Ex Parte Murphy et al

Patent Trial and Appeal Board

Jun 21, 2017

12024200 (P.T.A.B. Jun. 21, 2017)

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.
12/024,200 02/01/2008 Cynthia M. Murphy 8316-00-HC 8838
23909 7590 06/23/2017
COLGATE-PALMOLIVE COMPANY
909 RIVER ROAD
PISCATAWAY, NJ 08855
EXAMINER
NGUYEN, THUY-AI N
ART UNIT PAPER NUMBER
1763
NOTIFICATION DATE DELIVERY MODE
06/23/2017 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):
Paten t_Mail @ colpal. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CYNTHIA M. MURPHY and DAVID F. SURIANO
Appeal 2016-004804
Application 12/024,200
Technology Center 1700
Before CATHERINE Q. TIMM, ELIZABETH M. ROESEL, and
MICHAEL G. McMANUS, Administrative Patent Judges.
McMANUS, Administrative Patent Judge.
DECISION ON APPEAL
The Examiner finally rejected claims 1—4, 7—9, 11—16, and 19-33 of
Application 12/024,200 under 35 U.S.C. § 103(a) as obvious. Final Act.
(Nov. 19, 2012) 2—6. Appellants seek reversal of these rejections pursuant
to 35 U.S.C. § 134(a).1 We have jurisdiction under 35 U.S.C. § 6.
For the reasons set forth below, we AFFIRM.
1 Colgate-Palmolive Company is identified as the real party in interest.
Appeal Br. 2.
Appeal 2016-004804
Application 12/024,200
BACKGROUND
The present application generally relates to a liquid detergent
composition containing refractive particles and surfactants. Spec. 1 6.
Claim 1 is representative of the pending claims and is reproduced
below:
1. A dishwashing liquid composition comprising refractive
solid particles having a substrate of one material and a coating
of another material and a liquid portion comprising surfactants
and at least one suspending agent, wherein the surfactants
comprise sodium alkyl benzene sulfonate and magnesium alkyl
benzene sulfonate in a weight ratio of about 5:1 to 2:1, and
wherein the composition has a surfactant content of at least
15%, based on the weight of the composition.
Appeal Br. 5 (Claims App’x.) (emphasis added).
REJECTIONS
On appeal, the Examiner maintains the following rejections:
1. Claims 1—4, 7—9, 30, and 33 are rejected under 35 U.S.C.
§ 103(a) as obvious over Shiloach et al. (US 2005/0227880 Al, pub. Oct.
13, 2005) (hereinafter “Shiloach”) in view of Gorlin (US 5,780,417, July 14,
1998). Final Act. 2-4.
2. Claims 11—16 and 19-29 are rejected under 35 U.S.C. § 103(a)
as obvious over Shiloach in view of Gorlin and Paye et al. (US 6,767,878,
iss. July 27, 2004) (hereinafter “Paye”). Id. at 4—5.
3. Claims 31 and 32 are rejected under 35 U.S.C. § 103(a) as
obvious over Shiloach in view of Gorlin and Cheung et al. (US
2004/0186037 Al, pub. Sept. 23, 2004) (hereinafter “Cheung”). Id. at 5—6.
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Application 12/024,200
DISCUSSION
Rejection 1. The Examiner rejected claims 1—4, 7—9, 30, and 33 as
obvious over Shiloach in view of Gorlin. Id. at 2—\. Claims 2—4, 7—9, 30,
and 33 depend from claim 1. Appeal Br. 5, 7 (Claims App’x.). Appellants
do not offer separate argument in regard to these claims, accordingly, the
rejection of claims 2-4, 7—9, 30, and 33 will stand or fall with claim 1.
In rejecting the claims, the Examiner determines that Gorlin teaches a
composition comprising two sulfonate surfactants as required by claim 1.
Specifically, the Examiner finds that Gorlin’s disclosure of an “alkali metal
salt of alkylbenzene sulfonate in an amount of from 1 to about 20 percent”
teaches sodium alkyl benzene sulfonate as claimed. Final Act. 2. The
Examiner further finds that Gorlin’s disclosure of an “alkaline earth metal
salt of Cl0-16 linear alkylbenzene sulfonate in an amount of from 5 to 15
percent” teaches magnesium alkyl benzene sulfonate. Id. (citing Gorlin
5:19—28). The Examiner determines that such disclosure teaches the
“weight ratio of about 5:1 to 2:1” required by claim 1. Final Act. 2—3.
Appellants agree that Gorlin teaches to use the claimed surfactants but
argue that Gorlin does not teach the claimed ratio. Appeal Br. 2—3.
Appellants reason that the disclosure of a range of weight percent for each
surfactant does not teach that the quantity of one component to be added
should be determined by reference to a second component. Id. at 3.
“A prima facie case of obviousness typically exists when the ranges of
a claimed composition overlap the ranges disclosed in the prior art.” In re
Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003); see also In re Applied
Materials, Inc., 692 F.3d 1289, 1295 (Fed. Cir. 2012) (prima facie case of
obviousness arises from overlapping “dimensional values”). “In general, an
applicant may overcome a prima facie case of obviousness by establishing
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Application 12/024,200
‘that the [claimed] range is critical, generally by showing that the claimed
range achieves unexpected results relative to the prior art range.’” In re
Peterson, 315 F.3d at 1330 (citing In re Geisler, 116 F.3d 1465, 1469—70
(Fed. Cir. 1997)).
Here, Gorlin teaches a maximum weight percentage of 20% sodium
alkyl benzene sulfonate and a minimum weight percentage of 5%
magnesium alkyl benzene sulfonate. Gorlin 5:19—28. This corresponds to a
weight ratio 4:1. Gorlin further teaches a minimum weight percentage of
1 % sodium alkyl benzene sulfonate and a maximum weight percentage of
15% magnesium alkyl benzene sulfonate, id., which corresponds a weight
ratio of 1:15. Thus, the range of ratios taught by Gorlin is 4:1 to 1:15. This
overlaps the claimed ratio of 5:1 to 2:1. Indeed, Appellants concede that
“the amounts of each material fall within the recited range.” Appeal Br. 3.
A range of ratios is not treated differently than any other range of
values. The Federal Circuit has considered a case where the claim at issue
included a limitation requiring a certain “thickness ratio.” In re Huang, 100
F.3d 135, 137 (Fed. Cir. 1996). There, the Court held as follows:
Given that use of a polyurethane layer to absorb shock is
not novel, Huang's contribution to the art could only lie in the
specific thickness ratios recited in the claims. This court and
its predecessors have long held, however, that even though
applicant's modification results in great improvement and utility
over the prior art, it may still not be patentable if the modification
was within the capabilities of one skilled in the art, unless the
claimed ranges “produce a new and unexpected result which is
different in kind and not merely in degree from the results of the
prior art.”
In re Huang, 100 F.3d at 139 (Fed. Cir. 1996) (citing In re Aller, 220 F.2d
454 (1955)) (emphasis added). Here, Appellants do not allege that the
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Application 12/024,200
claimed range of ratios of surfactants produces any new and unexpected
result. Accordingly, the prima facie case of obviousness stands unrebutted.
Rejection 2. The Examiner rejected claims 11—16 and 19—29 as
obvious over Shiloach in view of Gorlin and Paye. Final Act. 4—5.
Appellants do not present separate argument concerning this rejection;
rather, they rely upon their arguments presented in regard to claim 1 relating
to the surfactant ratio. Appeal Br. 3^4. As such arguments were not found
to be persuasive, we sustain the rejection of claims 11—16 and 19-29.
Rejection 3. The Examiner rejected claims 31 and 32 as obvious over
Shiloach in view of Gorlin and Cheung. Final Act. 5—6. Appellants do not
present separate argument concerning this rejection; rather, they rely upon
their arguments presented in regard to claim 1 relating to the surfactant ratio.
Appeal Br. 4. As such arguments were not found to be persuasive, we
sustain the rejection of claims 31 and 32.
CONCLUSION
The rejections of claims 1—4, 7—9, 11—16, and 19-33 of Application
12/024,200 under 35 U.S.C. § 103(a) as obvious are 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).
AFFIRMED
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