Appeal 2007-1144
Application 10/424,616
barrier which prevent[s] the water loss from the skin and advocates the use
of either cholesterol or cholesterol sulfate as moisturizing agent to
moisturize dry skin” (id.).
The United States Supreme Court recently reaffirmed “the conclusion
that when a patent ‘simply arranges old elements with each performing the
same function it had been known to perform’ and yields no more than one
would expect from such an arrangement, the combination is obvious.” KSR
Int'l v. Teleflex Inc., 127 S. Ct. 1727, ____, 82 USPQ2d 1385, 1395-96
(2007) (quoting Sakraida v. AG Pro, Inc., 425 U.S. 273, 282, 189 USPQ
449, 543 (1976)).
The KSR Court emphasized that “[t]hroughout this Court’s
engagement with the question of obviousness, our cases have set forth an
expansive and flexible approach . . . .” KSR, 127 S. Ct. at ____, 82 USPQ2d
at 1395. Despite this flexibility, however, the Court stressed the requirement
for explicit analysis in obviousness rejections, rather than unsupported
conclusions. Id. at ____, 82 USPQ2d at 1395 (“[R]ejections on obviousness
grounds cannot be sustained by mere conclusory statements; instead, there
must be some articulated reasoning with some rational underpinning to
support the legal conclusion of obviousness.”) (quoting In re Kahn, 441 F.3d
977, 988, 78 USPQ2d 1329, 1336 (Fed. Cir. 2006)).
Here, the Examiner has articulated sufficient reasoning to support a
conclusion of obviousness. As pointed out by the Examiner, Miklean
discloses a composition that contains DHA and imidazole (Miklean, col. 2, l.
59, through col. 3, l. 3). Miklean also discloses that “[v]arious other
optional ingredients may be included in the compositions . . . , including . . .
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