Ex Parte Pinyayev

Patent Trial and Appeal BoardJun 1, 2017

11406439 (P.T.A.B. Jun. 1, 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. 11/406,439 04/18/2006 Aleksey Mikhailovich Pinyayev 9980 5338 27752 7590 06/05/2017 THE PROCTER & GAMBLE COMPANY Global IP Services Central Building, C9 One Procter and Gamble Plaza CINCINNATI, OH 45202 EXAMINER PATEL, YOGESH P ART UNIT PAPER NUMBER 3732 NOTIFICATION DATE DELIVERY MODE 06/05/2017 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): centraldocket. im @ pg. com pair_pg @ firsttofile. com mayer.jk @ pg. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ALEKSEY MIKHAILOVICH PINYAYEV 1 Appeal 2016-003946 Application 11/406,439 Technology Center 3700 Before ERIC B. GRIMES, ULRIKE W. JENKS, and RYAN H. FLAX, Administrative Patent Judges. GRIMES, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134 involving claims to a method of sealing a tooth surface, which have been rejected as obvious. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. STATEMENT OF THE CASE The “invention relates to oral care compositions, devices and regimens which include a sealing agent.” (Spec. 2.) “The film or coating formed by the sealing agents may be removed by natural erosion from the 1 Appellant identifies the Real Party in Interest as The Procter & Gamble Company. (Br. 1.) Appeal 2016-003946 Application 11/406,439 mechanics and chemical processes of mastication, enzymes, [or] abrasive particles such as those typically found in dentifrices.” {Id. at 9.) “In one method of the present invention, a dentifrice contains a sealing agent and sufficient abrasive to remove a prior film of the present invention. The abrasive dentifrice is used first to brush the teeth and remove the prior film followed by activation of the sealing agent to form a new film on the teeth.” {Id. at 10.) Claims 22—29 are on appeal. Claim 22 is the only independent claim and reads as follows: 22. A method of sealing a tooth surface, comprising: applying an oral care composition comprising a sealing agent to a tooth surface; and activating the sealing agent with an energy source; wherein the sealing agent forms a degradable film seal; and removing at least 50% of the degradable film seal using a dentifrice having abrasive. DISCUSSION The Examiner has rejected claims 22, 23, and 25—29 under 35 U.S.C. § 103(a) as obvious based on Mitra2 and Broge.3 (Ans. 2.) The Examiner has rejected claim 24 under 35 U.S.C. § 103(a) as obvious based on Mitra, Broge, and Farrell.4 (Ans. 3.) Because Appellant has waived arguments based on Farrell, the same issue is dispositive for both rejections. 2 Mitra et al., US 6,312,668 B2, issued Nov. 6, 2001. 3 Cooley et al., US 3,070,510, issued Dec. 25, 1962. The Examiner and Appellant refer to this reference as “Broge,” so we do as well. 4 Farrell et al., US 2004/0019990 Al, Feb. 5, 2004. 2 Appeal 2016-003946 Application 11/406,439 The Examiner finds that “Mitra discloses a method that includes applying an oral care composition comprising a sealing agent that forms a degradable film seal (coating) to a tooth surface . . . [and] activating the sealing agent with an energy source,” but “fails to disclose removing at least 50% of the degradable film using a dentifrice with an abrasive.” (Ans. 2.) The Examiner finds that “Broge teaches a method that includes brushing the oral cavity with an oral composition comprising an abrasive in which the abrasive removes any pre-existing film (pellicle film).” {Id. at 3.) The Examiner concludes that it would have been obvious “to modify Mitra to include a method of removing a film using an abrasive, as taught by Broge, since such a method is well known in the art for removing pre existing films.” {Id.) The Examiner also concludes that it would have been obvious “to include removing at least 50% of the film since such a method step would have been merely routine to one having ordinary skill in the art.” {Id.) We agree with the Examiner that the method of claim 22 would have been obvious based on Mitra and Broge. Mitra discloses “coatings on hard tissue surfaces or surfaces of the oral environment.” (Mitra 1:9—10.) Mitra states that its “coatings are provided in an amount sufficient to provide resistance of the coated surface to bacterial adhesion, plaque formation or staining from foods or dyes.” {Id. at 3:9—11.) Mitra states that “[w]hen the polymers of the present compositions comprise pendant ethylenically unsaturated moieties that can be reacted in a subsequent step after application to the intended substrate, the compositions also comprise a polymerization catalyst,” such as a photoinitiation catalyst. {Id. at 16:53—58.) “The photoinitiator should be capable of promoting free 3 Appeal 2016-003946 Application 11/406,439 radical crosslinking of the ethylenically unsaturated component on exposure to light of a suitable wavelength and intensity.” {Id. at 16:62—65.) Mitra discloses that its coatings “can be applied as an oral rinse or as a professionally applied coating .... The ingredients may also be incorporated into dentifrices such as toothpaste, dental gel, toothpowder,” etc. {Id. at 15:49-55.) “Toothpastes . . . used for delivery of either the polymer or the surfactant may additionally contain humectants . . . , polishing agents (such as silica, calcium carbonate, and tricalcium phosphate), and thickeners.” {Id. at 15:66 to 16:4.) Broge discloses “a dentifrice containing a particulate synthetic resin as a cleaning agent and ionic agents to reduce tooth decay.” (Broge 1: IS IS.) Broge states that its dentifrice formulation provides a substantial amount of stannous and fluoride ions that do not react with the cleaning agent, and the cleaning agent effectively removes pellicle films from the teeth with minimum abrasion of the dentin. {Id. at 2:3—15.) Broge states that “[cjommon types of thermo-setting synthetic resins which are suitable for use in this invention when highly polymerized are melamines, phenolics, ureas, melamine-ureas, cross-linked epoxies, and cross-linked polyesters.” {Id. at 2:43-46.) Based on the teachings summarized above, it would have been obvious to use Broge’s abrasive particles in the toothpaste used in Mitra’s method. Mitra states that its coatings can be applied as part of a toothpaste composition, which also contains polishing agents. Broge states that the resin particles used in its dentifrice (i.e., toothpaste) have the advantages of being compatible with a substantial amount of stannous and fluoride ions, and effectively remove pellicle films from teeth. Thus, it would have been 4 Appeal 2016-003946 Application 11/406,439 obvious to use Broge’s resin particles in Mitra’s toothpaste in order to take advantage of the properties disclosed by Broge. Appellant argues that “[a] pellicle film is not a degradable film seal, but rather a naturally occurring buildup on the teeth, and is not formed by activating a sealing agent with an energy source, as in the present invention.” (Br. 2.) This argument is not persuasive. Broge describes the effectiveness of its dentifrice in removing pellicle films, rather than a degradable film seal like that disclosed by Mitra. However, Appellant’s Specification itself provides evidence that Broge’s resin particles are suitable for use in removing a degradable film seal. Appellant’s Specification expressly states that one class of abrasives for use in the present compositions is the particulate thermo-setting polymerized resins as described in U.S. Pat. No. 3,070,510 issued to Cooley & Grabenstetter [i.e., the Broge reference] on Dec. 25, 1962. Suitable resins include, for example, melamines, phenolics, ureas, melamine-ureas, melamine-formaldehydes, urea-formaldehyde, melamine-urea- formaldehydes, cross-linked epoxides, and cross-linked polyesters. (Spec. 9.) Thus, the evidence of record shows that using Broge’s resin particles in Mitra’s toothpaste would result in a toothpaste that would effectively remove a degradable film seal. Appellant also argues: “that a dentifrice dentifrice/paste [sic] is applied to the teeth does not mean that this dentifrice has been purposefully designed to leave a film seal residue on the surfaces of the teeth.” (Br. 2—3.) This argument is also unpersuasive. While Broge does not intend for its dentifrice to leave a film seal on the surface of teeth, Mitra does disclose 5 Appeal 2016-003946 Application 11/406,439 a toothpaste for just that purpose. Thus, when the references are considered together, they would have made obvious all of the limitations of claim 22. Claims 23—29 have not been argued separately and therefore fall with claim 22. 37 C.F.R. § 41.37(c)(l)(iv). SUMMARY We affirm both of the rejections on appeal. TIME PERIOD FOR RESPONSE 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 6