Appeal 2007-0315 Application 10/374,300 that Crandall erred, but contends – without evidentiary support – that malonic acid is “routinely used in the cosmetic art” (Answer 15). We are not persuaded. Obviousness requires that all elements of the claim be identified in the prior art. To sustain the burden of establishing prima facie obviousness, evidence to support the Examiner’s findings must be provided. In this case, the Examiner did not provide any evidence to support the finding that malonic acid is “routinely used in the cosmetic art” (Answer 15). Thus, we conclude that the Examiner did not establish prima facie obviousness of the claimed invention. We reverse the rejection of claims 1- 9 as obvious over Cole in view of Crandall. TIME PERIOD No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv) (2006). AFFIRMED LP UNILIVER INTELLECTUAL PROPERTY GROUP 700 SYLVAN AVENUE, BLDG C2 SOUTH ENGLEWOOD CLIFFS, NJ 07632-3100 11Page: Previous 1 2 3 4 5 6 7 8 9 10 11
Last modified: September 9, 2013