Appeal 2007-0321
Application 10/669,547
formulated as a cream containing “about 50% . . . of an emollient” (id. at
col. 5, ll. 46-51). LaHann discloses that suitable emollients include mineral
oil (id. at col. 3, ll. 40-41).
Thus, one of ordinary skill in the art would have expected from
LaHann that pre-treating skin with compositions containing significant
amounts of lipophilic materials would not interfere with the action of a
thioglycolate depilatory. Moreover, it is well settled that “unexpected
results must be established by factual evidence.” In re Geisler, 116 F.3d
1465, 1470, 43 USPQ2d 1362, 1365 (Fed. Cir. 1997). Appellants have
provided no evidence that the cited results were unexpected. “Attorney’s
argument in a brief cannot take the place of evidence.” In re Pearson, 494
F.2d 1399, 1405, 181 USPQ 641, 646 (CCPA 1974). Appellants therefore
have not shown that one of ordinary skill would have considered it
unexpected that a thioglycolate depilatory would work when applied to an
area pretreated with lipophilic materials.
Appellants argue that Orlow fails to remedy the deficiencies of
LaHann and Michaels because Orlow fails to disclose using high levels of
lipophilic materials for pre-treating chemically depilated skin, and because
Orlow fails to disclose the instructions required by claim 7 (id.).
We are not persuaded by this argument. When a kit claim contains
written instructions that merely recite the way in which the other
components of the kit must be used, “the printed matter is not functionally
related to the substrate, [and] the printed matter will not distinguish the
invention from the prior art in terms of patentability.” In re Ngai, 367 F.3d
1336, 1339 (Fed. Cir. 2004). Thus, instructions regarding the way the
16
Page: Previous 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Next
Last modified: September 9, 2013