Ex Parte DROMANDownload PDFPatent Trial and Appeal BoardMar 9, 201612245273 (P.T.A.B. Mar. 9, 2016) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 12/245,273 10/03/2008 Robert G. DROMAN GSD.P3300A 3613 23575 7590 03/09/2016 CURATOLO SIDOTI CO., LPA 24500 CENTER RIDGE ROAD, SUITE 280 CLEVELAND, OH 44145 EXAMINER ARNOLD, ERNST V ART UNIT PAPER NUMBER 1613 MAIL DATE DELIVERY MODE 03/09/2016 PAPER Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ________________ Ex parte ROBERT G. DROMAN1 ________________ Appeal 2014-000065 Application 12/245,273 Technology Center 1600 ________________ Before ERIC B. GRIMES, JOHN G. NEW, and JACQUELINE T. HARLOW, Administrative Patent Judges. NEW, Administrative Patent Judge. DECISION ON APPEAL 1Appellant states the real party-in-interest is Gayson Silicone Dispersions, Inc. App. Br. 3. Appeal 2014-000065 Application 12/245,273 2 SUMMARY Appellant files this appeal under 35 U.S.C. § 134(a) from the Examiner’s Final Rejection of claims 1, 3–9, 12–16, 18–24, and 27–30.2 Specifically, claims 1, 3–9, 12, 16, 18–24, and 27 stand rejected under 35 U.S.C. § 102(b) as being anticipated by Tanaka et al. (US 2004/0096470 A1, May 20, 2004) (“Tanaka”). Claims 13–15, and 28–30 stand rejected as unpatentable under 35 U.S.C. § 103(a) as being obvious over the combination of Tanaka, S. Hasenzahl & A. Braunagel, Fumed Silica for Personal Care and Cosmetics– Versatile and Effective, 129 SÖFW-JOURNAL, 2–8 (2003) (“Hasenzahl”), Knapp et al. (US 7,217,417 B2, May 15, 2007) (“Knapp”), and Crook et al. (US 2004/0223928 A1, November 11, 2004) (“Crook”). We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. NATURE OF THE CLAIMED INVENTION Appellant’s invention is directed to a pigment dispersed in a silicone polymer combined with at least one cosmetic component or at least one dermatologically acceptable and active agent to prepare a wide variety of cosmetic and personal care compositions. The pigment may be dispersed in a polysiloxane, such as an alkylpolysiloxane, to provide a pigment dispersion that is easily blended with cosmetically acceptable components or dermatologically active agents to provide a pigmented cosmetic or personal care composition. Abstract. 2 Claims 2, 17, and 31–60 are canceled. Claims 10, 11, 25, 26, 40, 41, 55, 56, 61, and 62 are withdrawn. App. Br. 22–26. Appeal 2014-000065 Application 12/245,273 3 REPRESENTATIVE CLAIM Claim 1 is representative of the claims on appeal and recites: 1. A colored cosmetic composition comprising at least one cosmetically acceptable component and a thixotropic silicone pigment dispersion comprising a silicone polymer and pigment particles of substantially primary particle size dispersed in said silicone polymer, and wherein said thixotropic silicone pigment dispersion exhibits a color deviation expressed by a delta-E value of 1.5 or less as determined by ASTM D2244-07 from a cosmetic producer established color standard. App. Br. 11. THE EXAMINER’S PRIMA FACIE CASE With respect to the rejections under 35 U.S.C. § 102(b), the Examiner finds Tanaka discloses a thixotropic cosmetic composition comprising polydimethylsiloxane, which is especially preferred, gelling agents, which are rheology modifiers, and inorganic pigments such as titanium dioxide as well as methods of making the cosmetic composition by mixing. Final Act. 4 (citing Tanaka Ex. 1–5; ¶¶ 31–32). The Examiner finds Tanaka also discloses pigments in the composition, including talc, sericite, iron oxide, ultramarine, and zinc oxide, which are inherently substantially primary particle size. Id. (citing Tanaka ¶¶ 48–50). The Examiner further finds the composition of Tanaka inherently discloses a color deviation expressed by a delta-E value of 1.5 or less as determined by ASTM 02244-07 from a cosmetic producer established color standard. Final Act. 5. The Examiner therefore concludes Tanaka teaches all of the limitations of the rejected claims. Id. Appeal 2014-000065 Application 12/245,273 4 With respect to the rejections under 35 U.S.C. § 103(a) the Examiner finds, in addition to the findings discussed supra in Tanaka, that Hasenzahl teaches the use of silica dimethyl silylate, which is a commercial preparation, in cosmetic compositions in color cosmetics. Final Act. 8. The Examiner finds Hasenzahl also teaches that fumed silica forms hydrogen bonds which results in typical thixotropic behavior of fumed silica containing gels. Id. The Examiner finds Hasenzahl teaches fumed silica acts as an effective anticaking agent, serves as a carrier for oils, and effectively absorbs fragrances and active ingredients that are then gradually released onto the skin. Id. at 9. The Examiner finds Knapp teaches gel based cosmetic compositions comprising inorganic pigments and silica dimethyl silylate and that Crook teaches cosmetic compositions for the skin with inorganic pigments with a delta-E value of about 1.5. Final Act. 9. The Examiner therefore concludes it would have been obvious to combine the references to arrive at the claimed invention because Tanaka discloses adding silica and the art directs the ordinary artisan to the beneficial properties of fumed silica dimethyl silylate for use in gel compositions containing pigments. Final Act. 10. We adopt the Examiner’s findings and reasoning and, for the reasons set forth infra, we agree the Examiner has established prima facie cases of anticipation and obviousness. Appeal 2014-000065 Application 12/245,273 5 ISSUES AND ANALYSES A. Claims 1, 3–9, 12, 16, 18–24, and 27 Issue Appellant argues these claims together. App. Br. 7–16. Appellant argues the Examiner erred in finding Tanaka discloses all of the limitations of the claims. Id. at 10. Analysis Appellant contends Tanaka does not disclose: (1) a dispersion of pigment particles in a silicone polymer; (2) a thixotropic cosmetic composition; (3) the use of pigments that have been reduced substantially to their primary particles sizes; or (4) a color deviation as expressed by a delta- E of 1.5 or less as determined by ASTM D2244-07 as compared to a cosmetic producer established color standard. App. Br. 10. We discuss each of these arguments in turn. (1) With respect to (1), Appellant asserts that, unlike Appellant’s invention, Tanaka does not address the issue of introducing color into the cosmetic composition to provide accurate color matching. App. Br. 12. According to Appellant, Tanaka discloses fluorine coatings used to provide coated pigments that have good resistance against water and sebum, and that such coatings provide good shine control and good wear resistance. Id. Appellant states Tanaka recognizes that pigments coated with fluorine or fluorine/silicone exhibit poor wettability with oil binders used in cosmetic compositions and therefore result is decreased adhesion to the skin. Id. (citing Tanaka ¶5). Therefore, asserts Appellant, the stated objective of Tanaka is to provide a composition that overcomes these problems and Appeal 2014-000065 Application 12/245,273 6 provides a balance of benefits to the skin, as opposed to Appellant’s claimed cosmetic composition, which has a customized color resulting from the use of a silicone pigment dispersion for accurately imparting color. Id. at 13. The Examiner disagrees, finding that Tanaka discloses a thixotropic cosmetic composition comprising polydimethylsiloxane (which is especially preferred), gelling agents, which are rheology modifiers, and inorganic pigments such as titanium dioxide. Final Act. 4 (citing Tanaka claims 1–11; Ex. 1–5; ¶¶ 31–32). The Examiner therefore finds Tanaka is explicitly directed to introducing pigments into the silicone polymer-based composition and specifically states that powders that do not color the skin can also be included. Ans. 4 (citing Tanaka ¶¶ 43–50). We agree with the Examiner. Tanaka teaches: The present composition comprises by weight from about 0.1 % to about 60%, preferably from about 1 % to about 30%, more preferably from about 1% to about 15%, still preferably from about 3% to about 10% of a light silicone oil. …. The preferred silicone compounds are polydimethylsiloxane, polydiethylsiloxane, and polymethyl- phenylsiloxane. Polydimethylsiloxane, which is also known as dimethicone, is especially preferred. The polyalkylsiloxanes that can be used include, for example, polydimethylsiloxanes. Polyalkylaryl siloxane fluids can also be used and include, for example, polymethylphenylsiloxanes. Tanaka ¶¶ 29, 31. Pigments may be added into this composition, as Tanaka discloses: Additional pigments useful herein include those which are treated or untreated, and are selected depending on the desired Appeal 2014-000065 Application 12/245,273 7 characteristic of the product, for example, shade, coverage, UV protection benefit, and various skin feel. Id. ¶ 44. We therefore agree with the Examiner’s finding that Tanaka explicitly discloses a dispersion of pigment particles in a silicone polymer. Appellant’s argument that the composition of Tanaka is intended for a different purpose than the claimed invention is not persuasive. “[A] claim is anticipated if each and every limitation is found either expressly or inherently in a single prior art reference.” Celeritas Techs. Ltd. v. Rockwell Int’l Corp., 150 F.3d 1354, 1361 (Fed. Cir. 1998). Claim 1 recites, in relevant part, “a thixotropic silicone pigment dispersion comprising a silicone polymer and pigment.” Tanaka explicitly discloses a silicone polymer and pigment. We therefore uphold the Examiner’s finding that Tanaka discloses this limitation of claim 1. (2) Appellant next argues the Examiner erred in finding Tanaka discloses “a thixotropic cosmetic composition.” App. Br. 15. Appellant contends that paragraphs 80–82 of Tanaka, upon which the Examiner has relied, refer to mixing a number of components together to prepare a cosmetic composition but, Appellant argues, there is no disclosure or teaching that such a composition is thixotropic. Id. Appellant argues further that paragraphs 67–70 of Tanaka disclose that the composition is prepared by (1) mixing the double coated pigment together, (2) dissolving the gelling agent in an additional binder material, (3) mixing the light silicone oil with the dissolved gelling agent/additional binder mixture, and (4) adding the double coated pigments with the product of step (3). App. Br. 15. However, maintains Appellant, none of these Appeal 2014-000065 Application 12/245,273 8 recitations disclose that this process results in the preparation of a silicone pigment dispersion or that the composition is thixotropic. Id. The Examiner responds that Tanaka discloses thixotropic agents that may be usefully added to the composition. Ans. 6. The Examiner notes that thixotropy is a property of the composition that can be adjusted by altering the amount of thixotropic agent added to the composition and points out that no level of thixotropy is prescribed by the claims. Id. The Examiner finds Tanaka explicitly guides the artisan to thixotropic agents to provide good spreadability of the composition on the skin. Id. (citing Tanaka ¶ 35). We agree with the Examiner. Tanaka discloses: Particularly useful are those [gelling agents] which are thixotropic. Thixotropy of the gelling agent is believed to provide good spreadability to the composition when shear is applied for spreading the composition on the skin. Highly preferred herein are thixotropic dextrin fatty acid esters which have an average sugar repeating unit of 3-150, a fatty acid of 8-22 carbons, and a replacement of fatty acid per glucose of 1-3. Tanaka ¶ 35. Tanaka thus explicitly discloses the addition of gelling agents with thixotropic properties to a cosmetic composition consisting of, inter alia, silicone polymer and pigment. We therefore uphold the Examiner’s finding that Tanaka discloses “a thixotropic silicone pigment dispersion” as recited in claim 1. (3) Appellant next argues Tanaka fails to disclose using pigments of primary particle sizes. App. Br. 13. Appellant argues paragraph 47 of Tanaka, upon which the Examiner relies, teaches spherical powders having particle sizes of 10 to 50 µm or 1 to 10 µm as being preferred. App. Br. 13. However, argues Appellant, Tanaka does not distinguish between aggregates Appeal 2014-000065 Application 12/245,273 9 or agglomerates of pigment particles, or pigment particles of substantially primary particle size, as recited in claim 1. Id. Appellant contends there is no way to discern what is intended by Tanaka’s disclosure of two size ranges of preferred particle sizes. Id. Central to Appellant’s argument is the definition of the claim term “substantially primary particle size.” Appellant distinguishes between non- agglomerated or aggregated particles (i.e., primary-sized particles) and agglomerated particles. App. Br. 13. Appellant thus asserts that the term “substantially primary particle size” refers to the size of non-aggregated or non-agglomerated pigment particles. Appellant further argues that, whereas the pigment particle size distribution for standard cosmetic pigments is in the range of greater than 0 to about 100 µm, and Tanaka teaches ranges of 1 to 10 µm and 10 to 50 µm, the claimed particle size distribution for the presently claimed cosmetic composition represents a very narrow distribution of pigment particle sizes. Id. The Examiner finds the claims are not limited to a single pigment and multiple pigments may be present in a given composition, each with a primary particle size. Ans. 5 (citing Spec. ¶ 39). The Examiner further finds the claim term “substantially primary particle size” is not defined in Appellant’s Specification. Id. We are not persuaded by Appellant’s arguments. Appellant’s Specification provides no definition of the claim term “substantially primary particle size,” nor does Appellant adduce any evidence that the term is a well-understood term of art to persons of ordinary skill in the cosmetic arts. Similarly, neither Appellant’s Specification, nor any of the claims on appeal recite any size range for the pigment particles of the composition. Lacking Appeal 2014-000065 Application 12/245,273 10 an explicit definition in Appellant’s Specification, or even an example, we adopt the broadest reasonable definition consistent with Appellant’s Specification. See In re ICON Health & Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007) (Claims under examination before the PTO are given their broadest reasonable interpretation consistent with the Specification). Appellant’s Specification discloses: If the particles of a given pigment included in the silicone dispersion are of significantly differing sizes, the resulting color tends to be more random and inconsistent. On the contrary, the use of a silicone pigment dispersion wherein the pigment particles have been reduced substantially to their primary particle sizes contributes to a dispersion of stable and uniform color. For silicone pigment dispersions containing a combination of more than one species of pigment, it should be noted that the primary particle sizes for the different species of pigment may also be different. The cosmetic composition and process of preparation of the cosmetic composition encompasses the use of silicone pigment dispersions which include combinations of more than one type of pigment species having different primary particle sizes. Spec. 8–9. Tanaka discloses, with respect to particle size: Additional pigments useful herein include spherical powders which have a particle size of from about 10 µm to about 50 µm, as well as those which have a particle size of from about 1 µm to about 10 µm. The use of these two different sizes of spherical powders are particularly preferred, as it provides balanced benefits in terms of spreadability when applying on the skin, good adhesion on the skin, and fresh light feel on the skin. Tanaka ¶ 47. Appellant’s Specification thus discloses a range of (unspecified) particle sizes (from different pigment particles) which promote “a dispersion of stable and uniform color,” whereas Tanaka discloses that spherical Appeal 2014-000065 Application 12/245,273 11 particles of 1 to 10 µm or 10 to 50 µm in diameter provide “balanced benefits in terms of spreadability when applying on the skin, good adhesion on the skin, and fresh light feel on the skin.” Appellant argues the claimed range is “a very narrow distribution of pigment particle sizes,” when compared to Tanaka, but provides no example of what that particular narrow size distribution might be. We find a person of ordinary skill, upon reading the disclosure of Tanaka, would appreciate the optimal size ranges disclosed by Tanaka as being particularly preferred for their optimal qualities would correspond to the “substantially primary particle size” recited in claim 1 and consistent with the Specification. We consequently uphold the Examiner’s findings in this respect. (4) Finally, Appellant argues Tanaka does not disclose “a delta-E value of 1.5 or less as determined by ASTM D2244-07 from a cosmetic producer established color standard,” as recited in claim 1. App. Br. 10. Appellant argues the claimed composition is created by determining the type and amount of pigment and silicone polymer needed to achieve the silicone pigment dispersion having the desired color requested by the cosmetic producer and combining them to formulate the colored silicone pigment dispersion. Id. at 11. The delta-E value of the silicone pigment dispersion is then instrumentally measured to confirm that it is 1.5 or less from the color standard provided by the cosmetic producer: the lower the delta-E value, the closer the match to the color requested by the cosmetic producer. Id. Appellant contends the Examiner misunderstands the concept of the delta-E value. App. Br. 11. Appellant points to the Examiner’s finding that Tanaka discloses a delta-E of “1.5 or less includes 0[,] which means no change in color. Thus, the composition of Tanaka et al has no color Appeal 2014-000065 Application 12/245,273 12 deviation from a composition that is supposed to have that color standard.” Id. (quoting Final Act. 5). Appellant asserts the delta-E value represents the difference or “distance” between two colors in color space, i.e., between a color standard that has been previously established by a cosmetic producer and the measured color of the silicone pigment dispersion that has been prepared to match the color standard established by the cosmetic producer. Id. Appellant argues the cosmetic composition disclosed by Tanaka does not inherently possess a delta-E value, rather Tanaka’s composition only possesses a delta-E value if its color is compared to an established color standard. Id. And Tanaka, argues Appellant, is not concerned with color matching in the context of cosmetic compositions. Id. The Examiner agrees that the delta-E value is irrelevant without a reference color to compare to the sample. Ans. 2. However, the Examiner finds that, since there is no reference color claimed, the pigment of Tanaka is inherently the color is was meant to be. Id. The Examiner notes Appellant asserts that the pigment can be prepared by accepting a request from the cosmetic producer to custom formulate a pigment dispersion to meet a color standard. Id. (citing App. Br. 10–11). However, the Examiner states, claim 1 is a composition claim and not a method claim and the step of accepting a request, etc., is not a limitation of either composition claim 1 or process claim 16. Id. The Examiner finds the step of comparing the composition to a standard color value by determining the delta-E is immaterial to a composition claim because mere comparison of the composition to something else does not alter the structure of the composition. Ans. 3. The Examiner states the logic here is the same as in In re Schreiber, 128 F.3d Appeal 2014-000065 Application 12/245,273 13 1473 (Fed. Cir. 1997), in that claims directed to an apparatus (or, as in this case, a composition) may be recited either structurally or functionally, but must be distinguished from the prior art in terms of structure rather than function. Id. (citing 128 F.3d at 1477–78). The Examiner also points out that the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus if the prior art apparatus teaches all the structural limitations of the claim. Id. The Examiner therefore finds the delta-E value is inherent in the disclosure of Tanaka; one only needs to compare the color of the pigment with a color standard of the same color. Id. Appellant replies that, as a threshold matter, the claims do indeed claim a reference color, which is the reference color previously established by the cosmetic producer and to which the cosmetic composition is compared, as recited in claims 1 and 16.3 Reply Br. 4. Appellant recognizes that process claims are not under examination, nevertheless, Appellant’s arguments were intended to provide reference to the claimed feature “color standard established by the cosmetic producer” and further provided context to the Office regarding the delta-E value of the claimed cosmetic composition as compared to the color standard and how a low delta-E value of the cosmetic composition was achieved. Id. at 5. We are not persuaded by Appellant’s argument. Appellant has defined this limitation functionally, i.e., it requires a determination that the 3 Claim 16 recites: “A process for preparing a colored cosmetic composition comprising mixing a silicone pigment dispersion with at least one cosmetically acceptable component.” App. Br. 17. We disagree with Appellant that claim 16 explicitly or impliedly recites comparison to a reference color; it does not. Appeal 2014-000065 Application 12/245,273 14 delta-E value is “1.5 or less as determined by ASTM D2244-07 from a cosmetic producer established color standard.” However, in cases in which “the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established.” MPEP § 2112.01(I) (citing In re Best, 562 F.2d 1252, 1255 (C.C.P.A. 1977). Moreover, when the Examiner “shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not.” Id. (citing In re Spada, 911 F.2d 705, 709 (Fed. Cir. 1990). Therefore, the Examiner’s prima facie case can be rebutted by evidence showing that the prior art products do not necessarily possess the characteristics of the claimed product. Id. (citing In re Best, 562 F.2d at 1255; see also Titanium Metals Corp. v. Banner, 778 F.2d 775 (Fed. Cir. 1985) (holding that if a composition is the same as the prior art, it is immaterial what properties they have or who discovered the properties because the composition must necessarily exhibit the properties)). We find Appellant has not successfully rebutted the Examiner’s prima facie case because Appellant has adduced no evidence to demonstrate that the structurally identical compositions in claim 1 and in Tanaka do not necessarily have the same characteristics. Appellant argues that Tanaka does not disclose the limitation requiring determining that the delta-E value is “1.5 or less as determined by ASTM D2244-07 from a cosmetic producer established color standard.” However, Appellant must meet the burden of showing that the compositions of Tanaka do not necessarily possess this functional property. Appellant has not done so, and we consequently affirm Appeal 2014-000065 Application 12/245,273 15 the Examiner’s rejection of independent claim 1. Furthermore, because Appellant argues the claims together, we similarly affirm the rejection of claims 3–9, 12, 16, 18–24, and 27. B. Claims 13–15, and 28–30 Issue Appellant argues the Examiner erred in finding that Crook teaches or suggests delta-E values for a cosmetic composition as compared to a color standard that has been previously established by a cosmetic producer. App. Br. 18–19. Analysis Appellant incorporates his prior arguments with respect to Tanaka in arguing that the combination of references neither teaches nor suggests the limitations of the claims. App. Br. 17. Appellant also argues neither Hasenzahl nor Knapp teaches or suggests the claimed delta-E values or using pigments that have been reduced to their primary particle sizes. Since neither reference was cited by the Examiner as teaching these limitations, we need not address Appellant’s assertion in these respects. Appellant argues Crook teaches delta-E values relating to the color difference of the skin before and after application of the topical composition containing gold and silver particulates. App. Br. 19 (citing Crook ¶¶ 18–20, 22, 23, 26). According to Appellant, Crook teaches that the color of the skin is first determined prior to application of the composition to provide a baseline. Id. (citing Crook ¶ 20). Appellant asserts Crook teaches the topical composition is then applied to bare skin at a given dosage and Appeal 2014-000065 Application 12/245,273 16 allowed to dry for 15 minutes, subsequent to which the color of skin with the applied composition is again determined. Id. Crook then teaches the baseline measurements are subtracted from the post-application readings to determine the color change (the delta-E value) that is due to the application of the product. Id. Appellant contends further that the measured delta-E values are taken as the change in 3D color co-ordinate measurements. App. Br. 19 (citing Crook ¶ 23). Therefore, argues Appellant, the delta-E value determination taught by Crook does not represent the color difference (or distance) between a target color established by a cosmetic product and colored cosmetic composition specifically prepared to match the established color standard, as required by claim 17, because Crook does not teach a target color standard to which the composition is required to match. App. Br. 19. The Examiner responds, pointing out that Crook was relied upon only to demonstrate that cosmetic compositions with inorganic pigments for the skin have a delta-E value of about 1.5. Ans. 7. The Examiner finds Crook teaches a delta-E value of about 1.5 which includes values less than 1.5, as well as providing sufficient specificity for the instantly claimed range given that the skin tone is the “standard color” for the artisan to most closely obtain. Id. (citing Final Act. 11). The Examiner therefore concludes it would require no stretch of the imagination to obtain a delta-E value of 1.5 or less as determined by ASTM 02244-07, a standard method known to those of skill in this art, for other standard colors, including cosmetic producer standard colors. Id. The Examiner concludes the expected and predictable result would be a composition that most closely has the same color value as a cosmetic standard color. Id. Appeal 2014-000065 Application 12/245,273 17 We are not persuaded by Appellant’s arguments. Crook teaches, and Appellant’s Specification discloses, that delta-E measurements were well- known in the cosmetic art at the time of Appellant’s invention. See Crook ¶ 20; Spec. 10. Delta-E measurements are differential measurements in which a test value is compared to a standard: in Crook, the standard is untreated skin, whereas in Appellant’s Specification, the standard is a well- known industrial color standard. Crook ¶ 20; Spec. 10. Crook teaches that delta-E values of 1.5 are desirable. Crook ¶ 26 (“[P]roducts having these levels of colour shift on human skin provide a limited change in skin tone and colour that creates a healthy appearance on all skin types”). We agree with the Examiner’s conclusion that it would be obvious, in creating a cosmetic composition, to seek delta-E value of 1.5 when compared to a well- known industry color standard. We consequently affirm the Examiner’s rejection of claims 13–15, and 28–30. CONCLUSION For the reasons set forth supra, we agree with the Examiner’s reasoning that claims 1, 3–9, 12–16, 18–24, and 27–30 are prima facie obvious. We consequently affirm the rejection of the claims. DECISION The Examiner’s rejection of claims 1, 3–9, 12, 16, 18–24, and 27 as unpatentable under 35 U.S.C. § 102(b) is affirmed. The Examiner’s rejection of claims 13–15, and 28–30 as unpatentable under 35 U.S.C. § 103(a) is affirmed. Appeal 2014-000065 Application 12/245,273 18 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED Copy with citationCopy as parenthetical citation