Appeal No. 2006-1057
Application No. 10/005,994
that the prior art both suggest the claimed subject matter and reveal a reasonable
expectation of success to one reasonably skilled in the art. In re Vaeck, 947 F.2d 488,
493, 20 USPQ2d 1438, 1442 (Fed. Cir. 1991). With this as background, we analyze
the prior art applied by the examiner in the rejection of the claims on appeal.
Although we agree that the prior art cited by the examiner supports a prima facie
case of obviousness, our reasoning differs from that of the examiner and for this reason
we designate our decision a new ground of rejection to provide appellant a full and fair
opportunity to address any additional issues or concerns.
Guck describes a skin protecting foam containing stearate and sorbitol (a
cosmetic vehicle) and which may also include a tenside of sodium lauryl sulfate in
quantities of 1 to 3 weight%. Guck, pages 4 and 8. Guck describes that the amount of
sodium lauryl sulfate tenside can be selected from a range of amounts, 1 to 3%, within
the claimed range of foaming surfactant. McAtee discloses that sodium lauryl sulfate is
considered a lathering surfactant. Column 7, line 51-56. Claim 1 before us does not
recite a specific amount of cosmetic vehicle and thus Guck would appear to disclose a
protective composition within the scope of claim 1. McAtee discloses that lowering a
composition's surface tension with a surfactant leads to better softening and breaking
up of the lipid and silicone base of the skin products, to improve removing of the lipid-
silicone-containing skin products from the skin. McAtee, column 1, lines 59-64; Answer,
page 3.
Noll also describes a cream composition which dries to form a topical barrier on
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