Appeal No. 2006-0230 Page 12
Application No. 09/864,083
In response, appellants rely on two Declarations4 of Philip J. Gordon 5,
which according to appellants provide evidence of unexpected results. According
to appellants (Brief, bridging sentence, pages 10-11), “Lukenbach in conjunction
with Gordon, fails to teach the cosmetically acceptable combination of the active
agents at the given pH, a problem addressed by the present invention.”
According to the first Declaration (paragraph 2), the compositions set forth in
Examples 100B and 100C of Lukenbach were prepared and adjusted to a pH of
7.5. After studying the effect of temperature and time on the compositions,
declarant concludes (Declaration, paragraph 8):
Example 100C … when prepared in accordance with the
instructions provided by the patent, suggests that the hydroquinone
rapidly degrades due to the high pH (7.5) of the formula. Example
100C appears to be fluffy and not smooth. Further, Example 100C
is not a good cosmetic emulsion due to the color instability after two
weeks at 40°C…, further having an initial color of brown, which may
be due to hydroquinone degradation.
By way of comparison, appellants’ Supplemental Declaration describes
the preparation of a composition within the scope of their invention. According to
the Supplemental Declaration (paragraph, 2), this composition had a pH of about
5.70-5.80. After studying the effect of temperature and time on the compositions,
declarant concludes (Declaration, paragraph 8), the composition “when prepared
in accordance with the instructions provided by the application, appears to
4 Philip J. Gordon favored this record with two Declarations. The first Declaration was entered
into the record on October 23, 2003. Subsequently, a Supplemental Declaration was entered
into the record on December 11, 2003.
5 We recognize appellants’ clarification (Brief, page 11, n.1), “Philip J. Gordon, an inventor on the
present application, is not Benjamin Gordon from the Gordon reference (U.S. Patent No.
5,932,612) cited by the [e]xaminer.”
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