Appeal 2007-0100
Application 10761,213
expectation of success in formulating a compatible composition comprising
Cotteret’s ingredients in addition to the cationic direct dyes of Mockli. It is
well settled that absolute predictability is not required for a finding of
obviousness under § 103, but only a reasonable expectation of success. In re
O’Farrell, 853 F.2d 894, 903-04, 7 USPQ2d 1673, 1681 (Fed. Cir. 1988).
We are not persuaded by Appellant’s argument that “Mockli does not
suggest using its dyes in a composition containing oxidation dyes” because
Mockli states that increasing reservations are being voiced about possible
toxicological risks posed by oxidation dyes. While Mockli discloses
disadvantages associated with using oxidation dyes, Appellant, significantly,
has presented no argument or objective evidence which demonstrates that
the claimed compositions including oxidation dyes do not also pose the same
toxicological risks. Certainly, there is no teaching in Mockli that the
claimed cationic direct dyes cannot be used in conjunction with oxidation
dyes.
Appellant’s Declaration fails to undermine the prima face of
obviousness established by the collective teachings of Cotteret and Mockli.
The Declaration simply shows that a dyeing composition comprising a
cationic or amphoteric substantive polymer and a neutral direct dye, as
opposed to the cationic direct dyes of Mockli, produces more color variation.
In our view, this evidence falls fall short of rebutting the prima facie
obviousness of utilizing the cationic direct dyes of Mockli in the dyeing
composition of Cotteret. The Declaration simply demonstrates that not all
direct dyes achieve uniform coloring.
We now turn to the § 103 rejection of Kao in view of Mockli. There
is no dispute that Kao, like Appellant, discloses a composition for dyeing
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