Appeal No. 2005-2743 Page 5
Application No. 09/847,388
As appellant points out (Brief, page 4), “Sebillotte-Amaud’s solution to this
problem is a [stable] gel composition containing a hydrophilic medium or carrier,
not a conventional oil-containing composition such as an emulsion.” Based on
this analysis of the references, appellant reasons (id., emphasis removed),
[g]iven that Sebillotte-Arnaud found that his active agents were
stable in a gel containing a hydrophilic carrier but were not stable in
other types of compositions, one skilled in the art would not have
been motivated to use such active agents in a composition which
did not possess a hydrophilic carrier because no expectation would
have existed that the resulting active agent-containing composition
would be stable.
In response, the examiner argues (Answer, page 5), “one of ordinary skill
would be motivated to add other active agents [to Castro’s composition] to obtain
a dual effect.” While this may be true, we fail to understand why a person of
ordinary skill in the art would select an active agent, such as those taught by
Sebillotte-Amaud, which would be difficult, or impossible to incorporate into the
emulsion taught by Castro. Further, we recognize the examiner’s argument
(Answer, bridging paragraph, pages 5-6), “[r]etinols[, as taught by Castro] and
azelaic acid[, as set forth in appellant’s claims], although chemically different
agents, are known in the art for combating acne and related skin disorders …
[c]learly one of ordinary skill in the art would be able to substitute one for the
other.” However, while Castro teaches retinols, retinols are not included in
appellant’s claimed listing of active agents. In addition, while appellant’s claims
identify azelaic acid as an active agent, neither Castro nor Sebillotte-Amaud
teach azelaic acid. Accordingly, we are not persuaded by the examiner’s
argument.
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