Appeal No. 2005-0708
Application No. 09/968,967
These arguments are not persuasive. Medelnick clearly
discloses cosmetic compositions applied to the skin where the
composition contains at least one continuous lipophilic phase
(i.e., a “fat phase,” see, for example, Example 23 on page 10 of
Medelnick) and a particulate phase of a goniochromatic pigment
(page 2 in general), with a teaching of including other colored
pigments (page 2, ll. 32-34; page 3, ll. 6-8), as well as
exemplification of other pigments and their amounts (e.g., see
Example 17). Thus Medelnick discloses every limitation of claim
1 on appeal, teaching amounts of the “gloss pigment” (page 3, ll.
3-6) and exemplifying amounts of the other types of pigments
within the claimed amounts (see the Examples, especially Example
22). We further note that even assuming arguendo that Medelnick
fails to disclose or suggest the amounts of each ingredient, such
amounts would be well within the ordinary skill in this art,
absent any showing of unexpected results.3 See In re Woodruff,
919 F.2d 1575, 1578, 16 USPQ2d 1934, 1936 (Fed. Cir. 1990)(“The
law is replete with cases in which the difference between the
claimed invention and the prior art is some range or other
3
3This statement is reinforced by appellants’ disclosure that
the amount of the at least one goniochromatic pigment “can easily
be determined by a person skilled in the art on the basis of his
general knowledge.” Specification, page 5, ¶ [014].
6
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