Ex Parte Hoffmann et al

Patent Trial and Appeal BoardOct 31, 2016

13132199 (P.T.A.B. Oct. 31, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/132, 199 06/01/2011 27387 7590 10/31/2016 LONDA, BRUCE S, NORRIS MCLAUGHLIN & MARCUS, PA 875 THIRD A VE, 8TH FLOOR NEW YORK, NY 10022 FIRST NAMED INVENTOR Martin Hoffmann 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. 101216-162 3621 EXAMINER MATTISON, LORI K ART UNIT PAPER NUMBER 1619 MAILDATE DELIVERY MODE 10/31/2016 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 MARTIN HOFFMANN and DIANA LEUKEL-SCHAFER1 Appeal2015-001488 Application 13/132, 199 Technology Center 1600 Before DEMETRA J. MILLS, JACQUELINE WRIGHT BONILLA, and DEVON ZASTROW NEWMAN, Administrative Patent Judges. NEWMAN, Administrative Patent Judge. DECISION ON APPEAL This appeal under 35 U.S.C. Â§ 134 involves claims to an aqueous cleaning composition containing two or more anionic surfactants. The Examiner entered rejections for obviousness. We have jurisdiction under 35 U.S.C. Â§ 6(b). We affirm-in-part. STATEMENT OF THE CASE The Specification discloses that the "present invention is related to an aqueous cleansing composition for keratin fibres, especially human hair, comprising at least two anionic surfactants comprising at least one amide group in their molecules." Spec. 1: 1-3. The Specification also discloses that an aim of the present invention 1 Appellants identify the Real Party in Interest as KAO GERMANY GMBH. App. Br. 2. Appeal2015-001488 Application 13/132, 199 is to provide an aqueous cleansing composition having optimal benefits in terms of foam properties such as its volume and creaminess as well as improved conditioning effects on keratin fibres, especially human hair, in terms of combability, smoothness, elasticity, softness, volume and body and at the same time washes out artificial hair colour in a lesser extend so that the coloured hair keeps its colour and therefore shiny and healthy I natural appearance. Id. at 1: 18-23. In addition: Present inventors have surprisingly found that an aqueous cleansing composition comprising at least two anionic surfactants comprising amide groups in their molecules and substantially free of alkyl sulphate and alkyl ether sulphate surfactants washes less colour out from hair so that long lasting colours are achieved and also provides excellent foam and conditioning properties to hair. Id. at 1 :24--28. The Issues Claims 1-5, 10-12, and 16 are on appeal. The following rejections are before us to review (Ans. 3--4): A. Claims 1, 3-5, 10, and 16 are rejected under 35 U.S.C. Â§ 103(a) as obvious over 3-Protein Shampoo2 and Fan3 2 http://www.amazon.com/Hobe-Naturals-3-protein-Shampoo-12- 0unce/dp/B001G7PVJQ (printed by Examiner 1/4/2013) ("3 Protein Shampoo") 3 Shimei Fan et al., US 2006/0263319 Al, published Nov. 23, 2006 ("Fan") 2 Appeal2015-001488 Application 13/132, 199 B. Claims 1, 3-5, 10, 12 and 16 are rejected under 35 U.S.C. Â§ 103(a) as obvious over 3-Protein Shampoo and Behrens.4 C. Claims 1, 3-5, 10, and 11 are rejected under 35 U.S.C. Â§ 103(a) as being obvious over Artec5 and Green & Clean. 6 D. Claims 1, 2, 3-5, 10, and 11 are rejected under 35 U.S.C. Â§ 103(a) as obvious over Artec and Green & Clean as applied to claims 1, 3-5, 10 and 11 above, and further in view of Pan. E. Claims 1, 3-5, 10, 11, and 12 are rejected under 35 U.S.C. Â§ 103(a) as obvious over Artec and Green & Clean as applied to claims 1, 3-5, 10 and 11 above, and further in view of Behrens. Claim 1, the sole independent claim, illustrates the appealed subject matter and reads as follows: 1. An aqueous cleansing composition for keratin fibres especially for human hair comprising a cationic polymer selected from cationic cellulose and its derivatives, cationic Caesalpinia spinosa gum and its derivatives, polyquatemium 6, polyquatemium 7, polyquatemium 67, polyquatemium 70 and polyquatemium-87, at least one glutamate surfactant according to the general formula 4 Jon Robert Behrens et al., U.S. Patent No. 5,672,576, issued Sept. 30, 1997 ("Behrens") 5Mrs-j, ARTec Orange Marigold Shampoo - Either Be Ready for Red or Be Ready to Pay!, EPINIONS (Jan. 12, 2005), http://www.eninions.com/review/ Artec 8oz Orange 1\tfarigold Shamnoo/co ntent 16822 l 707908?sb=l ("Artec"). 6 COSMETIC BUSINESS, Green & Clean (Sept. 30, 2008), http://wvvw.cosmeticsbusiness.com/technical/article _page/Green __ _ and Clea ... (entire link unavailable) ("Green & Clean") 3 Appeal2015-001488 Application 13/132, 199 o H coo-M+ II I I . + Ri-C-N-CH-(CH2)2-COO- M wherein Ri is a saturated or unsaturated, straight or branched alkyl chain with 7 to 17 C atoms, and M is independent from each other H, sodium or potassium, and at least one sarcosinate surfactant according to the general formula 0 CH3 R1-~ -~ -CH2-coo- M+ wherein Ri is preferably a saturated or unsaturated, straight or branched alkyl chain with 7 to 1 7 C atoms, and M is H, sodium or potassium, wherein the following combination of two surfactants are excluded from the scope: monosodium myristoyl glutamate and sodium cocoyl glycinate, N-lauroyl glutamate and sodium lauroyl alaninate, sodium lauroyl alaninate and sodium lauroyl glutamate, and wherein the composition is substantially free from alkylsulphate and alkyl ether sulphate surfactants. (App. Br. Claims Appx. 10-11). DISCUSSION Claims 1, 3-5, 10, and 16 over 3-Protein Shampoo and Fan The issue with respect to this rejection is whether a preponderance of the evidence supports the Examiner's rejection of claim 1 as obvious over 3- Protein Shampoo and Fan. The Examiner cited 3-Protein Shampoo as teaching a shampoo (i.e. cleansing composition) comprising deionized water (i.e. aqueous cleansing composition), cocoamidopropyl hydroxysultaine (i.e. an amphoteric surfactant), decyl glucoside (i.e. a nonionic surfactant of the recited general structure of claim 4 comprising an alkyl group with 10 carbon atoms (i.e. Rs), n=O, Z is a 5 carbon saccharide group and x=l), disodium 4 Appeal2015-001488 Application 13/132, 199 lauryl sulfosuccinate (i.e. anionic surfactant), sodium cocoyl glutamate (i.e. glutamate surfactant), sodium lauroyl sarcosinate (i.e. sarcosinate surfactant), dimethyl methyl siloxane (i.e. non- volatile silicone oil/conditioning agent) and chamomile extract (i.e. UV filter). Fin. Act. 4.7 The Examiner found that 3-Protein Shampoo does not teach use of "alkyl sulphates or alkyl either sulfates," i.e., the compounds specifically excluded in the last "wherein" clause of claim 1. Id. The Examiner further found that the 3-Protein Shampoo reference teaches that "the 3-Protein Shampoo, Conditioner and Frizz Control work synergistically to rejuvenate and repair dull, dry or damaged hair" but that the reference does not teach direct inclusion of a conditioning agent comprising a cationic polymer (i.e. cationic cellulose). Id. at 5. The Examiner found Fan teaches "shampoo compositions ... \'l1hich comprise \'l/ater and t\'l/O anionic surfactants," including sodium N-lauryl sarcosinate (a sarcosinate surfactant), as well as "amphoteric and zwitterionic surfactants ... including acyl glutamates." Id. The Examiner also found that Fan discloses a relevant cationic polymer where it refers to a "shampoo comprising polyquaternium-10 (i.e. a polymeric quaternary ammonium derivative of hydroxyethyl cellulose which is cationic polymer)." Id. 6. The Examiner found Fan discloses "the class of the quaternary cellulosics [] are cationic conditioning polymers that are desirable in hair care products for body/volume seekers." Id. 7 Final Office Action, mailed Nov. 18, 2013. 5 Appeal2015-001488 Application 13/132, 199 Based on the references' teachings, the Examiner reasoned that an ordinary artisan would have considered it obvious "to have modified the shampoo taught by 3-Protein Shampoo by adding Polyquatemium-10 (i.e. cationic cellulose conditioning polymer) in order to provide conditioning, body, and volume to the hair as taught by FAN." Id. Specifically, the Examiner found that the ordinary artisan would have been motivated to add the cationic polymer to the shampoo, and expect success in doing so, "because 3-Protein Shampoo teaches that [it] repairs (i.e. conditions) dry damaged hair and FAN teaches inclusion of quaternary cellulosics, such as polyquatemium-10, is desirable in order to formulate hair care products which condition while still providing body and volume." Id. As stated in In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992): [T]he examiner bears the initial burden ... of presenting a primafacie case ofunpatentability .... After evidence or argument is submitted by the applicant in response, patentability is determined on the totality of the record, by a preponderance of evidence with due consideration to persuasiveness of argument. We select claim 1 as representative of the claims subject to this ground of rejection. 37 C.F.R. Â§ 41.37(c)(iv). Appellants' arguments do not persuade us that a preponderance of the evidence fails to support the Examiner's prima facie case as to claim 1. While not explicitly stated, Appellants appear to argue that Fan teaches away from the claimed method: A prima facie case of obviousness cannot be established because a skilled artisan would not have looked to Fan for guidance when formulating a shampoo that does not contain alkyl sulfates or alkyl ether sulfates. This is because Fan 6 Appeal2015-001488 Application 13/132, 199 explicitly teaches that anionic surfactants, particularly alkyl sulfates, are present in his composition. App. Br. 5. Appellants cite the following disclosure from Fan, which lists "alkyl sulfates" and alkyl ether sulfates" in paragraph 52: [005.IJ Sh;impoo <::<:.lJ:n.:pm,,itio.n~ :-:H.:$:<:mling hi HR~ .in\Â·;;nt:ion. v ... m 1ypicuHy cump:rlsc on<:'! M mt:ire au.ion:k d.thnsing ;:;mÂ· fa.:tmH, s'Â»'hk!1 arc t~\YH.m:tic::d!y a<.:l'eptabk and ~uitabl1: thr 1opfca1 applicatinn ki the ki!r [0051] Ex.;~mple~ ofsuitabte an!onfr: cleansing ,.;u.rfi:u.::tants J!kyl sulfatcB, al1.yt ethet ~ulfaws, albiryl sHlfo1mtes, nlbi.1.H:1yl i::?c::thiurrni~s. alkyf ~w~dmik-;;, nlky] sulfbst1c>.:iÂ· !lplww;:;, alkyl dher pho$p-hrtt(":;, ;alkyl eilwr ('.xyhrte~â€¢, and ~l(J~l{<\i-nldfo :;:nl- hm:ite$, ~;';!1{?tblly HKir sod~h11n, 1n;,1g:n(..~shu:n~ ;:rtui:nnnium and mono-, di- and trieihmmbmine salt,; .. The dky land acyl gnrup~; genenlly 1.\:inmi.n fmru ~ lo 1 ~ (arb)n awxrn; nud n.i:Jy he un:c;tnumK~in l ln 1 U dhykn.t~ Dxidt.~ or propyknt.Â· oxid': tmit~ p(:r rnob;.'.uk:, Id. Appellants argue, "[a] skilled artisan, seeking to formulate a composition that specifically excludes alkyl sulfates or alkyl ether sulfates, would not be motivated to look to a reference that specifically includes alkyl sulfates for guidance, such as Fan." Id. Appellants' arguments do not persuade us that the Examiner erred in finding that 3-Protein Shampoo and Fan would have prompted an ordinary artisan to prepare an aqueous shampoo composition comprising a cationic polymer, a glutamate surfactant, and a sarcosinate surfactant without alkyl sulfate and alkyl ether sulfates, as required by claim 1. 3-Protein Shampoo describes a shampoo composition comprising deionized water (i.e. aqueous cleansing composition), sodium cocoyl glutamate (i.e. glutamate surfactant), 7 Appeal2015-001488 Application 13/132, 199 and sodium lauroyl sarcosinate (i.e. sarcosinate surfactant). 3-Protein Shampoo 2. The product is described as useful in achieving "effective results to rejuvenate and repair dull, dry or damaged hair utilizing a base of wheat, silk and Soy proteins." Id. Fan discloses that quaternary cellulosic cationic conditioning polymers (i.e. cationic cellulose polymers) have "been found to be desirable in hair care products for body/volume seekers" (i-f 3) and that polyquaternium-6 is a suitable cationic conditioning polymer (i-f 39). Fan further discloses example aqueous shampoo compositions containing polyquaternium-10, a cationic cellulose polymer (Fan, p. 7, Table 1; claim 4). Thus, Fan advised an ordinary artisan that quaternary cellulosic cationic conditioning polymers could be added to shampoo compositions for the purpose of adding body, volume or conditioning properties. Accordingly, given these teachings, we agree with the Examiner that an ordinary artisan would have found it obvious to add the cationic polymers taught by Fan to the composition of 3-Protein Shampoo to create the composition of claim 1. We are not persuaded that Fan's disclosure of "alkyl sulfates" and alkyl ether sulfates" as "examples of suitable anionic cleansing surfactants" (i-f 52) would discourage one of skill in the art from using Fan's teachings regarding cationic cellulose polymers in combination with shampoo compositions containing glutamate and sarcosinate surfactants. "Under the proper legal standard, a reference will teach away when it suggests that the developments flowing from its disclosures are unlikely to produce the objective of the applicant's invention. A statement that a particular combination is not a preferred embodiment does not teach away absent clear 8 Appeal2015-001488 Application 13/132, 199 discouragement of that combination." Syntex (U.S.A.) LLC v. Apotex, Inc., 407 F.3d 1371, 1380 (Fed. Cir. 2005) (citations omitted). Fan discloses the use of "alkyl sulfates" and alkyl ether sulfates" as surfactants but does not require that they be used. Rather, Fan discloses several other example surfactants in paragraph 52. In addition, as pointed out by the Examiner in the Answer (p. 5), "the claims do not completely exclude alkyl sulfates or alkyl ether sulfates ... Claim 1 recites 'the composition is substantially free from alkyl sulphate and alkyl ether sulphate surfactants.'" Hence, we are not persuaded that Fan's teachings regarding these compounds teach away from the claimed composition. As stated above, we find the Examiner sufficiently establishes that an ordinary artisan reading 3-Protein Shampoo and Fan would have reasonably been lead to create the composition of claim 1. Accordingly, we affirm the Examiner's rejection of claim 1 under 35 U.S.C. Â§ 103(a) as obvious over 3-Protein Shampoo and Fan. Claims 3-5, 10, and 16 have not been argued separately and therefore fall with claim 1. 37 C.F.R. Â§ 41.37(c)(l)(vii). Claims 1, 3-5, 10, 12 and 16 over 3-Protein Shampoo and Behrens The issue with respect to this rejection is whether a preponderance of the evidence supports the Examiner's rejection of claim 1 as obvious over 3- Protein Shampoo and Behrens. The Examiner finds Behrens teaches "inclusion of cationic cellulose polymers as hair conditioning polymers ... [and] teaches inclusion of the cationic cellulose polymer, Polyquatemium 10, in shampoos." Ans. 9. 9 Appeal2015-001488 Application 13/132, 199 Based on the teachings of Behrens and of 3-Protein Shampoo, as discussed above, the Examiner concludes: It would have been obvious to one of ordinary skill in the art at the time the invention was made to have modified the shampoo taught by 3-Protein Shampoo by adding Polyquatemium-10 (i.e. cationic cellulose conditioning polymer) ... because both 3-Protein Shampoo and BEHRENS are drawn to shampoo compositions. The skilled artisan would have been motivated to modify the shampoo taught by 3-Protein Shampoo by adding Polyquatemium-10 ... with a reasonable expectation of success, in order to increase the conditioning ... of the shampoo. Id. at 10. We select claim 1 as representative of the claims subject to this ground of rejection. 37 C.F.R. Â§ 41.37(c)(iv). Appellants raise no argument pertaining to the disclosure of Behrens, but generally8 argue "[t]he Examiner erred in rejecting claims 1-5, 10, 12 and 16 as obvious over 3-Protein Shampoo in vie\'l/ of Fan, and further in vie\'l/ of Behrens because a skilled artisan would not be motivated to look to the cited prior art for guidance in preparing the claimed composition." App. Br. 4. Appellants do not explain why the skilled artisan would not be motivated to consult Behrens, a patent disclosing shampoo compositions, regarding its teachings. Accordingly, Appellants do not persuade us that a preponderance of the evidence fails to support the Examiner's obviousness rejection as to claim 1, and we affirm the Examiner's rejection of claim 1 under 35 U.S.C. Â§ 103(a) as obvious over 3-Protein Shampoo and Behrens. Claims 3-5, 10, 8 Appellants argue rejections A and B together. 10 Appeal2015-001488 Application 13/132, 199 and 16 have not been argued separately and therefore fall with claim 1. 37 C.F.R. Â§ 41.37(c)(l)(vii). Claims l, 3-5, 10, and 11 over Artec and Green & Clean The issue with respect to this rejection is whether a preponderance of the evidence supports the Examiner's rejection of claim 1 as obvious over Artec and Green & Clean. We are persuaded that the Examiner has not established a prima facie case for this rejection. The Examiner finds Green & Clean "teaches sarcosinate and glutamate based surfactants provide a fine lather, good detergency, are very mild in use, and are rapidly [biodegradable]." Id. at 11. The Examiner further finds Green & Clean teaches that "sarcosinates have good lathering properties and a high resistance to delathering by sebum while glutamates are non-comedogenic, tolerant to hard water, and hypoallergenic" and discloses a "commercially available product, Plantapon SF, which comprises sodium cocoyl glutamate (in which M is sodium, and Ri is Cl0-18) and lauryl glucoside." Id. The Examiner finds Artec teaches an "aqueous cleansing composition comprising water, Polyquatemium-7 (i.e. cationic polymer) ... sodium cocoyl sarcosinate (i.e .... at least one sarcosinate surfactant in which M+ is sodium and R1 is a saturated straight alkyl chain with 11 carbon atoms, R2 is methyl, R3 is hydrogen, n is 0 and x-is COO-)." Fin. Act. 10-11. The Examiner further finds that Artec teaches incompatibility of its formulation with "hard water," which the Examiner posits would lead the ordinary artisan to add sodium cocoyl glutamate to the shampoo of Artec, to address 11 Appeal2015-001488 Application 13/132, 199 this issue: the Examiner concludes it would have been obvious to the skilled artisan to have modified the shampoo taught by Artec Orange Marigold Shampoo by adding sodium cocoyl glutamate to the composition because both sodium cocoyl glutamate and sarcosinate amino acid surfactants are fine lathering, detergents that are rapidly biodegradable as taught by Green & Clean. The skilled artisan would have been motivated to add sodium cocoyl glutamate, with an expectation of success, in order to improve the performance of the Artec Orange Marigold Shampoo so that the shampoo does not tum hair pink when used with hard water. Id. at 11-12. Appellants argue the Artec reference contains nothing "to motivate a skilled artisan to modify Artec in order to achieve the present invention" and that the "Examiner has failed to provide any rational[] basis for making this rejection, other than to imply that it would have been obvious to make the claimed invention from Aztec [sic, Artec] at the time of the invention." App. Br. 6. Artec is a "review" of the product Artec 8 oz Orange Marigold Shampoo, as presented on the Epinions.com website. Artec 1. In that review, an individual reviewer identified as "mrs-j." describes the Artec shampoo as a color-depositing shampoo designed to" 'maintain[] brightness of copper, auburn and warm brown hair.'" Artec 2. The review lists a "written" date of January 12, 2005, and appears to have been printed by the Examiner on September 1, 2012, prior to citation in an IDS on January 10, 2013. Id. The review recites ingredients of the shampoo. Id. The reviewer "mrs-j" reports having had "two wildly different experiences with this shampoo," one being that the shampoo "worked well 12 Appeal2015-001488 Application 13/132, 199 for me in a home with softer water" (e.g., normal color deposit that washed out as expected) and the second being "with hard water [the color ... ] faded to a 'pink' color and was expensive to fix." (e.g., she was required to visit a hair colorist to reverse the permanent color deposit). Id. The reviewer writes that she was told that by her "board certified colorist" at her hair salon that well water (also described as "hard water") caused her hair to become "unnaturally absorbent" and "extremely porous." Id. We find the Examiner has not established a prima facie case of obviousness for this rejection because the Examiner has not provided a sufficient basis to establish that Artec is a printed publication under 3 5 U.S.C. Â§ 102(a).9 As stated by the Federal Circuit: "[A] document may be deemed a printed publication upon a satisfactory showing that it has been disseminated or otherwise made available to the extent that persons interested and of ordinary skill in the subject matter or art, exercising reasonable diligence can locate it and recognize and comprehend therefrom the essentials of the claimed invention \'l1ithout need of fi.1rther research or experimentation." Massachusetts Inst. of Tech. v. AB Fortia, 774 F.2d 1104, 1109 (Fed. Cir. 1985) (quoting In re Wyer, 655 F .2d 221, 226 (CCP A 1981 )). Once established as a prior art reference, "the meaning of a prior art reference requires analysis of the understanding of an artisan of ordinary skill." Finisar Corp. v. DirecTV Group, Inc., 523 F.3d 1323, 1336 (Fed. Cir. 2008). 9 See 35 U.S.C. 35 Â§ 102(a) (2012): "A person shaH be entitled to a patent unless-( a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for a patent." 13 Appeal2015-001488 Application 13/132, 199 Although Artec claims a "written" date of January 12, 2005, the Examiner's printed copy is dated September 2012. No other information to corroborate Artec' s publication prior to the effective filing date of this application, December 15, 2008, is in the record. Therefore, the Examiner has not established sufficiently that Artec is available as a prior art reference. We further find the Examiner has not established sufficiently that one of skill in the art of making shampoo compositions would have encountered this user review on Epinions.com during an exercise of reasonable diligence. Artec' s "teachings" of the effect cited by the Examiner-that the "shampoo [] tum[s] hair pink when used with hard water" (Artec 2-3}-are the relayed experiences of a single individual as allegedly advised by a hair colorist. Thus, we conclude that Artec is not prior art underÂ§ 102(a). Even if Artec were prior art, we find that the Examiner does not establish sufficiently what Artec would have taught to one of skill in the art regarding the effect of hard water on hair porosity and its resulting effect on hair color in color depositing shampoo disclosed in Artec, given that the reported effect is the experience of a single person disclosing an opinion from a third party. We find the Examiner has not established sufficiently that one of skill in the art would rely upon this reviewer as a credible source regarding the teachings of the components of Artec or as an accurate source of the ingredients in the Artec shampoo. Furthermore, we find the Examiner has not provided "articulated reasoning with some rational underpinning to support the legal conclusion of obviousness." See KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) (quoting In re Kahn, 441F.3d977, 988 (Fed. Cir. 2006). We are not persuaded that the teachings of Artec would have motivated one of skill in 14 Appeal2015-001488 Application 13/132, 199 the art of making shampoo compositions to select the teachings of Green & Clean regarding detergents that are "fine lathering" and "rapidly biodegradable" to use with the components taught in Artec to overcome deposition of pink hair dye in hard water. Green & Clean explains it is suitable for use in hard water. That said, we see no reason to conclude that suitability for use would singlehandedly overcome the dye deposition effect identified in Artec. Accordingly, we reverse the Examiner's rejection of claim 1 over Artec and Green & Clean. Claims 1, 2, 3-5, 10, and 11 over Artec, Green & Clean and Fan The issue with respect to this rejection is whether a preponderance of the evidence supports the Examiner's rejection of claim 1 as obvious over Artec, Green & Clean and Fan. The Examiner relies on Artec and Green & Clean for the rejection of claim 1; the Examiner's reliance on Fan relates only to the "routine optimization" of the amounts of anionic surfactants claimed in dependent claims. Fin. Act. 14. The Examiner has not established that Fan remedies the deficiencies in Artec and Green & Clean, as discussed above. Claims 1, 3-5, 10, 11, and 12 over Artec, Green & Clean and Behrens The issue with respect to this rejection is whether a preponderance of the evidence supports the Examiner's rejection of claim 1 as obvious over Artec, Green & Clean and Behrens. Once again, the Examiner relies on Artec and Green & Clean for the rejection of claim 1; the Examiner's reliance on Behrens relates only to the teachings of a thickener having the general structure recited in dependent 15 Appeal2015-001488 Application 13/132, 199 claim 12. Fin. Act. 15-16. The Examiner has not established that Behrens remedies the deficiencies in Artec and Green & Clean, as discussed above. SUMMARY We affirm the rejection of claims 1, 3-5, 10, and 16 under 35 U.S.C. Â§ 103(a) as obvious over 3-Protein Shampoo and Fan. We affirm the rejection of claims 1, 3-5, 10, 12 and 16 under 35 U.S.C. Â§ 103(a) as obvious over 3-Protein Shampoo and Behrens. We reverse the rejection of claims 1, 3-5, 10, and 11 under 35 U.S.C. Â§ 103(a) over Artec and Green & Clean. We reverse the rejection of claims 1, 2, 3-5, 10, and 11 under 35 U.S.C. Â§ 103(a) over Artec, Green & Clean, and Fan. We reverse the rejection of claims 1, 3-5, 10, 11, and 12 under 35 U.S.C. Â§ 103(a) over Artec, Green & Clean and Behrens. We note that claims 2 and 11 currently are not subject to an affirmed rejection. TIME PERIOD FOR RESPOSE No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a). AFFIRMED-IN-PART 16