Appeal No. 2006-0728 Page 7
Application No. 10/198,714
Appellants argue that the secondary references do not “disclose[ ] or suggest[ ]
the use of a composition in which metal pyrithione is dispersed as a means of
increasing the level of free intercellular lipids that occur naturally in the stratum corneum
of the skin.” Appeal Brief, page 10. However, as discussed above, such a teaching is
not necessary to meet all the limitations of the claims.
The rejection of claim 10 as obvious in view of Ramachandran and Takaya is
affirmed. Claims 11-14 were not argued separately and therefore fall with claim 10.
New Ground of Rejection
Under the provisions of 37 CFR § 41.50(b), we enter the following new ground of
rejection: claim 8 is rejected under 35 U.S.C. § 103 as obvious in view of
Ramachandran. Claim 8 is directed to a method comprising four steps: (1) contacting
skin with water, (2) applying to the skin a metal pyrithione; (3) rinsing off the excess
metal pyrithione; and (4) “determining the extent to which the level of lipids in the skin
has increased.”
Ramachandran teaches (Example 1) a method of shampooing hair. Two
formulations (Formula A and Formula B) were compared against commercial anti-
dandruff shampoos “using the protocol described above.” Column 8, lines 30-40. The
protocol described on lines 16-19 of column 8 is as follows: “The shampoo procedure
involved the application of 10 grams of the control directly to the wet scalp followed by a
one minute massage into the scalp. The hair is then washed and rinsed free of lather
and dried.” Ramachandran also teaches that scalp evaluations were made by the
subjects themselves and by a dermatologist to judge, among other things, dryness and
flaking. See column 8, lines 20-25 and lines 40-44.
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