Ex Parte Midha et al

Board of Patent Appeals and Interferences

Jan 6, 2009

10262700 (B.P.A.I. Jan. 6, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte SANJEEV MIDHA, BRIAN DAVID HOFRICHTER, and
SHARI RENEE THOMSON
__________

Appeal 2008-5242
Application 10/262,700
Technology Center 1600
__________

Decided: January 6, 2009
__________

Before TONI R. SCHEINER, LORA M. GREEN, and
FRANCISCO C. PRATS, Administrative Patent Judges.

PRATS, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to
compositions that can be used as shampoos. The Examiner has rejected the
claims as obvious. We have jurisdiction under 35 U.S.C. § 6(b). We affirm.
Appeal 2008-5242
Application 10/262,700

STATEMENT OF THE CASE
Claims 1-20 are pending and on appeal (App. Br. 5). Claims 1 and 10
are illustrative and read as follows:
1. A composition comprising:
a) from about 5 to about 50 weight percent of a
detersive surfactant,
b) at least about 0.025 to 5 weight percent hollow
particles having a mean particle size from about 1 micron to
about 80 microns, and
c) at least about 20 weight percent of an aqueous
carrier.

10. The composition of claim 1 further comprising a
cationic polymer.

The Examiner cites the following documents as evidence of
unpatentability:
Roulier US 5,925,380 Jul. 20, 1999
Young US 6,113,890 Sep. 5, 2000

The following rejection is before us for review:
Claims 1-20 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Roulier and Young (Ans. 3-4).
OBVIOUSNESS
Issue
The Examiner finds that Roulier discloses topical compositions that
contain the claimed hollow particles and surfactants, the compositions
disclosed as being useful as shampoos (Ans. 3). The Examiner finds that the
differences between Roulier and the claims are that Roulier “does not teach
[the] higher amount of water and cationic polymer” (id.) (emphases
removed). To meet those limitations, the Examiner cites Young as
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disclosing shampoo compositions containing ingredients similar to those in
Roulier, along with an aqueous carrier and cationic polymer (id.).
The Examiner concludes that one of ordinary skill in the art would
have considered it obvious to “prepare compositions of [Roulier] using the
hollow particles, detersive surfactant and increase the water content and add
cationic polymer taught by [Young] in analogous shampoo compositions
using particles and surfactants” (id. at 4). The Examiner reasons that a
person of ordinary skill would have been prompted “to add cationic polymer
with the reasonable expectation of success that the cationic polymer
enhances the deposition of hollow particles” (id.). The Examiner further
reasons that “one of ordinary skill in the art would increase the water content
with the reasonable expectation of success that the water helps in making the
composition as pourable liquid, which is beneficial to the consumer” (id.).
Appellants contend that the Examiner failed to make a prima facie
case of obviousness because one of ordinary skill in the art would not have
been prompted to modify Roulier’s essentially dry solid compositions to
achieve a composition having the claimed ingredients in the claimed
amounts (App. Br. 12-21).
In view of the positions advanced by the Examiner and Appellants,
the issue with respect to this rejection is whether the Examiner has made a
prima facie case that the teachings of Roulier and Young would have
rendered a composition having the claimed ingredients in the claimed
amounts obvious to a person of ordinary skill in the art.
Findings of Fact (“FF”)
1. Roulier discloses “dosage forms for cosmetic or dermatological use,
in the form of an expanded solid composition whose matrix comprises of a
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cellular network formed from a starch-rich product and contains expanded
thermoplastic hollow particles of homopolymer or copolymer of an
ethylenically unsaturated monomer or mixture of such monomers” (Roulier,
col. 1, ll. 17-23).
2. Roulier discloses that “preferably, the particles . . . are hollow
particles of an expanded copolymer of vinylidene chloride and acrylonitrile,
or of vinylidene chloride, acrylonitrile and methyl methacrylate. These
particles may be dry or hydrated” (Roulier, col. 3, ll. 11-15).
3. Roulier discloses that “[t]he expanded thermoplastic hollow particles
are present in the compositions of the invention in concentrations preferably
ranging from 2 to 30% by weight relative to the total weight of the
composition” (Roulier, col. 3, ll. 36-39).
4. Roulier discloses that “[t]he compositions according to the invention
possess a water content preferably not exceeding 5% by weight, and more
preferably ranging from 1 to 2% by weight, relative to the weight of the
composition” (Roulier, col. 3, ll. 60-63).
5. Roulier discloses that its solid compositions may be “expanded
cylinders, pellets, leaves or flakes applied directly to the skin or the face, or
be reduced to powder and used as such, in a traditional manner, as make-up
powder,” and can also “take the form of powder for care and/or hygiene,
applied directly to the skin, scalp or hair, for example dry shampoos or loose
powders for body care” (Roulier, col. 2, ll. 19-24).
6. Roulier discloses that the expanded cylinders, pellets, leaves, or flakes
may be “stored in the dry state, and be very readily amenable to rehydration
after immersion in an aqueous medium to reconstitute formulations for
make-up such as make-up foundations or formulations for care or hygiene
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such as creams, milks, foam baths, gels and shampoos” (Roulier, col. 2, ll.
26-31).
7. Roulier discloses that the dry-stored compositions can, “at the time of
use, [be] rehydrated after immersion in water to reconstitute a liquid or semi-
liquid aqueous make-up formulation such as a make-up foundation”
(Roulier, col. 5, l. 67, though col. 6, l. 2).
8. Roulier discloses:

The compositions according to the invention can be products
for the care and/or hygiene of the skin, mucosae, scalp or hair.
They may take the form of powder and be applied directly to
the skin, scalp or hair as for example, a dry shampoo or a loose
powder for body care. These compositions may also take the
form of powder or alternatively of expanded cylinders, pellets
or flakes which are amenable to rehydration after immersion in
water so as to reconstitute an aqueous formulation for care
and/or hygiene, such as a cream, milk, gel, foam bath or
shampoo.

(Roulier, col. 6, ll. 3-12.)
9. Example 1 of Roulier discloses a “[d]ry shampoo in the form of a
powder to be rehydrated” (Roulier, col. 6, l. 19). The shampoo of Roulier’s
Example 1 has, by weight, 35% wheat flour, 35% maize starch, 15%
expanded particles of vinylidene chloride/acrylonitrile/methyl methacrylate
copolymer, and 15% sodium lauryl ether sulphate, a surfactant (id. at col. 6.
ll. 22-28).
10. Roulier discloses that its compositions can contain “inorganic or
organic fillers customarily used in make-up products, . . . [as well as] metal
soaps derived from C8 -C22 carboxylic acid. They are present in
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concentrations preferably ranging from 0 to 50% by weight relative to the
weight of the composition” (Roulier, col. 4, ll. 59-67).
11. Young discloses “hair shampoo compositions which provide cleaning
and styling performance, and which contain latex polymer particles, water-
soluble cationic polymer as a latex deposition aid, organic oil as a latex
deposition aid, and typically one or more surfactants, an aqueous carrier and
one or more optional ingredients” (Young, abstract).
12. Young discloses that its shampoo compositions “are typically in the
form of pourable liquids (under ambient conditions). The shampoo
compositions will therefore typically comprise an aqueous carrier, which is
present at a level of from about 20% to about 95%, preferably from about
60% to about 85%, by weight of the shampoo compositions” (Young, col.
11, ll. 11-16).
13. Young discloses that the latex particles in its compositions are present
in amounts “up to about 25%, preferably from about 0.05% to about 25%,
more preferably from 0.05% to about 15%, more preferably from about . . .
0.1% to about 10%, and most preferably from about 0.5% to about 7%, by
weight” (Young, col. 11, ll. 28-32).
14. Young discloses that the latex particles in its compositions are
polymers made from monomers including “styrene, butadiene, ethylene,
acrylonitrile, chloroprene, vinylidene chloride, isoprene, isobutylene and
vinyl chloride, and esters of acrylic, methacrylic, vinylacetic, maleic,
crotonic and itaconic acids,” and that those monomers “may be mixed with
one or more ionic monomers, e.g., acrylic acid, methacrylic acid, to form
charged latex polymer systems” (Young, col. 11, ll. 59-65).
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15. Young discloses that “[s]ynthetic surfactants for use in the shampoo
compositions . . . will generally be present at a level from about 0.5% to
about 50%, more typically from about 4% to about 30%, more typically
from about 5% to about 25%, by weight, of the shampoo composition”
(Young, col. 2, ll. 39-44).
Young notes, however, that “[t]otal surfactant concentrations in the
shampoo compositions can vary depending on the shampoo base
formulation, the selected surfactant, cosurfactants, product results desired
and so forth” (id. at col. 2, ll. 44-48).
16. Young discloses that that cationic polymer is present in its shampoo
compositions at “concentrations effective to enhance deposition of the latex
polymer particles . . . . Such concentrations will typically be from about
0.01% to about 5%, preferably from about 0.05% to about 3%, more
preferably from about 0.1% to about 2%, by weight of the shampoo
compositions” (Young, col. 6, ll. 54-59).
Principles of Law
Addressing the question of obviousness in KSR Int' l Co. v. Teleflex
Inc., 127 S. Ct. 1727 (2007), the Supreme Court reaffirmed that under the
controlling inquiry, “the scope and content of the prior art are to be
determined; differences between the prior art and the claims at issue are to
be ascertained; and the level of ordinary skill in the pertinent art resolved.”
Id. at 1734 (quoting Graham v. John Deere Co. of Kansas City, 383 U.S. 1,
17-18 (1966)).
In proceedings before the Patent and Trademark Office,
the Examiner bears the burden of establishing a prima facie
case of obviousness based upon the prior art. “[The Examiner]
can satisfy this burden only by showing some objective
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teaching in the prior art or that knowledge generally available to
one of ordinary skill in the art would lead that individual to
combine the relevant teachings of the references.”

In re Fritch, 972 F.2d 1260, 1265 (Fed. Cir. 1992) (citations omitted,
bracketed material in original). Thus, as the Supreme Court pointed out in
KSR, “a patent composed of several elements is not proved obvious merely
by demonstrating that each of its elements was, independently, known in the
prior art.” KSR, 127 S. Ct. at 1741. Rather, as the Court stated:
[I]t can be important to identify a reason that would have
prompted a person of ordinary skill in the relevant field to
combine the elements in the way the claimed new invention
does . . . because inventions in most, if not all, instances rely
upon building blocks long since uncovered, and claimed
discoveries almost of necessity will be combinations of what, in
some sense, is already known.

Id. (emphasis added); see also id. at 1740-41 (requiring a determination of
“whether there was an apparent reason to combine the known elements in
the fashion claimed by the patent at issue”) (emphasis added).
While holding that some rationale must be supplied for a conclusion
of obviousness, the Court nonetheless rejected a “rigid approach” to the
obviousness question, and instead emphasized that “[t]hroughout this Court's
engagement with the question of obviousness, our cases have set forth an
expansive and flexible approach . . . .” Id. at 1739. The Court also rejected
the use of “rigid and mandatory formulas” as being “incompatible with our
precedents.” Id. at 1741; see also 1742-43 (“Rigid preventative rules that
deny factfinders recourse to common sense, however, are neither necessary
under our case law nor consistent with it.”).
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The Court thus reasoned that the analysis under 35 U.S.C. § 103 “need
not seek out precise teachings directed to the specific subject matter of the
challenged claim, for a court can take account of the inferences and creative
steps that a person of ordinary skill in the art would employ.” Id. at 1741.
The Court further advised that “[a] person of ordinary skill is . . . a person of
ordinary creativity, not an automaton.” Id. at 1742.
Regarding hindsight reasoning, the Court stated that “[a] factfinder
should be aware, of course, of the distortion caused by hindsight bias and
must be cautious of arguments reliant upon ex post reasoning. Rigid
preventative rules that deny factfinders recourse to common sense, however,
are neither necessary under our case law nor consistent with it.” Id. at 1742-
1743 (citations omitted).
When evaluating claims for obviousness, “the prior art as a whole
must be considered. The teachings are to be viewed as they would have
been viewed by one of ordinary skill.” In re Hedges, 783 F.2d 1038, 1041
(Fed. Cir. 1986). Accordingly, “‘[i]t is impermissible within the framework
of section 103 to pick and choose from any one reference only so much of it
as will support a given position, to the exclusion of other parts necessary to
the full appreciation of what such reference fairly suggests to one of
ordinary skill in the art.’” Id. (quoting In re Wesslau, 353 F.2d 238, 241
(CCPA 1965)).
Thus, “in a section 103 inquiry, ‘the fact that a specific [embodiment]
is taught to be preferred is not controlling, since all disclosures of the prior
art, including unpreferred embodiments, must be considered.’” Merck &
Co. Inc. v. Biocraft Laboratories Inc., 874 F.2d 804, 807 (Fed. Cir. 1989)
(quoting In re Lamberti, 545 F.2d 747, 750 (CCPA 1976)); see also In re
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Mills, 470 F.2d 649, 651 (CCPA 1972) (“All the disclosures in a reference
must be evaluated, including nonpreferred embodiments, and a reference is
not limited to the disclosure of specific working examples.” (citations
omitted)).
Moreover, as often stated, “[n]on-obviousness cannot be established
by attacking references individually where the rejection is based upon the
teachings of a combination of references. . . . [The reference] must be read,
not in isolation, but for what it fairly teaches in combination with the prior
art as a whole.” In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir.
1986).
The test of obviousness, therefore, is “whether the teachings of the
prior art, taken as a whole, would have made obvious the claimed
invention.” In re Gorman, 933 F.2d 982, 986 (Fed. Cir. 1991).
Analysis
The claims have not been argued separately and therefore stand or fall
together. 37 C.F.R. § 41.37(c)(1)(vii). We select claim 1 as representative
of the rejected claims. Id.
Appellants’ arguments do not persuade us that the Examiner failed to
make a prima facie case that a composition having the ingredients recited in
claim 1, in the amounts recited in claim 1, would have been obvious to a
person of ordinary skill in the art.
Appellants argue:
[Roulier’s] disclosure, directed entirely to solid
formulations, provides no apparent reason for one of skill in the
art to modify the teachings therein to (a) eliminate the starch-
rich product, and (b) the resulting starch-based matrix, and
provide an aqueous composition (c) containing at least 20%
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aqueous carrier, or (d) reduce the amount of hollow particles to
a maximum of 5%, let alone make all four modifications.

(App. Br. 15-16, 20.)
This argument does not convince us that the Examiner erred. We note
that the main thrust of Roulier’s disclosure is the preparation of dry solid
formulations (see FF 1, 4, 5).
However, rather than being exclusively directed to dry solid
formulations, Roulier explicitly discloses that its dry compositions are “very
readily amenable to rehydration after immersion in an aqueous medium to
reconstitute . . . formulations for care or hygiene such as creams, milks,
foam baths, gels and shampoos” (Roulier, col. 2, ll. 26-31 (FF 6; see also FF
7, 8)). Thus, in Example 1, Roulier describes the composition as a “[d]ry
shampoo in the form of a powder to be rehydrated” (Roulier, col. 6, l. 19
(FF 9) (emphasis added)).
We therefore agree with the Examiner that, rather than describing
only dry compositions, Roulier discloses that it was desirable to prepare
compositions that contain an aqueous carrier in addition to the other
ingredients recited in claim 1. We therefore also agree with the Examiner
that Roulier would have provided a person of ordinary skill impetus to add
an aqueous carrier to the dry shampoo compositions.
Moreover, one of ordinary skill in the art, being a person of ordinary
creativity and common sense, see KSR, 127 S. Ct at 1742-43, would have
reasoned that adding an aqueous carrier to Roulier’s dry compositions in the
manner directed in the reference would have resulted in reduced
concentrations of the ingredients present in the dried compositions. We
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therefore do not agree with Appellants that Roulier fails to provide a
suggestion of reducing the amount of hollow particles.
As to the elimination of the starch-based ingredients in Roulier’s
compositions, we do not see where the Examiner’s rejection posits such a
change. However, as noted above, one of ordinary skill would have
reasoned that adding an aqueous carrier as directed by Roulier would reduce
the amount of that ingredient in the resulting liquid formulation.
Nonetheless, claim 1 encompasses the presence of the Roulier’s starch
ingredients. See Genentech, Inc. v. Chiron Corp., 112 F.3d 495, 501 (Fed.
Cir. 1997) (“‘Comprising’ is a term of art used in claim language which
means that the named elements are essential, but other elements may be
added and still form a construct within the scope of the claim.”).
Appellants’ arguments regarding the deficiencies of Roulier viewed
alone also fail to take account of the teachings of Young. It is well settled
that non-obviousness cannot be shown by arguments directed to a single
reference when the rejection at issue combines disclosures from a plurality
of prior art documents. See In re Merck, 800 F. 2d at 1097.
Thus, as the Examiner points out, Young teaches that, in liquid latex
particle-containing shampoo compositions, an aqueous carrier is desirably
present in amounts from 20% to about 95% by weight (FF 12). A person of
ordinary skill in the art rehydrating Roulier’s compositions as directed by
Roulier would therefore have reasonably inferred that from 20% to about
95% by weight of an aqueous carrier would be a suitable rehydrating
amount. Given the combined teachings of the cited references, we agree
with the Examiner that one of ordinary skill in the art would have considered
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it obvious to rehydrate Roulier’s compositions with an aqueous carrier at a
concentration of “at least about 20 weight percent,” as recited in claim 1.
Appellants argue that Roulier fails to supports the Examiner’s prima
facie case because “[t]he only specific disclosure relating to an amount of
hollow particles in a shampoo composition is in the examples. In particular,
Example 1 of [Roulier] incorporates 15%, by weight, hollow particles,
which is three times greater than the maximum amount of hollow particles
recited in the present claims” (App. Br. 16). Thus, Appellants argue,
although Roulier “broadly discloses compositions comprising 2-30% by
weight hollow particles, because [of] the breadth of the type of compositions
disclosed in the reference, the only true teaching in [Roulier] for shampoo-
like compositions is found in Example 1, which uses three times the
maximum amount of the present claims” (id. at 16-17).
We are not persuaded by these arguments. It is well settled that an
obviousness evaluation is not limited to the references’ examples or
preferred embodiments, but includes all relevant teachings. See Merck v.
Biocraft, 874 F.2d at 807; In re Mills, 470 F.2d at 651.
Appellants’ claim 1 requires the composition to contain “at least about
0.025 to 5 weight percent hollow particles.” As Appellants acknowledge,
Roulier discloses that its dry solid compositions can contain from 2% to
30% by weight of the hollow particles (FF 3), a range that overlaps with
claim 1.
Following Roulier’s teachings, and hydrating the dried shampoo
compositions with an aqueous carrier in an amount of 20% to 95% as taught
by Young, would result in a proportional dilution of the original dry
ingredients, including the hollow particles, in the aqueous carrier. Given the
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concentrations of hollow particles disclosed by Roulier as being suitable in
the initial dry compositions, and the amounts of aqueous carrier disclosed by
Young as being suitable, hydrating Roulier’s dry compositions would result
in compositions having a hollow particles in a range of concentrations that
overlaps the range recited in claim 1. We therefore agree with the Examiner
that one of ordinary skill in the art would have reasonably inferred that the
concentration of hollow particles recited in claim 1 would be desirable in a
liquid composition containing the claimed amount of an aqueous carrier.
Moreover, Young discloses that its latex particles are made from
many of the same monomers as Roulier’s hollow latex particles (compare
FF 2 and 14), and are suitably present in a shampoo at a concentration most
preferably of about 0.5% to about 7% (FF 13). A preponderance of the
evidence therefore supports the Examiner’s conclusion that one of ordinary
skill in the art would have considered it obvious for a liquid shampoo
composition rehydrated from Roulier’s dry formulations to have at least
about 0.025% to 5% of Roulier’s hollow particles, as recited in claim 1.
Appellants argue that the disclosure spanning columns 5 and 6 of
Roulier fails to teach or suggest adding an aqueous carrier to Roulier’s dry
solid compositions (App. Br. 17). Rather, Appellants argue, Roulier
“provides no teachings of liquid products, such as any undisclosed
compositions that may possibly be prepared after rehydration, or that such
liquid products can be successfully made using the starch product-rich
matrix of [Roulier’s] composition with any reasonable expectation of
providing a useful or stable hair shampoo- conditioning composition” (id.).
We do not agree. As noted above, an obviousness evaluation is not
limited to the references’ examples or preferred embodiments, but includes
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all relevant teachings. See Merck v. Biocraft, 874 F.2d at 807; In re Mills,
470 F.2d at 651. As also noted above, it is improper to base an obviousness
analysis only on portions of a reference that support a particular position,
while ignoring other portions crucial to a complete understanding of how a
person of ordinary skill in the art would view the reference. In re Hedges,
783 F.2d at 1041.
As discussed above, while the main thrust of Roulier’s disclosure is
the preparation of dry solid formulations (see FF 1, 4, 5), Roulier explicitly
discloses that its dry compositions are “very readily amenable to rehydration
after immersion in an aqueous medium to reconstitute . . . formulations for
care or hygiene such as creams, milks, foam baths, gels and shampoos”
(Roulier, col. 2, ll. 26-31 (FF 6; see also FF 7, 8)). Thus, in Example 1,
Roulier goes so far as to explicitly describe the intended use of the
exemplified composition as a “[d]ry shampoo in the form of a powder to be
rehydrated” (Roulier, col. 6, l. 19 (FF 9) (emphasis added)). Appellants’
arguments therefore do not persuade us that Roulier would have failed to
prompt one of ordinary skill in the art to add an aqueous carrier to the dried
compositions as claimed.
Appellants argue that “[Young] fails to overcome the deficiencies of
[Roulier]” (App. Br. 18). Specifically, Appellants argue that the Examiner
has no basis for finding that one of ordinary skill in the art would have had a
reasonable expectation that Young’s cationic polymers would enhance the
deposition of Roulier’s hollow particles (id.).
Moreover, Appellants argue, while dependent claims 10-12 and 14-16
recite compositions that contain cationic polymers, those claims merely
recite preferred embodiments, whereas “Appellants do not rely upon the
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presence of a cationic polymer as the sole basis of patentability, but rather
rely upon the presence of a cationic polymer and all of the features recited in
the independent claims from which these claims depend for patentability (id.
at 19).
Appellants’ arguments do not persuade us that the Examiner erred in
combining Roulier and Young. Young discloses that its cationic polymer
acts to enhance the deposition of the latex particles in its compositions (see
FF 11, 16). As the Examiner points out, Young’s latex particles are
polymers which can be made from monomers including acrylonitrile,
vinylidene chloride, and methacrylic acid and its esters (FF 14), whereas
Roulier’s hollow particles are preferably made from “an expanded
copolymer of vinylidene chloride and acrylonitrile, or of vinylidene chloride,
acrylonitrile and methyl methacrylate” (Roulier, col. 3, ll. 11-15 (FF 2)).
Because Young discloses that its cationic polymer acts to enhance
deposition of latex polymers made from acrylonitrile, vinylidene chloride,
methacrylic acid and its esters, and because Roulier discloses that its hollow
particles are made of the same materials, we agree with the Examiner that a
person of ordinary skill would have had a reasonable expectation that
Young’s cationic polymers would enhance the deposition of Roulier’s
hollow particles. Moreover, because both references are directed to
shampoo compositions having polymeric latex particles made of the same
materials, we also agree with the Examiner that a person of ordinary skill
would have been prompted to look to Young when determining how much
aqueous carrier would be suitable for rehydrating Roulier’s dry
compositions.
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Appellants argue that, in contrast to Roulier’s use of high percentages
of hollow particles, it is their “discovery that an aqueous composition having
a low amount of hollow particles achieves several advantages, including
better texture to the hair fiber surface and enhanced inter hair fiber
friction. . . . This enhanced friction allows for reduced slippage and helps
increase body and volume of the hair” (App. Br. 18 (citing Specification
36:25-28)). Appellants urge that compositions with the claimed low amount
of hollow particles “impart increased hair volume and body, bounce,
fullness, springiness, and texture to the hair (id. at 19 (citing Specification
36:20 through 37:3)).
We are not persuaded by these arguments. As discussed above,
Roulier discloses that the hollow particles are useful in a range of
concentrations that overlap the claimed concentration range, even when the
Roulier’s compositions are hydrated with an aqueous carrier.
Moreover, as also discussed above, Young discloses that its latex
particles are made from the same materials as Roulier’s hollow latex
particles (compare FF 2 and 14), and are suitably present in a shampoo at a
concentration most preferably of about 0.5% to about 7% (FF 13). We
therefore do not agree with Appellants that the claimed range of hollow
particles is lower than that suggested by the prior art.
Also, while Appellants appear to suggest that the properties imparted
to hair by the disclosed compositions can be considered unexpected,
Appellants point to no direct comparison between the claimed compositions
and the closest prior art to support that suggestion. See In re Baxter-
Travenol Labs., 952 F.2d 388, 392 (Fed. Cir. 1991) (“[W]hen unexpected
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results are used as evidence of nonobviousness, the results must be shown to
be unexpected compared with the closest prior art.”)
In sum, Appellants’ arguments do not persuade us that the Examiner
erred in concluding that the composition of claim 1 would have been prima
facie obvious to a person of ordinary skill in the art viewing Roulier and
Young.
We therefore affirm the Examiner’s rejection of claim 1 as obvious
over those references. Because they were not argued separately, claims 2-20
fall with claim 1. See 37 C.F.R. § 41.37(c)(1)(vii).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED

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THE PROCTOR & GAMBLE COMPANY
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