Appeal No. 2005-1655 Page 4
Application No. 09/852,624
Appellants argue that “there is no evidence of a reasonable expectation of success in
combining Tomura and Lim and, further, there is no motivation to combine the references even
if there was a reasonable expectation of success.” (Brief, p. 10). We disagree for the following
reasons.
These arguments are based on the alleged unpredictability of adding additional
ingredients to the polymer-alkali-uric acid system of Tomura. Specifically, according to
Appellants, the addition of further ingredients would unpredictably affect uric acid
solubilization. Appellants’ arguments are not supported by the evidence. Namely, there is no
convincing evidence that those of ordinary skill in the art would have understood acylsarcosinate
and acylisethionate anionic surfactants, the surfactants taught by Lim as typically used in hair
dyes, as having an adverse affect on the solubility of uric acid in the system of Tomura. In fact,
Tomura indicates that, in addition to solubilization of the uric acid, in practice, it is necessary to
add surfactants and polymers to make the composition fit for use on hair and skin (col. 1, ll. 44-
50).1 Tomura is directed to providing a technique for stably solubilizing uric acid in an aqueous
cosmetic composition containing uric acid and a water-soluble polymer (col. 1, ll. 56-58).
According to Tomura, it is the selection of the polymer in the uric acid and alkali system that is
1We disagree with Appellants’ interpretation of column 1, lines 50-53 of Tomura as
teaching that some surfactants are not satisfactory in solubilizing uric acid (Brief, p. 11). That
paragraph is referring to the prior art and must be read in context with the rest of the disclosure.
There is no particular emphasis on surfactants as having an adverse affect on solubility in the
disclosure of Tomura. In fact, column 1, lines 45-59 indicate that the addition of surfactants is
necessary to make the composition useful for hair and skin application.
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