Appeal No. 2006-2655
Application No. 10/750,810
would not have been considered “interchangeable with respect to their use in
personal care . . . or oral care compositions.” Br. 7-8. In our view, this
evidence points to the opposite conclusion. As discussed supra,
antimicrobial agents, including fungicides, were in wide use to prevent
products from deterioration. In teaching that bacteriocides and fungicides
are customarily added to hair preparations, Lang does not indicate a
preference for any structure or class of chemicals. Col. 3, ll. 40-44. Blank
teaches that its compounds can be used to treat carpet, fabrics, hard surfaces,
wrappers for soaps, and papers and substrates for food. Col. 9, ll. 1-14.
Thus, a teaching that a fungicide of a particular chemical class was useful
for one application would not have been understood by the skilled worker to
preclude its use for other, unrelated applications.
Appellants also argue that the cited prior art is silent on the issue of
whether the oxathiazole-2-one derivatives of Muhlbauer “could safely be
incorporated into” personal or oral care compositions which are applied to
the human body (Br. 5), apparently making it a nonobvious choice to add to
the claimed compositions. However, they have provided no evidence that
the skilled worker would have concluded that Muhlbauer’s oxathiazole-2-
one derivatives are unsafe for compositions to be applied to the body.
Appellants do not point to any disclosure in Muhlbauer, Kaminski, Lang, or
Blank that would have led the skilled worker to doubt that these compounds
could be utilized in a personal care or oral care product. Arguments of
counsel cannot take the place of evidence lacking in the record. Estee
Lauder Inc. v. L’Oreal, S.A., 129 F.3d 588, 593, 44 USPQ2d 1610, 1615
(Fed. Cir. 1997).
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