Appeal 2007-0315
Application 10/374,300
neutralize the acid in the composition to render a pH that does not [irritate]
the skin” (Answer 5).
Appellants contend that the Jokura does not teach the claimed
invention. They argue:
1) Jokura’s utility is different (Br. 13). Jokura “is focused upon
achieving moisturization. There is no suggestion that their compositions or
any of their components can treat the signs of aging” (Br. 10).
2) Jokura “discloses the unneutralized acid (component B) and the
partially neutralized acid (component C). The free acid can only co-exist
with a partially neutralized salt because of pKa considerations. There is thus
no disclosure of a fully neutralized malonic acid (i.e. formula II)” (Br. 11).
3) Jokura “mentions the name ‘malonic acid’ only once in the text.
See column 3, lines 33-34. Yet even here the reference mishandles the
structure. The ‘X’ of malonic is ‘CH2’ instead of the specified ‘CH3’.
Further, none of the Examples utilize malonic acid. Anyone skilled in the
art would find it extremely easy to overlook malonic acid in the teachings of
this reference” (Br. 12).
We have considered Appellants’ arguments, but for the reasons
discussed below, we do not find them persuasive.
1) Jokura’s utility is different from the claimed invention
Appellants contend that Jokura’s purpose is to achieve moisturization,
not control the signs of aging as recited in claim 1 (Br. 10). They argue that
Jokura “provides the skilled chemist with no suggestion that dicarboxylic
acids in general or malonic in specific would be useful for anti-ageing
effectiveness” (Br. 13).
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