Ex Parte Hodge et al

Patent Trial and Appeal BoardOct 25, 2016

13116746 (P.T.A.B. Oct. 25, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/116,746 05/26/2011 43896 7590 10/27/2016 ECOLAB USA INC MAIL STOP ESC-F7, 655 LONE OAK DRIVE EAGAN, MN 55121 FIRST NAMED INVENTOR Charles A. Hodge 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. 2416USC1 6123 EXAMINER KHAN, AMINA S ART UNIT PAPER NUMBER 1761 NOTIFICATION DATE DELIVERY MODE 10/27/2016 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): connie.scheff@ecolab.com sarah.dannecker@ecolab.com ecolab_PAIR@firsttofile.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte CHARLES A. HODGE, JULIO R. PANAMA, AMANDA R. BLATTNER, NICHOLAS A. POPP, and DAVID W. GOHL Appeal2015-004939 Application 13/116,746 Technology Center 1700 Before TERRY J. OWENS, ROMULO H. DELMENDO, and BRIAND. RANGE, Administrative Patent Judges. RANGE, Administrative Patent Judge. DECISION ON APPEAL SUMMARY Appellants 1 appeal under 35 U.S.C. Â§ 134(a) from the Examiner's decision rejecting claims 3-8. We have jurisdiction. 35 U.S.C. Â§ 6(b). We AFFIRM. 1 According to the Appellants, the real party in interest is Ecolab Inc. Appeal Br. 3. Appeal2015-004939 Application 13/116,746 STATEMENT OF THE CASE Appellants describe the present invention as relating to a method of treating a fabric to impart softness with reduced yellowing. Spec. 1: 13-1 7. In particular, the invention relates to treating the textile with a composition comprising an amino-functional silicone and a quaternary ammonium. Id. Claim 3, reproduced below with emphases added to certain key recitations, is illustrative of the claimed subject matter: 3. Method of conditioning fabrics, comprising: (a) washing cotton fabric with a wash pH greater than 9, (b) contacting the washed fabric with a liquid_ composition, the composition consisting of (i) an amino-functional silicone, an amidoamine quaternary ammonium, up to 95 wt. % water, salt, viscosity controlling agent, fragrance, and (ii) one or more dye transfer inhibition/color protection agent, odor removal/odor capturing agent, soil shielding/soil releasing agent, ultraviolet light protection agents, sanitizing agent, disinfecting agent, anti-pilling agents, souring agent, mildew removing agent, enzyme, starch agent, bleaching agent, and mixtures thereof; ( c) drying said fabric so that the fabric temperature is 200 degrees or greater wherein the delta b* of cotton fabric is greater (more negative) than the delta b* of a control when subjected to at least 15 cycles, a cycle is comprised of a wash step according to step (a) followed by a conditioning step according to step (b) and drying step according to step ( c) and the softness of the fabric does not decrease. 2 Appeal2015-004939 Application 13/116,746 Appeal Br. 2 21 (Claims Appendix). REFERENCES The Examiner relies upon the prior art below in rejecting the claims on appeal: Wentz Gangwisch et al., (hereinafter "Gangwisch") Sunder et al., (hereinafter "Sunder") Lentsch et al., (hereinafter "Hubig"3) Sajic et al., (hereinafter "Sajic") us 3,257,739 us 3,748,093 us 6,737,390 US 2004/0167056 Al US 2006/0264352 Al REJECTIONS June 28, 1966 July 24, 1973 May 18, 2004 Aug. 26, 2004 Nov. 23, 2006 The Examiner maintains the following rejections on appeal: Rejection 1. Claims 3-8 under 35 U.S.C. Â§ 103(a) as unpatentable over Sajic in view of Sunder and further in view of Wentz. Ans. 2. Rejection 2. Claims 3-8 under 35 U.S.C. Â§ 103(a) as unpatentable over Saj ic in view of Gangwisch and Wentz in further view of Hubig. Id. at 4. ANALYSIS After having considered the evidence presented in this Appeal and each of Appellants' contentions, we are not persuaded that Appellants 2 In this decision, we refer to the Final Office Action mailed April 10, 2014 ("Final Act."), the Appeal Brief filed September 2, 2014 ("Appeal Br."), the Examiner's Answer mailed January 30, 2015 ("Ans."), and the Reply Brief filed March 30, 2015 ("Reply Br."). 3 Lentsch is the first named inventor, but the Examiner refers to the reference as Hubig. Ans. 4. To avoid confusion, we also refer to the reference as Hubig. 3 Appeal2015-004939 Application 13/116,746 identify reversible error, and we affirm the Examiner'sÂ§ 103(a) rejections for the reasons expressed in the Final Office Action and the Answer. We add the following primarily for emphasis. We review the appealed rejections for error based upon the issues identified by Appellants and in light of the arguments and evidence produced thereon. Cf Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) ("it has long been the Board's practice to require an applicant to identify the alleged error in the examiner's rejections")). Appellants do not separately argue claims 4-8. We therefore limit our discussion to claim 3. Claims 4-8 stand or fall with claim 3. 37 C.F.R. Â§ 41.37(c)(l)(iv) (2013). Each of the Examiner's two rejections are discussed below. Rejection 1. The Examiner rejects claims 3-8 as obvious over Sajic in view of Sunder and further in view of Wentz. Ans. 2. The Examiner finds that Sajic teaches a liquid fabric softener including "amido-amine quats" and "aminofunctional silicones." Id.; see also, e.g., Sajic ,-i,-i 26, 56-58, 66, 70, 76, 77. The Examiner finds that Sajic does not explicitly teach washing with alkaline detergent at pH greater than 9 or 10, drying the fabrics so that the fabric temperature is 200 degrees Fahrenheit or greater, or the recited delta *b. Ans. 2. The Examiner, however, finds that Sunder teaches "conventional" washing with alkaline detergent at pH above 11, 10, or 9 and that Wentz teaches drying so that the garment temperature reaches about 220Â° Fin order to avoid wrinkles. Ans. 3; see also Sunder 18:25-55; 63:65- 64:3; Wentz 4:48-55. The Examiner also finds that the proposed combination would maintain or increase softness while providing the claimed delta *b because the prior art teaches similar materials and methods. 4 Appeal2015-004939 Application 13/116,746 The preponderance of the evidence supports Examiner's findings and obviousness conclusion. Appellants argue that a person of skill in the art would not combine the references because "while it may be known in the consumer and residential sector to use fabric softening compositions comprising quaternary ammoniums and silicones as softening agents," a person of skill would not have used such a composition in "the harsher conditions found in industrial and institutional settings" due to premature yellowing. Appeal Br. 12, 14 (italics omitted). The Examiner, however, finds that pH above 9 is conventional "for washing in residential as well as commercial conditions" and finds that drying at temperatures of 220 degrees F "is conventional" and beneficially provides material with "a wrinkle free condition." Ans. 7; see also Sunder 1: 13-17 (suggesting that its teachings apply in both commercial and consumer settings); 60:3-7 (same); Wentz 4:48-55 (explaining that high temperature drying results in "a substantially wrinkle-free condition"). These factual underpinnings adequately support the Examiner's obviousness conclusion. Appellants' argument does not persuasively rebut the Examiner's rationale for combining references because the argument is not well- supported by evidence. See Estee Lauder Inc. v. L 'Orea!, S.A., 129 F.3d 588, 595 (Fed. Cir. 1997) ("Counsel's argument cannot take the place of evidence lacking in the record."). Appellants rely on Table 8 of the Specification as evidence and state that state that Table 8 shows "comparative data exemplifying how combining consumer softening compositions with commercial conditions provides deleterious results." Appeal Br. 12-13; see also Spec. 29:8-31: 1. We agree with the Examiner, however, that the Table 5 Appeal2015-004939 Application 13/116,746 8 results are not commensurate in scope with claim 3. Ans. 8. Rather, the Table 8 results relate to specific compositions, conditions, and concentration ranges while claim 3 is broader. Id. Moreover, Appellants present no evidence that the results of Table 8 are unexpected. Also, according to the Specification, a low ~b value is desirable because a low ~b indicates less yellowing. Spec. 11 :24-30. Table 8, however, indicates that, at a drying temperature of 200Â° F and 240Â° F, the control not having amino functional silicone (Basic Conditioner 1) has a lower ~b than the invention having the amino functional silicone (Composition A). Spec. 29:8-17. Thus, the Table does not establish unexpectedly improved results for the invention over the scope of claim 3. Appellants also emphasize that claim 3 recites "the liquid composition consisting of an amino-functional silicone ... bleaching agent, and mixtures thereof' and emphasize that its claims "do not include optical brightening agents and surfactants." Appeal Br. 13. The Examiner, however, finds that the cited references also do not require surfactants or optical brightening agents (Ans. 8), and Appellants fail to persuasively rebut this finding of fact. Rather, Appellants argue that the cited art does not recognize "excluding such yellow-masking components." Reply Br. 2. But because the prior art teaches does not teach that the liquid composition having amino-functional silicone and amidoamine quaternary ammonium requires such components, the preponderance of the evidence supports that those components are not included in the prior art composition. Cf Sud- Chemie, Inc. v. Multisorb Technologies, Inc., 554 F.3d 1001, 1004-05 (Fed. Cir. 2009) (finding claim requiring "uncoated" film satisfied where prior art "plainly teaches that containers can be made of films that are heat sealed 6 Appeal2015-004939 Application 13/116,746 without the use of adhesives, and thus without coatings" and where patent owner "has not offered any evidence that a reference to a microporous or laminate film would be understood by one of skill in the art as contemplating a film with an adhesive coating attached"). Indeed, Sajic teaches that "other additives" are optional (Sajic ii 25), and this suggests that such other additives may be excluded. See Upsher-Smith Labs., Inc. v. Pamlab, L.L.C., 412 F.3d 1319, 1322-23 (Fed. Cir. 2005) (holding that prior art disclosing optional addition of antioxidants read on claim recitation "essentially free of antioxidants"). Because Appellants fail to identify reversible Examiner error, we sustain the Examiner's rejection of claims 3-8 as obvious over Sajic in view of Sunder and further in view of Wentz. Rejection 2. The Examiner also rejects claims 3-8 as obvious over Sajic in view of Gangwisch and Wentz in further view of Hubig. Id. at 4. The teachings of Saj ic and Wentz are discussed above. The Examiner finds that Gangwisch teaches wash water of pH 8.9 to 9.8 up to pH 10.4. Ans. 5; see also Gangwisch 11 :3-11. The Examiner relies on Hubig to demonstrate that the claimed whiteness (delta b*) "is known and desired in repeated industrial launderings." Appeal Br. 5-6, 9; Hubig ii 45. The Examiner's findings and conclusion regarding motivation to combine are similar to those explained with respect to rejection 1 (Ans. 5-6, 9), and the preponderance of the evidence again supports the Examiner's findings and conclusion. Appellants argue that Gangwisch relies upon optical brighteners and that claim 3 excludes optical brighteners. Appeal Br. 16-17. The Examiner, however, relies on Sajic as providing the liquid fabric softener composition which includes amino-functional silicone and amidoamine quaternary 7 Appeal2015-004939 Application 13/116,746 ammonium. Ans. 4. The Examiner uses Gangwisch as teaching a high pH washing step. Id. at 5. Appellants' claims do not exclude use of an optical brightener during the washing step. Rather, the Examiner correctly concludes that the composition of claim 3 's "step (a) in which the cotton fabric is washed at a pH greater than 9 is open to any detergent." Ans. 8-9. Thus, claim 3 does not distinguish Gangwisch use of a washing detergent which includes an optical brightener. Appellants also argue that Hubig teaches a solid softener rather than a liquid softener and is therefore irrelevant. Appeal Br. 17; Reply Br. 2-3. The Examiner, however, relies on Sajic as teaching the liquid softening composition. Ans. 4. The Examiner relies on Hubig "to demonstrate the claimed whiteness retention using softeners of similar components is known and desired in repeated industrial launderings." Ans. 9. Appellants do not persuasively dispute the teachings of Hubig with respect to this more narrow point. Because Appellants do not demonstrate reversible Examiner error, we sustain the Examiner's rejection of claims 3-8 as obvious over Sajic in view of Gangwisch and Wentz in further view of Hubig. DECISION For the above reasons, we affirm the Examiner's rejection of claims 3-8. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ l.136(a). AFFIRMED 8