Appeal 2007-1144
Application 10/424,616
tanning product that contains DHA and imidazole, as recited in claims 15
and 16. We see nothing in Cernasov that undermines that conclusion. We
therefore affirm the Examiner’s rejection of claims 15 and 16 over
Cernasov, Miklean, and Bernstein.
5. OBVIOUSNESS -- CERNASOV AND BERNSTEIN
Claims 13 and 14 stand rejected under 35 U.S.C. § 103 as obvious in
view of Cernasov and Bernstein (Answer 4-5).
The Examiner cites Cernasov as disclosing “a tanning composition
containing a moisturizing agent . . . , [but] lacking . . . the teaching that the
moisturizing agent is cholesterol sulfate” (id. at 5). The Examiner again
relies on Bernstein as “advocat[ing] the use of either cholesterol or
cholesterol sulfate as moisturizing agents in the treatment of dry skin” (id.).
The Examiner concludes that using cholesterol sulfate as the moisturizing
ingredient in Cernasov’s tanning product would have been obvious to one of
ordinary skill “since Bernstein teaches that sterols and sterol esters are
naturally occurring in stratum corneum of the skin and they form a water
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.).
Appellants argue that claims 13 and 14 require a “self-tanning agent,”
which is defined as “a cosmetic product (as one containing
dihydroxyacetone) that when applied to the skin reacts chemically with its
surface layer to give the appearance of a tan” (Br. 9, citing
http://www2.meriam-webster.com/cgi-bin/mwmednlm). In contrast,
Appellants argue, the pigments in Cernasov’s composition “do not fall
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