Ex Parte LehmanDownload PDFPatent Trial and Appeal BoardMar 14, 201713097773 (P.T.A.B. Mar. 14, 2017) Copy Citation 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. 13/097,773 04/29/2011 Thomas A. Lehman JR. 58999-30 7203 21130 7590 03/16/2017 BENESCH, FRIEDLANDER, COPLAN & ARONOFF LLP ATTN: IP DEPARTMENT DOCKET CLERK 200 PUBLIC SQUARE SUITE 2300 CLEVELAND, OH 44114-2378 EXAMINER BASQUILL, SEAN M ART UNIT PAPER NUMBER 1613 NOTIFICATION DATE DELIVERY MODE 03/16/2017 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): patent@beneschlaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte THOMAS A. LEHMAN, JR.1 Appeal 2016-005344 Application 13/097,773 Technology Center 1600 Before ULRIKE W. JENKS, JOHN G. NEW, and TIMOTHY G. MAJORS, Administrative Patent Judges. MAJORS, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134 involving claims to a nonaqueous hair care composition, which have been rejected as obvious. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. STATEMENT OF THE CASE Appellant’s “disclosure relates to compositions for use in hair that are capable of reducing the time needed to blow dry wet hair.” (Spec. 11.) According to the Specification, “[t]he composition includes a nonaqueous 1 Appellant identifies the Real Party in Interest as Kenra Professional, LLC. (App. Br. 1.) Appeal 2016-005344 Application 13/097,773 combination of a volatile silicone compound, such as cyclopentasiloxane, and a mixture of one or more silicone elastomers.” (Id. at 12.) Claims 1, 2, 7, and 8 are on appeal.2 Claim 1 is illustrative: 1. A nonaqueous hair care composition capable of removing water from a surface or tissue on which it is applied the composition, comprising: about 89 to about 95 percent by weight of a volatile silicone compound, wherein the volatile silicone compound consists of cyclopentasiloxane; about 4 to about 5 percent by weight of a first silicone elastomer comprising at least one of dimethicone and a cetearyl dimethicone crosspolymer, or a combination thereof; about 0.5 to about 5.0 percent by weight of a second silicone elastomer comprising at least one of a dimethicone crosspolymer, a dimethicone/vinyl, dimethicone cross polymer, dimethiconol, or a combination thereof; about 0.1 to about 0.3 percent by weight of a conditioning agent, wherein the conditioning agent consists of polyethylene glycol-10 dimethicone; and about 0.1 to about 1.0 percent by weight of a thermal protective agent, wherein the thermal protective agent consists of sodium laneth 40-maleate/styrene sulfonate copolymer, wherein the composition removes about 85% of added water weight from a wet surface or tissue when exposed to a pre selected amount of heat. (App. Br. 15 (Claims App’x).) 2 Claims 3—6, 19, and 20 are withdrawn as directed to a non-elected invention. (Final Act. 2.) 2 Appeal 2016-005344 Application 13/097,773 The Examiner rejected claims 1, 2, 7, and 8 under 35 U.S.C. § 103(a) over Patil3 in view of Patel,4 Knappe,5 Breyfogle,6 and Resnick.7 DISCUSSION Issue Has the Examiner established by a preponderance of the evidence that claims 1, 2, 7, and 8 would have been obvious over Patil, Patel, Knappe, Breyfogle, and Resnick? Findings of Fact FF 1. The Examiner’s findings of fact and statement of the rejection are provided at pages 2—5 of the Examiner’s Answer. (See also Ans. 6—14 (Examiner’s Resp. to Argument); Final Act. 2—6.) We provide the following findings for emphasis. FF 2. Patil teaches compositions comprising a “Backbiting Silicone Polymer in a cosmetically acceptable carrier.” (Patil Abstract.) Patil teaches the compositions “may be anyhydrous, or in emulsion form. If the latter, the emulsions may be water-in-oil or oil-in-water.” (Id. 112.) Patil teaches that suitable oil and water emulsions may contain about 0.1—95% by weight of the total composition of water or about 0.1—99% by weight of the total composition of oil. (Id.; see also id. at || 19—20.) Appellant’s Specification 3 Patil et al., US 2007/0243143 Al, published Oct. 18, 2007. 4 Patel et al., US 2007/0248550 Al, published Oct. 25, 2007. 5 Knappe et al., US 2010/0028272 Al, published Feb. 4, 2010. 6 Breyfogle et al., US 2010/0092408 Al, published Apr. 15, 2010. 7 Resnick et al., US 2009/0165812 Al, published July 2, 2009. 3 Appeal 2016-005344 Application 13/097,773 discloses that “compositions that include less than about one percent water are considered to be nonaqueous.” (Spec. 14.) FF 3. Patil teaches the composition may be used in a variety of skin- care applications, including “gels, creams, lotions, sunscreens, and the like” and also color cosmetic applications “such as foundation makeups, blushes, eyeshadows, mascaras, concealers, eyeliners, lip colors, nail colors, and so on.” (Patil 118.) FF 4. Patil teaches the cosmetic carrier may comprise oils, including volatile silicone Dow Coming 245. (Id. at || 21, 23, 27.) Patil teaches “suggested ranges for such oils in the compositions ... are about 0.1-90%.” (Id. at 122.) Appellant’s Specification discloses “[s]uitable volatile silicone compounds include XIAMETER® PMX-045 CYCLOPENATSILOXANE (formerly DC 245) from Dow Coming.” (Spec. 1 5.) FF 5. Patil teaches the carrier “may comprise one [or] more stmcturing agents” and “[suggested ranges of stmcturing agent. . . range from about 0.01-65%” by weight. (Id. at || 131—132.) Patil further teaches “suitable as stmcturing agents are cross-linked organosiloxane compounds known as silicone elastomers.” (Id. at || 139—140.) “Examples of suitable silicone elastomers . . . include Dow Coming 9040 . . . and various elastomeric silicones sold by Shin-Etsu under the KSG tradename including KSG 15, KSG 16, KSG 19 and so on.” (Id. at 1140.) Appellant’s Specification discloses “suitable silicone elastomers include DC-9040, DC- 9041 and DC-9045 (available from Dow Coming Inc.), [and] KSG-15 and USG-103 (available from Shin-Etsu Silicones of America).” (Spec. 19.) 4 Appeal 2016-005344 Application 13/097,773 FF 6. Patil teaches the carrier “may comprise about 0.01-20% . . . by weight of the total composition of one or more surfactants.” (Patil || 55— 56.) Patil teaches the surfactants may be silicone surfactants, and other types of surfactants. (Id. at | 64.) FF 7. Patel teaches anhydrous cosmetic compositions containing, inter alia, uncoated silicone elastomers, and use of the compositions on a keratinous substrate. (Patel Abstract and 17.) Patel teaches “examples of these uncoated silicone elastomers include DC-9040, DC-9041 and DC- 9045.” (Id. at | 8; see also id. at 110 (“Commercially available uncoated silicone elastomers such as DC-9040, DC-9041, DC-9045, KSG-15 and USG-103 are already present in the form of a gel.”).) FF 8. Knappe teaches cosmetic compositions for styling hair. (Knappe Abstract and 11.) Knappe teaches silicone oils for use in the cosmetic compositions, including “Dow Coming 9546 Silicone Elastomer Blend.” (Id. at H 69—71.) Appellant’s Specification discloses the “second elastomer may include a mixture of cyclopentasiloxane, dimethicone crosspolymer, dimethicone/vinyl dimethicone crosspolymer, and dimethiconol. . . [, which] is commercially available under the trade name DC 9546, available from Dow Coming.” (Spec. 111.) FF 9. Breyfogle teaches personal-care compositions that include silicone emulsifiers/surfactants, and that particularly useful compounds include “Shin Etsu’s KF-6011, KF-6012, KF-6013, KF-6015, KF-6017, KF- 6043, KF-6028, and KF-6038.” (Breyfogle 126.) Appellant’s Specification discloses “the composition may include a conditioning agent, such as a dimethicone copolyol and/or other silicone-based surfactant. . . . Examples 5 Appeal 2016-005344 Application 13/097,773 of commercially available dimethicone copolyols . . . include PEG-10 Dimethicone [e.g., KF-6043] available from ShinEtsu.” (Spec. 15—16.) FF 10. Resnick teaches cosmetic compositions for straightening hair, which include, inter alia, one or more surfactants. (Resnick 140.) Resnick teaches a working example of the composition that includes the surfactant sodium laneth-40 maleate/styrene sulfonate copolymer. (Id. at 198.) Principles of Law “‘Functional’ terminology may render a claim quite broad. By its own literal terms a claim employing such language covers any and all embodiments which perform the recited function.” In re Swinehart, 439 F.2d 210, 213 (CCPA 1971). A patent applicant is free to recite features of an apparatus either structurally or functionally. ... Yet choosing to define an element functionally, i.e., by what it does, carries with it a risk. As [the Federal Circuit’s] predecessor court stated . . . where the Patent Office has reason to believe that a functional limitation asserted to be critical for establishing novelty in the claimed subject matter may, in fact, be an inherent characteristic of the prior art, it possesses the authority to require the applicant to prove that the subject matter shown to be in the prior art does not possess the characteristic relied on. In re Schreiber, 128 F.3d 1473, 1478 (Fed. Cir. 1997) (internal quotation marks and citations omitted). Analysis Appellant argues the patentability of the claims as a group. We select claim 1 as representative on appeal. 37 C.F.R. § 41.37(c)(l)(iv). 6 Appeal 2016-005344 Application 13/097,773 As a preliminary matter, the Examiner determines that “the recitation of a purported or intended use to which a particular composition may be put are not relevant to the question of the possible patentability of a composition which is otherwise fully set forth by the structural limitations of a claim.” (Ans. 2.) Further, according to the Examiner, “a composition and it’s [sic] properties are inseparable.” {Id. at 3.) Thus, the Examiner determines the recitation in claim 1 of “a hair care composition capable of removing water from a surface or tissue” and the claim’s final “wherein” clause concerning the extent of water removed by the composition do not structurally distinguish the claimed composition over the cited art. {Id. at 2—3.) As to the structural aspects of the claimed composition, the Examiner finds that Patil teaches anhydrous cosmetic compositions that include volatile oils, surfactants, and structuring agents (e.g., silicone elastomers) in ranges that overlap with oils, elastomers, and surfactants encompassed by claim 1. (Ans. 3 4.) More specifically, the Examiner finds that “Patil indicates that oils, and specifically the cyclopentasiloxane volatile silicone oil DC 245 of instant Claim[] 1 . . . should be present in amounts falling within the range of about 0.1 to about 90%.” {Id. at 3.) The Examiner further finds Patil teaches “[s]urfactants, and particularly silicone surfactants, may be present in concentrations falling with the range of 0.1- 15%.” {Id.) According to the Examiner, Patil teaches [structuring agents are also preferably used as thickening agents ... in amounts ranging between about 0.1-45% of the composition . . . [and] preferred structuring agents are the silicone elastomers . . . such as the KSG 15 and Dow Coming 9040 elastomers noted in the applicant’]s specification as 7 Appeal 2016-005344 Application 13/097,773 exemplary of the claimed elastomers, addressing the limitations of Claim 1. (Id. at 4.) The Examiner finds that Patil does not disclose the precise silicone elastomer blends/mixtures of Claim 1, or specifically identify PEG- 10 dimethicone or sodium lanteth-40 maleate/styrene sulfonate copolymer, and thus the Examiner turns to Patel, Knappe, Breyfogle, and Resnick. (Id. ) The Examiner finds that Patel and Knappe disclose cosmetic compositions including silicone elastomer blends DC-9041 and DC-9546 respectively.8 The Examiner finds that Breyfogle and Resnick disclose well- known surfactants for use in cosmetic compositions including, respectively, KF-6043 (PEG-10 dimethicone) and sodium laneth-40 maleate/styrene sulfonate copolymer. (Id. at 4—5.) The Examiner concludes that it would have been obvious to combine the silicone oils, silicone elastomers and blends, and surfactants disclosed in Patil, Patel, Knappe, Breyfogle, and Resnick in the amounts disclosed by Patil, and thus predictably arrive at the composition of claim 1. (Id. at 5.) The Examiner reasons the skilled person would have been motivated to make this combination “because each of the claimed composition components is little more than a well-known silicone oil, silicone elastomer or combination composition of silicone elastomers, [and] surfactants . . . which the art recognizes as suitable components, when used in concentration 8 Appellant’s Specification discloses that DC-9041 is a mixture of dimethicone and a cetearyl dimethicone crosspolymer. (Spec. 110.) The Specification discloses that DC-9546 is a mixture of cyclopentasiloxane, dimethicone crosspolymer, dimethicone/vinyldimethicone crosspolymer and dimethiconol. (Id. at 111.) 8 Appeal 2016-005344 Application 13/097,773 amounts overlapping those of the instant claims.” (Id.) The Examiner further reasons the selection is “little more than the combination of art- recognized elements, with each providing precisely the activity or utility which the art acknowledges is provided by each component.” (Id.) We adopt the Examiner’s fact-finding and reasoning, and agree with the conclusion that claim 1 would have been obvious. Patil suggests an anhydrous composition including cyclopentasiloxane, one or more silicone elastomers (e.g., DC 9040 and KSG 15), and one or more surfactants in concentrations that overlap with claim l’s ranges. (FF 2—10.) “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” In reAller, 220 F.2d 454, 456 (CCPA 1955). In “cases involving overlapping ranges,. . . [the Federal Circuit and its] predecessor court have consistently held that even a slight overlap in range establishes a prima facie case of obviousness.” In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003). The first and second silicone elastomer limitations recited in claim 1 read upon the exemplary silicone elastomers DC 9040 and KSG 15 identified in Patil. (See, e.g., Patel 9 (describing KSG-15 as comprising dimethicone/vinyldimethicone crosspolymer); Spec. 9 (describing DC- 9040 as comprising dimethicone crosspolymer); FF 2—5.) The Examiner went further, however, and persuasively showed the silicone elastomer mixtures (DC-9041 and DC-9546) of claim 1 are art-recognized alternative elastomers as evidenced by Patel and Knappe. (FF 7—8.) Similarly, Patil discloses that one or more surfactants may be included in ranges (0.01—20%) that overlap — indeed entirely encompass — the 9 Appeal 2016-005344 Application 13/097,773 concentrations of the “conditioning agent” and “thermal protective agent” recited in claim 1. And the Examiner has persuasively shown that recited “agents” (PEG-10 dimethicone and sodium laneth 40-maleate/styrene sulfonate copolymer) were well known surfactants used in cosmetic compositions, as evidenced by at least Breyfogle and Resnick. (Ans. 4—5, 11—13; FF 9—10.)9 Wm. Wrigley Jr. Co. v. Cadbury Adams USALLC, 683 F.3d 1356, 1364 (Fed. Cir. 2012) (finding a “strong case of obviousness based on the prior art references of record . . . [where the claim] recites a combination of elements that were all known in the prior art, and all that was required to obtain that combination was to substitute one well-known . . . agent for another”). Because the art suggests cosmetic compositions including combinations of the recited compounds in overlapping concentrations, the skilled artisan would have had a reasonable expectation of success in formulating the composition of claim 1. Appellant argues the rejection is flawed for not giving patentable weight to the intended use of the claimed composition. (App. Br. 6—8; Reply Br. 2.) According to Appellant, based on testing disclosed in the Specification, “surprisingly ... the claimed non-aqueous composition was capable of removing water from the wet surface thus reducing the drying time of wet hair by more than 50% within the first 15 minutes.” (App. Br. 8.) And, Appellant argues, “[s]ince no cited prior art composition suggests 9 We observe that Patel also discloses use of silicone emulsifiers, including, for example, KF6017, KF6028, and KF6012 (PEG-10 dimethicone) (see, e.g., Patel Tfl[ 21—22, 47, 51), which are among the list of silicone emulsifiers in Breyfogle. (FF 9.) 10 Appeal 2016-005344 Application 13/097,773 or teaches or anticipates the above-mentioned unexpected application, Appellant asserts that the intended use of the claimed composition in disclosed amounts does lend patentable weight to the claims.” {Id.) Appellant’s argument is unpersuasive. The patentability of composition claims is based on the structure claimed, not on how that structure is used. Catalina Mktg. Int’l, Inc. v. Coolsavings.com, Inc., 289 F.3d 801, 809 (Fed. Cir. 2002) (“[T]he patentability of apparatus or composition claims depends on the claimed structure, not on the use or purpose of that structure.”). Here the structure of claim 1 is a nonaqueous composition that comprises five compounds in recited amounts. The combination of prior art suggests a nonaqueous cosmetic compositions including these same compounds in concentrations that overlap or encompass the ranges recited in claim 1. (FF 1—10.) Appellant points to the Board’s decision in Takakashi, but that decision does not help Appellant’s argument. (App. Br. 7—8.) In Takahashi, the Board affirmed the rejection of the apparatus claims because “the material intended to be worked upon by the claimed apparatus[] does not impose structural limitations . . . which differentiates it from a prior art apparatus satisfying the structural limitations of that claimed.” Ex parte Takahashi, No. 2004-2192, 2004 WL 2733658, at *1 (BPAI Sept. 30, 2004) (non-precedential). And, like here, the Board determined that the applicant did not provide persuasive argument or evidence that the prior art structure was incapable of performing the intended use. {Id. at *2.) With respect to process claims, however, the Board reversed the rejection because, for those claims, the recitation of intended use did distinguish over the art. {Id.) We 11 Appeal 2016-005344 Application 13/097,773 note that, to the extent the present applicant/Appellant continued to rely on the intended use of the claimed composition as a basis for patentability, the Examiner “strongly encouraged” applicant to pursue claims “directed to a method appropriately employing these compounds.” (Final Act. 7.) We have also considered Appellant’s testing of the composition related to drying time, but this testing does not provide persuasive evidence of nonobviousness. (See Spec. 16-27.) Appellant tested a composition comprising 89.59% cyclopentasiloxane, 4.94% DC 9041, 4.42% DC 9546, 0.25% PEG-10 dimethicone, and 0.10% sodium laneth 40 maleate/styrene sulfonate copolymer, and a small amount of other oils and fragrance. (Id. 1 at 16.) Appellant does not, however, provide testing data for other cosmetic compositions with all — or even some — of these ingredients with concentrations falling outside the scope of the claims. Appellant has thus not demonstrated any criticality to the ranges of compounds being claimed. As the Federal Circuit has held, an applicant may overcome a prima facie case of obviousness by establishing “that the [claimed] range is critical, generally by showing that the claimed range achieves unexpected results relative to the prior art range.” That same standard applies when, as here, the applicant seeks to optimize certain variables by selecting narrow ranges from broader ranges disclosed in the prior art. In re Peterson, 315 F.3d at 1330 (internal citations omitted). Appellant’s testing also fails to persuade because it compared treated samples with untreated samples; in other words, samples where an example of the composition claimed is applied versus samples with no composition whatsoever applied. (Spec. TfTf 21—26.) This does not, however, reflect a 12 Appeal 2016-005344 Application 13/097,773 comparison against the closest prior art. In re Baxter TravenolLabs., 952 F.2d 388, 392 (Fed. Cir. 1991) (“[W]hen unexpected results are used as evidence of nonobviousness, the results must be shown to be unexpected compared with the closest prior art.”). Indeed, Appellant has not shown that the claimed composition provides unexpected drying effect when applied to a surface as compared to any of the compositions exemplified in the cited prior art. As determined by the Examiner, the cosmetic compositions of Patil would be capable of removing water from the surface to which they are applied given “their anhydrous and oily nature.” (Ans. 10.) Appellant has not provided persuasive evidence to the contrary. Appellant argues the prior art fails to teach each element of claim 1. (App. Br. 8.) More specifically, Appellant contends “Patil and Patel teach non hair care compositions” such as lipsticks and foundations, which are “usually applied on a dry surface or tissue . . . [and] help to retain moisture.” (Id. (citing Lehman Decl.)10.) That is why, according to Appellant, certain example compositions described in Patil include higher percentages of polymer, relative to the claimed cyclopentasiloxane. (App. Br. 8—9 (pointing to a lipstick formulation in Patil with 35% polymer compared to 4— 5% of the first silicone elastomer as in claim 1).) We remain unpersuaded. The recitation of intended use — “hair care composition” — does not structurally distinguish over the prior art for the reasons discussed above. Moreover, the teachings of the prior art are not limited to preferred embodiments or working examples. Merck & Co., Inc. 10 See Declaration of inventor Thomas A. Lehman, Jr. dated April 11, 2014 (“Lehman Decl.”). 13 Appeal 2016-005344 Application 13/097,773 v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989) (“[I]n 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.”) (internal quotation marks omitted). As noted previously, Patil teaches compositions including volatile silicone oils, one or more silicone emulsifiers, and one or more surfactants — with the ranges of these ingredients disclosed in Patil overlapping with the claimed concentrations. (FF 2—5.) Although various working examples of Patil include polymers at higher concentrations than are claimed, Patil teaches lower ranges are suitable as well. For example, Patil provides suggested ranges for silicone elastomers (structuring agents) “from about 0.01-65% . . . more preferably about 0.1-45%,” wholly encompassing the elastomer ranges recited in claim 1 (about 4 to about 5 percent, and about 0.5 to about 5.0 percent). (Patil || 131—132, 140.) Appellant, on the other hand, has not shown that the compositions taught or reasonably suggested by Patil lack a water-removing property when applied to a surface.11 See In re Schreiber, 128 F.3d at 1477; cf. In re Dillon, 919 F.2d 688, 693 (Fed. Cir. 1990) (“[T]he statement that aprima facie obviousness rejection is not supported if no reference shows or suggests the newly-discovered properties and results of a claimed structure is not the law.”). 11 Insofar as Appellant contends the density and viscosity of the compositions of Patil would be different than Appellant’s composition (App. Br. 9—10), Appellant has not provided persuasive evidence to support that contention. In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984). 14 Appeal 2016-005344 Application 13/097,773 Appellant argues that Patel, Knappe, Breyfogle, and Resnick do not make up for Path’s deficiencies. (App. Br. 10-14; Reply Br. 2—3.) According to Appellant, Patel (like Patil) does not relate to hair care and does not teach DC 9546 or the conditioning agent or thermal protective agent that is claimed. (App. Br. 10.) Appellant contends it would not be obvious to combine references like Patil and Patel that are directed to long- lasting cosmetic applications that allow retention of moisture with the hair- care products disclosed in Breyfogle, Knappe, and Resnick. (Id. at 14.) Knappe, Appellant contends, identifies the second elastomer (e.g., DC 9546) among a long list of substances and does not teach the amount needed, and also uses more than 1% water in Knappe’s compositions. (Id. at 11.) Appellant contends Breyfogle lists KF-6043 (PEG-10 dimethicone) as one of several suitable compounds, but uses other compounds in its working examples and thus “steers” away from KF-6043. (Id. at 12—13.) As for Resnick, Appellant contends the Examiner has not shown why the skilled person would pick sodium laneth-40 maleate/styrene sulfonate and eliminate Resnick’s other surfactants. (Id. at 13.) Also, Appellant contends, Resnick teaches away from the claims because Resnick’s composition is applied to dry hair, not a wet surface as claimed. (Id.) Appellant’s argument is unpersuasive. The intended use of the claimed composition does not distinguish over the prior art, and the art is not limited to its working examples as already explained. Appellant also cannot show nonobviousness by attacking the references individually when the rejection is based on the combination of art. In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Even if Patil and Patel do not disclose DC- 15 Appeal 2016-005344 Application 13/097,773 9546, KF-6043, and sodium laneth-40 maleate/styrene sulfonate, the Examiner identified those ingredients as merely an alternative elastomer mixture and surfactants previously used for their known function in prior art cosmetic compositions, as evidenced in Knappe, Breyfogle, and Resnick. The Examiner is not, as Appellant’s argument suggests, proposing wholesale incorporation of the complete compositions disclosed in those references with Patil or Patel. (Ans. 11—13.) The concentrations of the compounds is supplied primarily by Patil (FF 2—5), although we observe overlap of concentrations is evident in other applied art.12 Further, as the Examiner notes, the number of combinations suggested by the prior art does not make any particular combination less obvious, particularly when the selections are simply of alternative ingredients for their known effect. (Ans. 11—13.) Conclusion of Law The Examiner established by a preponderance of the evidence that claim 1 would have been obvious over Patil, Patel, Knappe, Breyfogle, and Resnick. Claims 2, 7, and 8 have not been argued separately and thus fall with claim 1. 37 C.F.R. § 41.37(c)(l)(iv). SUMMARY We affirm the rejection of claims 1, 2, 7, and 8 under 35 U.S.C. § 103(a) over Patil, Patel, Knappe, Breyfogle, and Resnick. 12 (See, e.g., Patel 12 (teaching silicone elastomers in ranges from about 0.1% to about 15%); Breyfogle 24, 26 (teaching emulsifier (e.g., KF-6043 (PEG-10 dimethicone)) concentration “from about 0.1% to about 10%”); Resnick 142 (teaching surfactant concentrations “with a preferred range of about 1%-10% by weight”).) 16 Appeal 2016-005344 Application 13/097,773 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 17 Copy with citationCopy as parenthetical citation