Appeal No. 2006-2655
Application No. 10/750,810
and 19, and which also possess fungicidal properties. Answer 3-4. Each of
Kaminski, Lang, and Blank are cited for teaching “that it is known in the art
to incorporate fungicidal agents into various compositions including
cosmetic preparations such as mouthwashes, shampoos, [and] soaps” for this
purpose. Id. at 4. The Examiner concludes:
Based on the teachings of the prior art and the level of
skill of the ordinary artisan in the cosmetic art, it would have
been obvious to the skilled artisan at the time of the present
invention to utilize the oxathiazole derivatives taught by
Mu[ ]hlbauer in the compositions taught by Kaminski, Lang
and Blank with the reasonable expectation of preventing the
contamination and deterioration of said compositions. The
motivation would be based on (a) the teachings of Mu[ ]hlbauer
that said oxathiazole derivatives have fungicidal properties and
(b) the knowledge in the cosmetic art that antimicrobial agents
prevent contamination and deterioration of cosmetic products.
Answer 4.
The Examiner also states that Muhlbauer teaches
a fungicidal composition containing acetone and the art teaches
various fungicidal acceptable carriers including water and
acetone. Based on the teachings of the prior art and the level of
skill of the ordinary artisan in the art, the utilization of the
compounds taught by Muhlbauer with carriers such as acetone
and water would have been obvious to the skilled artisan in the
art at the time of the present invention because both carriers are
known to be fungicidally acceptable carriers.
Answer 6.
Appellants do not challenge the Examiner’s finding that Muhlbauer
describes compounds within the scope of claims 18 and 19. See Br. 3: ll. 1-
2. However, they assert that there is no teaching in the cited prior art that a
fungicidal oxathiazole-2-one derivative of Muhlbauer “could be safely
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