Appeal No. 2005-0914 Page 4
Application No. 09/843,219
THE REJECTIONS UNDER 35 U.S.C. § 103:
“In rejecting claims under 35 U.S.C. § 103, the examiner bears the initial
burden of presenting a prima facie case of obviousness. Only if that burden is
met, does the burden of going forward with evidence or argument shift to the
applicant.” In re Rijckaert, 9 F.3d 1531, 1532, 28 USPQ2d 1955, 1956 (Fed. Cir.
1993).
Ohno:
The examiner relies on Ohno as applied in the rejection under 35 U.S.C.
§ 102. In addition, the examiner finds (Answer, page 4), Ohno teaches the use
of 1-60% photochromic color pigments, up to 20% photochromic titanium oxide,
up to 20% ordinary titanium oxide, parabene, 2% iron oxide, ordinary pigments,
UV absorbers, preservatives, water and thickeners. The examiner, however,
failed to meet her burden of demonstrating that Ohno teaches a composition
wherein the “fixed color dye” is “located exterior to the dispersed photochromic
composition.” Accordingly, we reverse the rejection of claims 37 and 38 under
35 U.S.C. § 103 as being unpatentable over Ohno.
Ohno in view of Motion:
The examiner relies on Ohno as set forth above. According to the
examiner (Answer, page 5), “Ohno fails to teach the pH of the composition.” To
make up for this deficiency, the examiner relies on Motion to teach “topical
compositions having pH in the range of 5.8-7.5.” The examiner, however, failed
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