Appeal 2007-3935
Application 10/625,244
BACKGROUND
According to the Specification,
Glycation of proteins in the cells of the skin causes a loss
of skin elasticity and the breakdown of collagen. The
immediate effects of glycated proteins include inflammation,
wrinkles, and brown spots or lipofuscin. Glycated proteins also
produce toxic free radicals which can have multiple damaging
effects on cells. The present invention recognizes this process
and provides a composition and method to minimize and to
treat such glycation damage.
(Specification 3.)
Thus, the claimed invention is drawn to “a topical benfotiamine
treatment to improve skin condition by preventing glycation of proteins in
cells of the skin.” (Id.)
DISCUSSION
The Examiner rejected claims 10-18 and 21-26 under 35 U.S.C. §
103(a) as being obvious over the combination of Runge and Woerwag. We
find, however, that Runge in fact anticipates claims 10-18 and 21-26, and as
“anticipation is the epitome of obviousness,” we affirm. In re McDaniel,
293 F.3d 1379, 1385, 63 USPQ2d 1462, 1466 (Fed. Cir. 2002) (noting that it
is “well-settled that ‘anticipation is the epitome of obviousness.’”). But as
our reasoning differs from that of the Examiner, and in order to give
Appellant an opportunity to respond, we designate our affirmance as a new
ground of rejection.
Independent claims 10, 11, 12, 13, 21, 22, 24, 25, and 26 are all drawn
to a method of achieving a benefit to the skin, i.e., reduction or treatment of
glycation (claims 10, 11, 21, 24, and 26); treatment of damage of cells due to
glycation (claims 12 and 25); or treatment of aging of cells due to glycation
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