Appeal 2007-0533
Application 09/930,320
2. PRIOR ART
The Examiner relies on the following references:
Tartaglione US 4,851,062 Jul. 25, 1989
Rigg US 5,622,692 Apr. 22, 1997
Stewart WO 98/30189 Jul. 16, 1998
Rath US 5,972,322 Oct. 26, 1999
3. REJECTION BASED ON RATH AND STEWART
Claims 1-5, 7-11, 13-19, 22, and 25-29 stand rejected under 35 U.S.C.
§ 103 as obvious in view of Rath and Stewart. As noted above, the claims
subject to this rejection stand or fall with claim 1.
We previously held that Rath, by itself, would have made obvious the
method defined by claim 1 as it stood in Appeal 2005-1428. The issue, then,
is whether the addition of clause (g) to the claim distinguishes the claimed
method from the prior art.
We conclude that it does not. Clause (g) of claim 1 states that the
performance agents selected by a consumer and added to a personal care
base composition “do not include a thickener component other than
component(s) selected from” specific classes of performance agents. We
held in Appeal 2005-1428 that
Rath would have made obvious to a person of ordinary skill in
the art a hair care system comprising a plurality of base
compositions (e.g., shampoo base and conditioner base), a
thickener, and a plurality of performance agents selected from
at least two classes of performance agents (e.g., the two herbal
additive compositions in columns 19-20 and two or more of the
color concentrates in columns 20-23). According to Rath’s
disclosure, the user would select the desired additives, combine
them with the appropriate base (shampoo base for making
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