Appeal No. 2007-0179 Page 4
Application No. 10/601,856
A “milky lotion” with 2% by weight of a sunscreen is also described by
Jokura. Col. 7 (Ex. 3), ll. 40-53. The disclosed amount of sunscreen overlaps with
the quantity recited in claim 1, i.e., “from about 0.05 to about 40% by weight of an
organic sunscreen agent.”
According to Jokura, “[t]o achieve a sufficient moisturizing effect while
avoiding excessive irritation, it is preferable that the total content of these
components (B) and (C), in terms of the acid, in the skin cosmetic of the present
invention falls within a range of from 0.01 to 20% by weight.” Col. 3, ll. 51-55.
For this same purpose, the molar ratio of the acid (B) to the salt (C) is described by
Jokura as falling preferably “within a range of from 1/9 to 9/1, still preferably from
2/8 to 8/2.” Col. 3, ll. 55-60. The pH of the skin cosmetic is preferably from “pH
3 to 10, still preferably to pH 3 to 9.” Col. 3, ll. 61-63.
The Examiner states that Jokura “do[es] not exemplify the instant malonic
acid salt among the various dicarboxylic acid salts disclosed or the instant amine
salts. Further, Jokura does not specify the acid to salt molar ratio.” Answer 4.
However, the Examiner asserts that it would have been obvious to the skilled
worker to have selected the claimed malonic acid and amine or ammonium salt
since Jokura teaches these as suitable components (col. 3, ll. 31-36 and 41-45) of
its skin cosmetic. Id. at 5. “Therefore, the selection of the instant acid salt is
considered prima facie obvious since the prior art teaches that the criticality of
selecting the acid is that it is a dicarboxylic acid and not the selection of the
specific dicarboxylic acid itself.” Id. at 5.
Regarding the neutralization ratio, although Jokura does not
specify the molar ratio of acid: salt, it would have been obvious to a
skilled artisan to manipulate this ratio. One would have been
motivated to manipulate the ratio of the salt to acid since partial or full
neutralization of the acid by the salt (salt acts as the neutralizing
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