Appeal 2007-0535
Application 10/601,731
“the pH value of the skin cosmetic . . . to pH 3 to 10, still [more] preferably
to pH 3 to 9” (Jokura, col. 3, ll. 60-65).
The Examiner takes the position that Appellants’ cosmetic
composition, which has the claimed molar ratio, has a pH close to or within
the pH range described in Jokura (Answer 12). This position, which is not
rebutted by Appellants, appears to be reasonable based on the teaching in
Jokura that compositions having “a pH value less than 3 or exceeding 10”
would be irritating to the skin (Jokura, col. 3, ll. 63-65). In addition, the
Examiner has asserted that “the ratio of partially neutralized acid to fully
neutralized acid will be dependent upon the concentration of H+ in solution”
and that therefore “solutions having the same pH should have the same or
similar ratios of partially neutralized to fully neutralized salts” (Answer 11).
The Examiner has supported these assertions with scientific reasoning (id. at
9-11). Thus, we agree that the Examiner has set forth a prima facie case that
the broad molar ratio recited in claim 1 would have been obvious based on
the teachings of Jokura.
Appellants argue that Jokura “discloses the unneutralized acid
(component B) and the partially neutralized acid (component C). The free
acid can only co-exist with a partially neutralized salt because of pKa
considerations. There is thus no disclosure of a fully neutralized malonic
acid.” (Br. 8.) In particular, Appellants argue that “[a]ddition of a
neutralizing agent to the free malonic acid would achieve mixtures of free
and mono-salts (half neutralized). There would be no di-salt (fully
neutralized) malonate present in a system that also included totally non-
neutralized (‘free’) malonic acid.” (Id.) In addition, Appellants argue:
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