Application No. 09/766,403
3. Claims 73 and 74
Claim 73 is representative of Appellants’ third group of claims. Claim 73 is
directed to a “cosmetic make up composition for a keratin material” comprising the
same nanoemulsion as defined by claim 1. Cervantes discloses nanoemulsions
comprising all of the ingredients recited in claim 73 except for the nonionic polymer.
See column 1, lines 52-62. Cervantes discloses that the nanoemulsion “compositions
may also be make-up compositions such as foundations, tinted day creams, mascaras,
blushers, eyeshadows, lip compositions, and nail varnishes.” Column 13, lines 25-27.
Cervantes also suggests that the disclosed compositions “may contain water-
soluble or fat-soluble active agents having a cosmetic or dermopharmaceutical activity”;
e.g., thickeners. See column 12, lines 15-17, 32, and 34-43. Casperson teaches
Aculyn 46 as a thickener in a hair dye composition. Casperson teaches that Aculyn 46
“provide[s] superior rheological . . . benefits” (page 4, line 30) “such that it is easily
applied to hair” (page 1, lines 22-23).
Based on these disclosures, we agree with the examiner that the references
would have suggested the composition of claim 73 to a person of ordinary skill in the
art. For example, the skilled artisan would have found it obvious to add Casperson’s
Aculyn 46 to the nanoemulsion-containing mascara composition suggested by
Cervantes, in order to provide a composition that could be easily applied to eyelashes.
Appellants argue that “neither the [Cervantes] reference nor [Casperson] teach
the use of the compound as claimed in Claim 1 and certainly not for the purposes
specified in Claims 73-74.” Appeal Brief, page 12.
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