Ex Parte LAPOINTE

Board of Patent Appeals and Interferences

Mar 4, 2010

11428212 (B.P.A.I. Mar. 4, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte JENNIFER HALL LAPOINTE
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Appeal 2009-012393
Application 11/428,212
Technology Center 1600
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Decided: March 5, 2010
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Before ERIC GRIMES, RICHARD M. LEBOVITZ, and STEPHEN
WALSH, Administrative Patent Judges.

GRIMES, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to a topical
formulation for damaged skin. The Examiner has rejected the claims as
obvious. We have jurisdiction under 35 U.S.C. § 6(b). We affirm.
STATEMENT OF THE CASE
Claims 1-4 and 6-8 are pending and on appeal. Claim 1 is
representative and reads as follows:
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Application 11/428,212

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Claim 1: A topical formulation treatment of damaged skin
comprising, in combination, aloe vera gel and raw honey, said formulation
comprising 24-1 parts in volume of aloe vera to 2-1 parts by volume honey.

OBVIOUSNESS
Issue
The Examiner has rejected claims 1, 2, 5, and 6 under 35 U.S.C.
§ 103(a) as being obvious in view of Dado.1 Claims 2, 5 and 6 have not
been argued separately and therefore stand or fall with claim 1. 37 C.F.R.
§ 41.37(c)(1)(vii). The Examiner has also rejected claim 3 as obvious in
view of Dado and Coury,2 and claims 4, 7 and 8 as obvious in view of Dado
and Molan.3 Since the same issue is dispositive with respect to all three
rejections, we will consider them together.
The Examiner finds that Dado discloses a skin care composition that
comprises honey and aloe vera, making obvious the claimed composition
(Ans. 6). Appellant contends that Dado does not disclose a formulation
comprising raw honey or aloe vera gel (Appeal Br. 8-9).
The issue presented is: Does the evidence of record support the
Examiner’s conclusion that Dado suggests a formulation comprising raw
honey and aloe vera gel?
Findings of Fact
1. Dado discloses a “mixture comprising honey and olive oil for
preparing a medicament for topical application” (Dado, col. 1, ll. 9-10).

1 Dado et al., US 6,482,442 B1, Nov. 19, 2002
2 Coury et al., US 6,645,510 B1, Nov. 11, 2003
3 Molan, WO 01/41776 A2, June 14, 2001
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2. Dado discloses that “it is advantageous to provide a substance
mixture comprising additionally one, several or all of the following
substances: beeswax, propolis, camomile, sage, Aloe vera, thyme, lavender
and/or diverse oils, such as St. John’s-wort, wheatgerm oil and others” (id. at
col. 4, ll. 24-28).
3. Dado discloses that “the object of the present invention [is] to
provide an agent for topical application … which are as close to natural as
possible, and thus is well tolerable without any negative side effects” (id. at
col. 2, ll. 1-5).
4. Dado discloses that “honey contains further enzymes, such as
invertase, … glucose oxidase, which, with the cooperation of the oxygen of
air, convert dextrose into gluconic acid and hydrogen peroxide. The latter
… is an excellent germ killer and preservative.” (Id. at col. 2, ll. 53-58.)
5. Dado discloses that “Aloe vera is the thickened juice of the leaves
of Aloe barbadensis” (id. at col. 5, ll. 29-30).
6. Dado discloses that an
advantageous use of the substance mixture according to the
invention consists in the preparation of an agent for skin care....
This agent is particularly effective in the treatment of wrinkles
formed, acne, impure skin, sun burn, wounds, environmental
damage as well as (purulent) inflammations of the skin of the
most varying causes.
(Id. at col. 7, ll. 5-11.)
7. Dado discloses that “[p]referably, a substance mixture
independently comprising 10-40%, in particular 15-25%, of honey, 1-30%,
in particular 10-20%, of olive oil, and 10-50%, in particular 20-40%, of Aloe
vera is used” (id. at col. 7, ll. 15-18).
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8. The Specification discloses that one Aloe component is an
“organic whole leaf aloe vera gel” (Spec. 4:16, 5:4, 6:11, Examples 1, 2 and
5).
Principles of Law
“[W]hen the question is whether a patent claiming the combination of
elements of prior art is obvious,” the answer depends on “whether the
improvement is more than the predictable use of prior art elements according
to their established functions.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398,
417 (2007).
The obviousness analysis “can take account of the inferences and
creative steps that a person of ordinary skill in the art would employ.” Id. at
418.
“[I]n general, a reference will teach away if it suggests that the line of
development flowing from the reference’s disclosure is unlikely to be
productive of the result sought by the applicant.” In re Gurley, 27 F.3d 551,
553 (Fed. Cir. 1994).
Analysis
Claim 1 is directed to a topical formulation for the treatment of
damaged skin comprising aloe vera gel and raw honey. Dado discloses a
topical formulation that comprises honey and Aloe vera.
Appellant argues that the Specification states that raw honey should
be used in order to preserve its antibacterial activity, which results from the
generation of hydrogen peroxide by glucose oxidase, and glucose oxidase is
destroyed by heating (Appeal Br. 8-9). Appellant argues that “Dado does
not teach or make obvious the use of raw honey in a topical therapeutic
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agent, or the antibacterial activity provided by raw honey. In fact, Dado
looks to the addition of Sage for antimicrobial activities” (Appeal Br. 9).
However, Dado discloses that the generation of hydrogen peroxide in
honey by the action of glucose oxidase was known in the art, as was the
antibacterial activity of the hydrogen peroxide. Dado also discloses that the
components of its composition are “as close to natural as possible.” These
teachings would have suggested using raw honey in Dado’s compositions in
order to preserve the antibacterial activity resulting from the generation of
hydrogen peroxide by glucose oxidase.
Appellant also argues that Dado does not disclose a topical
formulation that comprises “the gel of the aloe Vera plant” (Appeal Br. 8).
Appellant argues that “Dado fails to teach which part or parts of the Aloe
plant are to be used, i.e. should it be the oil, or a biobase mass”? (Id.)
Along the same line, Appellant argues that Dado teaches away from using
the gel of the aloe vera plant because the “gels of the Aloe plant are not
mentioned at all, as Dado teaches the use of only the thickened juice of the
leaves of the plant” (Reply Br. 2).
This argument is also not persuasive. Dado discloses that Aloe vera is
the thickened juice of the leaves, without restricting it to a specific type or a
method of thickening. However, taking into account the inferences and
creative steps that a person of ordinary skill in the art would employ, in
accord with KSR, the thickened juice of Aloe vera leaves would have
suggested aloe vera gel to one of ordinary skill in the art since a gel would
have been recognized as having a thick consistency. A teaching to use
“thickened juice” does not teach away from using a “gel” from the same part
of the same plant because both would be understood to have the same
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consistency and a thickened juice from Aloe leaves and a gel made from
Aloe leaves would have been expected to function similarly.
Conclusion of Law
The evidence of record supports the Examiner’s conclusion that Dado
suggests a formulation comprising raw honey and Aloe vera gel.
SUMMARY
We affirm the rejection of claims 1-4 and 6-8 under 35 USC § 103(a).
TIME PERIOD FOR RESPONSE
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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