Appeal No. 2006-3151
Application No. 10/767,679
The Examiner concludes that the molar ratio of claim 2 would have
been obvious. In reaching this conclusion, the Examiner takes the position
that Appellants’ personal care composition, which has the claimed molar
ratio, has a pH close to or within the pH range described in Jokura.
(Answer 19.) This position, which is not rebutted by Appellants, appears to
be reasonable based on the teaching in Jokura that compositions having “a
pH value less than 3 or exceeding 10” would be irritating to the skin.
(Col. 3, ll. 63-65.) In addition, the Examiner has asserted that “the ratio of
partially neutralized acid to fully neutralized acid will be dependent upon the
concentration of H+ in solution” and that therefore “solutions having the
same pH should have the same or similar ratios of partially neutralized to
fully neutralized salt.” (Answer 18.) The Examiner has supported these
assertions with scientific reasoning. (Answer 15-18.) Thus, we conclude
that Examiner has set forth a prima facie case that the broad molar ratio
recited in claim 2 would have been obvious based on the teachings of
Jokura.
Appellants argue that Jokura “discloses the unneutralized acid
(component B) and the partially neutralized acid (component C). The free
acid can only co-exist with a partially neutralized salt because of pKa
considerations. There is thus no disclosure of a fully neutralized malonic
acid (see formula II at page 3 [of the specification]).” (Br. 9.)
We are not persuaded by this argument. We find that the Examiner
has set forth adequate scientific reasoning to support the conclusion that
Jokura discloses mixtures of partially and fully neutralized acid.
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