Appeal 2007-0535
Application 10/601,731
equilibrium. Thus, we do not agree with Appellants that the examples teach
away from the half neutralized acid.
In addition, Appellants argue:
Experiments have been performed via a Porcine Skin Test
described in Example 9. Under Table VIII, it is seen that
malonate salts are much better than glycolate or succinate salts
with respect to improving skin flexibility (softness and
suppleness). These results were surprising. Glycolates which
are alpha-hydroxycarboxylic acids are well known to improve
the flexibility of skin. Non-hydroxycarboxylic acids such as
malonic have not received very much attention and are not
particularly known for having any special skin activity. It was
surprising to observe that the malonate was substantially better
than the glycolate salt. Even more interesting was that
succinate (malonic acid with one extra methylene group) did
not perform well. Anyone skilled in the art would neither have
expected nor selected malonates over succinates in considering
the Jokura reference.
(Br. 7-8.)
We agree with the Examiner that these experiments do not overcome
the Examiner’s prima facie case of obviousness. In particular, we agree with
the Examiner that the experiments in Example 9, which demonstrate the
Flexibility Value exhibited by an unidentified amount of
dimethylethanolammonium malonate, do not provide evidence that is
commensurate with the scope of claim 1. As noted by the Examiner, “[i]t is
unclear if the same flexibility is imparted by the entire genus since the term
salt is extremely broad and amine salts are known to have specific properties
themselves” (Answer 13). As also noted by the Examiner, Example 9
9
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