Appeal No. 2005-0241
Application No. 09/904,831
Baird, 16 F.3d 380, 382, 29 USPQ2d 1550, 1551. In the
instant case, to assert (as appellants have done) that
Dubief’s specific teaching of NATROSOL PLUSŪ (from the
selection of listed thickeners) in combination with an
oxidation dye for use in dyeing keratinous fibers (from the
selection of uses), is picking and choosing from a myriad
of choices, skews what Dubief fairly suggests as a
reference.
On pages 9 and 10 of the brief, appellants discuss
Example 6 of Dubief. We again emphasize that a prior art
disclosure is not limited to its working examples or to its
preferred embodiments, but rather, one of ordinary skill in
the art would have evaluated the prior art disclosure as a
whole. Merck & Co. Inc. v. Biocraft Labs. Inc.; In re
Fracalossi; In re Lamberti; In re Boe, supra.
Beginning on page 11 of the Brief, appellants argue
that the art is unpredictable, and because it is
unpredictable, the art does not provide the necessary
reasonable expectation of success in modifying Dubief.
Appellants discuss the Pohl patent, the Cohen patent, and
the Casperson patent to show the unpredictability of the
art. However, for the same reasons that we have determined
that Dubief adequately suggests a composition for the
oxidation dyeing of keratin fibers comprising the
components recited in appellants’ claim 30, we are
unpersuaded by such argument.
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