Ex Parte Miller et al

Patent Trials and Appeals BoardJan 11, 2019

13518971 - (D) (P.T.A.B. Jan. 11, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/518,971 06/25/2012 23909 7590 01/15/2019 COLGATE-PALMOLIVE COMPANY 909 RIVER ROAD PISCATAWAY, NJ 08855 FIRST NAMED INVENTOR Jeffrey M. Miller 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. 863 2-00-US-01-0C 6882 EXAMINER WEBB, WALTERE ART UNIT PAPER NUMBER 1612 NOTIFICATION DATE DELIVERY MODE 01/15/2019 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): Patent_Mail@colpal.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JEFFREY M. MILLER, LYNETTE ZAIDEL, BERNIE BLACKWELL, BARBARA HEPLER, and PRAKASARAO MANDADI 1 Appeal2018-002333 Application 13/518,971 Technology Center 1600 Before JEFFREY N. FREDMAN, JOHN G. NEW, and ELIZABETH A. LA VIER, Administrative Patent Judges. NEW, Administrative Patent Judge. DECISION ON APPEAL 1 Appellants state that the real party-in-interest is the Colgate-Palmolive Company. App. Br. 2. Appeal2018-002333 Application 13/518,971 SUMMARY Appellants file this appeal under 35 U.S.C. Â§ I34(a) from the Examiner's Final Rejection of claims 1, 6, 8, 10, 13, 14, 16-19, and 24--27. Specifically, the claims stand rejected as unpatentable under 35 U.S.C. Â§ I03(a) as being obvious over Zaidel et al. (US 2008/0145321 Al, June 19, 2008) ("Zaidel"). The claims also stand rejected as unpatentable under 35 U.S.C. Â§ I03(a) as being obvious over the combination of Zaidel and Lokken (US 2006/0062744 Al, March 23, 2006) ("Lokken"). The claims stand further rejected as unpatentable under 35 U.S.C. Â§ I03(a) as being obvious over the combination of Zaidel and Chopra et al. (US 2006/0062744 Al, March 29, 2007) ("Chopra"). 2 We have jurisdiction under 35 U.S.C. Â§ 6(b ). We AFFIRM. NATURE OF THE CLAIMED INVENTION Appellants' invention is directed to oral care compositions with improved flavor release characteristics and improved taste, and methods of using the same. Abstr. REPRESENTATIVE CLAIM Claim 1 is representative of the claims on appeal and recites: 2 The Examiner also rejected claims 1, 6, 8, 1 0, 13, 14, 16-19, and 24--2 7 as unpatentable under 35 U.S.C. 112, first paragraph, as failing to comply with the written description requirement. Final Act. 2. This rejection was withdrawn by the Examiner. See Ans. 2. 2 Appeal2018-002333 Application 13/518,971 1. An oral care composition comprising: a whitening agent, wherein the whitening agent is bound to a cross-linked polymer; [wherein] the whitening agent is a bound peroxide in an amount from 1 % to 2% w/w, wherein the peroxide is hydrogen peroxide, and said peroxide is bound to a crosslinked polymer; and [and] an anionic surfactant present in an amount of 2% w/w; wherein the anionic surfactant is sodium lauryl sulfate; an orally acceptable carrier having a total concentration of water of0% to 4% w/w and wherein the water content of the oral care composition is less than 4% w/w; wherein the orally acceptable carrier comprises a mixture of polyethylene glycol and one or more ethylene oxide/propylene oxide copolymers in a net amount of 2 to 35% w/w; and wherein the composition further comprises 2% w/w tetrasodium pyrophosphate; and wherein the composition further comprises about 0.20% phosphoric acid, and further comprises calcium pyrophosphate abrasive. 3 3 For the sake of clarity and for the convenience of the reader, we have slightly rearranged the order of the limitations of claim 1, and added appropriate conjunctions (in brackets) so that subordinate limitations immediately follow the limitations that they further modify. Claim 1 originally reads: 3 Appeal2018-002333 Application 13/518,971 App. Br. 13. 1. An oral care composition comprising: a whitening agent, wherein the whitening agent is bound to a cross-linked polymer; an anionic surfactant present in an amount of2% w/w; and an orally acceptable carrier having a total concentration of water of0% to 4% w/w and wherein the water content of the oral care composition is less than 4% w/w; wherein the anionic surfactant is sodium lauryl sulfate; and the whitening agent is a bound peroxide in an amount from 1% to 2% w/w, wherein the peroxide is hydrogen peroxide, and said peroxide is bound to a crosslinked polymer; and wherein the orally acceptable carrier comprises a mixture of polyethylene glycol and one or more ethylene oxide/propylene oxide copolymers in a net amount of 2 to 35% w/w; and wherein the composition further comprises 2% w/w tetrasodium pyrophosphate; and wherein the composition further comprises about 0.20% phosphoric acid, and further comprises calcium pyrophosphate abrasive. 4 Appeal2018-002333 Application 13/518,971 ISSUES AND ANALYSES We are persuaded by, and expressly adopt, the Examiner's findings, reasoning, and conclusions establishing that Appellants' claims are prima facie obvious over the cited prior art. We address the arguments raised by Appellants below. A. Rejection of the claims as being obvious over Zaidel Issue 1 Appellants argue that the Examiner erred because Zaidel fails to teach all of the components of the claimed composition in the concentration ranges claimed. App. Br. 3. Analysis The Examiner finds that Zaidel teaches oral care compositions comprising a cross-linked polymer peroxide, i.e., a complex of peroxide and N-vinyl heterocyclic polymer, and an orally acceptable carrier, and that the carrier is non-aqueous, which addresses the "less than 4% water" limitation. Final Act. 4 (citing Zaidel Abstr.; ,r 49). The Examiner notes that the term "non-aqueous" is defined by Zaidel as "not contain[ing] appreciable amounts of chemically-unbound water," and "less than about 5% water in the carrier." Id. (citing Zaidel ,r 63). The Examiner finds that Zaidel also teaches use of "peroxydone XL- 10," a cross-linked polymer containing vinylpyrrolidone ("PVP")4 4 Also referred to as N-vinylpyrrolidone, N-vinyl-2-pyrrolidione and N- vinyl-2-pyrrolidinone. See Zaidel ,r 32. 5 Appeal2018-002333 Application 13/518,971 complexed with hydrogen peroxide, in which the peroxide complex is present in an amount of about 0.5% to about 40% of the total weight of the composition. Final Act. 4 (citing Zaidel ,r,r 25, 27, 32). The Examiner further finds that Zaidel teaches inclusion of orally acceptable carriers, including surfactants such as sodium lauryl sulfate, which are preferably present in an amount of "about 0.1 % to about 2%." Final Act. 4 ( citing Zaidel ,r 64 ). The Examiner finds that Zaidel also teaches that its compositions comprise adhesion agents such as hydrophilic block copolymers of polyethylene glycols and ethylene oxide/propylene oxide, having an average molecular weight from 2,000 to about 15,000, e.g., Pluraflo L 1220, including polyethylene glycol 600, which are preferably present from about 0.001 % to about 75%. Id. (citing Zaidel ,r,r 50-53; 46). The Examiner finds that Zaidel differs insofar as it does not require the cross-linked polymer peroxide and sodium lauryl sulfate or the mixture of polyethylene glycol and ethylene oxide/propylene oxide copolymers to fall within the claimed range. Final Act. 5. However, the Examiner finds, the damed range for the whitening agent, "from 1 % to 2%," and surfactant, of "1.75% to 2.0%," overlaps or lies inside the ranges taught by Zaidel, i.e., "about 0.5% to about 40%" for the whitening agent and about "0.1 % to about 2%" for the surfactant. Id. The claimed range of 2 to 35% for the mixture of polyethylene glycol and ethylene oxide/propylene oxide copolymers falls within Zaidel's range of about 0.001 % to about 75%. Id. Finally, the Examiner finds that the claimed amounts for the anticalculus agents, i.e., tetrasodium pyrophosphate and sodium tripolyphosphate also overlap or lie within ranges taught by Zaidel. Final Act. 5. 6 Appeal2018-002333 Application 13/518,971 Appellants argue, as an initial matter, that Zaidel provides little motivation for a person of ordinary skill in the art to select sodium lauryl sulfate as a surfactant, and even less does it provide motivation for any combination of sodium lauryl sulfate, polyethylene glycol, and ethylene oxide/propylene oxide copolymers in Appellants' narrowly claimed range of concentrations. App. Br. 3. According to Appellants, Zaidel teaches that materials "useful in carriers include adhesion agents, viscosity modifiers, diluents, surfactants, foam modulators, peroxide activators, peroxide stability agents, abrasives, pH modifying agents, humectants, mouth feel agents, sweeteners, flavorants, colorants, and combinations thereof." Id. ( quotomg Zaidel ,r 45). Appellants contend that, from this teaching of optional ingredients, Zaidel further teaches that "[ s ]urfactants among those useful herein include anionic, nonionic, and amphoteric surfactants," but "[p]referably, the surfactant is nonionic." Id. (quoting Zaidel ,r 64). Appellants point out that Zaidel further teaches that suitable anionic surfactants include any C8-20 alkyl sulfate, e.g., sodium lauryl sulfate, but that this example is one of several suggested surfactants provided by Zaidel ( others include sodium coconut mono glyceride sulfonate, sodium dodecylbenzene sulfonate, and cocamidopropylbetaine ). App. Br. 3 ( citing Zaidel ,r 64 ). Appellants assert that none of the exemplary compositions demonstrated in Zaidel include any anionic surfactant. Id. ( citing Zaidel ,r,r 103-109). Appellants point out that Zaidel similarly teaches that adhesion agents include "hydrophilic organic polymers, hydrophobic organic polymers, silicone gums, silicone adhesives, silica, and combinations thereof." App. Br. 3 (quoting Zaidel ,r 46). Appellants contend that this teaching 7 Appeal2018-002333 Application 13/518,971 encompasses a vast number of chemically and physically distinct species. Id. Appellants argue that Zaidel further teaches that, within the hydrophilic organic polymers category there are "polyethylene glycols, nonionic polymers of ethylene oxide, block copolymers of ethylene oxide and propylene oxide, carboxymethylene polymers, N-vinyl heterocyclic polymers, and mixtures thereof." Id. at 3--4 (quoting Zaidel ,r 50). Appellants note that, of Zaidel's three exemplary compositions, only two include any hydrophilic organic polymer (Pluracare L-1220) and both of these are present at 1.0 weight percent, which is outside of Appellants' claimed range. Id. at 3--4 ( citing Zaidel, ,r,r 106, 108). Appellants point out that Pluracare L-1220 is a block copolymer of ethylene oxide and propylene oxide, and that none of Zaidel' s examples include any polyethylene glycol. Id. at 4. Therefore, Appellants argue, a person skilled in the art would have had little, if any, motivation from Zaidel to specifically combine sodium lauryl sulfate surfactant with polyethylene glycol and ethylene oxide/propylene oxide copolymer, as the Examiner suggests. App. Br. 4. Furthermore, contend Appellants, a skilled artisan would have had no motivation to select Appellants' claimed amounts of 2% sodium lauryl sulfate and 2-35% polyethylene glycol and ethylene oxide/propylene oxide copolymer. Id. Appellants argue further that the concentrations of both sodium lauryl sulfate and the two polymers recited by Appellant's claims would have been non-obvious in view of the much broader ranges disclosed in Zaidel. App. Br. 4. According to Appellants, Zaidel broadly teaches the use of any combination of surfactants in any amount from 0.01 % to 10%, for example, 8 Appeal2018-002333 Application 13/518,971 0.05% to 5% or 0.1 % to 2%. Id. (citing Zaidel, ,r 64). Appellants assert that Zaidel teaches these broad ranges in connection with anionic, nonionic and amphoteric surfactants, or any combination of these. Id. Furthermore, argue Appellants, no teaching or suggestion of Zaidel would have specifically guided a person of ordinary skill in the art toward selecting a particular surfactant or surfactants at a particular concentration. Id. Similarly, Appellants argue, Zaidel teaches that adhesion agents are "preferably present at a level of from about 0.01 % to about 75%, optionally from about 1 % to about 40%." App. Br. 4 ( quoting Zaidel ,r 46). Appellants assert that, despite the fact that hydrophilic and hydrophobic organic polymers might be expected to have different properties and different effective concentrations as adhesion agents, Zaidel provides no additional guidance to selecting a suitable concentration. Id. Furthermore, contend Appellants, none of Zaidel' s exemplary compositions include a hydrophilic organic polymer at a concentration other than 1.0 weight percent, or include a combination of hydrophilic organic polymers, or a combination of a hydrophilic organic polymer and an anionic surfactant. Id. We are not persuaded by Appellants' arguments. Claim 1 requires: (1) hydrogen peroxide as a whitening agent in an amount from 1 % to 2% w/w and bound to a cross-linked polymer; (2) sodium lauryl sulfate as an anionic surfactant at a concentration of 2% w/w; (3) an orally acceptable carrier comprising a mixture of polyethylene glycol and one or more ethylene oxide/propylene oxide copolymers in a net amount of 2 to 35% w/w and a water content of the oral care composition of less than 4%; (4) 2% w/w tetrasodium pyrophosphate; (5) about 0.20% phosphoric acid; and ( 6) a calcium pyrophosphate abrasive. 9 Appeal2018-002333 Application 13/518,971 With respect to (1 ), Zaidel teaches: "[A] a peroxide complex ... , wherein said complex comprises hydrogen peroxide and an N-vinyl heterocyclic polymer." Zaidel Abstr. Zaidel further teaches that: "The peroxide complex comprises a peroxide component and a porous cross- linked polymer. As referred to herein, a 'peroxide component' is any oxidizing compound comprising a bivalent oxygen-oxygen group. Peroxide components include peroxides and hydroperoxides, such as hydrogen peroxide." Id. at ,r 26. Furthermore: The peroxide complex is preferably present at a level of from about 0.5% to about 40%, optionally from about 20% to about 30%. In a preferred embodiment, the concentration of the peroxide complex is such that the peroxide component of the peroxide complex is present at a level of about 10% of the total composition weight, optionally from about 1 % to about 6% of the total composition weight. Id. at ,r 25. Zaidel thus teaches limitation ( 1) in concentrations that encompass the claimed range of 1 % to 2% w/w. With respect to (2), Zaidel teaches: Surfactants among those useful herein include amomc, nonionic, and amphoteric surfactants.. . . Suitable anionic surfactants include water-soluble salts of C8-20 alkyl sulfates, sulfonated monoglycerides of C8-20 fatty acids, sarcosinates, taurates, and mixtures thereof. Illustrative examples of these and other surfactants are sodium lauryl sulfate, sodium coconut monoglyceride sulfonate, sodium lauryl sarcosinate, sodium lauryl isoethionate, sodium laureth carboxylate and sodium dodecyl benzenesulfonate, and mixtures thereof. ... One or more surfactants are optionally present in a total amount of about 0.01% to about 10%, for example about 0.05% to about 5% or about 0.1 % to about 2%. 10 Appeal2018-002333 Application 13/518,971 Zaidel ,r 64 ( emphases added). Zaidel thus expressly teaches limitation (2) in concentration ranges that encompass the claimed range of 2% w/w. With respect to limitation (3), Zaidel teaches: As referred to herein, an adhesion agent is a material or combination of materials that enhance the retention of the peroxide complex on the oral cavity surface onto which the composition is applied. Such adhesion agents include adhesives, film forming materials, viscosity enhancers and combinations thereof. Such materials include hydrophilic organic polymers .. .. Adhesion agents are preferably present at a level of from about 0.01 % to about 75%, optionally from about 1 % to about 40%. Zaidel ,r 46 ( emphasis added). With respect to the hydrophilic organic polymers, Zaidel teaches: "Hydrophilic organic polymers useful herein include polyethylene glycols, nonionic polymers of ethylene oxide, block copolymers of ethylene oxide and propylene oxide, carboxymethylene polymers, N-vinyl heterocyclic polymers, and mixtures thereof." Id. at ,r 50. Zaidel thus teaches: "an orally acceptable carrier comprising a mixture of polyethylene glycol and one or more ethylene oxide/propylene oxide copolymers in a net amount of 2 to 35% w/w," as required by limitation (3). Furthermore, Zaidel teaches: "The present invention can tolerate small amounts of water and for the purposes of this disclosure the term anhydrous is intended to mean a water content of less than about 2 % by weight of the overall solution." Zaidel ,r 16. Zaidel thus expressly teaches: "wherein the water content of the oral care composition is less than 4% w/w," as recited in claim 1. With respect to limitation (4) and (5), Zaidel teaches: pH modifying agents among those useful herein include acidifying agents to lower pH, basifying agents to raise pH, and 11 Appeal2018-002333 Application 13/518,971 buffering agents to control pH within a desired range. Any orally acceptable pH modifying agent can be used, including carboxylic, phosphoric and sulfonic acids, acid salts (e.g., monosodium citrate, disodium citrate, mono sodium malate, etc.), alkali metal hydroxides such as sodium hydroxide, carbonates such as sodium carbonate, bicarbonates, sesquicarbonates, borates, silicates, phosphates (e.g., monosodium phosphate, trisodium phosphate, pyrophosphate salts, etc.), imidazole, and mixtures thereof. Zaidel ,r 68. Although Zaidel does not expressly teach a specific weight percentage of tetrasodium pyrophosphate or phosphoric acid, Zaidel teaches, with respect to such pH-balancing compounds: For example, one or more compounds selected from acidifying, basifying and buffering agents can be included to provide a pH of about 2 to about 10, or in various embodiments from about 2 to about 8, from about 3 to about 9, from about 4 to about 8, from about 5 to about 7, from about 6 to about 10, and from about 7 to about 9. Id. Appellants' Specification discloses that: pH modifying agents among those useful herein include acidifying agents to lower pH, basifying agents to raise pH, and buffering agents to control pH within a desired range. For example, one or more compounds selected from acidifying, basifying and buffering agents can be included to provide a pH of 2 to 10, or in various embodiments from 2 to 8, from 3 to 9, from 4 to 8, from 5 to 7, from 6 to 10, and from 7 to 9. Any orally acceptable pH modifying agent can be used, including without limitation carboxylic, phosphoric and sulfonic acids, acid salts ( e.g., mono sodium citrate, disodium citrate, mono sodium malate, etc.), alkali metal hydroxides such as sodium hydroxide, carbonates such as sodium carbonate, bicarbonates, sesquicarbonates, borates, silicates, phosphates (e.g., monosodium phosphate, trisodium phosphate, pyrophosphate salts, etc.), imidazole and mixtures thereof. One or more pH 12 Appeal2018-002333 Application 13/518,971 modifying agents are optionally present in a total amount effective to maintain the composition in an orally acceptable pH range. Spec. ,r 40. The language of the Specification in this respect is virtually identical to the language of paragraph [0068] of Zaidel, and we agree with the Examiner that a person of ordinary skill in the art would understand that the amounts of tetrasodium pyrophosphate or phosphoric acid required to reach the pH ranges desired would necessarily fall into the recited amounts. Finally, with respect to ( 6), Zaidel teaches: The compositions of the present invention optionally comprise an abrasive. In various embodiments, an abrasive is useful for example as a polishing agent. Any orally acceptable abrasive can be used, but type, fineness (particle size) and amount of abrasive should be selected so that tooth enamel is not excessively abraded in normal use of the composition .... Illustrative examples are dicalcium orthophosphate dihydrate, calcium pyrophosphate, /J-calcium pyrophosphate, tricalcium phosphate, calcium polymetaphosphate and insoluble sodium polymetaphosphate. Zaidel ,r 79 ( emphasis added). Zaidel thus teaches: "further comprises calcium pyrophosphate abrasive," as recited in claim 1. Our reviewing court has held that: "In cases involving overlapping ranges, we and our predecessor court have consistently held that even a slight overlap in range establishes a prima facie case of obviousness." In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003). The ranges cited by Zaidel encompass the ranges recited in Appellants' claims. We consequently agree with the Examiner that the claims on appeal are obvious over Zaidel. 13 Appeal2018-002333 Application 13/518,971 Issue 2 Appellants next argue that their Specification discloses evidence of unexpected results sufficient to overcome the Examiner's conclusion that the claims are primafacie obvious over the cited prior art. App. Br. 5. Analysis Appellants argue that their Specification data that show a comparison between compositions comprising 1.2%, 1.75% and 2.0% sodium lauryl sulfate in an evaluation of organoleptic properties. App. Br. 5 ( citing Spec. Ex. 2, Table 2). Appellants contend that the Specification discloses that the use of a low-water composition in order to preserve whitening agent stability results in "negative taste attributes due to low flavor release and peroxide taste." Id. (citing Spec. ,r 7). By way of example, Appellants' Specification notes that prior art low water compositions comprising 1.2% sodium lauryl sulfate ("SLS") "showed poor flavor release in spite of containing a flavor content of 2.25% by weight, which exceeds the normal flavor level of 1 % to 1.5%." Id. Appellants assert that the data presented in the Specification demonstrates the unexpected result that the use of 2.0% SLS in a composition according to claim 1 results in dramatically improved organoleptic rating compared to a composition comprising only 1.2% SLS. App. Br. 5 (citing Spec. Ex. 2, ,r 53). Appellants assert that none of the prior art cited by the Examiner is directed to the problem of improving organoleptic properties of low-water peroxide compositions, nothing in the cited art would suggest or motivate one skilled in the art to the unexpected conclusions found by Appellants. Id. at 6. 14 Appeal2018-002333 Application 13/518,971 Nor, Appellants argue, could a person of ordinary skill in the art have arrived at Appellant's narrowly-claimed range by routine experimentation, because "a particular parameter must be first recognized as a result-oriented variable ... before the determination of the optimum or workable ranges of said variable might be characterized as routine experimentation." App. Br. 6 (citing MPEP Â§ 2144.05 (II)(B); also citing In re Antonie, 559 F.2d 618 (C.C.P.A. 1977)). According to Appellants, nothing in Zaidel would have motivated the skilled artisan to arrive at Appellants' claimed concentration of 2%, because Zaidel makes no teaching or suggestion that the anionic surfactant concentration of a composition has any desirable effects on the compositions taught therein. Id. Appellants repeat that Zaidel does not include any surfactants in its exemplified compositions, much less a specific anionic surfactant at a specific concentration, and therefore, Appellants argue, Zaidel would have provided no motivation to a person of ordinary skill to optimize the amount of anionic surfactant. Id. We are not persuaded. Example 2 of the Specification is provided in its entirety below. Example 2 [0053] Table 2 (below) reports organoleptic evaluation scores/ratings obtained from an experienced flavorist. In these compositions, the sodium lauryl sulfate ("SLS") content was varied, while the flavoring agent content remained constant (2.25% w/w). The experienced flavorist rated these compositions on a scale of 0-6, with a rating of 6 being most preferred. As shown in Table 2, the compositions possessing an SLS content equal to or greater than 1.75% w/w, demonstrated dramatic improvement in rating compared to compositions containing 1.2% w/w SLS. 15 Appeal2018-002333 Application 13/518,971 'lablt\ 2 rw.Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·rw.â€¢â€¢Â·.,wâ€¢Â·.â€¢Â·.Â·â€¢.â€¢Â·.Â·.Â·.wi I ~ ... ;, SLS l Rating ! lJ:~"L~j "When unexpected results are used as evidence of nonobviousness, the results must be shown to be unexpected compared with the closest prior art." In re Baxter Travenol Labs., 952 F.2d 388,392 (Fed. Cir. 1991); see also Iron Grip Barbell Co. v. USA Sports, Inc., 392 F.3d 1317, 1322 (Fed. Cir. 2004) (A showing of "new and unexpected results" must be "relative to the prior art."). Example 2 of Appellants' Specification does not specify whether the materials used in the test from which Table 2 is constructed contains the other ingredients recited in the claims, nor does it expressly or implicitly compare the compositions tested to those taught by Zaidel. More importantly, Zaidel expressly teaches the optional use of surfactants, including SLS: "in a total amount of about 0.01 % to about 10%, for example about 0.05% to about 5% or about 0.1 % to about 2%." Zaidel ,r 64. Zaidel thus teaches the use of SLS within the concentration range disclosed by Table 2. Appellants have not shown that the compositions of Zaidel did not have the organoleptic properties disclosed by Table 2, or that the properties they claim are "unexpected" would not have been present in the prior art. Appellants merely argue that it was not previously appreciated that certain concentrations within the range taught by Zaidel are more preferred by a (single) experienced flavorist than others. That is insufficient to demonstrate unexpected results. First, a demonstration of unexpected results requires the demonstration of a 16 Appeal2018-002333 Application 13/518,971 "difference in kind," rather than a mere difference in degree. See In re Harris, 409 F.3d 1339, 1344 (Fed. Cir. 2005). Here, Appellants demonstrate that a concentration of 2% SLS is somewhat more preferred ( on an arbitrary scale of 1 to 6) by an experienced flavorist, than concentrations of 1. 7 5% or 1.2% (differences of 1.0 and 3.0 arbitrary preferability units respectively). That is insufficient to show a "difference in kind" required to be probative of unexpected results. Furthermore, "[ w ]hen the claimed compositions are not novel they are not rendered patentable by recitation of properties, whether or not these properties are shown or suggested in the prior art." In re Spada, 911 F .2d 705, 709 (Fed. Cir. 1990). In the appeal before us, Zaidel teaches the optional use of SLS in the range of concentrations encompassed by the claim and Example 2 of Appellants' Specification. The fact that 2.0% SLS may present a more preferable taste than lower concentrations in the range taught by Zaidel is not sufficient to overcome the Examiner's prima facie case of obviousness. We consequently affirm the Examiner's rejection of the claims on this ground. B. Rejection of the claims as being obvious over Zaidel and Lokken Appellants repeat their arguments with respect to Zaidel supra, and argue that Lokken fails to cure the alleged deficiencies of Zaidel. App. Br. 9--10. Because, for the reasons we have explained, we conclude that the claims on appeal are obvious over Zaidel, we similarly conclude that the claims are obvious over the combination of Zaidel and Lokken. We consequently affirm the Examiner's rejection of the claims. 17 Appeal2018-002333 Application 13/518,971 C. Rejection of the claims as being obvious over Zaidel and Chopra Appellants repeat their arguments with respect to Zaidel supra, and argue that Chopra fails to cure the alleged deficiencies of Zaidel. App. Br. 10-11. Because, for the reasons we have explained, we conclude that the claims on appeal are obvious over Zaidel, we similarly conclude that the claims are obvious over the combination of Zaidel and Chopra. We consequently affirm the Examiner's rejection of the claims. DECISION The Examiner's rejection of claims 1, 6, 8, 10, 13, 14, 16-19, and 24-- 27 under 35 U.S.C. Â§ 103(a) is affirmed. 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)(l )(iv). AFFIRMED 18