Appeal No. 2007-0627
Application No. 09/482,773
event, and lines and wrinkles may be visible as early as 20-25 years of age,
but are clearly visible by 35 years of age. Thus, anytime the makeup
composition of Kimura is applied to the skin of a person 25 to 35 years of
age and older, it is inherently applied to skin exhibiting lines and wrinkles.
And even though the result, reducing the appearance of those lines of
wrinkles, is not a patentable limitation, it would inherently be achieved by
the makeup composition and its method of use taught by Kimura.
Appellant argues, citing Eibel Process Co. v. Minnesota & Ontario
Paper Co., 261 U.S. 45, 66 (1923), that “accidental occurrences of the
claimed subject matter, not intended and not appreciated, do not constitute
anticipation” (Br. 7). Appellant asserts that “[o]ne simply cannot ignore that
the [Kimura] reference does not teach applying the composition to skin
exhibiting lines and wrinkles for the specific purpose of reducing the
appearance of lines and wrinkles associated with aging of the skin.” Id.
Appellant’s arguments are not found to be convincing. As set forth in
Perricone, the ordinary artisan need not recognize the inherent
characteristics or functioning of the prior art. As set forth above, wrinkles
and lines are inevitable, inherent results of aging of the skin. Thus,
application of the makeup composition to the skin of a person 25 to 35 years
of age and older is inherent application to skin exhibiting lines and wrinkles.
Se, e.g., Perricone, 432 F.3d at 1379-80, 77 USPQ2d at 1328-29 (finding
claims inherently anticipated when all that was required was applying a
known composition to skin, wherein the skin suffered from damage that was
a natural result of the aging process of skin).
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