Appeal No. 2005-0976 Page 4
Application No. 10/203,228
a third composition which is useful for the same purpose.” Examiner’s Answer,
page 3. Pauly, however, provides no teaching or suggestion to include Waltheria
indica extract in a skin whitening composition. Pauly teaches the use of
Waltheria indica extract in cosmetic compositions with enhanced anti-elastase
action, strong anti-collegenase action, as well as strong anti-UVA and anti-UVB
effect. See Pauly, col. 2, lines 4-27. When it comes to enhanced “anti-
tyrosinase action, including a better de-pigmenting effect than current de-
pigmenting ingredients, the active ingredient incorporated in it is advantageously
at least one plant extract chosen from the group formed by Spondias mombin,
Maprounea guianensis and Gouania blanchetiana.” See id. at col. 2, lines 28-34.
The examiner relies on Table 1 of the Pauly reference, arguing that the
table demonstrates that Waltheria indica has “a strong ability to inhibit
tyrosinase,” asserting that “it is the third strongest of nine plant tests,” and that
“[o]nly these three strongest have more anti-tyrosinase activity than the control
anti-tyrosinase substance hydroquinone.” Examiner’s Answer, page 5. But as
noted by appellants, Table 1 demonstrates that concentration of the Waltheria
indica extract “is about 5 times the concentration of the more effective extracts
and about 3 times the concentration of the standard hydroquinone.” See Reply
to Examiner’s Answer, page 2. Thus, based on the fact that the Pauly reference
does not suggest the use of Waltheria indica extract in a de-pigmenting
composition, and Table 1 of that reference demonstrates that it is Waltheria
indica extract does not have strong anti-tyrosinase activity, and in fact not
performing as well as the hydroquinone standard, Pauly provides no teaching or
suggestion of using Waltheria indica extract in a whitening cosmetic composition,
we are constrained to reverse the obviousness rejection given the examiner’s
reasoning for the combination.
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