Ex Parte Yu et al

Patent Trial and Appeal Board

Sep 20, 2012

11443860 (P.T.A.B. Sep. 20, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte WEI HONG YU and SHIRLEY SCHERER
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Appeal 2011-012938
Application 11/443,860
Technology Center 1600
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Before DONALD E. ADAMS, LORA M. GREEN, and
STEPHEN WALSH, Administrative Patent Judges.

WALSH, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the rejection of
claims directed to a moisturizing cosmetic composition. The Patent
Examiner rejected the claims for obviousness. We have jurisdiction under
35 U.S.C. § 6(b). We affirm.
Appeal 2011-012938
Application 11/443,860

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STATEMENT OF THE CASE
Claims 1-7 and 9-15 are on appeal. Independent claims 1 and 14 read
as follows:
1. A moisturizing cosmetic composition comprising:
(a) at least one oil gelling agent;
(b) at least one wax component;
(c) at least one polar oil;
(d) at least one active ingredient, and
(e) optionally, at least one colorant;
wherein (b) and (c) are present in a ratio by weight of from about 1:1 to
about 1:5, and wherein the composition has a hardness value of from about
100g to about 200g.

14. A moisturizing cosmetic composition comprising:
(a) from about 0.5 to about 1.5% by weight of at least one
organomodified clay;
(b) from about 1 to about 15% by weight of a wax mixture comprising
polyethylene, microcrystalline and ozokerite waxes;
(c) from about 20 to about 40% by weight of at least one polar oil
chosen from plant oils, synthetic esters, fatty alcohols and mixtures thereof;
(d) from about 0.1 to about 1% by weight of allantoin; and
(e) at least one colorant;
wherein (b) and (c) are present in a ratio of from about 1:3 to about 1:4, and
wherein the composition has a hardness value of from about 100g to about
200g.

The Examiner rejected the claims as follows:
 claims 1-7, 9-11, and 13 under 35 U.S.C. § 103(a) as unpatentable
over De La Poterie1 and Ferrari;2
 claims 1-7 and 9-13 under 35 U.S.C. § 103(a) as unpatentable over De
La Poterie, Ferrari, Bunger,3 and Clapp;4

1 Valarie De La Poterie, EP 1 002 528 A1, May 24, 2000.
2 Veronique Ferrari et al., WO 02/47624 A1, June 20, 2002.
Appeal 2011-012938
Application 11/443,860

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 claims 1-7 and 9-13 under 35 U.S.C. § 103(a) as unpatentable over
Cavazutti5 and Ferrari;
 claims 1-7 and 9-14 under 35 U.S.C. § 103(a) as unpatentable over
Cavazutti, Ferrari, and Additives;6 and
 claims 1-7 and 9-15 under 35 U.S.C. § 103(a) as unpatentable over
Cavazutti, Ferrari, Additives, and City Lips Clear Gloss Lip Plumper.7
Upon consideration of the evidence on this record, and each of
Appellants’ contentions, we find that the preponderance of evidence on this
record supports the Examiner’s conclusion that the subject matter of
Appellants’ claims is unpatentable. Accordingly, we sustain the Examiner’s
rejections for the reasons set forth in the Answer, which we incorporate
herein by reference, including the Examiner’s responses to Appellants’
arguments.
We provide the following for emphasis only: “In determining
whether the subject matter of a patent claim is obvious, neither the particular
motivation nor the avowed purpose of the patentee controls. What matters is
the objective reach of the claim. If the claim extends to what is obvious, it is
invalid under § 103.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 419
(2007).

3 Joachim Bunger et al., US 2003/0199446 A1, Oct. 23, 2003.
4 Mannie Lee Clapp et al., US 2004/0223929 A1, Nov. 11, 2004.
5 Roberto Cavazzutti et al., WO 00/59456, Oct. 12, 2000.
6 Majestic Mountain Sage, MMS - Additives (2003), downloaded on March
20, 2010, from http://web.archive.org/web/20031206121437lhttp://www.the
sage.com/catalog/Additives.html.
7 City Lips Clear Gloss Lip Plumper, HOUSEHOLD AND PERSONAL PRODUCTS
INDUSTRY (2004), downloaded March 20, 2010 from
http://www.highbeam.comJdoc/lGl-116852500.html.
Appeal 2011-012938
Application 11/443,860

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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED

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