Appeal 2007-0284
Application 10/454,564
The Examiner responds:
[T]he mixing of the ingredients in Examples 1-2 would
inherently result in a shampoo that contains emulsified drops
that contain a blend of both aminosilicone and non-amino
functionalized silicone, since mixing the emulsified
aminosilicone with the emulsified non-amino functionalized
silicone would necessarily result in a blend of the two
emulsions, as required in the instant claims.
(Answer 4.)
Based on these conflicting positions, the single issue before us is, does
Murray’s mixing of pre-emulsified amino silicone and pre-emulsified non-
aminosilicone in his aqueous shampoo inherently result in “emulsion drops
containing a blend of the aminosilicone and non-amino-functionalized
silicone,” as required by claim 12?
FINDINGS OF FACT
1. Giving claim 12 its broadest reasonable interpretation, it requires at
least some emulsion droplets containing both aminosilicone and non-amino-
functionalized silicone particles. (See claim 12.)
2. Appellants do not dispute that Murray discloses all the elements of
claim 12, except that required by the clause “wherein the aminosilicone and
non-amino functionalized silicone are in the form of emulsion drops
containing a blend of the aminosilicone and non-amino-functionalized
silicone.” (See Br. passim.)
3. Murray generally discloses that the “use of silicones as
conditioning agents in cosmetic formulations is well known” and “dispersed
3
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