Appeal 2007-0326
Application 09/746,888
(Specification 8:5-15 and 34:28-35:8) because there is no express disclaimer
of a broader definition. See Bigio, supra.
As shown by factual finding (1) listed above, we determine that
Krzysik discloses every limitation of claim 1 on appeal with the exception of
the specific lotion composition required by this claim. However, as shown
by factual finding (6) listed above, we determine that Klofta discloses a
lotion composition including the same ingredients as required by claim 1 on
appeal. In view of our claim construction discussed above, we determine
that the “natural essential oils” taught by Klofta are derived from plants,
provide benefits for the skin, and thus fall within the scope of the claimed
“extracted botanical active” (see Klofta, col. 16, ll. 31-42). Additionally, as
shown by factual findings (3) and (8) listed above, we determine that it was
well known in the skin care composition art to use plant extracts for their
beneficial effect on skin health. As shown by factual findings (2), (4), and
(5) listed above, we determine that the Examiner has established sufficient
motivation or reasons why one of ordinary skill in this art would have
substituted the lotion composition of Klofta for the lotion composition of
Krzysik, i.e., to produce the desired lubricious, mild, less irritating feel,
provide skin benefits, and promote easy transfer to the skin thus
necessitating use of a smaller amount of lotion.
As shown by factual finding (7) listed above, we determine that Kropf
teaches the many benefits of adding sterols to skin care compositions, thus
motivating one of ordinary skill in this art to add sterols to the lotion
compositions of Krzysik and Klofta.
For the foregoing reasons and those stated in the Answer, we affirm
the rejection of claims 1-7, 10-13, 16-20, 40, 41, 43, 45-47, 49, 50, and 52-
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