Appeal No. 2007-0080 Page 7
Application No. 09/771,595
George describes several considerations that would be taken into account by the
skilled worker in determining the choice of a sunscreen agent for the skin.
The protective strength of a particular sunscreen agent on the skin
depends on a variety of factors … [which include] … distribution (or
deployment) of the sunscreen molecules on the skin, the spectral UV
properties of the sunscreen, the photostability of the sunscreen, the
chemical structure, the concentration of the sunscreen, the penetration of
the sunscreens into the stratum corneum, and the spreading properties of
the vehicle and the subsequent adherence to skin.
George, column 1, lines 47-54.
This disclosure indicates that, as Appellants urge, the skilled artisan would not
have “considered all sun screen agents as equivalent independent of the nature of the
product.” Brief, page 5. To the contrary, the skilled worker would have known that the
chemical structure of the sunscreen in the context of the substrate (i.e., skin or hair) to
which it is applied would influence its efficacy in protecting the substrate from sun.
George provides pertinent considerations for sunscreens which are to be used on the
skin. However, there is no evidence in the record of whether these same
considerations would be applicable to the hair or what other factors would have been
deemed relevant. Consequently, we have insufficient evidence to conclude that the
skilled worker would have recognized that zinc oxide could be utilized in Dieing’s
haircare product.
In addition to this, Tanner also weakens the Examiner’s case. According to
Tanner,
inorganic compounds such as zinc oxide … are not easily formulated into
stable products. For example these materials tend to agglomerate in the
finished formulations, thus losing their effectiveness and resulting in
unacceptable aesthetic properties such as whitening and viscosity
changes. Furthermore, materials such as zinc oxide are reactive materials
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Last modified: November 3, 2007