Appeal No. 2007-0080 Page 5
Application No. 09/771,595
(d) evidence of secondary considerations.
In this case, it is undisputed that the difference between the prior art (Dieing) and
the claimed subject matter is the presence of an inorganic UV filter in the latter. To
determine whether it would have been obvious to one of ordinary skill in the art at the
time the invention was made to have combined Dieing’s prior art haircare product with
an inorganic UV filter, we first need to consider the scope and content of the prior art,
and then the artisan’s level of skill.
The prior art teaches that haircare products can contain sunscreen agents
(George, column 1, lines 44-46), which we agree with the Examiner would have
reasonably suggested to the skilled worker adding such an agent to the hair care
formulations described by Dieing. However, the issue in this appeal is narrower:
whether it would have been obvious to have added the surface-treated zinc oxide
sunscreen agent of Tanner to Dieing’s haircare product.
Appellants urge that Dieing cannot properly be combined with Tanner because
Dieing relates to products for the hair, while Tanner’s disclosure of zinc oxide is for
application to the skin. Brief, page 5, line 23-page 6, line 15. We concur with
Appellants’ argument. Dieing describes the object of its invention as finding cationic
polymers for shampoos that possess “improved effectiveness” and which do not exhibit
the disadvantages experienced with existing cationic polymers when applied to the hair.
Dieing, page 2. Dieing’s “invention-based polymers” are described as “suitable as
conditioners in cosmetic preparation, above all, for hair.” Id., page 5. All the examples
in Dieing are to shampoos which comprise the cationic polymer. Id., page 10-11.
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Last modified: November 3, 2007