Appeal No. 2006-3151
Application No. 10/767,679
compositions having a pH of 4.1 (see column 3, lines 60-65 and Table 2).”
(Answer 18.) The Examiner argues that “cosmetic products that are used for
application to the skin” generally have a pH about 7, that is, neutral pH.
(Id.) Thus, “absent evidence to the contrary,” the Examiner takes the
position that “Appellants’ personal care composition is also provided in a pH
range about 7, such as in a range that is at least close to or even overlaps
with the pH of from 3 to 10, as taught by Jokura.” (Answer 19.) The
Examiner concludes that “as Jokura et al. teaches a pH range that is at least
close to and/or overlaps with that of the instantly claimed composition
having the ratio of partially to fully neutralized salt, it is considered that the
composition of Jokura et al. does indeed have an amount of ‘fully
neutralized’ acid salt form present in the solution.” (Id.)
The Examiner also argues that it would have been obvious “to vary
and/or optimize the pH and/or the ratio of salt form to free acid form as
taught by Jokura et al. (column 3, lines 50-65) and thus simultaneously vary
and/or optimize the ratio of partially neutralized to fully neutralized salt.”
(Id.)
We conclude that the Examiner has set forth a prima facie case that
the composition of claim 2 would have been obvious. Jokura does not state
that malonic acid is present as a half neutralized acid and as a fully
neutralized acid in a molar ratio ranging from about 1000:1 to about 1:1000,
respectively. However, Jokura describes regulating “the pH value of the
skin cosmetic . . . to pH 3 to 10, still [more] preferably to pH 3 to 9,” and
exemplifies a pH of 4.1. (Col. 3, ll. 60-63, & Table 2.)
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