Appeal 2007-0851
Application 10/385,213
3. OBVIOUSNESS
Claims 1-20 and 22-41 stand rejected under 35 U.S.C. § 103 as
obvious in view of Chien, Pfister,1 Powell, and Webster’s Dictionary. The
Examiner relies on Chien for teaching “compositions comprising silicone
polymers with compartments of 10-200 micrometers, wherein the
compositions comprise a pharmaceutical agent and hydrophilic solvents”
(Answer 4). The Examiner argues that the “pharmaceuticals are in solution
with water and a hydrophilic solvent, which is dispersed throughout the
silicone matrix,” and that “a wide variety of pharmaceuticals,” including
hormones, may be administered using Chien’s composition (id. at 4 and 9).
The Examiner relies on Webster’s Dictionary to define the term
“topical” as “of or applied to an isolated part of the body,” and argues that
Chien describes “a topical preparation” (id. at 7 and 10-11). The Examiner
also argues that
the limitation “a topical preparation” does not affect the
patentability of the claimed composition. . . . Compositions are
defined by their physical, structural, and chemical properties,
not by an intended use or application. The claims in this case
are drawn to a composition comprising an internal phase with
particular chemical and physical properties and an external
phase with particular chemical and physical properties.
Whether Chien et al. teach application of their composition to
skin (or to any other body part) is immaterial.
(Id. at 7-8.)
The Examiner relies on Powell for teaching “silicone emulsions
appropriate for application to the skin . . . that may comprise enzymes” (id.
1 The Examiner does not rely on Pfister for any of the features of claim 1.
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