Appeal 2007-0321
Application 10/669,547
components of a kit are intended to be used do not confer patentability to a
kit that is otherwise taught or suggested in the prior art. Moreover, for the
reasons discussed above, we agree with the Examiner that LaHann,
Michaels, and Orlow suggest packaging a pretreatment composition
comprising 90% lipophilic material and a depilatory composition into a kit.
We therefore affirm the Examiner’s rejection of claim 7. Claims
12-15 and 17 fall with claim 7 because they were not argued separately. 37
C.F.R. § 41.37(c)(1)(vii).
5. OBVIOUSNESS -- CLAIMS 8 AND 9
Claims 8 and 9 stand rejected under 35 U.S.C. § 103 as obvious over
LaHann, Michaels, Orlow, and Syed (Answer 9).
Claim 8 recites “the kit of claim 7 wherein the carrier for delivering
the skin pretreatment composition is a textile.” The Examiner reasons that
one of ordinary skill in the art would have considered it obvious “to have
provided the kit of the combined references with applicators such as cotton
or gloves as motivated by Syed because the reference teaches that it is well
known in [the] personal care art to insert applicators for the consumers to
handle chemical treatment compositions” (id.).
Appellants argue that Syed “does not remedy the basic deficiencies of
the combination of the other references” because “[t]here is no disclosure of
utilizing a pre-treatment the composition comprising at least 90% of
lipophilic materials” and because “[t]he reference is directed at hair coloring
rather than to depilation. The combination of art would not render the
claims prima facie obvious” (Br. 14-15).
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