Appeal 2007-0625
Application 09/969,299
preserve the cyclodextrin rather than to inhibit S. Aureus does not negatively
impact our analysis. See KSR Int’l v. Teleflex Inc., 127 S. Ct. 1727, 1741-
42, 82 USPQ2d 1385, 1397 (2007) (“In determining whether the subject
matter of a patent claim is obvious, neither the particular motivation nor the
avowed purpose of the patentee controls.” (emphasis added)). Motivation
for whatever reason is sufficient.
Alternatively, Trinh teaches that certain aromatic compounds within
the scope of Appellants’ “first active ingredient” have antimicrobial activity.
(FF 6.) Thus, the skilled artisan working in the field of tampon development
would have known to use such compounds in combination with Brown-
Skrobot’s tampons as an alternative to Brown-Skrobot’s antimicrobial
compositions. In this case, both catamenial tampons and the claimed
antimicrobials are known in the art.4 (See FFs 4-6, 12.) Thus, the claimed
combination is merely “the predictable use of prior art elements according to
their established functions.” KSR Int’l, 127 S. Ct. at 1740, 82 USPQ2d at
1396.
Turning to Appellants’ argument that Trinh teaches away from the
claimed combination, we find to the contrary. (FFs 10, 11.) While Trinh
teaches away from applying their compositions directly to human skin, they
clearly teach applying them to articles that will be used against human skin.
(FF 10.) Furthermore, the skilled artisan faced with such a teaching would
be able to design the tampon such that direct contact would be avoided, if
needed, or to select a concentration below that found to cause irritation. See
4 In this regard, we note Brown-Skrobot identifies Canadian patent
1,192,701, a patent that appears to anticipate Appellants’ claimed invention
by disclosing a catamenial tampon treated with, e.g., phenol. (FFs 1-3, 14.)
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