Appeal No. 2006-0230 Page 6
Application No. 09/864,083
Accordingly, we will address appellants’ argument as it relates to the ‘054 patent.
In this regard, appellants assert (Brief, page 7), the ‘054 patent teaches (column
7, lines 54-56, and column 13, lines 19-21), “compositions containing four
percent (4%) or less hydroquinone are stably prepared in a pH range of 3.3 - 4.0,
in essence, teaching away from using a higher pH for stable hydroquinone
compositions.”
There is no doubt that the ‘054 patent discloses (column 7, lines 40-56), a
prophylactic and therapeutic composition for treating age spots and keratoses
that has a pH of 3.3. This composition, however, contains 2% hydroquinone, 1%
malic acid, 19% gluconolactone and 0.5% citric acid. The ‘054 patent also
discloses (column 13, lines 11-21), a therapeutic composition for treating age
spots, keratoses, melasmas, lentigines and other pigmented skin spots that has
a pH of 4.0. This composition, however, contains 4% hydroquinone, and 12% 2-
methyl 2-hydroxypropanoic acid. Contrary to appellants’ intimation, we do not
find the cited sections of the ‘054 patent to teach that compositions containing
four percent (4%) or less hydroquinone are only stable if they are prepared in a
pH range of 3.3 - 4.0. In this regard, we note that the compositions taught by the
cited sections of the ‘054 patent bear little resemblance to the compositions
taught by Gordon, or those set forth in appellants’ claim 1. Further, we note, in
response to appellants’ argument, the examiner’s cites to Lukenbach, which
teaches a composition having a pH of 7.5 that comprises hydroquinone.
Based on evidence of record, we are not persuaded by appellants’
assertion (Brief, page 7), “one of ordinary skill in the art would not find it obvious
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