Appeal No. 2005-2046
Application No. 10/101,004
1,000,000 in combination with a gum provides the composition having the appropriate
sheer rate and sheer stress, as claimed. The examiner should carefully consider
whether Stoner supports a disclosure of an appropriate polyethylene oxide together with
a natural or synthetic gum under the principles of In re Best, 562 F.2d 1252, 1254, 195
USPQ 430, 432 (CCPA 1977), to properly shift the burden to appellants to show that the
compositions of Stoner do not possess the claimed stress ratio and shear rate. Put
another way, is a polyethylene glycol having a molecular weight of 6000 or 600,000 the
same or substantially the same as a polyethylene glycol having a molecular weight of
1,000,000 (Brief, page 2) or more to shift the burden to appellant under In re Best to
show that such a composition resulting from the combination of a polyethylene glycol
together with a gum, does not possess the same sheer rate and stress ratio?
2. It is recommended that the Examiner take a step back and reevaluate the
shaving aid 21 disclosed in King at column 6, line 55 - column 7, line 4. It would
appear that King describes his shaving aid as referring equally to “either a shave-aiding
agent combined with a solid water soluble micro-encapsulating or microporous structure
which retains the agent, or to that agent itself being a water soluble solid.” In contrast,
the appellants characterized the shaving composition used in the claimed method as an
aqueous polymer solution (shave lotion, cream, foam or gel). Claim 1; Brief, page 2.
The examiner should carefully consider whether either of the shaving aids described in
King can be considered an aqueous solution or whether there is proper motivation to
combine them with an aqueous solution, as required by the claims.
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