Appeal No. 2006-2731
Application No. 10/102,077
conditioning agents for the insoluble hair conditioning component (see, page 13, line 35
and claim 3), however, the repeated teaching of the patent is to the use of silicone
conditioning agent.” Br. 8 (emphasis in original).
As the Examiner noted, “the prior art teachings are not limited to preferred
embodiments and Coffindaffer et al. teach both silicone as well as oily conditioning
agents . . . , at the suggested particle sizes.” Answer 6.
Coffindaffer discloses all the limitations in claims 1 and 2, except (i) the claimed
group of fatty ester oils, i.e., triglycerides, and (ii) the particle size range 0.8 to 4 microns.
Thiel discloses specific fatty ester oils useful in conditioning shampoos, i.e., triglycerides,
and the advantages of using them. Thus, we agree with the Examiner that it would have
been obvious to a skilled artisan to use one of Thiel’s triglycerides as a specific fatty ester
oil in Coffindaffer.
With respect to the claimed particle size range, there is substantial overlap
between Coffindaffer’s “less than about 2 microns” and Appellants’ claimed ranges, i.e.,
0.8 to 4.0 microns in claim 1 and 1.0 to 3.5 microns in claim 2. Such an overlap is
sufficient to establish prima facie obviousness, absent a showing that “the claimed range
achieves unexpected results relative to the prior art range.” In re Woodruff, 919 F.2d
1575, 1578, 16 USPQ2d 1934, 1936 (Fed. Cir. 1990).
Appellants argue there is nothing in Coffindaffer to suggest limiting the bottom
end of their particle size ranges. Br. 9. They further argue Coffindaffer suggests just the
opposite in that Coffindaffer prefers very small particles, i.e., down to 0.05 microns. Id.
In essence, they argue their data show the lower limit to their range is important, perhaps
critical, to the performance of their conditioning shampoo. Id.
6
Page: Previous 1 2 3 4 5 6 7 8 9 Next
Last modified: September 9, 2013