Appeal No. 2006-1021 Page 7
Application No. 09/851,882
with claim 1. In affirming this ground of rejection, we recognize that our
reasoning differs from that of the examiner. Therefore, we will designate our
affirmance a new ground of rejection in order to give Appellants a fair opportunity
to respond. See In re Kronig, 539 F.2d 1300, 1302-03, 190 USPQ 425, 426-27
(CCPA 1976).
Claim 46:
As set forth above, appellants’ claim 46 is drawn to a method which
comprises applying the composition of claim 1 to the skin. Appellants’ arguments
in favor of claim 46 are essentially the same as those made for claim 1. Brief,
pages 7-8. As discussed above, it is our opinion that the composition of
appellants’ claim 1 is prima facie obvious in view of the combination of Hoppe
and Raab. Both or Hoppe and Raab disclose the application of a composition to
the skin. Accordingly, for the foregoing reasons we affirm the rejection of claim
46 under 35 U.S.C. § 103 as being unpatentable over the combination of Hoppe
and Raab. As discussed supra claims 43, 44, and 47-61 fall together with claim
46. In affirming this ground of rejection, we recognize that our reasoning differs
from that of the examiner. Therefore, we will designate our affirmance a new
ground of rejection in order to give Appellants a fair opportunity to respond. See
In re Kronig, surpa.
Claim 45:
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