10867072 (B.P.A.I. Jan. 20, 2012)

Ex Parte Nocker et al

Board of Patent Appeals and InterferencesJan 20, 2012

10867072 (B.P.A.I. Jan. 20, 2012)

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. 10/867,072 06/14/2004 Bernd Nocker 101216-43 2407 27387 7590 01/23/2012 LONDA, BRUCE S. NORRIS MCLAUGHLIN & MARCUS, PA 875 THIRD AVE, 8TH FLOOR NEW YORK, NY 10022 EXAMINER MERCIER, MELISSA S ART UNIT PAPER NUMBER 1615 MAIL DATE DELIVERY MODE 01/23/2012 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 BOARD OF PATENT APPEALS AND INTERFERENCES __________ Ex parte BERND NOCKER and KATRIN BLUMENSCHEIN __________ Appeal 2010-010371 Application 10/867,072 Technology Center 1600 __________ Before TONI R. SCHEINER, ERIC GRIMES, and STEPHEN WALSH, Administrative Patent Judges. SCHEINER, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134 from the rejection of claims 1, 2, and 5, directed to a water-free composition for bleaching human hair. The claims have been rejected as obvious. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. Appeal 2010-010371 Application 10/867,072 2 STATEMENT OF THE CASE Claims 1, 2, and 5 are pending and on appeal. Claims 3 and 4 have been cancelled (App.Br. 2). Claim 1 is representative of the subject matter on appeal: 1. Water-free composition for the bleaching of human hair, comprising at least one compound with bleaching or brightening effect chosen from the group consisting of a peroxide and an ammonium salt, and γ-oryzanol at a concentration of 0.001 % to 5 % by weight, calculated to the total composition, said composition being in powder form. Claims 1, 2, and 5 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Lorenz 1 and Yoshizuka. 2 Findings of Fact 1. Lorenz discloses a bleaching composition for human hair which includes a solid peroxide and a powdery carrier material. The composition is mixed with a solution of hydrogen peroxide before application to the hair (Lorenz, col. 1, ll. 8-12). 2. Yoshizuka teaches that sebum secretion accelerators, “applied to chapped or dried skin . . . show[ ] good effects of curing, improving or beautifying the skin” (Yoshizuka, col. 4, ll. 34-38), and that γ-oryzanol is a known sebum secretion accelerator, but it is “difficult to make preparations” with it because of its high melting point (id. at col. 1, ll. 50-56). Yoshizuka discloses alternative accelerators comprising cholesterol esters of branched fatty acids which are liquid at room temperature, and easier to incorporate into lotions, creams and ointments (id. at col. 1, ll. 66-68; col. 4, ll. 25-26). 1 Lorenz et al., US 5,989,530, issued November 23, 1999. 2 Yoshizuka et al., US 4,569,931, issued February 11, 1986. Appeal 2010-010371 Application 10/867,072 3 Principles of Law [An invention] composed of several elements is not proved obvious merely by demonstrating that each of its elements was, independently, known in the prior art. . . . [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. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). Discussion The Examiner finds that Lorenz discloses “a dustless, free flowing powdery bleaching material for human hair comprising a powdery composition of at least one solid peroxide compound” (Ans. 3), but “does not disclose the addition of gamma-oryzanol” (id.). However, the Examiner finds that “Yoshizuka discloses a cosmetic composition comprising gamma- oryzanol” (id.), and concludes that it would have been obvious for one of ordinary skill in the art “to have incorporated the gamma-oryzanol disclosed by Yoshizuka into the hair bleaching composition of Lorenz in order to bring about effects of hydrating ability, emulsification stability and moisture retentivity, thereby reducing the damage inflicted by the use of peroxide formulations” (Ans. 3-4). Nevertheless, the Examiner has not identified anything in either reference that would have led one of ordinary skill in the art to expect that incorporating a sebum secretion accelerator which is “applied to the skin in order to increase sebum production on the skin” (App. Br. 5-6) in a peroxide bleaching composition, which is “intended to be used on the hair” (id. at 6), would “bring about effects of hydrating ability, emulsification stability and moisture retentivity, thereby reducing the damage inflicted by the use of peroxide formulations” (Ans. 3-4). Nor has the Examiner identified any Appeal 2010-010371 Application 10/867,072 4 other reason one of ordinary skill in the art would have combined these two elements, one intended for use on skin, one intended for use on hair, in a single composition. SUMMARY The rejection of claims 1, 2, and 5 as unpatentable over Lorenz and Yoshizuka is reversed. REVERSED alw