Ex Parte Cetti et alDownload PDFPatent Trial and Appeal BoardOct 19, 201611881535 (P.T.A.B. Oct. 19, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 111881,535 07/27/2007 27752 7590 10/21/2016 THE PROCTER & GAMBLE COMPANY Global IP Services Central Building, C9 One Procter and Gamble Plaza CINCINNATI, OH 45202 FIRST NAMED INVENTOR Jonathan Robert Cetti 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 10862 1332 EXAMINER CHANG, KYUNG SOOK ART UNIT PAPER NUMBER 1613 NOTIFICATION DATE DELIVERY MODE 10/21/2016 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): centraldocket.im @pg.com pair_pg@firsttofile.com mayer.jk@pg.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JONATHAN ROBERT CETTI, CHRISTOPHER DEAN PUTNAM, ANDRES ERNESTO VELARDE, KAREN LEHNHOFF, EDWARD DEWEY SMITH III, and JULIEN CLAUDE PLOS 1 Appeal2015-001278 Application 11/881,535 Technology Center 1600 Before MELANIE L. McCOLLUM, ULRIKE W. JENKS, and TIMOTHY G. MAJORS, Administrative Patent Judges. MAJORS, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134 involving claims to an article for dispensing a liquid personal care product, which have been rejected as anticipated and obvious. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 Appellants identify the Real Party in Interest as The Proctor & Gamble Company. (Br. 1.) Appeal2015-001278 Application 11/881,535 STATEMENT OF THE CASE According to the Specification, "[ c ]onsumers often habituate or tire of a particular scent of a personal care composition over time." (Spec. 1: 13- 14.) Appellants' "invention relates to a personal care article that comprises a single chamber package and a liquid personal care product ... [wherein] the dispensed liquid personal care product changes in fragrance character over the product lifetime, which overcomes the problem of consumer habituation to a scent." (Id. at 1 :23-32.) Claims 1--4, 10, 11, 15, and 16 are on appeal. Claim 1 is illustrative: 1. A personal care article for dispensing and or applying a liquid personal care product comprising: a) a single chamber package comprising a dispensing orifice, a first zone proximate to said dispensing orifice and a second zone distal to said dispensing orifice; and b) a liquid personal care product comprising a first personal care composition substantially disposed in said first zone and a second personal care composition substantially disposed in said second zone; wherein said first composition comprises a first fragrance character; wherein said second composition comprises a second fragrance character; wherein said first fragrance character is distinct from said second fragrance character; wherein said first composition and said second composition are separate; and wherein said first composition and said second composition are dispensed sequentially. (Br. 5 (Claims App'x).) 2 Appeal2015-001278 Application 11/881,535 The claims stand rejected2 as follows: I. Claims 1, 5, 7, 12, 23, and 25 under 35 U.S.C. § 102(b) as anticipated by Kasturi. 3 (Final Act. 3-5.) II. Claims 1--4, 6, 8-11, 13-22, 24, and 26-28 as obvious under 35 U.S.C. § 103(a) over Kasturi, Littau,4 and Trinh,5 as further evidenced by SIDS Report6 and Hayward.7 (Final Act. 6-14.) I Issue Does the preponderance of evidence on this record support the Examiner's finding that Kasturi teaches Appellants' invention as recited in claims 1, 5, 7, 12, 23, and 25? Findings of Fact (FF) FF 1. We adopt the Examiner's findings regarding the teachings of Kasturi (Final Act. 3--4), and provide the following for emphasis. FF 2. Kasturi teaches a product for "sequential dispensing of a consumable layered liquid composition" (Kasturi i-f 13) as depicted below: 2 The obviousness-type double-patenting rejection was withdrawn. (Ans. 2.) 3 Kasturi et al., US 2004/0053798 Al, published Mar. 18, 2004 ("Kasturi"). 4 Littau et al., US 7,012,049 B2, issued Mar. 14, 2006 ("Littau"). 5 Trinh et al., US 5,540,853, issued July 30, 1996 ("Trinh"). 6 SIDS Initial Assessment Report For SIAM 14, (Mar. 2002) ("SIDS Report"). 7 Hayward et al., US 2002/0010110 Al, published Jan. 24, 2002 ("Hayward"). 3 Appeal2015-001278 Application 11/881,535 l4 (Id. at Fig. 1.) As shown in Figure 1, Kasturi teaches container ( 10) comprises a first liquid layer (12) and a second liquid layer (14), which may be dispensed sequentially from opening (16). (Id. at i-f 63.) The liquids may be kept separate based on differences in respective densities. (Id.) FF 3. Kasturi teaches [B]enefit agents in the first and the second liquid layers may be the same or different types and may be incorporated in the same or different amounts. . . . The benefit agents may comprise any suitable fabric care agent known to those in the art. Nonlimiting examples ... include: surfactants, enzymes, bleaches, perfumes ... and mixtures thereof. (Id. at i-f 27.) Kasturi further teaches "the liquid compositions suitable for use herein can comprise water and perfume only" (id. at i-f 53) and Kasturi discloses that such perfumes may include, for example, "natural extracts and 4 Appeal2015-001278 Application 11/881,535 essences ... such as orange oil, lemon oil, rose extract, lavender ... and the like" (id. at ii 40). FF 4. The Specification discloses The term "personal care composition" as used herein, refers to compositions intended for topical application to the skin or hair. The compositions of the present invention are rinse-off formulations, in which the product is applied topically to the skin or hair and then is subsequently rinsed within minutes from the skin or hair with water, or otherwise wiped off using a substrate with deposition of a portion of the composition. . . . Examples of personal care compositions of the present invention can include but are not limited to shampoo, conditioning shampoo, hair conditioner, body wash, moisturizing body wash, shower gels, skin cleansers, cleansing milks, hair and body wash, in shower body moisturizer, pet shampoo, shaving preparations and cleansing compositions used in conjunction with or applied to a disposable cleansing cloth. (Spec. 3, 11. 5-17.) Principles of Law "[A]pparatus claims cover what a device is, not what a device does." Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1468 (Fed. Cir. 1990). Analysis Appellants argue the patentability of the rejected claims as a group. We thus select claim 1 as representative. According to Appellants, "[p ]ersonal care compositions, as defined in the specification on page 3, are those compositions intended for topical application to the skin or hair." (Br. 3.) And, Appellants argue that "[t]he Office Action gives no reasoning as to why a teaching of a consumable 5 Appeal2015-001278 Application 11/881,535 layered liquid composition to treat a fabric article [as in Kasturi] could inherently be used for application to the skin or hair, i.e. personal care." (Id.) This argument is unpersuasive. As correctly noted by the Examiner, "the intended use of the claimed composition does not patentably distinguish the composition . . . [and] the intended use 'personal care' does not create a structural difference, thus the intended use is not limiting." (Ans. 3.) "[T]he patentability of apparatus or composition claims depends on the claimed structure, not on the use or purpose of that structure." Catalina Mktg. Int'!, Inc. v. Coolsavings.com, Inc., 289 F.3d 801, 809 (Fed. Cir. 2002). Kasturi teaches a dispensing apparatus with all the structural features of claim 1. (FF 2-3.) The mention of "personal care" in claim 1 is an intended use of the claimed apparatus. So too, Appellants' "definition" of "personal care composition" fails to structurally distinguish over the prior art. (FF 4.) Instead that definition merely invokes more "intended use" language - providing that the "compositions [are] intended for topical application to the skin or hair." (Id. (emphasis added).) Although Appellants further argue that "there are different requirements for formulating compositions intended for use on the skin or hair than those intended for use on fabric," Appellants provide no persuasive evidence to support that contention. (Br. 3.) In any event, Kasturi teaches that its liquids can comprise ingredients like water, perfumes, and surfactants. (FF 3.) Appellants have not shown that compositions of such generic ingredients are structurally distinct from the scope of the present claims; quite the opposite, the dependent claims indicate that such 6 Appeal2015-001278 Application 11/881,535 ingredients are not excluded from the scope of the claims. (See, e.g., claim 5 ("said first personal care composition comprises a first concentration of surfactant") and claim 7 ("said personal care composition comprises a first partitioned perfume component"). Conclusion of Law The preponderance of the evidence of record supports the Examiner's finding that Kasturi teaches the invention of claim 1. Claims 5, 7, 12, 23, and 25 have not been argued separately and thus fall with claim 1. 37 C.F.R. § 41.37(c)(l)(iv). II The Examiner concluded that claims 1--4, 6, 8-11, 13-22, 24, and 26- 28 would have been obvious over Kasturi, Littau, Trinh, SIDS Report, and Hayward. Appellants adopt their argument about the alleged deficiencies of Kasturi related to Rejection I, and contend the other cited art does not cure those deficiencies. (Br. 3--4.) Having found no deficiencies with Kasturi as discussed above, Appellants' argument is unpersuasive. We thus affirm the obviousness rejection for the reasons set forth by the Examiner in the Final Action and Answer. SUMMARY We affirm the rejection of claims 1, 5, 7, 12, 23, and 25 under 35 U.S.C. § 102(b) as anticipated by Kasturi. 7 Appeal2015-001278 Application 11/881,535 We affirm the rejection of claims 1--4, 6, 8-11, 13-22, 24, and 26-28 under 35 U.S.C. § 103(a) over Kasturi, Littau, Trinh, SIDS Report, and Hayward. 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 8 Copy with citationCopy as parenthetical citation