Appeal 2007-0535
Application 10/601,731
4. OBVIOUSNESS OVER BEERSE
Claims 1, 3, 4, 6-9, 11-13, and 15 stand rejected under 35 U.S.C.
§ 103 as obvious over Beerse. The Examiner finds that “Beerse discloses an
antimicrobial wipe that is impregnated with an antimicrobial cleansing
composition”; that “example 14 discloses a composition comprising 3.20%
sodium malonate, additional components, and the balance water (84.03% of
the carrier)”; that the “wipe is suitable for application to the human skin to
remove oil and dirt” and “is useful for treatment of acne and improvement of
skin appearance[,] . . . includ[ing] providing a smoother and more even
appearance of the skin and regulating the signs of aging.” (Answer 5-6.)
The Examiner also finds that Beerse teaches including a “proton donating
agent selected from acids such as glycolic, citric, malonic, etc. in an amount
of 0.1-10%”; that “the acid remains at least in a partially undissociated
form”; and that “the pH should be 3-6” (id. at 6).
In addition, the Examiner finds that a composition having the molar
ratio of claim 1 would have been obvious over Beerse for substantially the
same reasons as with Jokura (id. at 6-7 and 15-18). The Examiner also finds
that Beerse’s composition will implicitly have a Flexibility Value greater
than 1 for substantially the same reasons as with Jokura (id. at 7).
We agree that the Examiner has set forth a prima facie case that the
composition of claim 1 would have been obvious. Beerse describes “an
antimicrobial wipe comprising a porous or absorbent sheet impregnated with
an antimicrobial cleansing composition” (Beerse 4). The cleansing
composition comprises an antimicrobial active, an anionic surfactant, a
proton donating agent (from about 0.1 to about 10% by weight), and water
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