Appeal No. 2005-0976 Page 2
Application No. 10/203,228
(a) an extract of Waltheria indica; and
(b) an acid component selected from the group consisting of ascorbic
acid, ferulic acid, kojic acid and mixtures thereof.
The examiner relies upon the following references:
Bartolone et al. (Bartolone) 6,153,177 Nov. 28, 2000
Pauly et al. (Pauly) 6,406,720 Jun. 18, 2002
Claims 5-20 stand rejected under 35 U.S.C. § 103(a) as being obvious
over the combination of Pauly and Bartolone. After careful review of the record
and consideration of the issue before us, we reverse.
DISCUSSION
Pauly is relied upon for teaching “a cosmetic composition that contains
Waltheria indica (see claims). The cosmetics whiten the skin by inhibiting
tyrosinase (see Table 1, columns 11 and 12).” Examiner’s Answer, page 3.
Bartolone is relied upon for teaching the use kojic acid, ferulic acid and ascorbic
acid to whiten the skin, and for teaching that the inhibition of tyrosinase whitens
the skin by inhibiting the formation of melanin. See id.
According to the rejection:
These references show that it was well known in the art at
the time of the invention to use the claimed ingredients in cosmetic
whitening compositions. It is well known that it is prima facie
obvious to combine two or more ingredients each of which is taught
by the prior art to be useful for the same purpose in order to form a
third composition which is useful for the same purpose. . . .
Based on the disclosure by these references that these
substances are used in cosmetic skin whitening compositions, an
artisan of ordinary skill would have a reasonable expectation that a
combination of the substances would also be useful in creating
cosmetic skin whitening compositions. Therefore, the artisan would
have been motivated to combine the claimed ingredients into a
single composition. No patentable invention resides in combining
old ingredients of known properties where the results obtained
thereby are no more than the additive effect of the ingredients.
Id. at 3-4 (citations omitted).
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