Appeal 2007-0321
Application 10/669,547
90% lipophilic materials together with a depilatory composition in a kit with
carriers, as recited in claim 7. As discussed above, one of ordinary skill
would have considered it obvious to pre-treat skin with the claimed
lipophilic composition followed by a depilatory composition. Moreover,
Orlow discloses that personal care compositions for treating excess melanin
production in the skin may be provided in the form of a kit that may
comprise one or more treatment compositions, and may also comprise
pharmaceutically or cosmetically acceptable carriers (Orlow, col. 18, ll. 43-
50).
Appellants argue that LaHann and Michaels would not have suggested
the pretreatment composition recited in the claims (Br. 13-14). These
arguments are addressed above.
Appellants also argue that “the skilled chemist would conceptually
avoid lipophilic materials as pre-treaters” because of “concern that a
lipophilic coating over the hair would prevent the depilatory chemical from
efficiently reacting therewith” (Br. 14). Appellants urge that they were
“quite surprised that lipophilic materials such as mineral oil did not
significantly inhibit the depilatory chemical reaction. But there was an
improvement in lowering skin irritation. These were unexpected results”
(id.).
We are not persuaded by this argument. LaHann discloses that
capsaicin-containing anti-irritant compositions “can be applied before and/or
after treatment of the depilated area with the thioglycolate depilatory agent
to prevent or reduce irritation caused thereby” (LaHann, col. 2, ll. 47-52,
emphasis added). LaHann also discloses that the composition may be
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