Appeal No. 2006-1222 Page 6
Application No. 10/141,442
Unlike claims 1-12, there is no express limitation in claim 13 or its
dependent claims 14-18 and 20-24 that requires the claimed composition be a
liquid at room temperature. Claims 13-18 and 20-24, however, are drawn to a
lotion. While it would seem reasonable that a lotion is a liquid at room
temperature, the examiner has rejected claims 13-18 and 20-24 over a reference
that teaches a composition that is a semi-solid or a solid at room temperature.
Other than this bear assertion, the examiner failed to favor this record with any
explanation or claim construction to support her position that a semi-solid or solid
anticipates a lotion.
3. The lotion of claim 13:
Claim 13 is drawn to a lotion comprising a micro-emulsion, which
comprises a polar emollient, a non-polar emollient, a non-ionic surfactant, and a
co-surfactant. As discussed above, the examiner finds that Warner discloses
that emollients are present. The examiner, however, does not identify which
emollients are polar and non-polar. The examiner does not, however, favor this
record by identifying where a lotion is taught in Warner, which comprises a micro-
emulsion, which in addition to both a polar emollient and a non-polar emollient,
comprises a non-ionic surfactant, and a co-surfactant, as is required by
appellants’ claim 13.
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