Appeal No. 2005-1428 Page 6
Application No. 09/930,320
the low viscosity mixture, [and] the mixture is vigorously shaken to provide a
homogeneous mixture.” Col. 13, lines 53-60.
We agree with the examiner that the instantly claimed method would have been
obvious in view of Rath. Specifically, Rath would have made obvious to a person of
ordinary skill in the art a hair care system comprising a plurality of base compositions
(e.g., shampoo base and conditioner base), a thickener, and a plurality of performance
agents selected from at least two classes of performance agents (e.g., the two herbal
additive compositions in columns 19-20 and two or more of the color concentrates in
columns 20-23). According to Rath’s disclosure, the user would select the desired
additives, combine them with the appropriate base (shampoo base for making shampoo,
conditioner base for making conditioner) and mix, then add thickener and mix again. The
system and method made obvious by Rath meets all of the limitations of instant claim 1.
Appellants argue that “Rath et al. teaches away from the present invention where
the inventive base composition (where appropriate) already comprises a thickening
agent . . . and was formulated at a location remote from the location that the finished
personal care product is prepared in.” Appeal Brief, page 6. See also page 7:
“[T]hickening agents are separately defined as being part of the base composition . . .
and as stated above must be added to the base composition at a location that is
different than where the performance agents are added.”
We are not persuaded that Rath’s separate packaging of “base” and “thickener”
distinguishes the prior art method from the claimed method. The specification states:
Personal care product base compositions useful in the invention typically
contain one or more of the following: a solvent such as water . . .; soaps,
surfactants, . . . and the like; conditioning agents . . .; thickening agents
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