Appeal No. 2005-1655 Page 5
Application No. 09/852,624
critical (col. 2, ll. 2-29). Tomura further indicates that “other ingredients are added to obtain the
desired aqueous cosmetic compositions in various preparation forms such as gel, paste, cream
and the like (col. 3, ll. 35-40). Tomura specifically mentions anionic surfactants in a list of
additives for use in the composition “according to the desired preparation form.” (col. 3, ll. 42-
52). While Tomura modifies the list of additives with the words “can be appropriately added in
so far as they do not adversely affect the present invention” we cannot agree with Appellants that
this broad brush language negates the suggestion that additives such an anionic surfactants be
added. Tomura specifically indicates that such additives are necessary to make the composition
useful (col. 1, ll. 48-49; col. 3, ll. 35-52).
Appellants argue that experimentation disclosed in Tomura on the effects of alkali and
water-soluble polymers on the stability of solubilized uric acid shows that a large amount of
experimentation is required to find solution conditions such that uric acid solubilization is
stabilized when these ingredients are added and that no such experimentation on surfactants of
any type has been evidenced by the Examiner (Brief, p. 14). First, Tomura provides guidance
on how to select and add alkali and water-soluble polymer to obtain the required solubilized uric
acid stability. Tomura further suggests the addition of other additives including anionic
surfactants and further exemplifies compositions including additives including an example of a
one-package hair dye (Example 1). With respect to surfactant selection, there is no sufficient
evidence of record indicating that an amount of experimentation over and above what would be
routine in the art would have been required. In fact, the general discussion in Tomura of using
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