Appeal 2007-1144
Application 10/424,616
instant Specification to decrease skin flakiness (Spec. 9-10). If emollients
and humectants were known to decrease skin flaking, their addition to a self-
tanning composition may well have been expected to result in a longer-
lasting tan, in which case the results of the Specification’s examples may
have been entirely expected. We find it significant in this regard that the
Specification does not characterize as unexpected the more long-lasting tan
that results from a composition containing cholesterol sulfate.
Therefore, we do not agree that Appellants have presented data
demonstrating an unexpected result compared to the closest prior art, as
required to rebut the Examiner’s prima facie case of obviousness. We affirm
the Examiner’s rejection of claims 13-16 over Miklean in view of Bernstein.
4. OBVIOUSNESS -- CERNASOV, MIKLEAN, AND BERNSTEIN
Claims 15 and 16 stand rejected under 35 U.S.C. § 103 as obvious in
view of Cernasov, Miklean and Bernstein (Answer 6).
The Examiner reasons that it would have been obvious to include
DHA and imidazole in a self-tanning composition because Miklean discloses
that “a combination of imidazole and dihydroxyacetone provides a
significantly darker skin than dihydroxyacetone alone” (id.). Appellants
argue that the references are not properly combined because Cernasov’s
pigments produce a tan by a mechanism different than Miklean’s DHA and
imidazole, and that nothing in Cernasov resolves the shortcomings of the
combination of Miklean and Bernstein (Br. 11-12; Reply Br. 6-7).
We are not persuaded by these arguments. As discussed above, one of
ordinary skill would have recognized from Miklean and Bernstein that
cholesterol sulfate would be a useful moisturizing ingredient in an artificial
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