Appeal 2007-1156
Application 10/459,070
Rerek is cited for teaching emulsified, personal care compositions (id.
at 15). In particular, the Examiner relies on Examples 2-4 of Rerek which
teaches that a gellant suitable for the composition can comprise glyceryl
stearate (component 3, a glyceryl ester of a fatty acid), behenyl alcohol
(component 2, a C10-C22 fatty alcohol) and a mixture of palmitic and stearic
acids (component 4, a C10-C22 unesterified fatty acid) (Answer 15).
The Examiner concludes:
Accordingly, one of ordinary skill in the art at the time
the invention was made would have found it obvious to provide
the gellant mixture of Rerek [ ] in the composition of Trinh [ ],
Franklin [ ] and Ha [ ] to devise the composition of the claims
because Trinh [ ], Franklin [ ] and Ha [ ] teach a cosmetic
composition having a structurant and Rerek [ ] teaches that a
gellant mixture (structurant) suitable for a cosmetic
composition has the nonionic co-surfactant components recited
in the claims. Thus, one of ordinary skill in the art would have
been motivated to provide the gellant mixture of Rerek [ ] in the
cosmetic composition of Trinh [ ], Franklin [ ] and Ha [ ] with
the expectation of providing a suitable gelling agent for the
cosmetic.
(Id. at 16.)
Again, the only reason provided by the Examiner to combine the
structurant of Rerek with the structurants already provided by Ha is that they
are all known structurants. Ha is drawn to a cosmetic composition
comprising a charged particulate material dispersed through a thickened,
hydrophilic carrier (Ha, abstract). Rerek is drawn to an emulsifier
composition for skin care formulations which is present in the form of a
bilayer lamellar gel network (Rerek, abstract). The Examiner has not
provided any reason why one of ordinary skill would have altered the system
of Ha to include the emulsifier (gellant) system of Rerek. The Examiner has
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