Appeal 2007-0535
Application 10/601,731
composition and the instant composition . . . will exhibit the same property,
i.e. the instant flexibility value.” (Id.)
We agree that the Examiner has set forth a prima facie case that the
composition of claim 1 would have been obvious. Jokura describes a skin
cosmetic comprising a ceramide or pseudoceramide, a dicarboxylic acid, and
a salt of a dicarboxylic acid (Jokura, col. 2, ll. 6-39), and specifically
identifies malonic acid as an example of a dicarboxylic acid (id. at col. 3,
ll. 33-37). Jokura states that preferably “the total content of [the
dicarboxylic acid] and [dicarboxylic acid salt], in terms of the acid, in the
skin cosmetic . . . falls within a range of from 0.01 to 20% by weight” and
“the molar ratio of the [dicarboxylic acid] to [dicarboxylic acid salt] falls
within a range of from 1/9 to 9/1” (id. at col. 3, ll. 51-60). Jokura also
describes including water, ethanol, or water-soluble polyhydric alcohols as a
base and that the preferred content of these components in the skin cosmetic
“ranges from 0.01 to 95% by weight” (id. at col. 4, ll. 16-34).
As discussed above, the Specification states that malonate salts
“impart to the composition a positive Flexibility Value of at least 1,
preferably at least 1.1 relative to water in the Porcine Skin Test”
(Specification 5). Thus, we agree that the Examiner has set forth a prima
facie case that the compositions of Jokura that contain malonic acid salt as
the dicarboxylic acid salt would exhibit a Flexibility Value greater than 1.
Jokura does not state that malonic acid is present as a half neutralized
acid and as a fully neutralized acid in a molar ratio ranging from about
1000:1 to about 1:1000, respectively. However, Jokura describes regulating
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