Appeal 2007-1144
Application 10/424,616
moisturizers . . . . Optional ingredients include . . . moisturizing ingredients,
such as wheat lipid extracts or ceramides . . .” (id. at col. 5, ll. 6-22).
Bernstein discloses that a skin moisturizing composition that contains
fatty acids, sterols, phospholipids, and glycolipids “provide[s] unsurpassed
protection against and treatment for dry skin conditions” (Bernstein, col. 1,
ll. 38-45). As the sterol component, Bernstein lists “cholesterol, which may
be present in the . . . composition as either the sterol or as an ester, such as
cholesterol sulfate” (id. at col. 2, ll. 1-3).
Because Bernstein discloses that a cholesterol sulfate-containing
composition was useful as a moisturizer, and because Miklean discloses that
a moisturizer was useful in a self-tanning product that contained DHA and
imidazole, we agree with the Examiner that one of ordinary skill would have
considered it obvious to combine those ingredients, as recited in claims
14-16, and apply them to the skin, as recited in claim 13.
Appellants argue that Bernstein “is devoid of any mention that
cholesterol sulfate in the absence of the other lipid components can have any
effect with respect to an artificially created tan, either alone or in
combination with a self-tanning agent” (Br. 10). Appellants argue that, to
have a moisturizing effect, Bernstein discloses that the composition must
contain ingredients in addition to cholesterol sulfate (Reply Br. 3-5). We are
not persuaded by these arguments.
The instant claims use the term “comprising” to describe the process
and the composition, and therefore encompass compositions that contain
ingredients in addition to those named in the claims. See Genentech, Inc. v.
Chiron Corp., 112 F.3d 495, 501, 42 USPQ2d 1608, 1613 (Fed. Cir. 1997)
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