Ex parte GUERRERO et al.

Board of Patent Appeals and Interferences

Sep 10, 1998

08181273 (B.P.A.I. Sep. 10, 1998)

Application for patent filed January 13, 1994.1
1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today (1) was not written for publication in a law
journal and (2) is not binding precedent of the Board.
Paper No. 18
UNITED STATES PATENT AND TRADEMARK OFFICE
__________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________
Ex Parte ANGEL A. GUERRERO, ANTHONY VARGAS
and ALAN J. MEYERS
__________
Appeal No. 95-3969
Application 08/181,2731
___________
ON BRIEF
___________
Before RONALD SMITH, GRON, and WEIFFENBACH, Administrative Patent Judges.
WEIFFENBACH, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134 from the examiner's final rejection of claims
1-8 and 10-14, which are all of the claims remaining in the application. We reverse.
Appeal No. 95-3969
Application 08/181,273
2
Claimed Subject Matter
The claims on appeal are directed to a cosmetic product and a method of using the same. The
cosmetic product is dispersed from a multi-compartment dispenser wherein a first substance is dispersed
from one compartment and a second substance is dispersed from a second compartment. The first
substance is an anhydrous composition comprising ascorbic acid and a carrier and the second substance
is an aqueous composition of an alkaline agent having a pH from about 7 to about 11. Claim 1 is
representative of the claimed subject matter and reads as follows:
1. A cosmetic product which is formed as a multi-compartment dispenser, wherein a first
and second substance are stored apart from one another in separate compartments of the
dispenser:

(i) the first substance being an anhydrous composition comprising:
a) from 0.001 to 50% by weight of ascorbic acid; and
b) from 5 to 99.9% by weight of a pharmaceutically acceptable carrier; and
(ii) the second substance being an aqueous composition with a pH ranging from about 7
to about 11 comprising from 40 to 99% water and 1 to 30% of an alkaline agent present
in an effective amount to cause a rise of at least 0.5 units in pH of the first substance when
blended therewith, and wherein the first and second substances are blended together just
prior to use so as to topically deliver a final blended composition to skin whose acidity is
insufficient to cause irritation but, nevertheless, delivers active ascorbic acid.
Appeal No. 95-3969
Application 08/181,273
The final Office action included a rejection of claims 13 and 14 under 35 U.S.C. § 101 as lacking utility and a2
rejection of claims 13 and 14 under the first paragraph of 35 U.S.C. § 112. These rejections have been withdrawn by the
examiner (answer: p. 2, ¶ 4).
3
References of Record
The following references of record are relied upon by the examiner as evidence of obviousness:
Kiozpeoplou 4,487,757 Dec. 11, 1984
Fine 5,298,237 Mar. 29, 1994
(Filed Jan. 24, 1992)

The Rejections2
Claims 1-8 and 10-12 stand rejected under 35 U.S.C. § 103 as being obvious over Kiozpeoplou
in view of Fine.
Claims 13 and 14 stand rejected under 35 U.S.C. § 112, second paragraph, as being indefinite
for failing to particularly point out and distinctly claim the subject matter which appellants regard as the
invention in that the phrase “overall healthier and younger-looking” is an indefinite description which
requires subjective determination.
Opinion
We have carefully considered the respective positions advanced by appellants and the examiner.
We cannot sustain either of the examiner's rejections. The examiner has not made out a prima facie case
of obviousness because the examiner has not established why a person having ordinary skill in the art would
Appeal No. 95-3969
Application 08/181,273
4
have been motivated to select the ascorbic acid disclosed in Fine for the acid component in Kiozpeoplou.
As for the rejection under 35 U.S.C. § 112, this rejection cannot be sustained because the phrase objected
to is functional and because its presence in the preamble in the claim does not render the claimed method
indefinite. For the foregoing reasons, the decision of the examiner is reversed.
REVERSED
RONALD H. SMITH )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
TEDDY S. GRON )
Administrative Patent Judge ) APPEALS AND
)
) INTERFERENCES
)
CAMERON WEIFFENBACH )
Administrative Patent Judge )
Appeal No. 95-3969
Application 08/181,273
5
Patent Department
Unilever United States, Inc.
45 River Road
Edgewater, NJ 07020