Ex Parte Evers

Patent Trial and Appeal Board

Sep 26, 2012

12166771 (P.T.A.B. Sep. 26, 2012)

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.
12/166,771 07/02/2008 Marc Francois Theophile Evers CM3197 4222
27752 7590 09/27/2012
THE PROCTER & GAMBLE COMPANY
Global Legal Department - IP
Sycamore Building - 4th Floor
299 East Sixth Street
CINCINNATI, OH 45202
EXAMINER
ASDJODI, MOHAMMADREZA
ART UNIT PAPER NUMBER
1767
MAIL DATE DELIVERY MODE
09/27/2012 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL
AND APPEAL BOARD
____________

Ex parte MARC FRANCOIS THEOPHILE EVERS
____________

Appeal 2011-010793
Application 12/166,771
Technology Center 1700
____________

Before BEVERLY A. FRANKLIN, JAMES C. HOUSEL, and
GEORGE C. BEST, Administrative Patent Judges.

FRANKLIN, Administrative Patent Judge.

DECISION ON APPEAL

Appellant appeals under 35 U.S.C. § 134 from the Examiner's
rejection of claims 1, 3, 4, and 6-12. We have jurisdiction under 35 U.S.C.
§ 6.
STATEMENT OF THE CASE
Claim 1 is representative of the subject matter on appeal and is set
forth below:
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Application 12/166,771

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1. A laundry multi-compartment pouch made from a water-soluble
film and having at least two compartments, said multi-compartment
pouch comprising a composition comprising a solid component and a
liquid component, wherein;
(a) said first compartment comprising a liquid component, said
liquid compartment comprising triacetin,
(b) said second compartment comprises a solid component, said
solid compartment containing from about 70 to about 80% of a
peroxide source.

The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Sommerville-Roberts 6,878,679 B2 Apr. 12, 2005
Boutique 6,815,410 B2 Nov. 9, 2004
Gray 3,655,567 Apr. 11, 1972

THE REJECTION
1. Claims 1, 3, 4, and 6-12 are rejected under 35 U.S.C. §103(a) as being
unpatentable over Sommerville-Roberts in view of Boutique and Gray.
ANALYSIS

As an initial matter, Appellant has not presented separate arguments
for all of the rejected claims. Rather, Appellant’s arguments are principally
directed to independent claim 1. Any claim not separately argued will stand
or fall with its respective independent claim. See 37 C.F.R.
§ 41.37(c)(1)(vii).
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We essentially adopt the Examiner’s findings pertinent to the issues
raised by Appellant. We therefore incorporate the Examiner’s position as
set forth in the Answer. We add the following for emphasis.
Appellant argues:
[N]owhere do Sommerville-Roberts et al. disclose the claimed
arrangement of the liquid compartment containing the bleach activator
and the solid compartment containing the bleaching agent.
Br. 6.
In response, the Examiner states:
. . . it is noted that: the very reason for separation of bleach
ingredient and their corresponding activator(s) is prevention of
activation of bleaching agents prior to its application as a cleaner.
Therefore, if physical states of these ingredients (solid) are as such
that they do not cause any premature activation of bleach. Therefore,
they are all in solid form, they could be accompanied, or packaged,
together. Consequently, since Sommerville-Roberts’ bleach and
bleach activator are both solid, and not reactive in dry state, therefore
they are placed in one compartment of the pouch for the solid
ingredients, to be separate from the liquid ingredient(s). Applicant’s
bleaching ingredient is in dry form and solid state, whereas the bleach
activator (i.e. namely triacetin) is a liquid compound. Therefore it is
only natural, and obvious, to place them separately in the container
with dual compartment, for the purpose of prevention of premature
reaction between peroxygen compound and bleach activator. The
prior art of record’s multi-compartment pouch, and it’s [sic] chemical
set up, is in fact identical to that of instant claim with the only
difference of physical state of bleach activator, not being liquid.

Ans. 6.

Hence, it is the Examiner’s position that if one wants to prevent
activation of the bleaching agent prior to its application as a cleaner, it
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would be within the skill of the ordinary artisan that physical states dictate
whether or not the bleach ingredient and corresponding activator are in a
single compartment versus separate compartments. If they are both solids,
they can be in a single compartment because they are not reactive in the dry
state, whereas if one is in solid form and the other is in liquid form, or if
both are in liquid form, each must be separated if one wants to prevent
activation of the bleaching agent prior to its application as a cleaner. We
agree, and note that an obviousness analysis “need not seek out precise
teachings directed to the specific subject matter of the challenged claim, for
a court can take account the inferences and creative steps that a person of
ordinary skill in the art would employ.” KSR Int’l Co. v. Teleflex Inc., 550
U.S. 398, 418 (2007).
Appellant then argues that Sommerville-Roberts fail to disclose the
claimed amount of peroxide source being from about 70 to about 80%.
Br. 6. In a similar fashion, Appellant also argues that the claimed amount of
peroxide is in the context of being in a separate compartment from the
bleach activator, and that the Examiner’s “mere optimization” position
regarding the amount of peroxide is insufficient. Br. 8. It is the Examiner’s
position that the concentration of the peroxide is an obvious design
expedient, and the Examiner relies upon Gray in support of this position.
Ans. 4-5 and 6-7. The Examiner’s position is a reasonable one.
Optimization of a variable recognized in the prior art to be a result effective
variable is the type of routine step ordinarily within the skill in the art and,
therefore, supportive of a conclusion of obviousness. In re Boesch, 617 F.2d
272, 276 (CCPA 1980); see also In re Aller, 220 F.2d 454, 456 (CCPA
1955) (“where the general conditions of a claim are disclosed in the prior art,
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it is not inventive to discover the optimum or workable ranges by routine
experimentation.”). Absent evidence of criticality, we agree for the reasons
stated by the Examiner on pages 4-5 and 6-7 of the Answer.
With regard to Boutique (applied by the Examiner for teaching
triacetin as a known bleach activator), Appellant argues that because of
1) the extensive lists of bleach activators in Boutique, and because 2)
triacetin is described as “. . . much more weakly perhydrolizing precursors”,
that there is no guidance of the desirability of such a selection. We are not
convinced by such argument. It appears that Appellant, in making this
argument, is arguing that the Examiner is applying an improper “obvious to
try” rationale in support of an obviousness rejection. An “obvious to try”
rationale may support a conclusion that a claim would have been obvious
where one skilled in the art is choosing from a finite number of identified,
predictable solutions, with a reasonable expectation of success. “[A] person
of ordinary skill has good reason to pursue the known options within his or
her technical grasp. If this leads to the anticipated success, it is likely that
product [was] not of innovation but of ordinary skill and common sense. In
that instance the fact that a combination was obvious to try might show that
it was obvious under § 103.” KSR, 550 U.S. at 421. Appellant has not
convinced us that the lists of peroxy precursors in column 16, ll. 36-50 are
not from a finite number of identified predictable solutions. Hence, we are
not convinced of error in this regard.
CONCLUSIONS OF LAW AND DECISION
The rejection is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1).
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AFFIRMED

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