Appeal 2007-0533
Application 09/930,320
shampoo, conditioner base for making conditioner) and mix,
then add thickener and mix again.
(Appeal 2005-1428 Decision, p. 6, emphases added.) That is, Rath would
have made it obvious to choose from among herbal additive performance
agents and to choose from among colorants, add the chosen herbal additive
and colorant to a base composition, mix, add thickener, and mix again to
yield the desired personal care composition.
Rath suggests the method of claim 1 even when the thickener is not
considered a performance agent. We addressed this point specifically in
Appeal 2005-1428:
We agree with Appellants that the specification defines a
thickener as a possible constituent of the base composition, not
a performance agent or (in Rath’s terms) an enhancing additive.
We do not see how that issue affects the outcome of the
analysis, however. Even if Rath’s thickener is considered a part
of the base and not an enhancing additive, the method
suggested by Rath meets all of the limitations of instant claim
1.
(Appeal 2005-1428 Decision, p. 8.) The clause added by amendment to
claim 1 changes nothing about this analysis: Rath suggests herbal additives
and colorants as first and second classes of performance agents, and
therefore meets the limitations of claim 1 regardless of whether the thickener
component itself is considered a performance agent.
Appellants argue that Rath teaches away from a process in which the
thickener is part of the base composition (Br. 6-7) and that the “consumer is
not intended to be involved in the packaging of the kits disclosed in Rath, et
al., but only in the possible mixing of certain kit components” (id. at 7).
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