Ex Parte Cetti et al

Patent Trial and Appeal Board

Oct 19, 2016

11881535 (P.T.A.B. Oct. 19, 2016)

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