Appeal 2007-2308
Application 10/182,122
counterirritants such as, inter alia, Vitamin A and Vitamin K1 (Bell, col. 10,
ll. 1-6).
Based on this evidence the Examiner finds that it would have been
obvious to a person of ordinary skill in the art at the time the invention was
made to modify Burger’s composition to include phylloquinone (vitamin
K1) (Answer 4). According to the Examiner, “[o]ne having ordinary skill in
the art would have been motivated to do this to obtain sunscreen
compositions which do not irritate the skin as suggested by Bell et al.”
(Answer 4). We disagree.
As Appellants point out, Burger teaches a composition comprising
retinol (vitamin A), retinyl ester and mixtures thereof (Br. 5). Therefore,
Appellants argue that Burger’s compositions already contain an ingredient
that is comparable to the counterirritant taught by Bell - specifically, vitamin
A (Br. 5). Contrary to the Examiner’s assertion, Appellants argue that a
person of ordinary skill in the art would not have been motivated to add a
second counterirritant, e.g. vitamin K1, to Burger’s composition which
already contains the counterirritant vitamin A (Br. 5-6). We agree. Further,
since retinol (vitamin A), retinyl ester and mixtures thereof are essential to
Burger’s composition, we find that one of ordinary skill in the art would not
have been motivated to substitute vitamin K1 for vitamin A.
Despite the Examiner’s unsupported assertion that person of ordinary
skill in the art would have found it obvious to add an additional
counterirritant to Burger’s composition, we find nothing in the combination
of references relied upon to suggest the use of more than one counterirritant.
Instead, we find that one reading Burger and Bell in combination would
recognize that Burger’s composition already includes the counterirritant
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