Appeal No. 2005-0708
Application No. 09/968,967
been obvious, whether in one particulate phase or in the two-
layer structure taught by Simon, to produce or heighten the
iridescent effect of the makeup composition.6
Appellants argue that Simon only teaches a two-layered
product where the layers are not mixed or combined, one layer
containing a goniochromatic pigment and the other layer
containing a pearlescent pigment (Brief, page 14-15; Reply Brief,
pages 6-7).
These arguments are not persuasive in view of the findings
discussed above concerning the well known use of pearlescent
pigments in cosmetic compositions, the teaching in Medelnick
regarding the use of goniochromatic pigments along with other
well known coloring pigments, and the teaching in Simon of the
joint use of goniochromatic pigments and pearlescent pigments,
although in two-layered structures.
6
6The examiner’s citation of U.S. Patent Nos. 6,517,820 and
6,468,550 in the “Response to Argument” section of the Answer
(page 10) is not appropriate since these references were never
recited in the statement of the rejection (Answer, page 6).
Accordingly, these references are not considered as part of the
evidence of obviousness. See In re Hoch, 428 F.2d 1341, 1342
n.3, 166 USPQ 406, 407 n.3 (CCPA 1970); Ex parte Raske, 28 USPQ2d
1304, 1304-05 (Bd. Pat. App. & Int. 1993). Therefore appellants’
arguments regarding the use of these two new references are moot
(Reply Brief, page 5).
10
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