Appeal No. 2006-0266 Page 4
Application No. 09/867,235
induced redness or inflammation. According to appellants’ specification (page
5),
The compositions of the present invention are also useful for
regulating the condition of skin and especially for regulating
keratinous tissue condition. Regulation of skin condition, namely
mammalian and in particular human skin condition, is often required
due to conditions which may be induced or caused by factors
internal and/or external to the body. Examples include, … radiation
exposure (including ultraviolet radiation)…. “[R]egulating skin
condition” includes prophylactically regulating….”
Based on the foregoing analysis, we agree with the examiner that
Rouquet teach a method wherein a composition comprising an oil soluble skin
care active (octyl methoxycinnamate) together with a silicone oil (dimethicone
copolyol, and cyclomethicone), and a silicone elastomer (KSG-16) is applied to
the skin of a mammal. While, Rouquet is silent on the ability of the method to
enhance the delivery of oil-soluble skin care actives into the skin, absent
evidence to the contrary we find this property to be inherent in the application of
Rouquet’s composition to the skin.
In response, appellants argue (Brief, pages 3-5) that Rouquet teaches a
number of skin care actives of which only a few are set forth in appellants’
claimed invention. In addition, appellants assert (Brief, page 4), Rouquet “makes
no distinction between water-soluble and oil-soluble actives.” According to
appellants (Brief, page 4), “a broad disclosure in the prior art … does not
necessarily preclude patenting of sub-classes or individual compounds.” While,
we agree with appellants, see e.g., In re Baird, 16 F.3d 380, 383, 29 USPQ2d
1550, 1553 (Fed. Cir. 1994), the rejection before us on this appeal is specifically
4 According to Rauquet (page 7), “the composition of the invention forms a base for skincare or
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