Colgate-Palmolive CompanyDownload PDFPatent Trials and Appeals BoardSep 29, 20212020005619 (P.T.A.B. Sep. 29, 2021) 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. 15/577,783 11/29/2017 Tilo Poth 10880-00-US-01-OC 8630 23909 7590 09/29/2021 COLGATE-PALMOLIVE COMPANY 909 RIVER ROAD PISCATAWAY, NJ 08855 EXAMINER WEBB, WALTER E ART UNIT PAPER NUMBER 1612 NOTIFICATION DATE DELIVERY MODE 09/29/2021 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_Mail@colpal.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte TILO POTH, HANSPETER WOLF, JOSHUA SCHMID, and ROBERT D’AMBROGIO Appeal 2020-005619 Application 15/577,783 Technology Center 1600 Before JEFFREY N. FREDMAN, JENNIFER MEYER CHAGNON, and TAWEN CHANG, Administrative Patent Judges. CHANG, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1–4, 9–15, 20, and 21. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Colgate- Palmolive Company. Appeal Br. 2. Appeal 2020-005619 Application 15/577,783 2 STATEMENT OF THE CASE “Dentinal hypersensitivity (i.e. sensitivity) is a painful condition resulting from the movement of liquid in exposed dentin tubules from external stimuli such as pressure and temperature.” Spec. ¶ 1. The Specification states that “[t]oothpastes fighting sensitive teeth often contain the salt potassium nitrate. However, this ingredient is well known to have foam breaking properties making it difficult to obtain the sensory foam profile which delivers improved consumer acceptance.” Id. ¶ 2. The Specification further states that “[c]onventional levels of surfactants usually yield acceptable foam volumes when tested in pure water,” but “when the testing is performed in solutions mimicking the composition of human saliva it is hard to achieve foam levels that exceed a certain volume as also human saliva has foam breaking properties.” Id. According to the Specification, therefore, “there is a need for an oral care composition formulation which retains excellent foaming properties in human saliva when formulated with salts such as potassium nitrate, zinc salts or phosphate salts.” Id. ¶ 3. Further according to the Specification, “[s]urprisingly, the present inventors discovered that a dual surfactant system that does not comprise a non-ionic surfactant, wherein the surfactants are anionic and cationic/amphoteric surfactants, delivers improved foaming properties in artificial saliva and also compensates for the foam breaking properties of saliva.” Id. ¶ 5. Appeal 2020-005619 Application 15/577,783 3 CLAIMED SUBJECT MATTER The claims are directed to an oral care composition. Claim 1 is illustrative: 1. An oral care composition comprising: a) an anionic surfactant, wherein the anionic surfactant is sodium lauryl sulfate (SLS); b) a cationic or amphoteric surfactant, wherein the cationic or amphoteric surfactant is cocamidopropyl betaine (CAPB); and c) a potassium salt; wherein the oral care composition does not comprise a non-ionic surfactant, wherein the anionic surfactant is present in an amount of from 2.0 weight % to 3.0 weight %, and cocamidopropyl betaine is present in an amount of from 0.30 weight% to 0.60 weight% of the composition, wherein the potassium salt is potassium nitrate, and wherein potassium nitrate is present in an amount of from 4 to 6 weight % based on the total weight of the oral care composition. Appeal Br. 17 (Claims App.). REJECTION(S) A. Claims 1–4 and 11–15 are rejected under 35 U.S.C. § 103 as being unpatentable over Gorlin.2 Final Act. 3. B. Claims 1–4, 9–15, 20, and 21 are rejected under 35 U.S.C. § 103 as being unpatentable over Gorlin and Smitherman.3 Final Act. 4. 2 Gorlin et al., US 5,833,956, issued Nov. 10, 1998. 3 Smitherman, US 5,015,467, issued May 14, 1991. Appeal 2020-005619 Application 15/577,783 4 C. Claims 1–4, 9–13, 20, and 21 are rejected under 35 U.S.C. § 103 as being unpatentable over Barth.4 Final Act. 6. D. Claims 14 and 15 are rejected under 35 U.S.C. § 103 as being unpatentable over Barth and Smitherman. Final Act. 8. E. Claims 1–4, 9–15, 20, and 21 are rejected under 35 U.S.C. § 103 as being unpatentable over Nowak.5 Final Act. 8. F. Claims 1–4, 9–15, 20, and 21 are rejected under 35 U.S.C. § 103 as being unpatentable over Baig.6 Final Act. 10. G. Claims 1–4, 9–15, 20, and 21 are rejected under 35 U.S.C. § 103 as being unpatentable over Arai7 and Baig ’442.8 Final Act. 12. OPINION A. Obviousness rejection over Gorlin (claims 1–4, 11–15) 1. Issue The Examiner finds that Gorlin teaches a dentifrice (Composition C) that meets all of the limitations of claim 1 except that it does not comprise potassium nitrate. Final Act. 3. The Examiner finds that it would have been obvious to add potassium nitrate to this embodiment because Gorlin teaches that potassium nitrate, useful for treatment of dental hypersensitivity, may be included in the oral preparations of its invention. Id. The Examiner further 4 Barth et al., US 2006/0222602 A1, published Oct. 5, 2006. 5 Nowak et al., US 2012/0100193 A1, published Apr. 26, 2012. 6 Baig et al., US 2011/0089073 A1, published Apr. 21, 2011. 7 Arai et al., JP 2005-68071 A, published Mar. 17, 2005. 8 Baig et al., US 2003/0165442 A1, published Sept. 4, 2003. Appeal 2020-005619 Application 15/577,783 5 asserts that it would have been obvious to optimize the potassium nitrate concentration in the composition to arrive at the claimed invention. Id. at 4. Appellant contends that, in contrast to the composition of claim 1, which excludes nonionic surfactants, Gorlin’s composition requires a nonionic surfactant. Appeal Br. 5; Reply Br. 2. Appellant contends that Composition C is not Gorlin’s invention but a negative control and that, furthermore, Composition C contains neither potassium nitrate nor an amount of CAPB within the claimed range. Appeal Br. 5–6; Reply Br. 2–3. Appellant contends that “[t]he Examiner has not provide any articulated reasoning why one of skill in the art would be motivated to modify Composition C[,] disclosed as a negative control in Gorlin[,] by (i) adding 4- 6% potassium nitrate and (ii) increas[ing] the amount of CAPB to 0.3-0.6% to arrive at the claimed composition recited in claim 1.” Appeal Br. 6; see also Reply Br. 2, 4. Appellant further contends that the claimed subject matter exhibits unexpected results. Appeal Br. 14–15; Reply Br. 4, 11–12. Appellant does not separately argue the claims; we therefore focus our analysis on claim 1 as representative. The issues with respect to this rejection are (1) whether a skilled artisan would have had reason to combine and/or modify the teachings in Gorlin to arrive at the invention of claim 1 and, if so, (2) whether Appellant has provided evidence of unexpected results that, when considered together with the evidence of obviousness, shows claim 1 to be non-obvious. 2. Findings of Fact 1. Gorlin teaches “a substantial nonirritating oral composition containing a surfactant system comprised of a combination of an anionic surfactant, an amphoteric surfactant and a nonesterified alkyl polyglucoside Appeal 2020-005619 Application 15/577,783 6 surfactant.” Gorlin, Abstr. 2. Gorlin teaches that “sodium lauryl sulfate (SLS) is a widely used surfactant in oral compositions, including dentifrices.” Id. at 1:11–12. 3. Gorlin teaches that [s]urfactants, and particularly anionic surfactants, such as SLS, serve as a solubilizing, dispersing, emulsifying and wetting agent for the other ingredients present in the dentifrice and are especially effective in solubilizing the flavor present. A cosmetic effect of the surfactant is that it promotes foaming of the oral composition. Oral compositions with strong foaming ability are preferred by consumers since the foaming provides the perception that the oral composition cleans effectively only if it foams well. Id. at 1:13–22. 4. Gorlin discloses prior art teaching that inclusion of a nonionic or an amphoteric surfactant serves to increase the foaming ability of the oral composition to consumer desirable levels and can further reduce the irritability of the purified sodium lauryl sulfoacetate. The nonionic compositions disclosed included ethylene oxide containing polymers and oxygen containing heterocylic nitrogen compounds. The amphoteric compounds include amidobetaine compounds such as cocoamidoethyl betaine, cocoamidopropyl betaine, lauramidopropyl betaine and the like. Id. at 1:41–52; see also id. at 3:15 (teaching that “[a] preferred betaine is cocoamidopropyl betaine”). 5. Gorlin teaches that [t]he total amount of surfactant comprising the surfactant system present in the composition ranges from about 0.5% to about 3.0% by weight, preferably about 1.5% to about 2.5% by weight. The amount of anionic surfactant ranges from about 0.2 to about 2.0% by weight, Appeal 2020-005619 Application 15/577,783 7 preferably from about 0.5 to about 2.0% by weight. The amount of amphoteric surfactant ranges from about 0.2 to about 1.0% by weight. The amount of nonesterified nonionic surfactant ranges from about 0.2 to about 2.0% by weight, preferably from about 0.5 to about 2.0% by weight. Id. at 3:61–4:3. 6. Gorlin teaches that other materials, e.g., potassium salts for the treatment of dental hypersensitivity such as potassium nitrate, “may be incorporated in the oral preparations of [its] invention . . . in amounts which do not substantially adversely affect the properties and characteristics desired.” Id. at 5:6–18. 7. Gorlin compared a composition of its invention, Composition A, to “comparative compositions B, C, D, and E . . . differing from Composition A only in the relative presence/amounts of anionic, amphoteric and nonesterified nonionic APG surfactants within each composition.” Id. at Appeal 2020-005619 Application 15/577,783 8 5:44–56. The ingredients of compositions A–E are set forth in Table I, reproduced below: Id. at 6:4–26 (Table I). Table I sets out the ingredients in dentifrice compositions A–E. Id. 8. Gorlin teaches that all the dentifrice compositions containing surfactant(s) in addition to SLS “exhibited higher foam levels than when SLS alone was the sole surfactant (Composition B),” but that the surfactant system used in Composition A “exhibited a Zein Score of 7.7 which was at least 50% to about 75% less than the Zein scores of the comparative compositions B–E, indicating the substantial and unexpected reduction in gingival irritation observed in the use of Composition A, as compared to Compositions B–E.” Id. at 6:38–40, 7:26–31. Appeal 2020-005619 Application 15/577,783 9 9. The Specification teaches that potassium nitrate “is well known to have foam breaking properties.” Spec. ¶ 2. 10. The Specification, at Examples 1–3, compares 3 different toothpastes, each comprising 2.18 weight % SLS and 1.25 weight % of a 30% aqueous CAPB solution (0.38 wt % CAPB), against comparative compositions comprising a foam system consisting of, respectively, 1.13 wt%, 1.13 wt%, and 1.42 wt% SLS. Id. ¶¶ 49–64. The Specification purports to show that toothpastes comprising a foam system of SLS and CAPB had significantly higher foam volume/ml than a comparative toothpaste comprising a foam system of SLS without CAPB during the first minute of the application to artificial saliva. Id. ¶¶ 48–64. 11. Example 4 compares “foaming measurements” of toothpastes comprising potassium nitrate, sodium fluoride, and “single, dual, [or] triple- surfactant toothpaste systems” consisting of, respectively, SLS, SLS and CAPB, and SLS, CAPB, and Poloxamer. Id. ¶¶ 65–67. The Specification states that “it is unexpectedly found that foam generation is more rapid and stronger for the dual-surfactant system than for the triple-surfactant system during the first 50 seconds of test (which is the most critical to consumer Appeal 2020-005619 Application 15/577,783 10 acceptance).” Id. ¶ 68. The data set forth in Table 8 of Example 4 is reproduced below: Time (Sec.) D-1 D-2 D-3 E-1 E-2 E-3 F-1 F-2 F-3 10 63 183 128 152 192 174 150 170 156 20 85 259 207 213 284 234 189 251 209 30 100 312 260 263 357 317 220 326 276 40 105 370 327 302 404 363 247 371 321 50 120 399 367 333 412 376 277 390 378 60 130 410 385 367 422 409 298 399 396 Id. ¶ 68, Table 8. Table 8 sets forth the “[f]oam [v]olume [d]ata between [s]ingle, [d]ual and [t]riple [s]urfactant [s]ystems.”9 Id. 3. Analysis Unless otherwise noted, we adopt the Examiner’s findings of fact and reasoning regarding the scope and content of the prior art (Final Act. 3–4; Ans. 3–4, 10–12) and agree with the Examiner that claim 1 is obvious over Gorlin. We address Appellant’s arguments below. Appellant contends that a skilled artisan would not have had a reason to use composition C, which the Examiner relies on in establishing a prima facie case, as a starting point for further modification. Appeal Br. 5; Reply Br. 4. In particular, Appellant contends Gorlin requires a nonionic surfactant in its composition and teaches that Composition C, which is used 9 According to the Specification, Formulations D-1, D-2, and D-3 comprise a “Multi-Protection” toothpaste base; Formulations E-1, E-2, and E-3 comprise an “Enamel Protection” toothpaste base; and Formulations F-1, F- 2, and F-3 comprise a “Whitening” toothpaste base. Spec. ¶ 66, Table 7. Appeal 2020-005619 Application 15/577,783 11 as a negative control, causes gingival irritation as compared to Gorlin’s composition comprising a nonionic surfactant. Appeal Br. 5; Reply Br. 2. We are not persuaded. “‘[T]he question is whether there is something in the prior art as a whole to suggest the desirability, and thus the obviousness, of making the combination,’ not whether there is something in the prior art as a whole to suggest that the combination is the most desirable combination available.” In re Fulton, 391 F.3d 1195, 1200 (Fed. Cir. 2004) (quoting In re Beattie, 974 F.2d 1309, 1311 (Fed. Cir. 1992)). In this case, Gorlin teaches that SLS is “a widely used surfactant in oral compositions” that promotes foaming of the composition, an attribute desirable to consumers. FF2, FF3. Gorlin also teaches that “inclusion of a nonionic or an amphoteric surfactant serves to increase the foaming ability of the oral composition to consumer desirable levels and can further reduce the irritability of the purified sodium lauryl sulfoacetate,” FF4 (emphasis added). Id. Gorlin further teaches CAPB as a preferred amphoteric surfactant. Id. Thus, Gorlin teaches the desirability of the combination of SLS and CAPB alone without a nonionic surfactant, and renders obvious a dentifrice comprising such a combination (i.e., composition C) for purposes of increasing the foaming ability of an oral composition, even if Gorlin also teaches that Composition C may be inferior to Gorlin’s inventive composition in terms of gingival irritation. FF7, FF8. Appellant contends that “the proposed modification to remove non- ionic surfactant would (according to Gorlin) render the Gorlin invention modified unsatisfactory for its intended purpose.” Appeal Br. 5; Reply Br. 3. Appellant similarly contends that Gorlin “teach[es] away from formulations without nonionic surfactant as claimed.” Reply Br. 12. Appeal 2020-005619 Application 15/577,783 12 We are not persuaded. Although Gorlin teaches that its invention comprising a nonionic surfactant is superior in reducing gingival irritation when compared to Composition C, Appellant has cited no persuasive evidence that Gorlin suggests Composition C cannot be used satisfactorily as a dentifrice. See In re Fulton, 391 F.3d at 1200 (explaining that “[a] known or obvious composition does not become patentable simply because it has been described as somewhat inferior to some other product for the same use” and that “a finding that the prior art as a whole suggests the desirability of a particular combination need not be supported by a finding that the prior art suggests that the combination claimed by the patent applicant is the preferred, or most desirable, combination”). Appellant notes that “Composition C in Gorlin does not contain potassium nitrate” and that, “while Gorlin discloses that . . . potassium nitrate may be incorporated in the oral preparations of . . . Gorlin’s invention[],” “the composition C is not ‘the oral preparation of [Gorlin’s] invention.’” Appeal Br. 5–6. Appellant thus contends that “[t]here is no teaching or suggestion in Gorlin that would motivate one of skill in the art to incorporate potassium nitrate in Composition C.” Id. at 6. We are not persuaded. A reference need not provide an explicit suggestion to combine particular teachings in order to provide the requisite motivation to combine. Cf. In re Nilssen, 851 F.2d 1401, 1403 (Fed. Cir. 1988) (holding that “for the purpose of combining references, those references need not explicitly suggest combining teachings, much less specific references”). Here, Gorlin teaches that potassium nitrate is useful for treating dental hypersensitivity. FF6. Accordingly, a skilled artisan would be motivated to include potassium nitrate in a dentifrice composition Appeal 2020-005619 Application 15/577,783 13 such as Composition C to treat hypersensitivity. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007) (“The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.”). Appellant also contends that Composition C does not contain an amount of CAPB within the claimed range. Appeal Br. 6; Reply Br. 2. Appellant contends that “[t]he Examiner has not provide any articulated reasoning whey one of skill in the art would be motivated to modify Composition C disclosed as a negative control in Gorlin by (i) adding 4-6% potassium nitrate and (ii) increase the amount of CAPB to 0.3-0.6% to arrive at the claimed composition recited in claim 1.” Appeal Br. 6; Reply Br. 4. We agree with the Examiner that a skilled artisan would have had reason to incorporate potassium nitrate to Composition C for the reasons already discussed above. We further agree with the Examiner that it would have been obvious to optimize the amounts of potassium nitrate and CAPB in Composition C to arrive at the composition of claim 1.10 “[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 re Aller, 220 F.2d 454, 456 (CCPA 1955). In this case, Gorlin discloses the general conditions of the claim because it also teaches use of potassium nitrate to treat dental hypersensitivity and CAPB to increase the foaming 10 Table 1 states that Composition C contains 0.5% CAPB and that CAPB is a 31% aqueous solution. FF7. It is unclear whether 0.5% refers to the actual amount of CAPB in Composition C, or to the 31% aqueous solution. To the extent the Examiner finds that Composition C comprises 0.5% CAPB, we do not adopt this finding. Nevertheless, as discussed, we agree with the Examiner that Gorlin renders the claimed range of CAPB obvious. Appeal 2020-005619 Application 15/577,783 14 ability of the oral composition. FF4, FF6. Moreover, Gorlin discloses a comparative Composition D comprising 1.5% SLS and 1.0% CAPB (i.e., 0.31% CAPB to the extent the 1.0% CAPB refers to the 31% aqueous solution). Thus, we find that Gorlin renders obvious the claimed ranges of potassium nitrate (4–6%) and CAPB (0.30–0.60%). Neither has Appellant provided persuasive evidence that the claimed ranges of potassium nitrate and/or CAPB are critical or provide unexpected results. Appellant contends that Examples 1–4 of the Specification demonstrates “improved foaming properties of the claimed composition,” which Appellant contends “is not taught by the cited references and [is] unexpected.” Appeal Br. 14–15; see also Reply Br. 11–12. Appellant contends that, [a]s one of skill in the art would have no motivation to add 1-3% SLS and 0.30-0.60% cocamidopropyl betaine, without nonionic surfactant, into an oral care composition comprising a potassium salt with a reasonable expectation of success that the claimed surfactant system would improve foaming properties of a composition containing 4-6% potassium nitrate, as demonstrated by the Examples, the claimed invention is not obvious. Appeal Br. 15. In the Reply Brief, Appellant further contends that “Gorlin does not discuss anything regarding foam properties of a composition containing potassium nitrate, and moreover teaches away from compositions which lack a nonionic surfactant. Thus, the beneficial effect shown in the present application is unexpected in view of Gorlin.” Reply Br. 4, 11–12. We have explained above why a skilled artisan would have had reason to combine Gorlin’s teachings and arrive at the claimed invention, with a reasonable expectation of success. Neither are we persuaded by Appellant’s Appeal 2020-005619 Application 15/577,783 15 contention that the subject matter of claim 1 exhibits unexpected results. Examples 1–3 at most show toothpastes comprising SLS and CAPB have superior foam formation when compared to toothpastes comprising SLS alone. FF10. However, as discussed above, Gorlin teaches that inclusion of an amphoteric surfactant increases the foaming ability of the oral composition. FF4. Thus, the results set forth in Examples 1–3 are expected. Furthermore, “[t]he evidence presented to rebut a prima facie case of obviousness must be commensurate in scope with the claims to which it pertains.” In re Dill, 604 F.2d 1356, 1361 (CCPA 1979). Likewise, “when unexpected results are used as evidence of nonobviousness, the results must be shown to be unexpected compared with the closest prior art.” In re Baxter Travenol Labs., 952 F.2d 388, 392 (Fed. Cir. 1991). Assuming Example 4 shows that a composition comprising SLS and CAPB provided greater foaming improvement than a composition comprising SLS, CAPB, and a nonionic surfactant,11 and assuming that such results are unexpected, Example 4 in the Specification does not provide information sufficient to show that the alleged unexpected improvement is commensurate with the scope of the claim. For example, although Example 4 indicates that 3 different types of compositions (i.e., multi-protection, enamel protection, and whitening) were compared, the Specification does not indicate whether the same concentrations of SLS, CAPB, and/or poloxamer were used in each of the 3 different formulations. FF11. Neither does Appellant provide any 11 Appellant provides no statistical analyses of the results from Example 4; thus, it is difficult to determine whether any alleged foaming improvements shown by the inventive compositions are significant. Appeal 2020-005619 Application 15/577,783 16 explanation as to why the results obtained from comparing these three sets of compositions would be representative of other compositions falling within claim 1. Furthermore, Example 4 also did not compare the invention to the closest prior art, such as the compositions set forth in Gorlin’s Table 1. Ans. 11. In response, Appellant contends that none of the compositions disclosed in Gorlin’s tables contain potassium nitrate and that, “[p]lainly, Gorlin was not concerned with the effects of potassium nitrate on foaming.” Reply Br. 12. Appellant also contends that, while Composition E “exhibited the highest level of foam” among Gorlin’s example compositions, it differs significantly from the invention of claim 1 because Composition E contains Plantaren 2000, a non-ionic surfactant, rather than CAPB. Id. Appellant appears to argue that, accordingly, Composition A, which “exhibited the highest level of foam” among the remaining four of Gorlin’s example compositions, is the closest prior art and that Example 4 essentially compared the invention to the closest prior art because “[t]he surfactant system of Gorlin’s Composition A is similar to a triple-surfactant system comprising SLS, CAPB and Poloxamer tested in the present application in tha[t] both surfactant systems contain a nonionic surfactant (Plantaren 2000 or poloxamer) in addition to SLS and CAPB.” Id. We are not persuaded. Appellant does not explain why one or more of the example compositions in Gorlin would not be considered the closest prior art, merely because Gorlin is not focused specifically on “the effects of potassium nitrate on foaming.” This is particularly the case given that (1) Appellant concedes that it is well known that potassium nitrate has foam breaking properties (FF9), and (2) Gorlin teaches that surfactants are useful Appeal 2020-005619 Application 15/577,783 17 in foam formation (FF3, FF4). In this regard, we note that, “[i]n determining whether the subject matter of a patent claim is obvious, neither the particular motivation nor the avowed purpose of the patentee controls. . . . [A]ny need or problem known in the field of endeavor at the time of invention and addressed by the patent can provide a reason for combining the elements in the manner claimed.” KSR, 550 U.S. at 419–20. Neither are we persuaded by Appellant’s apparent argument that Example 4 essentially compared the invention to the closest prior art. This argument is supported only by attorney argument, which cannot take the place of evidence. Johnston v. IVAC Corp., 885 F.2d 1574, 1581 (Fed. Cir. 1989). Accordingly, we affirm the Examiner’s rejection of claim 1 as obvious over Gorlin. Claims 2–4 and 11–15, which were not separately argued, fall with claim 1. B. Obviousness rejection over Gorlin and Smitherman (claims 1–4, 9–15, 20, 21) With respect to the rejection of the claims over Gorlin and Smitherman, Appellant states only that Smitherman is cited for the amount of potassium nitrate, tartar control agents and zinc citrate but does not cure the deficiency of Gorlin. Smitherman does not teach or suggest anything regarding a surfactant system for an oral care composition containing potassium nitrate. Thus, one of skill in the art would not be motivated to modify Gorlin’s composition to arrive at the claimed composition recited in claim 1. Appeal Br. 6. As discussed above, we do not find Gorlin deficient in rendering claim 1 obvious. Thus, we affirm the Examiner’s rejection of claims 1–4, 9–15, 20, and 21 as obvious over Gorlin and Smitherman for the Appeal 2020-005619 Application 15/577,783 18 same reasons discussed above with respect to the rejection of claim 1 over Gorlin. C. Obviousness rejection over Barth (claims 1–4, 9–13, 20, 21) 1. Issue The Examiner finds that Barth discloses an embodiment (Example 1) that meets all of the limitations of claim 1, except that “the amount of sodium lauryl sulfate . . . , i.e. 1.5%, falls just outside the claimed 2.0 weight % to 3.0 weight[]% range.” Final Act. 6–7. The Examiner asserts that “[i]t would have been obvious to adjust the concentration of sodium lauryl sulfate within claimed range,” because Barth also teaches that “[t]he surfactant or the surfactant mixture is normally employed in the compositions of the invention in an amount of 0.1-10% by weight, preferably 0.3-7% by weight and in particular 1-5% by weight, based on the total weight of the composition.” Id. at 7. Appellant emphasizes that the embodiment cited by the Examiner does not disclose or suggest amounts of SLS and CAPB within the claimed range and that Barth does not otherwise suggest the specific combinations of surfactants recited in claim 1. Appeal Br. 7–8; Reply Br. 5. Appellant contends that, contrary to the requirements of claim 1, Barth teaches that nonionic surfactants may be useful in its invention, particularly for “assisting the cleaning effect.” Appeal Br. 7. Appellant contends that the claimed subject matter exhibits unexpected results. Appeal Br. 14–15; Reply Br. 6. Appellant does not separately argue the claims. We therefore focus our analysis on claim 1 as representative. The issues with respect to this rejection are (1) whether a preponderance of evidence supports the Examiner’s conclusion that it would have been obvious to a skilled artisan to Appeal 2020-005619 Application 15/577,783 19 adjust the concentrations of SLS and CAPB in Barth’s compositions, without including a nonionic surfactant, to arrive at the claimed invention and, if so, (2) whether Appellant has provided evidence of unexpected results that, when considered together with evidence of obviousness, shows claim 1 to be non-obvious. 2. Findings of Fact 12. Barth teaches “oral and dental hygiene products having a content of specific composite materials and cleaning agents which ensure a gentle cleaning with simultaneous remineralization of the tooth surface.” Barth ¶ 5. 13. Barth teaches that “[t]he oral and dental hygiene products of [its] invention comprise in a further preferred embodiment additional toothpaste ingredients such as surfactants,” which are used to “improve the cleaning effect and the foam formation by the oral and dental hygiene products of the invention.” Id. ¶¶ 69–70. 14. Barth teaches that, “[i]n principle, it is possible to use anionic surfactants, zwitterionic and ampholytic surfactants, nonionic surfactants, cationic surfactants or mixtures of these compounds as surfactants in toothpaste formulations.” Id. ¶ 71. 15. Barth teaches that “[t]he surfactant or the surfactant mixture is normally employed in the compositions of the invention in an amount of 0.1-10% by weight, preferably 0.3-7% by weight and in particular 1-5% by weight, based on the total weight of the composition.” Id. ¶ 72. 16. Barth teaches that “[s]uitable surfactants with a good foaming effect are anionic surfactants which also have a certain enzyme-inhibiting effect on the bacterial metabolism of the dental plaque.” Id. ¶ 73. Appeal 2020-005619 Application 15/577,783 20 17. Barth teaches that “[i]t is preferred to use at least one anionic surfactant, in particular a sodium lauryl alkyl sulfate having 12-18 C atoms in the alkyl group,” and that “[o]ne surfactant of this type is sodium lauryl sulfate.” Id. ¶ 75; see also id. ¶ 71 (teaching that toothpastes according to the invention preferably comprise at least one anionic surfactant). 18. Barth teaches that “[i]t may be preferred according to the invention to employ zwitterionic and/or ampholytic surfactants, preferably in combination with anionic surfactants. . . . Particularly suitable zwitterionic surfactants are the so-called betaines . . . . [C]ocamidopropyl betaine is particularly preferred.” Id. ¶ 76. 19. Barth teaches that “[n]onionic surfactants are particularly suitable . . . for assisting the cleaning effect.” Id. ¶ 78. 20. Barth teaches an example of a semi-viscous toothpaste preparation containing the following ingredients: Appeal 2020-005619 Application 15/577,783 21 Id. ¶ 139. Note 5 states: “Tego Betain® BL 215: INCI: cocamidopropyl betaine; AS: 30% manufacturer: Goldschmidt.” Id. ¶ 148. Note 6 states: “Texapon®K12G: INCI: sodium lauryl sulfate; AS. 95-99% manufacturer: Cognis.” Id. ¶ 149. 3. Analysis Unless otherwise noted, we adopt the Examiner’s findings of fact and reasoning regarding the scope and content of the prior art (Final Act. 6–7; Ans. 4–5, 10–12) and agree with the Examiner that claim is obvious over Barth. We address Appellant’s arguments below. Appellant contends that “[t]he amounts of SLS (1.5% or 1.35%) and CAPB (0.18% or 0%) present in Barth[’s] . . . Examples 1-3[] are not even close to the claimed amounts.”12 Appeal Br. 7, 8; Reply Br. 5. Appellant further contends that “Barth . . . does not teach or suggest anything regarding the amount of SLS and CAPB” because Barth only discloses “very broad” ranges “for surfactant (if used alone) or surfactant mixture (if used together),” without disclosing “any range for specific types of surfactants (e.g., anionic surfactant or amphoteric surfactant), much less for the specific 12 Example 1 of Barth teaches a composition comprising 0.600% Tego Betain® BL 215, which is a 30% aqueous solution of cocamidopropyl betaine. FF20. To the extent the Examiner finds that Example 1 comprises an amount of CAPB between 0.30–0.60 weight % as recited in claim 1, we do not adopt this finding. Nevertheless, as discussed, we agree with the Examiner that Barth renders the claimed range of CAPB obvious. Appeal 2020-005619 Application 15/577,783 22 combination of SLS and CAPB.” Appeal Br. 7; Reply Br. 5 (characterizing Barth’s disclosure as “teaching virtually any combination of surfactants”). Appellant contends that “[t]he Examiner has not provided any articulated reasoning why one of skill in the art would be motivated to modify Barth’s composition comprising potassium nitrate (Example 1) by increasing the amounts of SLS and CAPB” to arrive at the claimed surfactant system. Appeal Br. 8. We are not persuaded. Although Barth does not disclose an embodiment comprising amounts of SLS and CAPB within the claimed ranges, all disclosures in the prior art, not only examples, must be considered. In re Lamberti, 545 F.2d 747, 750 (CCPA 1976). Neither do we agree with Appellant’s apparent position that only separate disclosures of ranges for different types of surfactants (or even particular recited surfactants) would render claim 1 obvious. “A person of ordinary skill is also a person of ordinary creativity, not an automaton,” KSR, 550 U.S. at 421, and such explicit direction in the prior art is not necessary to render claim 1 obvious. In this case, Barth teaches that oral and dental hygiene products preferably include surfactants for purposes of, e.g., foam formation; that “[i]t is preferred to use at least one anionic surfactant,” in particular a sodium lauryl alkyl sulfate such as SLS; and that “[i]t may be preferred . . . to employ zwitterionic and/or ampholytic surfactants,” particularly CAPB, “preferably in combination with anionic surfactants.” FF13, FF14, FF16, FF17. The above disclosures from Barth, as well as Example 1, renders obvious an oral care composition comprising a surfactant system consisting of SLS and CAPB. Appeal 2020-005619 Application 15/577,783 23 Barth further teaches using surfactant or surfactant mixture “in an amount of 0.1-10% by weight, preferably 0.3-7% by weight and in particular 1-5% by weight.” FF15. Thus, the amount of SLS (2.0–3.0 weight %) and the amounts of SLS and CAPB recited in claim 1 combined (2.3–3.6 weight %) fall within the range of surfactant concentrations disclosed as particularly preferred by Barth. Likewise, the amount of CAPB recited in claim 1 (0.30– 0.60 weight %) falls within the range of surfactant concentration disclosed as preferred by Barth. Our reviewing court has held that “even a slight overlap in range establishes a prima facie case of obviousness” and has further held that “when . . . the claimed ranges are completely encompassed by the prior art, the conclusion [of obviousness] is even more compelling.” In re Peterson, 315 F.3d 1325, 1329–1330 (Fed. Cir. 2003). Likewise, as already discussed above, “where 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 re Aller, 220 F.2d at 456. We are similarly unpersuaded by Appellant’s argument that the ranges disclosed in Barth (0.1–10%, preferably 0.3–7%, and in particular 1–5% by weight) are so broad compared to the claimed ranges (2–3% SLS and 0.3– 0.6% CAPB) that Barth merely disclosed a “genus” of which claim 1 is a non-obvious species. Appeal Br. 7–8 (citing MPEP §§ 2144.05, 2144.08). In In re Peterson, for example, the limitation of “about 9.5% cobalt” in a superalloy composition was found prima facie obvious over prior art disclosure of “0–20%” cobalt, and “about 0.05% carbon” was found prima facie obvious over prior art disclosure of “at least 0.002% carbon.” In re Peterson, 315 F.3d at 1329. Appeal 2020-005619 Application 15/577,783 24 Accordingly, we find that Barth’s disclosures cited above establishes a prima facie case of obviousness as to the amounts of SLS and CAPB recited in claim 1. Appellant contends that “claim 1 requires that the oral care composition does not comprise a non-ionic surfactant, whereas Barth teaches . . . nonionic surfactants in the list of surfactants” and “further teaches that nonionic surfactants are particularly suitable according to the invention for assisting the cleaning effect.” Appeal Br. 8. We are not persuaded. That Barth also suggests oral care compositions comprising nonionic surfactants does not render compositions without such surfactants non-obvious, given that Barth clearly teaches oral care compositions with surfactant systems consisting of SLS and CAPB (i.e., without nonionic surfactants). See, e.g., FF20. “[D]isclos[ing] a multitude of effective combinations does not render any particular formulation less obvious.” Merck & Co. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989). Finally, Appellant contends that the subject matter of claim 1 exhibits unexpected results. Appeal Br. 14–15. We are unpersuaded for the same reasons discussed above with respect to the rejection over Gorlin: Appellant has not provided evidence of unexpected results that is commensurate with the claim scope or that shows unexpected results as compared to the closest prior art, in this case Barth’s composition comprising SLS and CAPB without a nonionic surfactant (FF20). Appeal 2020-005619 Application 15/577,783 25 D. Obviousness rejection over Barth and Smitherman (claims 14, 15) With respect to the rejection of the claims over Barth and Smitherman, Appellant states only that Smitherman is cited for the amount of potassium nitrate, tartar control agents and zinc citrate but does not cure the deficiency of Barth. Smitherman does not teach or suggest anything regarding a surfactant system for an oral care composition containing potassium nitrate. Thus, one of skill in the art would not be motivated to modify Barth’s composition to arrive at the claimed composition recited in claim [1]. Appeal Br. 8. As discussed above, we do not find Barth deficient in rendering claim 1 obvious. Thus, we affirm the Examiner’s rejection of claims 14 and 15 as obvious over Barth and Smitherman for the same reasons discussed above with respect to the rejection of claim 1 over Barth. E. Obviousness rejection over Nowak (claims 1–4, 9–15, 20, 21) 1. Issue The Examiner finds that Nowak teaches a specific embodiment that meets all of the limitations of claim 1, except that “it does not require a potassium salt” and includes an amount of sodium lauryl sulfate that is below the claimed range. Final Act. 9–10. However, the Examiner asserts that a skilled artisan would have found it obvious to add a potassium nitrate to Nowak’s composition, because Nowak teaches that potassium salts such as potassium nitrate are useful as, e.g., tooth desensitizing agents. Id. at 9. The Examiner further asserts that “[t]he amount of sodium lauryl sulfate may be adjusted within the claimed range” because Nowak teaches that “[t]he surfactant or mixtures of compatible surfactants can be present in the compositions of the present invention in 0.1% to 5.0%.” Id. at 9–10. Appeal 2020-005619 Application 15/577,783 26 Appellant contends that a skilled artisan is unlikely to look to Nowak “for a surfactant system for a composition containing potassium nitrate in the first place.” Appeal Br. 9; Reply Br. 6–7. Appellant contends that Nowak does not suggest the claimed amounts of SLS in combination with CAPB, or such a surfactant combination in a composition containing potassium nitrate. Appeal Br. 9–10; Reply Br. 6–7. Appellant contends that Nowak does not teach excluding nonionic surfactants from its composition, as required by claim 1. Appeal Br. 10; Reply Br. 7. Appellant contends that the Examiner has not articulated why a skilled artisan would be motivated to modify the Nowak embodiment cited in the rejection to arrive at the claimed composition. Appeal Br. 10; Reply Br. 7. Appellant contends that the subject matter of claim 1 exhibits unexpected results. Appeal Br. 14–15; Reply Br. 7–8, 11–12. Appellant does not separately argue the claims. We therefore focus our analysis on claim 1 as representative. The issues with respect to this rejection are (1) whether a preponderance of evidence supports the Examiner’s conclusion that it would have been obvious to a skilled artisan to add potassium nitrate to, and adjust the SLS concentrations in, Nowak’s compositions to arrive at the claimed invention and, if so, (2) whether Appellant has provided evidence of unexpected results that, when considered together with evidence of obviousness, shows claim 1 to be non- obvious. 2. Findings of Fact 21. Nowak teaches oral compositions comprising an orally- acceptable carrier and specific silica abrasives. Nowak, Abstr. Appeal 2020-005619 Application 15/577,783 27 22. Nowak teaches that its compositions may comprise “at least one surfactant,” “an anionic surfactant,” “sodium lauryl sulfate,” or “at least one surfactant selected from sodium lauryl sulfate, cocamidopropyl betaine, and combinations thereof.” Id. ¶¶ 23–26; see also id. at claim 47 (reciting composition comprising at least one surfactant selected from sodium lauryl sulfate, cocamidopropyl betaine, and combinations thereof”), ¶ 93 (stating that “[o]rally acceptable carriers are well known in the art, and may include surfactants”), ¶ 97 (stating that “[t]he compositions of the present invention may also incorporate one or more surfactants which are known in the art,” including for example “anionic, cationic, nonionic or zwitterionic surfactants,” and that “examples of the surfactants suited for inclusion into the composition include . . . sodium alkyl sulfate, sodium lauroyl sarcosinate, cocoamidopropyl betaine and polysorbate 20, and combinations thereof”), ¶ 98 (stating that “compositions of the present invention may comprising an anionic surfactant, e.g., sodium lauryl sulfate”), ¶ 116 (suitable surface active agents are well known in the art and include “anionic (e.g., sodium lauryl sulfate (SLS) . . . ), nonionic . . . , cationic, zwitterionic (e.g., cocamidopropyl betaine . . .), and amphoteric organic synthetic detergents”). 23. Nowak teaches that “[t]he surfactant or mixtures of compatible surfactants can be present in the compositions of the present invention in 0.1% to 5.0%, in another embodiment 0.5% to 3.0% and in another embodiment 0.5% to 2.0% by weight of the total composition.” Id. ¶ 98; see also id. ¶ 116 (“one or more surface active agents are present in the oral composition . . . in the range of 0.001% to 5%, or 0.5% to 2.5%”). Appeal 2020-005619 Application 15/577,783 28 24. Nowak teaches that “[t]he compositions of the present invention may incorporate one or more antisensitivity agents, e.g., potassium salts such as potassium nitrate” and that “[s]uch agents may be added in effective amounts, e.g., from 1% to 20% by weight.” Id. ¶ 107; see also id. ¶ 37 (composition may comprise a tooth desensitizing agent such as a potassium salt), ¶ 94 (active ingredients such as anti-sensitivity agents “optionally present . . . in safe and effective amounts . . . sufficient to have the desired . . . effect . . . , without undue adverse side effects . . . , commensurate with a reasonable risk/benefit ratio”), claim 50 (reciting composition “comprising a tooth desensitizing agent”). 25. Nowak teaches “dentifrice compositions, e.g. toothpastes . . . prepared in accordance with Table 4,” reproduced below: Id. ¶ 131 (Table 4). Table 4 sets forth the ingredients in exemplary dentifrice compositions disclosed in Nowak. Id. Appeal 2020-005619 Application 15/577,783 29 3. Analysis Unless otherwise noted, we adopt the Examiner’s findings of fact and reasoning regarding the scope and content of the prior art (Final Act. 9–10, 14–15; Ans. 6–7, 10–12) and agree with the Examiner that claim 1 is obvious over Nowak. We address Appellant’s arguments below. Appellant contends that a skilled artisan is unlikely to look to Novak “for a surfactant system for a composition containing potassium nitrate in the first place.” Appeal Br. 9; see also Reply Br. 6–7. We are not persuaded. “In order to rely on a reference as a basis for [obviousness] rejection of the applicant’s invention, the reference must either be in the field of the applicant’s endeavor” or “be reasonably pertinent to the particular problem with which the inventor was concerned.” In re Oetiker, 977 F.2d 1443, 1447 (Fed. Cir. 1992). We find Nowak to be in the field of Appellant’s endeavor, i.e., oral care compositions comprising an orally acceptable carrier, based on “explanations of the invention’s subject matter in the patent application, including the embodiments, function, and structure of the claimed invention.” In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004). More specifically, the claims recite an oral care composition comprising a specific surfactant system and potassium nitrate, an anti- sensitivity agent. Appeal Br. 17 (Claims App.). The Specification is entitled “Foaming Dentifrice with Desensitizing Agents,” and the Specification states that the invention relates to “an oral composition that achieves high foam levels in the presence of high salt levels (e.g., potassium nitrate . . .).” Spec. ¶ 4. The Specification further explains that there is “a need for an oral composition formulation which retains excellent foaming Appeal 2020-005619 Application 15/577,783 30 properties in human saliva when formulated with salts such as potassium nitrate,” because “[i]n many regions of the world consumers prefer high foaming toothpastes over products that have a poor foaming ability.” Id. ¶ 2. Likewise, Nowak teaches an oral composition comprising an orally acceptable carrier. FF21. Furthermore, Nowak teaches that orally acceptable carriers are well known in the art and may include surfactants, and Nowak discloses embodiments comprising the same surfactants as those claimed. FF21, FF22. Finally, although Nowak’s invention is focused on an oral composition comprising an orally acceptable carrier and specific silica abrasives, Novak also teaches the use of the claimed salt, potassium nitrate, as an antisensitivity agent in an oral care composition. FF24. Appellant next contends that “[t]he amount of SLS (1.5%) present in Nowak’s Exemplary formulations . . . are not even close to the claimed amounts of SLS (2-3%)” and that these compositions do not contain potassium nitrate. Appeal Br. 9–10; see also Reply Br. 6. Appellant contends that “Nowak’s general disclosure of broad range of surfactant or mixtures of compatible surfactants does not teach or suggest anything regarding the amount of SLS in combination with CAPB.” Appeal Br. 9; Reply Br. 7. We are not persuaded for the reasons similar to those already discussed above with respect to the rejection over Barth. Appellant’s arguments regarding alleged deficiencies in Nowak’s example formulations is unavailing because all disclosures of the prior art, not merely examples, must be considered. In re Lamberti, 545 F.2d at 750. If obviousness required examples of each component in the range being claimed, not just a disclosure overlapping that range, obviousness would collapse into Appeal 2020-005619 Application 15/577,783 31 anticipation. As discussed above, Nowak teaches that its compositions may include potassium nitrate as an antisensitivity agent as well as a combination of SLS and CAPB as surfactants. FF22, FF24. Nowak further teaches ranges for the amounts of potassium nitrate and surfactant(s) that encompasses and/or overlaps the claimed ranges. FF23, FF24. We are likewise unpersuaded by Appellant’s contention that Nowak does not render claim 1 obvious because “claim 1 requires that the oral care composition does not comprise a non-ionic surfactant, whereas Nowak teaches . . . nonionic surfactants in the list of surfactants.” Appeal Br. 10; see also Reply Br. 7. Nowak also teaches compositions without nonionic surfactants, see, e.g., FF25, and, as discussed above with respect to the rejection over Barth, “disclos[ing] a multitude of effective combinations does not render any particular formulation less obvious.” Merck, 874 F.2d at 807. Appellant contends that “[t]he Examiner has not provided any articulated reasoning why one of skill in the art would be motivated to modify Nowak’s composition . . . by (i) adding 4-6% potassium nitrate and (ii) increasing the amounts of SLS to 2-3% to arrive at the claimed composition comprising a specific surfactant system.” Appeal Br. 10; see also Reply Br. 7. We are not persuaded for the reasons discussed above. Appellant contends that the subject matter of claim 1 exhibits unexpected results. Appeal Br. 14–15; Reply Br. 7–8, 11–12. We are not persuaded for the reasons discussed above with respect to the rejection over Gorlin. In particular, Appellant has not provided evidence of unexpected results commensurate with the scope of claim 1. Neither has Appellant compared the claimed invention to the closest prior art, e.g., a composition Appeal 2020-005619 Application 15/577,783 32 comprising 1.5% SLS and 0.4% CAPB, without a nonionic surfactant. FF25 (composition MF-A). Accordingly, we affirm the Examiner’s rejection of claim 1 as obvious over Nowak. Claims 2–4, 9–15, 20, and 21, which were not separately argued, fall with claim 1. F. Obviousness rejection over Baig (claims 1–4, 9–15, 20, 21) 1. Issue The Examiner finds that Baig teaches an embodiment that meets all of the limitations of claim 1, except (1) “the amount of anionic surfactant and cocamidopropyl betaine . . . falls outside the claimed range for each” and (2) the composition comprises potassium dodecyl phosphate, rather than potassium nitrate, as the potassium salt. Final Act. 10. The Examiner asserts that “it would have been obvious to adjust the amounts of anionic surfactant and cocamidopropyl betaine within the claimed range,” because Baig teaches “‘a level of from about 0.025% to about 9%’ for anionic surfactants” and also teaches that certain co- surfactants such as SLS and CAPB may affect surface hydrophobicity, which “may be advantageous in certain applications, for instance in allowing better penetration of water soluble actives such as fluoride onto the tooth surface while still providing sufficient surface protection.” Id. at 11. The Examiner similarly concludes that it would have been obvious to include potassium nitrate in Baig’s compositions, because Baig teaches that oral care products may comprise potassium nitrate for “hypersensitivity control.” Id. Appellant notes that “[t]he amounts of SLS and CAPB [in Baig’s embodiment] do not meet the limitation of claim 1,” and Baig “does not disclose any range for amphoteric surfactant, let alone CAPB.” Appeal Br. Appeal 2020-005619 Application 15/577,783 33 10; see also Reply Br. 8. Appellant contends that “Baig does not teach or suggest that potassium nitrate, much less the claimed amount of potassium nitrate, would be included in Baig’s composition,” and Baig “does not disclose or teach a single embodiment combining SLS, CAPB and a potassium salt.” Appeal Br. 10. Appellant contends that the Examiner has not articulated a reason why a skilled artisan would have added the claimed amounts of potassium nitrate to the cited embodiment, and changed the amounts of SLS and CAPB contained therein, to arrive at the claimed invention. Id. Appellant contends that the subject matter of claim 1 exhibits unexpected results. Id. at 14–15; Reply Br. 9, 11–12. Appellant does not separately argue the claims. We therefore focus our analysis on claim 1 as representative. The issues with respect to this rejection are (1) whether a preponderance of evidence supports the Examiner’s conclusion that it would have been obvious to a skilled artisan to add potassium nitrate to, and adjust the SLS and CAPB concentrations in, Baig’s compositions to arrive at the claimed invention and, if so, (2) whether Appellant has provided evidence of unexpected results that, when considered together with evidence of obviousness, shows claim 1 to be non- obvious. 2. Findings of Fact 26. Baig teaches “[o]ral care compositions containing agents that are effective for treating and modifying teeth and mucosal surfaces to be hydrophobic.” Baig, Abstr. 27. Baig teaches that “[o]ral care products are formulated to provide therapeutic and cosmetic hygiene benefits,” including, e.g., “hypersensitivity control through the use of ingredients such as . . . Appeal 2020-005619 Application 15/577,783 34 potassium nitrate.” Id. ¶ 2; see also id. ¶ 98 (stating that “optional active agent that may be added to the present compositions is a dentinal desensitizing agent to control hypersensitivity, such as salt of potassium”). 28. Baig teaches that its compositions “will typically also comprise surfactants, also commonly referred to as sudsing agents,” and that “[s]uitable surfactants are those which are reasonable stable and foam throughout a wide pH range.” Id. ¶ 114. 29. Baig teaches that “[t]he surfactant may be anionic, nonionic, amphoteric, zwitterionic, cationic, or mixtures thereof,” but teaches that “[a]nionic surfactants, such as sodium alkyl sulfate, amphoteric surfactants, such as cocoamidopropyl betaine and their mixtures are typical examples.” Id. ¶ 114; see also id. ¶ 115 (teaching sodium lauryl sulfate (SLS) as example of anionic surfactant useful in the compositions), ¶ 116 (teaching cocamidopropyl betaine (CAPB)). 30. Baig teaches that “[t]he composition will typically comprise one or a mixture of anionic surfactants at a level of from about 0.025% to about 9%, from about 0.05% to about 5% or from about 0.1% to about 1%.” Id. ¶ 115. Appeal 2020-005619 Application 15/577,783 35 31. Baig teaches dentifrices I-A–I-G according to its invention, shown below with ingredients in weight %: Id. ¶ 138. The table above sets forth the ingredients in exemplary dentifrice compositions disclosed in Baig. 3. Analysis Unless otherwise noted, we adopt the Examiner’s findings of fact and reasoning regarding the scope and content of the prior art (Final Act. 10–11, 15; Ans. 7–8, 10–12) and agree with the Examiner that claim 1 is obvious over Baig. We address Appellant’s arguments below. Appellant notes that “[t]he amounts of SLS and CAPB [in Baig’s embodiment] do not meet the limitation of claim 1,” and Baig “does not disclose any range for amphoteric surfactant, let alone CAPB.” Appeal Br. 10; see also Reply Br. 8. Appeal 2020-005619 Application 15/577,783 36 We are not persuaded. Appellant has not disputed the Examiner’s finding that Baig discloses an embodiment, Composition I-E, comprising SLS and CAPB without including a nonionic surfactant, even if the amounts of SLS and CAPB in that specific embodiment fall outside of the claimed range. Ans. 10; FF31. Baig further teaches that its composition will typically comprise “one or a mixture of anionic surfactants” in a range that encompasses the claimed range of 2.0 weight % to 3.0 weight %. FF30. Similarly, although Baig does not explicitly disclose a range for amphoteric surfactants or CAPB, we find that Baig discloses the general conditions of the claim (i.e., the combination of SLS and CAPB for purposes of foam formation). FF28, FF29. We further find that adjusting the amounts of SLS and CAPB to arrive at the optimal amount of foaming requires no more than routine experimentation. Accordingly, we find Baig renders the claimed ranged of SLS and CAPB prima facie obvious. In re Peterson, 315 F.3d at 1329–1330; In re Aller, 220 F.2d at 456. Appellant contends that “Baig does not teach or suggest that potassium nitrate, much less the claimed amount of potassium nitrate, would be included in Baig’s composition,” that Baig “does not disclose or teach a single embodiment combining SLS, CAPB and a potassium salt,” and that “Baig does not disclose or teach anything regarding the amount of potassium nitrate.” Appeal Br. 10–11. As discussed above, however, all disclosures of the prior art, not merely examples, must be considered. In re Lamberti, 545 F.2d at 750. Baig teaches that potassium nitrate is useful in oral care products to control hypersensitivity and further teaches that salt of potassium may be added to its composition as an optional active agent to control hypersensitivity. FF27. Appeal 2020-005619 Application 15/577,783 37 We find that, given the above disclosures, a skilled artisan would have found it obvious to include potassium nitrate in Baig’s composition and to optimize its concentration to arrive at the claimed amounts. In re Aller, 220 F.2d at 456. In this regard, we note that “[a] person of ordinary skill is also a person of ordinary creativity, not an automaton,” and a conclusion of obviousness does not require “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.” KSR, 550 U.S. at 418, 421. For all of the reasons discussed above, we are not persuaded by Appellant’s contention that the Examiner has not articulated a reason why a skilled artisan would have added the claimed amounts of potassium nitrate to the cited embodiment, and changed the amounts of SLS and CAPB contained therein, to arrive at the claimed invention. Appeal Br. 11. Finally, we are also unpersuaded by Appellant’s contention that the subject matter of claim 1 exhibits unexpected results, for the reasons discussed above with respect to the other rejections. Appeal Br. 14–15; see also Reply Br. 9, 11–12. In particular, Appellant has not provided evidence of unexpected results commensurate with the scope of claim 1. Neither has Appellant compared the claimed invention to the closest prior art, e.g., a composition comprising 1.12% and 1% respectively of SLS and CAPB, without a nonionic surfactant. FF31 (composition I-E). Accordingly, we affirm the Examiner’s rejection of claim 1 as obvious over Baig. Claims 2–4, 9–15, 20, and 21, which were not separately argued, fall with claim 1. Appeal 2020-005619 Application 15/577,783 38 G. Obviousness rejection over Arai and Baig ’442 (claims 1–4, 9–15, 20, 21) 1. Issue The Examiner finds that Arai teaches a toothpaste that meets all of the limitations of claim 1, except (1) it contains 1.5% of SLS rather than 2–3% as claimed, and (2) it contains 1% 2-alkyl N-carboxymethyl-N-hydroxyethyl imidazolinium betaine as the amphoteric surfactant, rather than the 0.3–0.6% CAPB as claimed. Final Act. 12. The Examiner finds that Arai teaches that “[t]he amount of betaine amphoteric surfactant can be adjusted within the range of 0.001 to 5 mass %, which makes obvious the claimed range of 0.30 weight % to 0.60 weight %.” Id. (citation omitted). The Examiner further finds that Baig ’442 teaches “oral care compositions comprising amphoteric surfactants wherein the amphoteric surfactant can be cocamidopropyl betaine.” Id. at 13. The Examiner finds that “it would have been obvious to utilize cocamidopropyl betaine[] as the amphoteric surfactant” in Arai’s composition, “based on [its] recognized suitability for [the] intended use, as taught by Baig [’442]” and because Arai generally teaches use of amphoteric surfactants, of which cocamidopropyl betaine is a species. Id. at 13–14. Appellant contends that “[t]he amount of SLS present in Arai’s exemplary formulation . . . does not fall within the claimed range . . . and . . . Arai’s composition does not contain cocamidopropyl betaine.” Appeal Br. 11; Reply Br. 9. Appellant contends that [a]lthough Arai teaches that combining a specific amount of polyhydric alcohol and an amphoteric surfactant can prevent the precipitation of potassium lauryl sulfate, there is no disclosure . . . in Arai that all amphoteric surfactants can be used to prevent the precipitation of potassium lauryl sulfate produced by the reaction of potassium nitrate and sodium lauryl sulfate. Appeal 2020-005619 Application 15/577,783 39 Appeal Br. 12 (citation omitted); see also Reply Br. 10. Appellant further contends that “it would be practically impossible to select the claimed amounts of SLS and CAPB from the broad ranges disclosed in Arai without further teachings.” Appeal Br. 13; see also Reply Br. 10. Appellant also contends that, “[b]ased on the art cited, the Examiner has failed to show motivation to make a composition as claimed, to improve the foaming properties of an oral care composition comprising a potassium salt, because the art did not even address that problem.” Appeal Br. 13–14. Appellant contends that “[t]he Examiner has not provided any articulated reasoning why one of skill in the art would be motivated to modify the Arai's composition (Example 1) by (i) replacing 2-alkyl-N-carboxymethyl-N- hydroxyethylimidazolinium betaine, which is taught [to] be preferred by Arai, with CAPB and (ii) changing the amounts of SLS and CAPB to the claimed ranges.” Id. at 14; see also Reply Br. 10. Finally, Appellant contends that the subject matter of claim 1 exhibits unexpected results. Appeal Br. 14–15; Reply Br. 10–12. Appellant does not separately argue the claims. We therefore focus our analysis on claim 1 as representative. The issues with respect to this rejection are (1) whether a preponderance of evidence supports the Examiner’s conclusion that it would have been obvious to a skilled artisan to replace 2-alkyl-N-carboxymethyl-N-hydroxyethylimidazolinium betaine, which is taught to be preferred by Arai, with CAPB, and to adjust the amounts of SLS and CAPB to arrive at the claimed invention, and, if so, (2) whether Appellant has provided evidence of unexpected results that, when considered together with evidence of obviousness, shows claim 1 to be non-obvious. Appeal 2020-005619 Application 15/577,783 40 2. Findings of Fact 32. Arai teaches that potassium nitrate is known as an active ingredient in oral compositions for preventing hyperesthesia. Arai ¶ 4. 33. Arai teaches that combining potassium nitrate with sodium lauryl sulfate in a composition may lead to undesirable precipitation of lauryl potassium sulfate, particularly at low temperatures. Id. ¶ 5. 34. Arai teaches that undesirable precipitation of lauryl potassium sulfate in an oral composition comprising potassium nitrate and sodium lauryl sulfate may be inhibited by including polyhydric alcohol and an ampholytic surface active agent, wherein the polyhydric alcohol is 10% to 60% of the composition and the ratio of sodium lauryl sulfate to the ampholytic surface active agent is from 50:1 to 1:1. Id. ¶¶ 9–11. 35. Arai teaches potassium nitrate in an amount of 0.005% to 20% of the composition, more preferably 0.1% to 7% of the composition. Id. ¶ 13. 36. Arai teaches sodium lauryl sulfate in an amount of 0.01% to 5%, or 0.05% to 2% of the composition. Id. ¶ 14. Arai teaches that too little sodium lauryl sulfate in the composition “may not be . . . preferable . . . in respect of bubbling force,” but that too much sodium lauryl sulfate “may not be preferable in respect to mucosal irritation or a . . . nasty smell.” Id. 37. Arai teaches that: As an ampholytic surface active agent, although imidazoline type surfactants, such as an alkylamide betaine type surfactant and alkyl imidazolinium betaine, a sulfobetaine type surfactant, etc. can be used, 1 type preferably chosen from an imidazoline type surfactant especially alkyl imidazolinium betaine, or its salt or 2 type or more are preferable. Appeal 2020-005619 Application 15/577,783 41 Id. ¶ 17. 38. Arai teaches that “the compounding ratio (mass ratio) of sodium lauryl sulfate in a constituent and an ampholytic surface active agent blends in the range used as 50:1-1:1, preferably 20:1-2:1, more preferably 10:1-2:1.” Id. ¶ 20. 39. Arai teaches that, “if a compounding ratio becomes smaller than a mentioned range, the low-temperature precipitation depressor effect of satisfactory potassium nitrate will not be acquired, if it enlarges from the above mentioned compounding ratio, the low-temperature precipitation depressor effect . . . will not be acquired, or the fizziness of toothbrushing is deteriorated.” Id. 40. Arai teaches that “[t]he compounding amount of an ampholytic surface active agent . . . can make it into the 0.001 to 5 mass % of the whole constituent, especially the 0.01 – 2 mass %.” Id. 41. Arai teaches an example of a tooth paste composition having the following formula: potassium nitrate 5.0%; sodium lauryl sulfate 1.5%; glycerin 30%; 2-alkyl N-carboxymethyl-N-hydroxyethyl imidazolinium betaine 1.0%; sodium-monofluorophosphate 0.73%; propylene glycol 4.0%; carrageenan 0.8%; hydroxyethyl cellulose 0.4%; saccharin sodium 0.02%; silicic acid anhydride 14%; perfume B 0.8%; and purified water. Id. ¶ 41. 42. Baig ’442 teaches “methods of treating and protecting teeth against erosion by use of oral compositions comprising polymeric mineral surface active agents, metal ions such as stannous and zinc and combinations thereof,” which “provide improved resistance of teeth to erosive demineralization or dissolution and prevention of tooth damage by Appeal 2020-005619 Application 15/577,783 42 subsequent exposure of teeth to erosive chemicals such as acidic foods and beverages.” Id. at Abstr. 43. Baig ’442 teaches that “[i]t is well known that oral care products can provide therapeutic and cosmetic hygiene benefits to consumers,” including “hypersensitivity control through the use of ingredients such as . . . potassium nitrate.” Id. ¶ 3. 44. Baig ’442 teaches that its composition “may also comprise surfactants, also commonly referred to as sudsing agents,” and that “[s]uitable surfactants are those which are reasonably stable and foam throughout a wide pH range.” Id. ¶ 55. 45. Baig ’442 teaches that “[t]he surfactant may be anionic, nonionic, amphoteric, zwitterionic, cationic, or mixtures thereof.” Id. 46. Baig ’442 teaches that sodium lauryl sulfate is an example of an anionic surfactant useful in its composition. Id. 47. Baig ’442 teaches that amphoteric surfactants useful in its invention include “betaines, specifically cocamidopropyl betaine.” Id. 48. Baig ’442 teaches that its composition “typically comprises one or more surfactants each at a level of from about 0.25% to about 12%, preferably from about 0.5% to about 8%, and most preferably from about 0.5% to about 8%, and most preferably from about 1% to about 6%, by weight of the composition.” Id. 3. Analysis Unless otherwise noted, we adopt the Examiner’s findings of fact and reasoning regarding the scope and content of the prior art (Final Act. 12–14, 15–16; Ans. 8–12) and agree with the Examiner that claim 1 is obvious over Arai and Baig ’442. We address Appellant’s arguments below. Appeal 2020-005619 Application 15/577,783 43 Appellant contends that “Arai’s composition does not contain cocamidopropyl betaine” and that, “[a]lthough Arai teaches that combining a specific amount of polyhydric alcohol and an amphoteric surfactant can prevent the precipitation of potassium lauryl sulfate, there is no disclosure . . . in Arai that all amphoteric surfactants can be used to prevent the precipitation of potassium lauryl sulfate produced by the reaction of potassium nitrate and sodium lauryl sulfate.” Appeal Br. 11–12 (citation omitted); see also Reply Br. 10 (contending that CAPB is not listed among the Arai’s examples of amphoteric surfactants that can be used, that all exemplary formulations in Arai contain formulations in Arai contain 2-alkyl- Ncarboxymethyl-N-hydroxyethylimidazolinium betaine as the amphoteric surfactant, and that Arai teaches that imidazonline type surfactants, particularly alkylimidazolinium betaines or their salts, are preferred). We are not persuaded for reasons similar to those discussed above with respect to other rejections. In particular, all disclosures in the prior art, not only examples and preferred embodiments, must be considered, In re Lamberti, 545 F.2d at 750, and “[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., 800 F.2d 1091, 1097 (Fed. Cir. 1986). In this case, although Arai does not specifically disclose CAPB, Arai teaches that undesirable precipitation resulting from a composition comprising potassium nitrate and SLS may be inhibited by also including an ampholytic (i.e., amphoteric) surface active agent (and a polyhydric alcohol) in the composition, and further teaches that a variety of ampholytic Appeal 2020-005619 Application 15/577,783 44 surfactants, including, e.g., alkylamide betaines, may be used. FF34, FF37. Baig ’442 further teaches that CAPB is an amphoteric surfactant suitable for use in oral compositions. FF47. Thus, it would have been obvious to use CAPB in place of 2-alkyl N-carboxymethyl-N-hydroxyethyl imidazolinium betaine in Arai’s composition. In re Fout, 675 F.2d 297, 301 (CCPA 1982) (“Express suggestion to substitute one equivalent for another need not be present to render such substitution obvious.”). We are also not persuaded by Appellant’s contention that “[t]he amount of SLS present in Arai’s exemplary formulation . . . does not fall within the claimed range” and that “it would be practically impossible to select the claimed amounts of SLS and CAPB from the broad ranges disclosed in Arai without further teachings.” Appeal Br. 11, 13; see also Reply Br. 10 (contending that “[t]he ranges disclosed in Arai are very broad[] compared to the . . . ranges recited in claim 1”). Although Arai does not teach a specific example formulation having SLS within the claimed range, Arai teaches SLS in an amount of 0.01% to 5% or 0.05% to 2% of the composition, which encompasses and/or overlaps the claimed 2.0–3.0 weight % SLS. FF36. Similarly, although Arai does not specifically teach CAPB, Arai teaches an amount of ampholytic surface active agent from 0.001% to 5%, preferably 0.01% to 2%, which encompasses the claimed CAPB concentration of 0.30 to 0.60 weight %. FF40. In short, the amounts of SLS and ampholytic surfactant disclosed in the prior art encompass and/or overlap the claimed SLS and CAPB concentration ranges and renders these limitations prima facie obvious. In re Peterson, 315 F.3d at 1329–1330. Furthermore, Arai and Baig ’442 teach that the amount of surfactant in an oral care composition is a result effective variable for foam formation Appeal 2020-005619 Application 15/577,783 45 and, in the case of amphoteric surfactant, inhibition of undesirable precipitation. FF34, FF36, FF38–FF40. Thus, it would require no more than routine optimization for a skilled artisan to arrive at the claimed invention. In re Aller, 220 F.2d at 456 (“[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.”). Appellant contends that, “[b]ased on the art cited, the Examiner has failed to show motivation to make a composition as claimed, to improve the foaming properties of an oral care composition comprising a potassium salt, because the art did not even address that problem.” Appeal Br. 13–14. We are not persuaded. “In determining whether the subject matter of a patent claim is obvious, neither the particular motivation nor the avowed purpose of the patentee controls. . . . [A]ny need or problem known in the field of endeavor at the time of invention and addressed by the patent can provide a reason for combining the elements in the manner claimed.” KSR, 550 U.S. at 419–20. In summary, for the reasons discussed above, we are not persuaded by Appellant’s contention that the Examiner has not articulated reasons why a skilled artisan would have been “motivated to modify . . . Arai’s composition (Example 1) by (i) replacing 2-alkyl-N-carboxymethyl-N- hydroxyethylimidazolinium betaine, which is taught be preferred by Arai, with CAPB and (ii) changing the amounts of SLS and CAPB to the claimed ranges.” Appeal Br. 14; see also Reply Br. 10. Finally, Appellant contends that the subject matter of claim 1 exhibits unexpected results. Appeal Br. 14–15; Reply Br. 10–12. We are unpersuaded for the same reasons discussed above with respect to the other Appeal 2020-005619 Application 15/577,783 46 rejections: Appellant has not provided evidence of unexpected results that is commensurate with the claim scope or that shows unexpected results as compared to the closest prior art, in this case Arai’s composition comprising 1.5% SLS and 1.0% 2-alkyl N-carboxymethyl-N-hydroxyethyl imidazolinium betaine (FF41). CONCLUSION In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–4, 11–15 103 Gorlin 1–4, 11–15 1–4, 9–15, 20, 21 103 Gorlin, Smitherman 1–4, 9–15, 20, 21 1–4, 9–13, 20, 21 103 Barth 1–4, 9–13, 20, 21 14, 15 103 Barth, Smitherman 14, 15 1–4, 9–15, 20, 21 103 Nowak 1–4, 9–15, 20, 21 1–4, 9–15, 20, 21 103 Baig 1–4, 9–15, 20, 21 1–4, 9–15, 20, 21 103 Arai, Baig ’442 1–4, 9–15, 20, 21 Overall Outcome 1–4, 9–15, 20, 21 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). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED Copy with citationCopy as parenthetical citation