Ex Parte Marion

Board of Patent Appeals and Interferences

Jun 17, 2011

11287420 (B.P.A.I. Jun. 17, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte CATHERINE MARION
__________

Appeal 2011-001818
Application 11/287,420
Technology Center 1600
__________

Before TONI R. SCHEINER, ERIC GRIMES, and JEFFREY N.
FREDMAN, Administrative Patent Judges.

GRIMES, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to a method
of skin care, which the Examiner has rejected as obvious. We have
jurisdiction under 35 U.S.C. § 6(b). We affirm.
STATEMENT OF THE CASE
Claims 1-18 are on appeal. The claims have not been argued
separately and therefore stand or fall together. 37 C.F.R. § 41.37(c)(1)(vii).
Claim 1 is representative and reads as follows:

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1. A method for caring for the skin, comprising in the following
order:
wetting an area of the skin to be treated;
applying to the wetted area of the skin, by massaging, a micro-
dermabrasion composition comprising at least 5% by weight of metal oxide
particles;
washing the microdermabrasion treated skin to remove the applied
microdermabrasion composition;
applying a peeling composition comprising at least 3% by weight of at
least one desquamating agent to the said treated and washed area of the skin;
applying to the area of skin being treated a soothing composition
comprising a thermal or mineral water having a mineral content of at least
300 mg/l; and
applying to the area of skin being treated an anti-ageing composition
comprising at least one anti-ageing active principle selected from the group
consisting of compounds which enhance the synthesis of collagen and/or of
elastin and/or of glycosaminoglycans and/or of proteoglycans and/or of
fibronectin and/or of laminin; compounds which inhibit the decomposition
of collagen and/or of elastin; skin relaxants; agents which inhibit the
glycation of proteins; agents which enhance the proliferation of
keratinocytes and/or of fibroblasts; agents which enhance the differentiation
of keratinocytes; and mixtures thereof.
Issue
The Examiner has rejected claims 1-6, 8, 10, 11, and 14-17 under 35
U.S.C. § 103(a) as obvious based on Cheski,
1
Messenger,
2
Rapaport,
3
and
Burnier
4
(Answer 4). The Examiner has also rejected the rest of the pending
claims under 35 U.S.C. § 103(a), as follows: claim 7 based on Cheski,
Messenger, Rapaport, Burnier, and Fankhauser
5
(Answer 7); claims 12, 13,

1
Cheski et al., US 6,283,978 B1, September 4, 2001.
2
Messenger, US 6,290,976 B1, September 18, 2001.
3
Rapaport, US 5,505,948, April 9, 1996.
4
Burnier, US 6,599,512 B1, July 29, 2003.
5
Fankhauser et al., US 6,162,447, December 19, 2000.
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and 18 based on Cheski, Messenger, Rapaport, Burnier, and Simon
6

(Answer 8); and claim 9 based on Cheski, Messenger, Rapaport, Burnier,
and Poucher
7
(Answer 9-10). Because Appellant has waived any argument
based on Fankhauser, Simon, or Poucher (see Appeal Br. 9-11), we will
consider the rejections together.
The Examiner finds that Cheski teaches a microdermabrasion method,
which enhances subsequent treatment with a collagen or elastin cream,
hydration cream or sunblocking agent (Answer 4-5). The Examiner finds
that Messenger teaches a manual microdermabrasion method followed by
washing to remove the residue (id. at 5) and that wetting the skin beforehand
would have been obvious based on Messenger‟s use of water and emollients
in its composition (id. at 5-6). The Examiner finds that Rapaport teaches a
chemical peel method of treating skin (id. at 6) and the Burnier teaches
treating irritated skin by applying a composition containing spring water
with a high electrolyte content that is known for its skin-soothing properties
(id.).
The Examiner concludes that it would have been obvious to modify
the microdermabrasion method of Cheski and Messenger by subsequently
applying a chemical peel composition because Rapaport teaches that its
chemical peel is better absorbed after the skin is cleansed, and to apply
Burnier‟s soothing composition to soothe the potentially irritated skin (id. at
7). The Examiner also concludes that applying an anti-aging composition

6
Simon et al., US 5,882,658, March 16, 1999.
7
Hilda Butler, Poucher’s Perfumes, Cosmetics and Soaps, 10
th
ed., Kluwer
Academic Publishers, p. 436 (2000).
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would have been obvious because Cheski teaches that microdermabrasion
enhances subsequent skin treatments (id.).
Appellant contends that “nowhere do any of the cited references
disclose or suggest a microdermabrasion treatment followed by a peeling
treatment in a single regimen of treatment” (Appeal Br. 7). Appellant also
contends that Messenger does not disclose or suggest wetting the skin before
application of its dermabrasion composition (id. at 8) and Cheski indicates
that the skin should be dry for its microdermabrasion treatment (Reply
Br. 2).
The issue presented is: Does the evidence of record support the
Examiner‟s conclusion that the cited references would have made obvious a
method that includes all of the steps of the claims on appeal?
Findings of Fact
1. Cheski discloses a microdermabrasion system (Cheski, col. 1,
l. 49) that is “useful for the treatment of scars, stretch marks, acne, facial
pigmentation, wrinkles, skin aging, sun damage and exposure, crows feet
and other skin conditions” (id. at col. 2, ll. 2-4).
2. Cheski discloses that “if the microdermabrasion method of the
present invention is soon followed by treatment with appropriate creams,
and the like, the action of these treatments is enhanced. Such treatments
may include treatment with collagen elastin creams, hydration creams, and
sun blocking agents.” (Id. at col. 2, ll. 22-27.)
3. Messenger discloses that a “recent method of exfoliation . . . most
popularly recognized under the term „Power Peel‟ or „Microdermabrasion‟
. . . create[s] controlled skin injury producing an immediate body reaction to
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effect repair. As a result, healthy, plump skin cells are produced.”
(Messenger, col. 1, ll. 22-29.)
4. Messenger discloses that microdermabrasion is used to treat,
among other things, “brown spots, fine lines, stretch marks, chicken-pock
marks and even tattoos” (id. at col. 1, ll. 33-35).
5. Messenger discloses a composition for facial skin dermabrasion
that produces “almost the same level of injury to the facial skin [as] caused
by the Power Peel process” (id. at col. 2, ll. 24-36). `
6. Messenger‟s composition includes 30-60% by weight aluminum
oxide (id. at col. 3, ll. 20, 49-51)
7. Messenger discloses that its composition is “applied manually by
moving the fingers in a circular motion with the cream spread over the facial
tissue. . . . Thereafter, the residue may be easily washed away.” (Id. at col.
4, ll. 60-63.)
8. Rapaport discloses “a chemical peel for at home use and which can
be left on the skin” (Rapaport, col. 1, ll. 29-30).
9. Rapaport discloses that its composition and methods can be used
“for addressing certain skin conditions, including aging skin, dry skin, photo
aged skin, i.e., sun damaged skin, hyperpigmentation . . . , acne,” etc. (id. at
col. 1, ll. 9-13).
10. Rapaport discloses that its peeling composition preferably
comprises 15% by weight glycolic acid (id. at col. 14, l. 56 to col. 15, l. 18).
11. Glycolic acid is a desquamating agent (Spec. 8: 19-21).
12. Rapaport discloses that its method involves “applying the given
material by means of a cosmetic applicator pad pre-saturated with a unit
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dose of the given material for the respective cleansing, degreasing and
peeling/exfoliating steps, which are generally steps 1-3 in the present
invention” (Rapaport, col. 10, ll. 22-26).
13. Rapaport discloses that “the cosmetic applicator pads of the
present invention are further selected to provide a desired level of abrasive
efficiency” (id. at col. 10, ll. 26-28).
14. Rapaport discloses that “a given level of pad abrasive capability
results in and/or controls the degree of mechanical exfoliation of dead skin,
thus exposing underlying living skin tissue more effectively. By taking off
the top layers of dead skin, the skin degreaser is allowed to work more
effectively.” (Id. at col. 10, ll. 43-47.)
15. Rapaport discloses that “[t]he greater the abrasive efficiency of
the pad used for cleansing and/or degreasing the skin, the deeper the peeling
agent will penetrate, thereby providing enhanced peeling agent
effectiveness” (id. at col. 10, ll. 53-56).
16. Burnier discloses “water-in-oil emulsions having a high
electrolyte content” (Burnier, col. 1, ll. 9-10).
17. Burnier discloses that “[t]he aqueous phase preferably comprises
a spring water which is known for its soothing, anti-irritant, anti-free-radical
properties when applied to the skin, in particular eau de la Roche Posay”
(Id. at col. 6, ll. 6-10.)
18. The Specification states that “waters . . . which exhibit a mineral
content of . . . greater than 400 mg/l are water from La Roche Posay” (Spec.
11: 17-19).
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19. Burnier discloses that its compositions are “useful for reducing
the irritant effect of at least one active irritant compound administered
separately” (id. at col. 7, ll. 30-31), including retinol, glycolic acid, and
ascorbic acid (id. at col. 7, l. 40 to col. 8, l. 20).
20. Burnier discloses that its composition and the irritant active agent
can be applied to the skin at the same time or spread out over time (id. at col.
7, ll. 34-37).
21. The Specification discloses that retinol and ascorbic acid are anti-
ageing active agents (Spec. 12: 26, 13: 3, 15: 5).
Analysis
Cheski and Messenger disclose microdermabrasion (exfoliation)
methods for treating similar skin conditions (FFs 1, 3-5), and Messenger
suggests applying its composition by massaging the skin, then washing off
the residue (FF 7). Rapaport discloses a chemical peel method for treating
skin conditions similar to those treated by Cheski and Messenger (FF 9).
Rapaport discloses that the efficiency of its peeling agent is enhanced by
first exfoliating the skin using an abrasive pad to remove the top layers of
dead skin (FFs 12-15). Rapaport discloses that “greater . . . abrasive
efficiency of the pad . . . provid[es] enhanced peeling agent effectiveness”
(FF 15). Burnier teaches an emulsion containing water from la Roche Posay
that is useful for reducing the irritant effect of a separately applied active
agent, and expressly suggests ascorbic acid and retinol as exemplary active
agents (FF 19).
We agree with the Examiner that it would have been obvious to
combine Messenger‟s microdermabrasion treatment with Rapaport‟s
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chemical peel treatment, because Rapaport teaches that applying the
chemical peel after exfoliation enhances its effectiveness, and micro-
dermabrasion is a method of exfoliation (FF 3). We also agree that it would
have been obvious to follow the microdermabrasion/chemical peel treatment
with Burnier‟s emulsion composition because Burnier discloses that its
composition soothes irritation caused by glycolic acid (FF 19), one of the
active agents in Rapaport‟s composition, and to then apply an active agent
such as ascorbic acid, because Burnier expressly suggests doing so (FFs 19,
20).
Appellant argues that none of the references suggest combining
microdermabrasion and a chemical peel in a single regimen of treatment
(Appeal Br. 7).
This argument is not persuasive. As the Examiner pointed out
(Answer 12), Rapaport suggests combining a chemical peel with mechanical
exfoliation. Since microdermabrasion is a form of mechanical exfoliation
(FF 3), Rapaport would have reasonably suggested combining its chemical
peel with microdermabrasion to a person of ordinary skill in the art.
Appellant also argues that Messenger does not suggest a wetting
treatment prior to microdermabrasion (Appeal Br. 8).
This argument is also unpersuasive. Although Cheski states that its
method should be carried out on dry skin (Cheski, col. 4, ll. 56-57),
Messenger does not. Since Messenger does not limit the use of its
composition to dry skin, and since Messenger‟s composition “avoids the
ripping of skin pores or the tearing of facial skin” (Messenger, col. 3, ll. 10-
11) and contains water (id. at col. 3, l. 67; col. 4, ll. 40-56), we agree with
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the Examiner that it would have been obvious to carry out Messenger‟s
dermabrasion method on skin that had previously been wetted.
Conclusion of Law
The evidence of record supports the Examiner‟s conclusion that the
cited references would have made obvious a method that includes all of the
steps of the claims on appeal.
SUMMARY
We affirm the rejection of claims 1-18 under 35 U.S.C. § 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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