Ex Parte Haslacher

Patent Trial and Appeal Board

Jun 13, 2018

14609400 (P.T.A.B. Jun. 13, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/609,400 01/29/2015
94165 7590 06/15/2018
LeonardPatel PC
9891 Irvine Center Drive
Suite 100
Irvine, CA 92618
FIRST NAMED INVENTOR
Ulrike Haslacher
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
1135.0002 7047
EXAMINER
PACKARD, BENJAMIN J
ART UNIT PAPER NUMBER
1612
NOTIFICATION DATE DELIVERY MODE
06/15/2018 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
patents@leonardpatel.com
spatel@leonardpatel.com
mleonard@leonardpatel.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ULRIKE HASLACHER
Appeal 2017-006114 1
Application 14/609,400
Technology Center 1600
Before FRANCISCO C. PRATS, RYAN H. FLAX, and
TIMOTHY G. MAJORS, Administrative Patent Judges.
PRATS, Administrative Patent Judge.
DECISION ON APPEAL
This appeal under 35 U.S.C. § 134(a) involves claims to processes of
skin care. The Examiner rejected the claims for obviousness.
We have jurisdiction under 35 U.S.C. § 6(b )(1 ).
We affirm.
STATEMENT OF THE CASE
The sole rejection before us for review is the Examiner's rejection of
claims 1-9 under 35 U.S.C. § 103(a) for obviousness over Beautygeeks2 and
Manzo3 (Ans. 2--4). 4
1 Appellant states that the "real party in interest in this application is Ulrike
Haslacher." Appeal Br. 2.
Appeal 2017-006114
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Claims 1, 5, and 9, the independent claims on appeal, illustrate the
appealed subject matter and read as follows:
1. A process for skin care, comprising:
applying a hydrating liquefier to skin, the hydrating
liquefier configured to rejuvenate and balance the skin;
applying a hydrating gel to the skin, the hydrating gel
configured to repair and renew the skin; and
selecting and applying a hydrating cream to the skin
based on temperature and humidity in a specific uncontrolled
climate of a person's geographic location, wherein the
hydrating cream comprises a climate-specific formulation
configured to protect the skin.
2 http://imabeautygeek.com/2013/05/17 /glow-getter-the-2nd-best-thing-ive-
done-for-my-skin-again-im-44 (publication date May 17, 2013; last accessed
June 6, 2018). The comments section of the webpage, cited by the Examiner
(Ans. 2) and Appellant (Appeal Br. 14; Reply Br. 3), is attached to this
decision.
3 US 7,349,857 B2 (issued Mar. 25, 2008).
4 Appellant asserts that the statement of the rejection in the Examiner's
Answer is inconsistent with the rejection presented in the Non-Final Office
Action of September 9, 2016, from which this appeal was taken. Reply Br.
2. Appellant, however, does not identify any specific inconsistencies
between the rejection in the Examiner's Answer and the prior rejection. Nor
does Appellant contend that the Examiner's Answer presents a new ground
of rejection that the Examiner failed to designate as such. See MPEP §
1207.03(b) (explaining that "37 C.F.R. [§] 41.40 sets forth the exclusive
procedure for an appellant to request review of the primary examiner's
failure to designate a rejection as a new ground of rejection via a petition to
the Director under 3 7 C.F .R. [ §] 1.181 "). Rather, in the Reply Brief,
Appellant argues the merits of the rejection presented in the Examiner's
Answer. Based on these circumstances, we consider the statement of the
rejection at pages 2--4 of the Examiner's Answer to be the statement of the
rejection on appeal. See Ans. 2 ("The following ground(s) of rejection are
applicable to the appealed claims.").
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5. A process for skin care, comprising:
applying a hydrating liquefier to skin, the hydrating
liquefier configured to rejuvenate and balance the skin;
applying a hydrating gel to the skin, the hydrating gel
configured to repair and renew the skin; and
rotating between a plurality of hydrating creams based on
temperature and humidity in a specific climate, wherein each of
the plurality of hydrating creams comprises a climate-specific
formulation and are configured to protect the skin.
9. A process for skin care, comprising:
applying a hydrating liquefier to skin, the hydrating
liquefier configured to rejuvenate and balance the skin;
applying a hydrating gel to the skin, the hydrating gel
configured to repair and renew the skin; and
selecting and applying a hydrating cream based on
temperature and humidity in a specific uncontrolled climate of a
person's geographic location, wherein
the hydrating cream comprises a climate-specific
formulation configured to protect the skin, and
each of the plurality of hydrating creams is formulated
and configured to mix with the hydrating liquefier to
synergistically enhance effects of the hydrating cream and the
hydrating liquefier on the skin, each of the plurality of
hydrating creams is formulated and configured to mix with the
hydrating gel to synergistically enhance effects of the hydrating
gel and the hydrating liquefier on the skin, or both.
Appeal Br. 43--46.
OBVIOUSNESS
The Examiner's Position
The Examiner finds that the Beautygeeks webpage "discloses the
application of hydrating gels, creams, and liquids for treatment of dry skin."
Ans. 2. The Examiner finds that a part of the Beautygeeks disclosure is a
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comment by "Y eeying" in the webpage' s comment section, which describes
"using three components, a cream, a gel, and an elixir for hydrating her
skin." Id.
The Examiner finds that Beautygeeks discloses "how some
moisturizers are to be selected based on the patient's skin and the weather,
as such, each moisturizer disclosed is interpreted to be 'configured' for
application in a given climate for somebody." Id. Further, the Examiner
finds, "where the [Y eeying] comment [ of Beautygeeks] suggests multiple
components add benefits, it is reasonably interpreted that they recognize the
synergistic effect of using multiple agents." Id. at 3.
The Examiner finds that the processes described in Beautygeeks differ
from the processes recited in Appellant's claims 1-9 in that "Beautygeeks
does not disclose varying the specific compositions for uncontrolled climates
based on a person's geographic location." Id.
To address that deficiency, the Examiner cites Manzo as describing
methods of formulating cosmetics that are customized according to the
individual's skin structure and function, the formulation method taking into
account seasons, climate, age, humidity, and sun exposure. Id.
Based on the cited references' combined teachings, the Examiner
determines that it would have been obvious "when applying cosmetics to use
combination skin care treatments for application to improve the skin, such as
disclosed by Beautygeeks." Id. Further, the Examiner reasons, it would
have been obvious for the skilled artisan "to recognize, as taught by Manzo,
to vary the components of each of the cosmetics to achieve a process that
provides optimal skin care, including varying the components based on the
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disclosed factors, including humidity and temperature of the intended
environment." Id. at 3--4.
Analysis
As stated inJn re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992):
[T]he examiner bears the initial burden ... of presenting a
prima facie case of unpatentability ....
After evidence or argument is submitted by the applicant
in response, patentability is determined on the totality of the
record, by a preponderance of evidence with due consideration
to persuasiveness of argument.
In the present case, having considered the arguments and evidence
advanced by Appellant and the Examiner, we are not persuaded that the
preponderance of the evidence fails to support the Examiner's conclusion of
obviousness. In particular, we find that Appellant's arguments do not take
into account the breadth of the rejected claims.
Turning first to claim 1, the claim recites a process of skin care in
which a "hydrating liquefier," a hydrating gel, and a hydrating cream are
applied to the skin. Appeal Br. 43. Although the Specification does not
define "hydrating liquefier," the Haslacher Declaration5 asserts, and the
Examiner does not dispute, that a "'hydrating liquefier' is a cream ( or
moisturizer) in liquid form." Haslacher Dec. ,r 3.
Thus, claim 1 encompasses processes in which two hydrating creams
and a hydrating gel are applied to the skin. Claim 1 requires one of the
creams to be selected based on temperature and humidity in a specific
uncontrolled climate of a person's geographic location, wherein the
hydrating cream comprises a climate-specific formulation configured to
5 Declaration of Ulrike Haslacher, signed June 2, 2016 ("Haslacher Dec.").
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protect the skin. Appeal Br. 43. In light of the undisputed meaning of
"hydrating liquefier," claim 1 also encompasses processes in which a liquid
moisturizer (i.e., a hydrating liquefier), a hydrating gel, and a hydrating
climate-specific cream are applied to the skin.
Claim 1 does not require that the three recited applying steps be
performed in the particular order in which they appear in the claim. See id.
Claim 1, therefore, encompasses applying the three recited products in any
order. See Interactive Gift Express, Inc. v. CompuServe Inc., 231 F.3d 859,
875 (Fed. Cir. 2000) ("Unless the steps of a method actually recite an order,
the steps are not ordinarily construed to require one.").
Claim 1 also does not require the three applying steps to be performed
within any particular time frame, for example daily, weekly, or monthly, or
individually with respect to one another. See Appeal Br. 43. Claim 1,
therefore, encompasses any process in which the three recited products are
applied to skin, regardless of when the products are applied in relation to
each other.
Turning to the prior art, Appellant does not persuade us that the cited
references fail to teach or suggest a process encompassed by claim 1.
Beautygeeks is an article by "Janine," who states that at the time she
wrote the article, she was 44 years old. Beautygeeks 1.
In the Beautygeeks article, Janine describes the protective benefits of
applying hydrating serums to the skin, in particular, her skin. Id. ("Proper
hydration reduces blotchy redness and rough patches, plumps up the
skin (which lessens the look of fine line, btw), helps the surface reflect
light better, and makes skin feel good. Hello, glow.").
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In the Beautygeeks article, Janine describes a prior application of a
hydrating cream to her skin. Id. ("Back in my early 30s ... I added
something new to my skincare regimen: a hydrating collection from Vichy.
I tried the night cream first .... ").
In the Beautygeeks article, Janine describes a process for applying
hydrating serums:
Apply serum on damp skin (this is how to make it damp)
for maximum absorbtion [sic] -- skin absorbs water most easily;
dampness acts as a carrier that puts small-molecule ingredients
into the top layer of skin as it is absorbed. Follow with face
cream or lotion to create a barrier to keep your serum in.
Id. at 2.
As discussed above, a "hydrating liquefier" as recited in Appellant's
claim 1 "is a cream ( or moisturizer) in liquid form." Haslacher Dec. ,r 3.
Thus, Beautygeeks' disclosure of applying a face cream or lotion as part of a
hydrating serum regimen is encompassed by claim 1 's recitation of applying
a hydrating liquefier.
As to claim 1 's recitation of applying a hydrating gel to the skin,
Janine discloses in the Beautygeeks article that, in addition to the hydrating
cream she discloses applying to her skin in her early 30s, she tried at least
seven different hydrating serum products, for which she provides reviews in
the article. Id. at 3 ("I've tried them and love them all."); see also id. at 4
("Do you think you might give any of these serums a try?").
The reviewed products that Janine discloses applying to her skin
include "Indeed Labs Hydraluron" which is described as "a light hyaluronic-
acid gel." Id. at 3. Thus, the process described in the Beautygeeks article, in
which Janine discloses application of at least seven hydrating serum
products ( and based on those applications suggests that others try them),
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includes a step of applying a hydrating gel to the skin, as Appellant's claim 1
reqmres.
In addition to applying a hydrating gel to her skin, Janine also
discloses selecting and applying a serum product, "Consonant
HydrExtreme," based on temperature and humidity, as claim 1 also recites.
Id. ("I used it during the winter and geeked out about it here for mistletoe
season. I first tried it during the summer; it was a little too much for me in
humid weather. If you have dry, sensitive skin, you definitely want to try
this.").
Janine similarly describes selecting and applying another product,
"Guerlain Super Aqua-Serum," in cold weather. Id. ("I love it in the winter.
A milky fluid, it gives skin instant glow and leaves it feeling soft and
supple.").
In addition to the above disclosures, Appellant concedes that the
comment in Beautygeeks by Y eeying, cited by the Examiner, describes
applying three products: "Fresh Rose Hydrating Gel Cream," "Aesop
Mandarin Facial Hydrating Cream," and "Olay Regenerist Advanced Anti-
Aging Night Resurfacing Elixir." Reply Br. 3--4.
Thus, the above disclosures in Beautygeeks show that it was known in
the art to apply to the skin multiple hydrating products, including a hydrating
liquefier, hydrating gel, and hydrating cream, as recited in Appellant's claim
1, and also known in the art to select those products based on the ambient
temperature, humidity, and season, in a manner encompassed by claim 1.
Appellant, therefore, does not persuade us (see Appeal Br. 14--15; Reply Br.
2---6) that Beautygeeks fails to teach or suggest a process having all of the
steps and features recited in Appellant's claim 1.
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As to the other reference cited by the Examiner, Manzo discloses a
"process of determining individual skin structure and function at a point in
time for the purpose of determining and formulating skin care products that
remedy the deficiencies observed in the skin." Manzo, abstract. We
acknowledge, as Appellant contends, that Manzo' s evaluations of skin
structure and function are performed at "known temperature and humidity
... so as to allow for repeatable measurements in future assessments." Id. at
4:43--45.
We agree with the Examiner, however, that although Manzo evaluates
skin structure and function under climate controlled conditions, Manzo
nonetheless suggests taking into account both climate and geographical
location when formulating its products. See id. at 3:64--67 ("[T]he
formulations can be modified as needs arise for dose changes, ingredients
requirements, seasonal, climate, age and 'adaptation' issues." (emphasis
added)); see also id. at 4: 10-15 ("[ A ]n individual could be measured in
order to customize a product for a small group of individuals. For example,
this process could be applied to identical twins, twins, siblings, family
members, members of the same geographical region of the same age group,
etc." ( emphasis added)).
Thus, viewing the teachings in Manzo alongside those discussed
above in Beautygeeks, Appellant does not persuade us (see Appeal Br. 17-
20; Reply Br. 6-9) that the combination ofBeautygeeks and Manzo fails to
suggest a process having all of the steps and features recited in Appellant's
claim 1, particularly the claimed step of selecting a hydrating cream based
on temperature and humidity in a specific uncontrolled climate of a person's
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geographic location, wherein the hydrating cream comprises a climate-
specific formulation configured to protect the skin.
We are not persuaded by Appellant's contention that Beauty geeks
discloses only two-step processes that are not encompassed by Appellant's
claim 1. See Appeal Br. 14--15, 18; Reply Br. 2-5, 9-10.
As noted above, claim 1 does not include any language requiring the
three claimed applying steps to be performed within any particular time
frame, for example daily, weekly, or monthly. See Appeal Br. 43. Claim 1,
therefore, encompasses any process in which the three recited products are
applied to skin, regardless of when the products are applied in relation to
each other, including processes in which the applications of the three recited
products occur on different days or weeks.
Thus, we acknowledge, as noted above, that the Beautygeeks article
describes applying a hydrating serum followed by a cream/lotion at the time
of each application. Beautygeeks 2. The article, however, also discloses a
process in which the author (Janine) performed that application sequence
multiple times. In that process, as noted above, Janine describes different
skin care options, including applying at least seven distinct hydrating
products, including products encompassed by claim 1, and moreover
suggested to readers that they try those products (id. at 2--4). Because claim
1 does not include any language requiring the three claimed applying steps
to be performed within any particular time frame, claim 1 encompasses
processes such as that suggested by Beautygeeks, in which multiple
hydrating products are applied to the skin over time in order to evaluate
different skin care options.
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Similarly, although the Y eeying comment of Beautygeeks might
describe applying only two products together each night, the Y eeying
comment describes applying a total of three products over the span of
alternate nights. See Beautygeeks 13 (comments section); see also Reply Br.
3--4 ( contending that Yeeying used "Fresh Rose Hydrating Gel Cream,"
"Aesop Mandarin Facial Hydrating Cream," and "Olay Regenerist
Advanced Anti-Aging Night Resurfacing Elixir").
Because claim 1 does not include any language requiring the three
claimed applying steps to be performed within any particular time frame,
claim 1 encompasses Y eeying' s multi-day process in which the three
described products are applied to skin. In that regard, moreover, Appellant
does not provide evidence explaining how a product expressly described as a
gel cream may only be considered a cream, and not a gel.
In sum, for the reasons discussed, Appellant does not persuade us that
the evidence of record fails to support the Examiner's prima facie case of
obviousness as to Appellant's claim 1. Appellant also does not persuade us
(see Appeal Br. 20-22 (citing Haslacher Dec.)) that the evidence contended
to be unexpected results and advanced to show nonobviousness is sufficient
to outweigh the Examiner's evidence of prima facie obviousness.
We acknowledge the disclosure in the Haslacher Declaration of an
experiment in which the declarant, who resides in Southern California, "used
the process described in the subject application on my left hand for the past
12 months." Haslacher Dec. ,r 15.
Specifically, the declarant "selected and applied, for the third step in
the process ... Desert Cream" on days when the temperature was above
75 F, "Temperate Cream" on days when it rained, "Polar Cream" during the
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months of December and January when traveling to New York, and
"Tropical Cream" on days in November of 2015 when in Miami, Florida,
and the temperature was around 85Q F and the humidity approximately 90
percent. Id.
We acknowledge that, as the basis for comparison, the declarant states
that she "only used one hydrating cream on my right hand for the past 12
months, and have used the same single product every day regardless of my
location, i.e., regardless of the air's temperature and humidity." Id. ,r 17.
We acknowledge the declarant's statement that, after performing the
experiment that "the skin on my left hand is not only smoother, softer, and
more flexible compared to the skin on my right hand, but the pores are also
smaller and less noticeable, and the skin appears to be less aged than the skin
on my right hand." Id. ,r 14.
We acknowledge also the declarant's statement that "the skin on my
right hand is not as smooth as the skin on my left hand. I further declare that
the skin on my right hand is not smooth, the pores are larger and more
noticeable, and the appearance of fine lines, wrinkles, and age spots make
the skin appear aged and less vital." Id. ,r 16.
Lastly, we acknowledge the declarant's statement that "these
unexpected results can only be achieved by utilizing the three-step process,
as claimed, and more specifically, by applying hydrating cream to the
person's skin based on temperature and humidity in a specific uncontrolled
climate of a person's geographic location." Id. ,r 18.
When evaluating assertions of unexpected results, it is well settled
that "the results must be shown to be unexpected compared with the closest
prior art." In re Baxter-Travenol Labs., 952 F.2d 388,392 (Fed. Cir. 1991).
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In the present case, as noted above, Appellant states that the claimed
process was compared to a process that used "only ... one hydrating cream
on my right hand for the past 12 months, and [which] used the same single
product every day regardless of my location, i.e., regardless of the air's
temperature and humidity." Haslacher Dec. ,r 17 ( emphasis added).
As also noted above, however, rather than using a single product, the
Beautygeeks article describes applying at least two products-a hydrating
serum followed by a cream/lotion at the time of each application; if not
more. Beautygeeks 2. Appellant does not persuade us, therefore, that the
comparison to a process using a single product described in the Haslacher
Declaration is a comparison to the closest prior art process.
It is also well settled that "objective evidence of nonobviousness must
be commensurate in scope with the claims." In re Kulling, 897 F .2d 114 7,
1149 (Fed. Cir. 1990) (citation omitted); see also In re Greenfield, 571 F.2d
1185, 1189 (CCPA 1978) ("Establishing that one (or a small number of)
species gives unexpected results is inadequate proof, for 'it is the view of
this court that objective evidence of non-obviousness must be commensurate
in scope with the claims which the evidence is offered to support."' ( citation
omitted)).
In the present case, although the Haslacher Declaration asserts that
"Desert Cream" "Temperate Cream" "Polar Cream" and "Tropical Cream"
' ' '
are products encompassed by Appellant's claims (Haslacher Dec. ,r 18), the
specific ingredients in the "Desert Cream," "Temperate Cream," "Polar
Cream," and "Tropical Cream" products are not identified in either the
Haslacher Declaration, or in Appellant's briefs. The Haslacher Declaration
also does not specifically identify the hydrating liquefier and hydrating gel
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used to achieve the results described therein. Appellant, therefore, fails to
provide a persuasive objective evidentiary basis for finding that the products
used to achieve the results described in the Haslacher Declaration are
commensurate in scope with the claimed subject matter.
Indeed, because Appellant does not identify the ingredients in the
"Desert Cream" "Temperate Cream" "Polar Cream" "Tropical Cream"
' ' ' '
hydrating liquefier or hydrating gel products used in the Haslacher
Declaration, Appellant fails to provide an objective evidentiary basis for
finding that the ingredients in those products are consistent with any
embodiment described in Appellant's Specification. In that regard,
Appellant is reminded that the quid pro quo for receiving a patent is a full
and precise description of the claimed invention, which in this case would
include a description of all of the ingredients in the "Desert Cream,"
"Temperate Cream," "Polar Cream," and "Tropical Cream" alleged by
Appellant as being within the scope of claim 1. See Ariad Pharms., Inc. v.
Eli Lilly and Co., 598 F.3d 1336, 1354 (Fed. Cir. 2010) (en bane).
In sum, for the reasons discussed, Appellant does not persuade us that
the evidence advanced to show unexpected results is sufficient to outweigh
the evidence cited by the Examiner to support the prima facie case of
obviousness. We, therefore, affirm the Examiner's rejection of claim 1, and
its dependent claims, over Beautygeeks and Manzo.
Turning to claim 5, the claim recites a process similar to that recited in
claim 1, except that as to the hydrating cream, claim 5 requires "rotating
between a plurality of hydrating creams based on temperature and humidity
in a specific climate, wherein each of the plurality of hydrating creams
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comprises a climate-specific formulation and are configured to protect the
skin." Appeal Br. 44.
Appellant's arguments regarding claim 5 are essentially the same as
those addressed above in relation to claim 1. See Appeal Br. 22-31. We
find those arguments unpersuasive for the reasons discussed above.
Appellant also does not persuade us (Appeal Br. 26-27) that the
combination of Beautygeeks and Manzo fails to suggest claim 5 's step of
rotating between a plurality of hydrating creams based on temperature and
humidity in a specific climate. As noted above, the Beautygeeks article
describes using certain products in winter, but not in summer (Beautygeeks
3), and Manzo teaches modifying skin formulations depending on climate
(Manzo 3: 64---67).
Given these teachings, we discern no error in the Examiner's
determination that, when using multiple hydrating formulations in the
manner suggested by Beautygeeks, it would have been obvious to rotate
(e.g., as the seasons cycle) between multiple hydrating creams depending on
the temperature and humidity present in a particular climate. Appellant does
not persuade us, therefore, that the Examiner erred in concluding that the
process recited in Appellant's claim 5 would have been obvious to an
ordinary artisan. Accordingly, we affirm the Examiner's rejection of claim
5, and its dependent claims, over Beautygeeks and Manzo.
Turning to claim 9, the claim recites a process similar to that recited in
claim 1, except that as to the hydrating cream, claim 9 additionally recites
the following:
each of the plurality of hydrating creams is formulated
and configured to mix with the hydrating liquefier to
synergistically enhance effects of the hydrating cream and the
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hydrating liquefier on the skin, each of the plurality of
hydrating creams is formulated and configured to mix with the
hydrating gel to synergistically enhance effects of the hydrating
gel and the hydrating liquefier on the skin, or both.
Appeal Br. 46.
We first note that, inconsistent with the above-quoted recitation of a
"plurality of hydrating creams" in the last clause of claim 9, claim 9 initially
recites "selecting and applying a hydrating cream" (id. at 45 ( emphasis
added)).
In any event, Appellant's arguments regarding claim 9 are essentially
the same as those addressed above in relation to claim 1. See Appeal Br.
31-39. We find those arguments unpersuasive for the reasons discussed
above.
In addition to the previously presented arguments, addressed above,
Appellant contends that "nothing was found in the combination of
Beautygeeks and Manzo to disclose" the synergistic enhancement features of
claim 9 recited in the claim's last clause, quoted above. Appeal Br. 40. We
are not persuaded.
Appellant identifies ,r,r 2, 7-9, and 13-18 of the Specification as
describing the synergistic enhancement features of the hydrating creams
recited in claim 9. See id. at 8.
Our review of Appellant's Specification, including the cited
paragraphs, does not uncover any particular examples of hydrating cream
compositions, or their constituent ingredients, that explain specifically which
ingredients must be present in a hydrating cream for the cream to be
formulated and configured in the manner required by claim 9. We note,
however, that hyaluronic acid and glycerin are among the ingredients
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disclosed in the paragraphs of the Specification cited as support for claim 9.
See Spec. ,r 14.
As seen in Beautygeeks, hyaluronic acid and glycerin are present in a
number of the tested hydrating products, including the "Consonant
HydrExtreme" described by Janine as being suitable for winter, but not for
summer. Beautygeeks 3. Thus, the products tested in Beautygeeks include
ingredients asserted by Appellant as providing the synergistic enhancements
recited in claim 9.
Appellant does not persuade us, therefore, that the cited references fail
to teach or suggest using hydrating creams formulated and configured as
required by claim 9, in the process suggested by Beautygeeks and Manzo, in
which a hydrating liquefier, a hydrating gel, and a hydrating cream are
applied to the skin. Accordingly, because Appellant does not persuade us
that the Examiner erred in concluding that the process recited in claim 9
would have been obvious to an ordinary artisan, we affirm the Examiner's
rejection of claim 9 over Beautygeeks and Manzo.
Appellant argues claims 2--4 and 6-8 in the same claim grouping. See
Appeal Br. 40--41.
Claim 2 is representative of these claims and recites the process of
claim 1, "wherein the selected hydrating cream comprising the climate-
specific formulation is selected from the group of formulations comprising a
polar formulation for winter climates, a temperate formulation for fall and
spring climates, a desert formulation for summer and dry climates, and a
tropical formulation for summer and humid climates." Id. at 43.
As noted above, Beautygeeks discloses selecting a specific product,
the "Consonant HydrExtreme," based on its particular suitability for winter,
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but not summer. Beautygeeks 3. We are not persuaded, therefore, that
Beauty geeks fails to suggest performing the selection required by claim 2.
Moreover, as the Examiner points out (Ans. 4--5), Manzo discloses
that its customized skin care formulations are provided to the user only in
three month supplies (Manzo 4:48--49), and expressly states that its
formulations can be modified "as needs arise for ... seasonal ... issues" (id.
at 3:65---67). Accordingly, we discern no error in the Examiner's conclusion
that an ordinary artisan using multiple hydrating products as suggested by
Beautygeeks, would have been prompted by Manzo to select a season-
specific hydrating cream for use in that process, as recited in Appellant's
claim 2. We, therefore, affirm the Examiner's rejection of claim 2 over
Beautygeeks and Manzo. Because they were argued in the same claim
grouping, claims 3, 4, and 6-8 fall with claim 2. See 37 C.F.R.
§ 4I.37(c)(l)(iv).
SUMMARY
For the reasons discussed, we affirm the Examiner's rejection of
claims 1-9 under 35 U.S.C. § 103(a) for obviousness over Beautygeeks and
Manzo.
TIME PERIOD
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
18
Application/Control No. Applicant(s)/Patent Under
Reexamination
14/609,400 HASLACHER, ULRIKE
Notice of References Cited
Examiner Art Unit
BNEJAMIN PACKARD 1612
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u https ://i m abeautyg eek.com/2013/05/1 7 /g low-getter-the-2nd-best-th i ng-ive-don e-fo r-my-ski n-ag ai n-i m-44/
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U.S. Patent and Trademark Office
PT0-892 (Rev. 01-2001) Notice of References Cited Part of Paper No.
6/6/2018 THE 2ND-BEST THING l'VE DONE FOR MY SKIN (l'M 44) - Beautygeeks
• ~ Janine, you are gorgeous and inspiring. Thank you.
I might give the Avene Serum a try. My skin loves
Avene moisturisers but I do recognise many of the
signs of dehydration you mention here. Must drink
more water too!
e ,h\nhe .,. s yu,,., :)[\(•
~ You're very kind, Perney, thanks:-)
An accquaintance once told me that she uses
the Avene Serum then applies Avene Soothing
Moisture Mask overnight once a week to keep
her very dry skin hydrated. I tried it one night
when I had just two hours sleep before having
to do an early morning tv segment; my skin
was so glowy I got twitter compliments from
people who had seen the show! So I'm a
definite fan of Avene serum, that moisture
mask, and the thermal water, too :-)
And I, too, need to drink more water --
sometimes it's not easy to do .
• ~ I love your nerdness ( despite the fact you're old).
Well done, Geek. I feel like hydrating.
e t\liirni;' . ,; yc,r~ ,,g,,
~ She is old? How? You will be lucky if you
look anything like her at 44!
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8 J,mfot T\,t:r:,i.:,, ··:;ye,,,·, :,g,:
~. Ha ha! Lovely of you to say, Minnie
:-) YouLookHotToday and I know
each other well; she loves to tease me
because I'm just a bit older than she
is. *grin*
• ~. oh beauty and skin-health guru, i dashed to my nearest ShoppersDrugMart to purchase
the Indeed Labs Hydraluron ( currently on sale at
20.99, woo!).
Just hydrated that stubborn dry area at my jawline,
where no amount of exfoliating seemed to make a
difference, and added my moisturizer overtop and
voila, it feels like babyskin! Smooth, soft, supple, and
not greasy.
thank you!
and my skin sends you some hugs and kisses too!!
• Ji .. nhw C ··Sy-.:,,,:,,,;,,
~ I'm so pleased your skin feels happier! That's
the best thing, when formerly uncomfortable
skin gives a sigh of relief.
Thank you for your comment, and for the
hugs and kisses from your happy skin:-)
• ~ Hey lady! First, you can't be 44?! I am also in my 40s and have been rethinking my skincare regime. I think
I need that Hydraluron. This post is so helpful.
Thanks!
• Ji .. nhw :Yli;,chdk ·.:'ye;:·~ ,,g,,
~ It's a sad fact that everything the body does
right slows down considerably once we trip
over age 25 or so. I think our 40s is the age
during which a hydrating serum becomes a
mandatory part of our regimen. And the
Hydraluron is pretty damed good -- I
recommended it to someone recently (she'd
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been suffering blotchy redness and
discomfort); she's very happy with the
improvement she's seen since adding it to her
routine.
I'm glad this was helpful; thanks for your
note! xo
• ~. I could barely get past the title. There's no way you're 44! ! I always assumed you were early 30's like me.
Mind blown. I keep thinking I should try a serum but
I haven't picked one up yet. I'm going to have to just
give m.
9 cl,mim, Nicc,k .,. S yu,;, :J,,c·
~ You're very kind Nicole:-)
In your 30s a hydrating serum probably isn't
as important to your skin as it will be when
you hit your 40s (I know -- sheesh). But there
are all kinds -- a serum loaded with
antioxidants is more of what you want to help
repair any wee signs of premature aging and
to fend off new ones for longer.
Go ahead and give in -- isn't beauty peer
pressure great??
e :"iant nnm,: .,. _< '/Uti., :Jf:(,
~. Could you please let me know a great
serum loaded with antioxidants, I'm
26 however I have Rosacea and
pigmentation issues after the birth of
my first baby and serverly dehydrated
skin with fine lines and wrinkles from
terrible tretinion experience I haven't
managed to fully hydrate from. Sigh.
I'm going to give on of these a try
could you also steer me in the
direction of a great night cream.
Thank you xxx
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• ~. This is great! Thank you.
A bit off topic: do you wear foundation or tinted
moisturizer?
• ,h\nhe n;arla ·· S y,,:m. "?O
~ My pleasure, Maria.
I tend to wear Maybelline New York Dream
Fresh BB Cream most often -- great texture, a
little more coverage than tinted moisturizer
and some other BB creams, and it has mineral
sunscreens (titanium dioxide and zinc oxide)
to protect my skin all day ( as long as I don't
rub my face). I'm wearing it in this post's
opening photo ( and probably in my little
headshot, too) .
• ~ Is it possible that the Neostrata Moisture Infusion 24hr Hydrating Serum is a new product? I can't find it
on the Neostrata website and was wondering if it was
in store already.
Also, on the days you use the Neostrata glycolic
toner, do you use a serum right after when your skin is
still damp from the toner? I ask because since this
toner is acid based I thought it needed to be left alone
for it to work or I am wrong? thanks : )
• Ji\nhw c,.,,,.,v,,,,HL, ·· S ye:,r: a,;c•
~. Yes, that's right, Cocovanilla -- the Neostrata
serum is quite new. It's probably in most
stores by now; I think Tracy, below, just
bought one to try.
Unless I'm in a hurry -- which is most of the
time, actually -- I do give my skin time to
absorb the glycolic acid toner before I apply
anything else. When my skin is thoroughly
dry, I'll use a face mist to dampen my skin
again, then apply serum. (My skin is more
sensitive now than it was in my 30s, so I'm
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careful with the glycolic toner -- generous
doses of hydration afterward offset that
sensitivity.)
9 (\.,uwanilfa foxtinc ·. :'. yu,r, :,gn
~ Thank you! I might try this after using
the Neostrata toner. (Or a better
hydrating cream.) Looks like the
lotion I use isn't enough: when I use
the toner at night I wake up with very
oily skin and my skin is even oilier
during the day compared to when I
don't use the toner (I use the toner
only at night). My skin is changing
and I haven't figure out what's the best
yet ;) but I really love the toner, it
helps with the breakouts I still have
even if I'm in my 30s.
e .};wirn.o Cx.c,\:ctr:ill,, ·. 5 yrn.:-~ ,,8n
~ YES! I discovered that, too,
years ago when I first started
using the toner. It transformed
my skin, but also made it so
oily -- like someone wrapped
it in Saran wrap when I wasn't
looking -- ick! When I started
using a hydrating moisturizer,
everything got so much better.
So yes, sounds like you need
a hydrating serum, too:-)
What cream are you using? I
will say this: I love Neostrata
products, but their cream
textures aren't the best.
Consider Biotherm
Aquasource -- feels great on
oily skin. And you'll find
benefit in a thermal water face
mist from La Roche-Posay or
Avene. Those are two of my
favourites for adding an extra
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hydration hit before applying
serum and cream.
e LHy Jm,int, · '5 vurs ng,,
~ I found it on a separate
display at Shoppers, with the
gift packs, so yes it is fairly
new.
I got the Neostrata serum
based on your post, and have
to say I can see a difference
after the second application.
To be honest, I wan't paying
attention the first time I
applied it.
I use the Dermaglow toner
and spritz Avene water on my
face ( another great
BeautyGeek tip!) and then
serum, followed by a
Dermaglow moisturizer. My
face cannot thank you
enough!
One thing I am never sure of,
should I put on sunscreen
before the serum or after the
serum?
• ,h\nhe Lily ., 5 ye:"n :s:;c,
~ Yay, happy skin! Thanks for
your comment, Lily:-)
Re: application order, don't let
anything come between your
skin and your serum. *grin*
If you're using chemical
sunscreen -- Avobenzone,
Octocrylene, Oxybenzone,
etc. -- your sunscreen goes on
after serum, before
moisturizer.
If you're using liquid mineral
sunscreen -- titanium dioxide,
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zinc oxide -- it goes on after
serum and after moisturizer. I
like to use Maybelline New
York Dream Fresh BB Cream
SPF 30 (mineral filters) as my
sunscreen. Saves me a step! If
I don't feel like wearing
makeup, I go for
Skinceuticals Sheer Physical
UV Defense SPF 50.
Powder mineral sunscreen
(Eminence Organic Sun
Defense SPF 30, another one
of my faves) is genius for
over-moisturizer or over-
makeup application.
Alternative: Physicians
Formula Mineral Wear Talc-
Free Mineral Pressed Powder,
which is an SPF 30 powder
although the Canadian
packaging doesn't say so.
Hope I haven't overwhelmed -
- I get a little carried away
with info sometimes :-)
• ~ You look SHMEXXXXXXXY for 44 Janine! I agree with you 100%. Hydration is KEY! I just bought that
Neostrata one and am excited to use it now!
People ask me what my secret is and I say it's because
I drink water ALL DAY LONG. Like all day for reals.
I probably drink 6 L of water a day. Maybe more,
especially the days I exercise.
e Jmihs'c'
~ I'm keen to know what you think of the
Neostrata serum, lady!
And truthfully, I struggle with my water
consumption. I drink a lot of caffeine; more
H20 required, especially now that I want my
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hydrating serums to be as effective as can be.
Also, more exercise required. Oops!
• ~ Janine, have you ever used a glycolic/hyaluronic serum instead of a toner and then the serum? I've used
one by Makeup Artists Choice ( don't know if that is
available in Canada or not), but I think there are a few
out there. I just wonder how it compares.
• Ji .. nhw Lon f\.•f ·. 5 y::,, seems to be exactly that. I'd give it a try.
e Abi.imrn J:m,;;:, bni;,,: . i:,Fi\ lJT \ Gl:TK..S · . .', _;·,':1cr,. "f')
~- oh thank you so much for
replying so promptly ! Today
you made me realize I have
dehydrated skin, rather than
dry. (it is dry too but not that
dry .. ) My Vit C Serum I think
is a bit oily (SkinCeuticals C
E Ferulic) so they won't be
same texture ... so thinnest
would be the hydrating serum,
if I buy , for example,
something like plain
hyaluronic acid. That would
be easily absorbed, ready for
the Vit C. Not sure what you
meant 'you want that Vit C IN
there ... '
II Just realized I hadn't clarified
the "Vitamin C IN there"
comment, Stella -- sorry about
that! I mean you want your
skin to absorb the Vitamin C
as best it can. If you apply it
on damp skin (skin you've
dampened with thermal water
or with a hydrating serum
with a water-like
consistency), the Vitamin C
serum will be absorbed more
thoroughly and probably more
evenly. Then you want to
apply a lotion or face cream
to form a barrier that prevents
any of the serums from
evaporating from your face:-)
As I mentioned to Stella,
based on your advice, I am
keeping Vit C in my line-up,
once skin has been
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normalized, but good to know.
The serum I am considering
using will most likely
hydrating and have a water
like consistency, so I will
apply after the
serum ..... ooo .... have to adjust
my skin-care notes - again!
• :'·-.::, ::,:., 1·-- 'r(·. Er'AUTYUEU<..S ·· 3 ye,,,,,,~,-
~ Hi Janine, and thank you! I
realized that after reading
your comment a few times,
but thanks for confirming : )
After I apply the Vit C, I leave
some time and do the same
thing, slightly dampen my
face and apply the
moisturizer. Not too damp
because otherwise I would
end up washing my Vit C
away : ) I found a really good
moisturizer and I d like to
share it with all of yous. Its
alled Hyalceutic by
Dermaceutic. You can find
this in Europe not sure other
countries. Good amount of
Hyaluronic Acid in it!
·:: ....... : ....... ' ... .
I'm in the same boat, Stella - I
am keeping Vit C in my line-
up, once my skin has bounced
back, but thanks to Janine : )
for pointing out the order of
things
• .:·:,::.,/(:, TtU(:'(l