Appeal 2007-0535
Application 10/601,731
regulate “discontinuities associated with skin aging” (id. at 4-5). Thus, we
agree that the Examiner has set forth a prima facie case that the method of
claim 6 would have been obvious.
In addition, Appellants argue that Beerse “requires a proton donating
agent which at least in part must have unneutralized acid functionality, e.g.,
malonic acid. A mono-salt (half neutralized) of malonic can coexist with the
di-acid form (unneutralized). What is not possible is that all three species,
free acid, mono-salt (half neutralized) and di-salt (fully neutralized), would
coexist together.” (Br. 11.) We are not persuaded by this argument for the
reasons discussed above with regard to Jokura.
Appellants also argue:
Selection of malonate salt mixtures for purposes of controlling
the signs of aging is an unobvious selection. This is
particularly so in contrast to the next closest homolog, i.e.
succinate salts. Beerse et al. in Example 2 and 5 disclose a
succinic acid/sodium succinate combination. Appellant has
demonstrated in the specification under Example 9 that the
malonate salt mixture gave a substantially better Flexibility
Value in the Porcine Skin Test, compare 1.36 to 0.85 on
Flexibility Value.
(Br. 12.) For the reasons discussed above with regard to Jokura (supra, at
pp. 9-10), we do not agree that Appellants have provided sufficient evidence
of unexpected results to rebut the Examiner’s prima facie case of
obviousness.
We conclude that the Examiner has set forth a prima facie case that
claims 1 and 6 would have been obvious over Beerse, which Appellants
have not rebutted. We therefore affirm the rejection of claims 1 and 6 under
35 U.S.C. § 103. Claims 3, 4, 7-9, 11-13, and 15 fall with claims 1 and 6.
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