Appeal No. 2006-1801 Page 7
Application No. 10/007,869
retinoid degradation. It was apparently assumed in the Examiner’s Answer (e.g., page
17) that Liu’s statements (column 2, lines 59-61; column 3, lines 15-20) that retinoids
undergo “chemical degradation” and “quickly lose their activity and either oxidize or
isomerize to non-efficacious chemical forms,” form a general teaching or recognition
that all chemicals are deleterious to retinoid stability. In other words, the examiner read
“chemical degradation” to mean “degradation of retinoid caused by any chemical.”
However, this reading is not correct.
Liu describes stabilizing retinoids against “chemical degradation,” but does not
explicitly define it in the patent. In column 12, Liu characterizes light and oxygen
mediated breakdown (degradation) of the retinoid molecule. This indicates that the
phrase “chemical degradation” is not restricted to processes where chemicals degrade
retinoid, but rather also refers to the degradation of retinoid, which itself is a chemical
molecule.
There is no general teaching in Liu that all chemicals are deleterious to retinoids.
On column 24, lines 59-67, Liu describes incorporating azole-type compounds into
retinoid formulations. With respect to imidazoles, a class of azoles, Liu states that
“nitrate or other salt forms of the imidazoles should not be used, however, as they tend
to render unstable the retinoids contained in the formulations.” Any generalization
about the ability of chemical compounds as a class to produce retinoid degradation is
surely tempered by Liu’s disclosure cautioning against the use of particular salt forms of
imidazoles, but not against all imidazole compounds.
In Suares, a multi-compartment container is described for storing a retinoid skin
composition (“Anti-acne preparation”; “Anti-wrinkle cream”) separate from another skin
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