Appeal No. 2006-3151
Application No. 10/767,679
column 2, line 20 through column 3, line 35 . . . )”; and “exemplifies
Deo-Key™ fragrance compositions comprising a terpenoid in the recited
percent by weight of the fragrance composition, such as for example Orange
Oil Morocco (limonene) in a percent by weight of 2.00-8.00 . . . (see
column 7, line 10 through column 8, lines 36 . . . ).” (Answer 6-7.)
Thus, the Examiner argues that:
one of ordinary skill in the art at the time the invention was
made would have found it obvious to combine the fragrance
composition of Guenin et al. into the skin care composition of
Jokura et al. to devise the personal care composition of claim 1,
because Jokura et al. teaches that the skin care composition
comprising the dicarboxylic acid salt such as a salt of malonic
acid can comprise conventional cosmetic additives such as a
perfume, and Guenin et al. teaches a fragrance composition
(perfume) that can be combined into cosmetic compositions
comprising a terpenoid as claimed.
(Answer 7-8.) The Examiner argues that “the fact that Appellants have
recognized another advantage [that is, oxidative stability of terpenoids]
which would flow naturally from following the suggestion of the prior art
cannot be the basis for patentability when the differences would otherwise
be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter.
1985).” (Answer 13.)
We conclude that the Examiner has set forth a prima facie case that
the composition of claim 1 would have been obvious. As noted by the
Examiner, Jokura describes a skin cosmetic comprising a ceramide or
pseudoceramide, a dicarboxylic acid, and a salt of a dicarboxylic acid
(col. 2, ll. 6-39), and specifically identifies malonic acid as an example of a
dicarboxylic acid (col. 3, ll. 33-37). Jokura states that preferably “the total
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