Appeal No. 2005-0545
Application No. 09/989,019
the use set forth in claim 8. [The] Examiner found the
presented arguments convincing and, thus, allowed claim 8.
[The] Examiner notes that compositions of matter are useful
for any purpose. Use not envisioned by Appellant can be
applied to provide motivation for obviating composition
claims.
To the extent we can decipher the examiner’s unedited
explanation for allowing Claim 8, we are confused at best. The
examiner said (EA2), “The copy of the appealed claims contained in
the Appendix to the brief is correct.” See the Appendix to
Appellant’s Brief (AB). Accordingly, Claim 8 is directed to a
“method of treating cellulitis in women wherein the application
formulation comprises an oil-in water emulsion . . .” (emphasis
added). On the other hand, Claim 1 is directed to an “oil-in-water
emulsion suited for topical application to the skin of a woman
evincing the cosmetic condition called cellulite . . .” (emphasis
added). Having searched “allowed” Claim 8 for a single process
step, we find none. Nevertheless, appellant argued a patentable
distinction between treating the cosmetic condition called
“cellulite” and treating the medical condition called “cellulitis”
in his Brief (AB11-12; footnote included in main text):
By way of example, Soudant, Majeed, Lotte, Sekiya,
and De Simone are all directed to treatments for other
human problems, like the varied manifestations of obesity.
None, save Koulbanis, even speak to anti-cellulitis action.
Cellulitis is inflammation of cellular or connective
tissues, which is not CELLULITE, as defined herein.
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