Appeal No. 2006-0266 Page 3
Application No. 09/867,235
composition comprising “dimethicone copolyol (silicone oil), cyclomethicone
(silicone oil)[ ]1, octyl methoxycinnamate (oil-soluble sunscreen anti-inflammatory
agent[ ]2), and KSG-16[ ]3 (crosslinked silicone elaātomer [sic]), wherein
foundations are applied to the skin.” Accordingly, the examiner finds (Answer,
bridging sentence, pages 3-4), Rouquet “and the instant invention both teach a
method of applying to the skin[ ]4 a composition comprising a water-in-oil emulsion
comprising a silicone oil, a crosslinked silicone elastomer, and a skin care active,
all of which are in the oil-phase.”
The examiner relies on Stedman and Mosby as extrinsic evidence to
explain the meaning of the term “sunscreen” as used in Rouquet. In re Baxter
Travenol Labs., 952 F.2d 388, 21 USPQ2d 1281 (Fed. Cir. 1991). According to
Stedman (emphasis removed), a “sunscreen” is “a topical product that protects
the skin from ultraviolet-induced erythema and resists washing off; its use also
reduces formation of solar keratoses and reduces ultraviolet-B-induced
melanoma and nonmelanoma skin cancers and wrinkling.” Mosby defines
“erythema” as “redness or inflammation of the skin or mucous membranes….”
Thus, it appears that the use of the sunscreen, octyl methoxycinnamate, in the
water-in-oil makeup foundation of Rauquet is to protect the skin from ultraviolet-
1 According to appellants’ specification (page 16), “[n]on-limiting examples of common silicone
oils that may be used in the present invention include cyclomethicone, dimethicone, and mixtures
thereof.” In this regard, we note that the composition of appellants’ examples 2 and 4-6 contains
both cyclomethicone and dimethicone copolyol. Appellants’ specification, pages 34-35.
2 See e.g., Rauquet, page 8, paragraph [0033].
3 According to appellants’ specification (page 15), preferred non-emulsifying elastomers include
dimethicone/vinyl dimethicone crosspolymers including “KSG-15, 16 [and] 18….”
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