Ex Parte DROMAN

Patent Trial and Appeal Board

Mar 9, 2016

12245273 (P.T.A.B. Mar. 9, 2016)

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.
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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.
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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.
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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.

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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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.
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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.
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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)(1). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED