Appeal No. 2006-3372
Application No. 10/454,521
(col. 4, line 66). α-Hydroxy acids, such as glycolic acid, are also taught as
being anti-wrinkle and anti-skin atrophy actives (col. 4, l. 65).
More specifically, McAtee teaches that:
More preferred examples of actives useful herein include
those selected from the group consisting of salicylic acid,
benzoyl peroxide, cis-retinosic acid, trans-retinoic acid, retinol,
phytic acid, N-acetyl L-cysteine, azelaic acid, lipoic acid,
resorcinol, lactic acid, glycolic acid, ibuprofen, naproxen,
hydroxycortisone, phenoxyethanol, phenoxypropanol,
phenoxyisoproponol, 2,4,4’-trichloro-2’-hydroxy diphenyl
ether, 3,4,4’-trichlorocarbanilide, and mixtures thereof.
Col. 10, ll. 3-11 (emphasis added).
The above is a short list of active ingredients, including mixtures
including glycolic acid and lipoic acid. Thus the composition disclosed by
McAtee anticipates the composition of claim 1. See Nicholas v. Perricone v.
Medicis Pharmaceutical Corp., 432 F.3d 1368, 1376-77, 77 USPQ2d 1321,
1326 (Fed. Cir. 2005) (finding that a composition comprising two different
ingredients, ascorbyl palmitate and tocopherol, in a listing of twelve
additional possible skin benefit ingredients, constituted anticipatory prior
art).
Appellant argues that McAtee provides a laundry list of active
ingredients for acne, wrinkles and skin atrophy, anesthetics, and microbial
and fungal infections (Br. 5).2 According to Appellant, “[t]he disclosure is
not enabling for the selection of one particular ingredient among all those
listed in a laundry list. Further, the disclosure of McAtee is not enabling as
2 All references to the Brief are to the Substitute Appeal Brief, dated
November 16, 2005.
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