Appeal No. 2006-0266 Page 5
Application No. 09/867,235
limited to a method which comprises the application of the composition set forth
in Example 2 (page 10 of Rouquet) to the skin of a mammal. As the examiner
points out (Answer, page 5), Rouquet “teaches a specific anti-inflammatory
agent, octyl methoxycinnamate … [a] specie of the active recited [in appellants’
claim]. We agree. Accordingly, we are not persuaded by appellants’ argument.
Appreciating that Rouguet’s Example 2 teaches a sunscreen, appellants
assert (Brief, page 4), Rouquet “explicitly teaches actives, for example
sunscreens, that are effective only on the surface of the skin.” Initially, we note
that appellants’ do not dispute the examiner’s characterization of a sunscreen as
an anti-inflammatory agent. Accordingly, we find that appellants’ concede this
point. Further, while appellants assert (id.), that sunscreens are only effective on
the skin’s surface, appellants provide no evidence to support this assertion. In
this regard, we remind appellants that attorney argument cannot take the place of
evidence lacking in the record. Meitzner v. Mindick, 549 F.2d 775, 782, 193
USPQ 17, 22 (CCPA 1977). As the examiner points out (Answer, page 5), “[t]he
only active step recited [in appellants’ claim 27] is to apply [ ] the … composition
onto the skin. Therefore, the applying of Rouquet’s composition to the skin
would inherently practice the recited step of ‘delivering the active into the skin,[’]
absent evidence to the contrary.” We agree. The claimed method comprises a
single step - applying the recited composition to the skin. As discussed above,
Rouguet teaches the application of a composition within the scope of claim 27, to
the skin of a mammal. Therefore, we agree with the examiner’s finding that
applying Rouquet’s composition to the skin would inherently result in delivering
makeup, to be applied on the skin or lips before the skincare or makeup product.”
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