Appeal No. 2006-1801 Page 5
Application No. 10/007,869
2. Rejection under 35 U.S.C. § 103
Claims 1, 2, 4-7, 9-12, and 14-18 stands rejected under 35 U.S.C. § 103(a), as
unpatentable over Burger2 and Granger3 in view of Liu4 and Suares5 and Remington6.
Each of Burger and Granger describes compositions for application to the skin
which contain retinoids in combination with other components that enhance retinoid
activity. See, Examiner’s Answer, pages 4-5. Retinoid and booster concentrations are
disclosed in Burger (e.g., column 2, lines 61-65, and column 2, lines 3-7, respectively).
Several of the boosters recited in instant claim 1 are disclosed, e.g., damascone
(Burger, column 3, line 45), alpha ionone (Burger, column 3, lines 46), and climbazole
(Granger, column 4, lines 19), but as residing in the same composition as the retinoid.
The problem of retinoid stability in preparing skin cosmetics is described in Liu.
Several approaches to resolving it are disclosed, including supplying components in
separate containers which are combined just prior to use (Liu, column 2, lines 60-61)
and formulating retinoid in an oil-in-water emulsion (Liu, column 3, lines 15-20).
Appellant admitted these to be prior art in their own application. See, e.g.,
Specification, page 1, line 27-page 3, line 15. Aluminum packaging is mentioned by Liu
as a way to protect retinoids from degradation. Liu, column 12, lines 50-55. (Compare
claim 1: “first compartment for storing [retinoid] is made out of aluminum.”) The
examiner relied upon Remington for this teaching, but this was unnecessary since it
was redundant to Liu’s disclosure.
2 Burger et al. (Burger) U.S. Patent No. 5,759,556 issued Jun. 2, 1998
3 Granger et al. (Granger) U.S. Patent No. 5,716,627 issued Feb. 10, 1998
4 Liu et al. (Liu) U.S. Patent No. 5,976,555 issued Nov. 2, 1999
5 Suares et al. (Suares) U.S. Patent No. 5,914,116 issued Jun. 22, 1999
6 Remington’s Pharmaceutical Sciences (1990) p. 1511-1512
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