Appeal No. 2004-1983 Page 3
Application No. 10/016,903
for example, an emulsifier capable of providing a shearing force, such as a
homomixer.
Page 2, line 54, to page 3, line 4 (emphasis added).
Kakoki also expresses a preference for mixing methods that generate even
stronger shearing forces than a homomixer. See page 4, lines 32-35 “[The
composition] can be further improved when the mixture is treated in an emulsifier
capable of providing a stronger shearing force than a conventional homomixer.
Examples of such emulsifiers are the Manthon Gaulin, the French press, the colloid mill,
the microfluidizer, and the sonication emulsifying machine.” Consistent with these
preferences, in all of Kakoki’s working examples, emulsification is carried out using a
homomixer or stronger treatment.
In contrast, the instant specification discloses that
Step (β) is carried out by adding the liquid obtained in step (α), the
nanodispersion pre-phase, to the water phase of the cosmetic end
formulations. The particular choice of components (a), (b) and (c) results
directly in ultrafine, monodisperse nanodispersions. In this case it is
possible to forego homogenisation via nozzle, rotor-stator or ultrasound
homogenisers, which is usually carried out to convert coarsely disperse or
at least heterodisperse systems to fine monodisperse systems. Step (β) is
thus characterised by the absence of high shear or cavitation forces.
Page 2, last paragraph (emphases added). Consistent with this disclosure, all of the
working examples in the specification include a second mixing step (i.e., step (β) of the
claimed method) which is carried out “with stirring (e.g. using a magnetic agitator).” See
pages 24-26.
On reconsideration of both the instant specification and the prior art, we think it is
clear that the claimed method does not encompass a second step of mixing using a
homomixer, which was recognized in the art as subjecting compositions to a strong
shearing force. See, e.g., Kakoki, page 3, lines 1-4. We agree with Appellants that
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