Ex Parte Burkinshaw et al

Patent Trial and Appeal BoardDec 29, 2017

14577285 (P.T.A.B. Dec. 29, 2017)

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. 14/577,285 12/19/2014 Stephen Martin BURKINSHAW 51047-002003 7795 21559 7590 CLARK & ELBING LLP 101 FEDERAL STREET BOSTON, MA 02110 EXAMINER KHAN, AMINA S ART UNIT PAPER NUMBER 1761 NOTIFICATION DATE DELIVERY MODE 01/03/2018 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): patentadministrator@clarkelbing.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte STEPHEN MARTIN BURKINSHAW and JANE HOWROYD Appeal 2017-004804 Application 14/577,285 Technology Center 1700 Before MICHAEL P. COLAIANNI, GEORGE C. BEST, and N. WHITNEY WILSON, Administrative Patent Judges. COLAIANNI, Administrative Patent Judge. DECISION ON APPEAL Appellants1 appeal under 35 U.S.C. § 134 the final rejection of claims 66—76, 78—90, 92, and 93. We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b). We REVERSE. Appellants’ invention is directed to a method for cleaning a soiled substrate by treating a moistened substrate with polymeric particles. Spec. 2:22—25. The cleaning formulation is said to offer environmental benefits 1 Appellants identify the real party in interest as “Xeros Limited” (Appeal Br. 1). Appeal 2017-004804 Application 14/577,285 because it is essentially free of organic solvents and requires limited amounts of water. Id. at 2:17—19. Claim 66 is illustrative (emphasis added): 66. A method for cleaning a soiled substrate, said method comprising treating the soiled substrate with water to provide a premoistened soiled substrate and treating the premoistened soiled substrate with a formulation comprising a multiplicity of polymeric particles, wherein said polymeric particles contact the substrate during the cleaning process, wherein said formulation is free of organic solvents, wherein said polymeric particles comprise polyamide, polyesters or polyurethanes, or their copolymers, wherein said polymeric particles are re-used in further cleaning procedures according to the method, and wherein the soiled substrate comprises a textile fiber or leather. Appeal Br. 12 (App. A-Claims). Appellants appeal the following rejection: 1. Claims 66—76, 78—90, 92, and 93 are rejected under 35 U.S.C. § 103(a) as unpatentable over Sadao (JP 4-241165, published Aug. 28, 1992, and relying on an English translation dated Mar. 3, 2011, “Sadao”) in view of Furgal et al. (US 4,014,105, issued Mar. 29, 1977, “Furgal”). FINDINGS OF FACT & ANAFYSIS Appellants argue, inter alia, that there is no motivation to combine Sadao and Furgal because “they are unrelated in purpose and mechanism of action.” Appeal Br. 5. Appellants assert that “Sadao is directed to a method of producing a stonewash[-]like effect on new fabrics using a solid abrasive embedded in a rubber ball,” whereas “Furgal is directed to methods of delivering liquid conditioning agents, e.g., fabric softener, from a hollow 2 Appeal 2017-004804 Application 14/577,285 container to clean laundry in a dryer.” Id. Appellants further distinguish each applied prior art reference by noting that Sadao’s stonewashing effects result from physical abrasion, whereas Furgal’s conditioned clothes result from chemical alteration. Id. at 5—6. Thus, according to Appellants, the ordinary skilled artisan would not have combined teachings regarding liquid reagent delivery in a dryer for modification of solid abrasive delivery in a washing machine. Id. at 6. The Examiner responds by asserting that Furgal “demonstrate[s] the functional equivalence of substituting polyamide (nylon), polyurethane or polyester plastic for rubber plastic as balls used to apply cleaning agents . . . to textile materials in a washing machine.” Ans. 5 (emphasis added). The Examiner argues that Sadao teaches “[t]he method steps of removing soils such as dyes and surface agents from textiles by friction with plastic balls containing cleaning materials.” Id. at 5—6 (emphasis added). The preponderance of the evidence of record favors Appellants’ arguments of nonobviousness. The Examiner’s rejection of claim 66 is based upon a determination that it would have been obvious for the ordinary skilled artisan to modify Sadao’s abrasive balls by “using nylon as the material for the particles because Furgal teaches this material is functionally equivalent to [Sadao’s] rubbers and alkylenes ... in providing laundry, fabrics or fibers a treatment during laundering methods.” Id. at 3; see also id. at 5, 6, 7 (finding that Sadao teaches washing with a plurality of abrasive balls). Our review of Sadao, however, finds that it is silent as to any teaching or suggestion of a “multiplicity of polymeric particles” as recited in claim 66. Likewise, the Examiner does not point to any disclosure demonstrating 3 Appeal 2017-004804 Application 14/577,285 that Sadao discloses or suggests treating premoistened soiled substrates with more than one ball.2 The Examiner’s conclusion that Sadao teaches “[t]he method steps of removing soils ... by friction with plastic balls” is not supported by the preponderance of the evidence. Id. at 5—6 (emphasis added); see, e.g., Sadao Example 1,127 (Sadao exemplifies “performing stirring cleaning while frictionally contacting jeans with a rubber ball' (emphasis added)). Furthermore, we agree with Appellants that the Examiner erroneously finds that Furgal teaches that polyethylene, polypropylene, and nylons are equivalent in all laundering procedures, including Sadao’s washing method. Reply Br. 3. Rather, Appellants have the better position that Furgal merely teaches that a container for dispensing fluid in a tumble dryer3 * 5can be made of such materials. On this record, we find that the preponderance of the evidence does not support a finding that Sadao, in view of Furgal, teaches a multiplicity of polymeric particles comprised of polyamide, polyesters, polyurethanes, or copolymers thereof, as required in claim 66. 2 Although Furgal discloses using a “plurality of dispensing containers,” we find that Furgal’s teachings regarding polymeric materials for containers in dryers would not have suggested applying this teaching to all laundering procedures including during a washing operation for the reasons set forth herein. Furgal 5:43. 3 We acknowledge that Furgal provides a single mention of a washing machine. Furgal 8:6. We, however, agree with Appellants that this sole mention is, and would be seen by a person of skill in the art as, a typographical error in view of the purpose of FurgaFs dispensing containers, i.e., avoiding the addition of conditioners to a washing machine. Appeal Br. 5 (citing Furgal 8:11—16). 4 Appeal 2017-004804 Application 14/577,285 Accordingly, we reverse the Examiner’s § 103 rejection of claims 66— 76, 78-90, 92, and 93. 37 C.F.R. § 41.37(c)(l)(iv). DECISION The Examiner’s decision is reversed. ORDER REVERSED 5