Appeal No. 2005-2743 Page 4
Application No. 09/847,388
However, as appellant points out (Brief, page 3), “[t]he [e]xaminer’s
combination of Sebillotte-Arnaud’s active agents with Castro’s compositions is
exactly the type of combination which Sebillotte-Arnaud had found to be
problematic and which Sebillotte-Arnaud was trying to avoid.” Stated differently,
appellant asserts (id.), Sebillotte-Arnaud teaches away from a combination with
Castro. In this regard, appellant points out (Brief, page 4), “Castro’s fibers are
present in an oil carrier [and] suggests adding oil-soluble active agents to his
compositions, but not water-soluble active agents.”3 Stated differently, “Castro
discloses compositions (for example, emulsions) in which fibers and ‘active
agents’ (if present) are in the oil phase or an oil carrier.” Id.
In contrast, among a number of reasons Sebillotte-Arnaud teach away
from the use of water-in-oil or oil-in-water emulsions (column 1, lines 25-57), as
taught by Castro, Sebillotte-Arnaud discloses (column 1, lines 25-46),
[c]ompositions conventionally used in the cosmetic … fields are
water-in-oil (W/O) emulsions, oil-in-water (O/W) emulsions or
aqueous gels, in which it is often difficult, indeed even impossible,
to incorporate certain active agents…. In general, these active
agents have a tendency to recrystallize or to degrade. The result is
a more or less significant loss in the efficacy of these compositions,
according to the degree of recrystallization and/or degradation,
which runs counter to the desired objective. In addition, this
recrystallization or degradation can modify the overall stability of
these compositions and their appearance, which can turn the user
away from these specific treatment compositions. Moreover, to
dissolve such active agents in some compositions often requires
heating the latter, which is relatively troublesome for active agents
which are sensitive to heat….
3 The examiner concedes this point (Final Rejection, page 4), “Castro discloses additional
preferred components of the cosmetic compositions including … oil-soluble actives such as
tocopherol and its derivatives, retinol and its derivatives, and the like….”
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