Appeal No. 2006-3254
Application No. 10/347,982
We conclude that the Examiner has set forth a prima facie case that
the composition of claim 1 would have been obvious. 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 content of [the
dicarboxylic acid] and [dicarboxylic acid salt], in terms of the acid, in the
skin cosmetic . . . falls within a range of from 0.01 to 20% by weight” and
“the molar ratio of the [dicarboxylic acid] to [dicarboxylic acid salt] falls
within a range of from 1/9 to 9/1.” (Col. 3, ll. 51-60.) Jokura also describes
including water, ethanol, or water-soluble polyhydric alcohols as a base and
that the preferred content of these components in the skin cosmetic “ranges
from 0.01 to 95% by weight, still [more] preferably from 0.1 to 90% by
weight.” (Col. 4, ll. 16-34.)
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. 60-65, & Table 2.)
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 has supported this assertion with scientific reasoning.
(Answer 16.) Appellants’ specification states that “[c]ompositions of this
invention may have a pH ranging from about 2.5 to about 8.5, preferably
from about 3 to about 8, optimally from about 4 to less that about 7.”
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