Appeal No. 2005-0914 Page 6
Application No. 09/843,219
general.” The examiner, however, failed to meet her burden of demonstrating
that the combination of Ohno and Coates teach a composition wherein the “fixed
color dye” is “located exterior to the dispersed photochromic composition.”
Accordingly, we reverse the rejection of claims 47-50 under 35 U.S.C. § 103 as
being unpatentable over Ohno in view of Coates.
Ohno in view of Coates and Motion:
The examiner relies on the combination of Ohno and Coates as set forth
above. According to the examiner (Answer, page 7), the combination of “Ohno
and Coates fail 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 to meet her burden of
demonstrating that the combination of Ohno, Coates and Motion teach a
composition wherein the “fixed color dye” is “located exterior to the dispersed
photochromic composition.” Accordingly, we reverse the rejection of claims 43,
45, 46 and 51 under 35 U.S.C. § 103 as being unpatentable over Ohno in view of
Coates and Motion.
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