Appeal 2007- 2552
Application 10/276,428
While Amalric does not disclose the use of the formulation of claim
20 as a hard surface cleaner, there is no structural difference in the
formulation as claimed which would patentability differentiate the claimed
composition from that of Amalric. Claim recitations that merely set forth
the intended use for an otherwise old composition do not differentiate the
claimed composition from those known in the prior art. In re Pearson, 494
F.2d 1399, 1302, 181 USPQ 641, 644 (CCPA 1974).
Appellants contend that they have illustrated the “surprising effect of
branched alkyl glycosides” in Table 1 on page 9 of the Specification. They
state that “[i]n order to form a microemulsion with the linear C10/C12 alkyl
glucoside [sic], 1 dodecanol must be present in an amount of at least 5.5%.”
(Br. 9). Appellants do not address any particular claim, therefore, we select
claim 1 and decide the issue based on that claim.
As a first matter, Appellants have not sufficiently proven that their
compositions are indeed different than those claimed. If the composition is
in fact the same, there can be no unexpected result; the result will inherently
occur when one follows the teachings of the reference.
Secondly, the fact that a cosurfactant such as 1-dodecanol must be
present to form the microemulsion when linear C10/C12 alkyl glycosides are
present tends to support the Examiner’s determination that Amalric forms a
microemulsion. This is because Amalric uses fatty alcohols such as
dodecanol to formulate an emulsion (FF 6). The presence of the fatty
alcohols in the composition of Amalric indicates that these alcohols serve as
cosurfactants such that a microemulsion is formed.
Third, claim 1 does not exclude the presence of fatty alcohol
cosurfactants such as 1-dodecanol. "[O]bjective evidence of
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