Ex Parte REES et al

Patent Trial and Appeal BoardAug 31, 2017

13491980 (P.T.A.B. Aug. 31, 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. 13/491,980 06/08/2012 Wayne M. REES J-5738 1021 28165 7590 09/05/2017 S.C. JOHNSON & SON, INC. 1525 HOWE STREET RACINE, WI53403-2236 EXAMINER ASDJODI, MOHAMMADREZA ART UNIT PAPER NUMBER 1767 NOTIFICATION DATE DELIVERY MODE 09/05/2017 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): F074168@scj.com selechne @ scj. com mjzolnow @ scj .com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte WAYNE M. REES and THOMAS A. STRASH1 Appeal 2016-008044 Application 13/491,980 Technology Center 1700 Before ADRIENE LEPIANE HANLON, AVELYN M. ROSS, and MICHAEL G. McMANUS, Administrative Patent Judges. ROSS, Administrative Patent Judge. DECISION ON APPEAL2 Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of claims 1, 2, 4—7, 10-12, 14, 18—25, 27, and 31—38. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 Appellants identify the real party in interest as S.C. Johnson & Son, Inc., the assignee of the above-captioned application. Appeal Br. 1—2. 2 In our Decision we refer to the Specification (“Spec.”) filed June 8, 2012 as amended, the Final Office Action (“Final Act.”) dated July 6, 2015, the Appeal Brief (Appeal Br.) filed December 7, 2015, the Examiner’s Answer (“Ans.”) dated June 23, 2016, and the Reply Brief (“Reply Br.”) filed August 23, 2016. Appeal 2016-008044 Application 13/491,980 STATEMENT OF THE CASE The subject matter on appeal relates to self-adhesive detergent compositions with color-changing systems. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A hard surface cleaning composition comprising (1) a cleaning system comprising components which render said composition a gel having a viscosity of about 100 to about 1000 Pa s at 20-25°C and which is self-adhesive to a hard surface in absence of an adhesive or container and under a plurality of separate water-based rinses, wherein the water-based rinses have a pH of about 6 to about 8; and (2) a color-change system; wherein said composition progressively dissolves over said plurality of separate water- based rinses of said composition to provide a dissolved cleaning portion; and wherein said color-change system has a pH of about 2 to about 5 or a pH of about 9 to about 11 and comprises (a) greater than 0 and less than about 5 wt.% of at least one pH control agent, and (b) about 0.01 to about 2 wt.% of at least one color changing dye which provides a first color to said composition when undissolved including through said plurality of separate water-based rinses, and which provides a second color to said dissolved cleaning portion to provide said water-based rinses with said second color, said first color being different from said second color. Claims App’x 1. REJECTIONS The Examiner maintains the following rejections: A. Claims 1, 2, 4—7, and 10—12 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Veltman3 3 Veltman et al., US 2010/0120648 Al, published May 13, 2010 (“Veltman”). 2 Appeal 2016-008044 Application 13/491,980 in view of Sabnis,4 Purzycki,5 and Klinkhammer.6 Final Act. 2. B. Claims 14 and 18—25 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Veltman in view of Sabnis, Purzycki, and Klinkhammer. Id. at 6. C. Claims 27 and 31—38 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Veltman in view of Sabnis, Purzycki, and Klinkhammer. Id. at 10. Appellants request our reversal of Rejections A-C. Appeal Br. 6—7. Because our reason for reversing the rejection of claim 1 applies to the rejections of independent claims 14 (Rejection B) and 27 (Rejection C), as well as the dependent claims, we focus our discussion below on claim 1. OPINION The Examiner rejects independent claim 1, among others, as obvious over the combination of Veltman, Sabnis, Purzycki, and Klinkhammer. Final Act. 2. The Examiner finds that Veltman teaches a self-sticking cleaning system including a solid detergent, dye and pH control agents. Id. The Examiner finds that Veltman discloses that water having a pH of 6—8 flows over the detergent and causes the detergent to be gradually dissolved to clean the vessel. Id. The Examiner acknowledges that Veltman does not teach a color change system with pH sensitive dyes, but finds that Sabnis 4 Sabnis et al., US 2007/0010400 Al, published January 11, 2007 (“Sabnis”). 5 Purzycki et al., US 4,666,671, issued May 19, 1987 (“Purzycki”). 6 Klinkhammer et al., US 2010/0093586 Al, published April 15, 2010 (“Klinkhammer”). 3 Appeal 2016-008044 Application 13/491,980 teaches use of color changing indicators for cleaning compositions. Id. at 3. The Examiner reasons that a person of skill in the art would “add the pH sensitive dyes of Sabnis to Veltman’s composition with the motivation of having a visual indication of washing-cleaning process as taught by Sabnis.” Id. The Examiner further finds that Purzycki teaches a cleaning system in the form of a gel. Id. And, the Examiner finds that Klinkhammer discloses a self-adhesive cleaning composition having a viscosity of 200-400 Pa s at 25-C, which is within the claimed range of about 100-1000 Pa s at 20-25 °C. Id. at 4. The Examiner also explains that the “progressively dissolve[s] over said plurality of separate water-based rinses” and the “first color maintained in said composition when undissolved” and which provides a second color to said dissolved cleaning portion clauses do not impart any distinction over the prior art because they are not structural limitations. Id. The Examiner further reasons that “the reference teaches all of the claimed reagents, in the claimed ranges, was prepared under similar conditions . . . [and] [therefore, the claimed effects and physical properties . . . would implicitly be achieved by a composition with all the claimed ingredients.” Id. at 5. Appellants argue that the combination of references supplied by the Examiner fails to yield the compositions as claimed by Appellants. Appeal Br. 14—18. Appellants note that Sabnis is the only reference the Examiner relies upon to teach an indicator which provides a color. Id. at 17. And, Sabnis does not “teach[] a dye which changes color between a first color and a second color, but rather, a color dye which fades or disappears.” Id. at 14. Appellants stress that their claims require 4 Appeal 2016-008044 Application 13/491,980 a controlled change in color to indicate different states, i.e., an undissolved portion of the composition is a first color even through a plurality of separate water-based rinses of a pH of about 6 to about 8 while the dissolved portion changes to a second color as a result of the same rinses (claim 1); or the composition remains a first color through at least a pre determined number of a plurality of separate water-based rinses of a pH different from the pH of the color change system and, thereafter, provides the composition with a second color different from the first color (claim 14); or the composition in undissolved and dissolved portions retains a first color even through a plurality of separate water-based rinses of a pH different from the pH of the color change system and is provided with a second color only when the composition in substantial entirety is physically mixed with one of those plurality of water-based rinses [claim 27]. Id. at 15—16. Appellants urge that the remaining references to not cure the defects of Sabnis. We agree with Appellants that the Examiner reversibly erred in making the rejections. Specifically, we disagree with the Examiner’s determination (Final Act. 5) that because the combination teaches “the claimed reagents, in the claimed ranges, [and] was prepared under similar conditions” the results as claimed “would implicitly be achieved” or “are necessarily present.” As Appellants note (Appeal Br. 18), Sabnis is the only reference relied on by the Examiner as describing use of color changing indicators. See also Final Act. 3. However, Sabnis, in contrast to the claimed invention, “describes uses of various acid-base indicators in combination with consumer products, such as herbicides where upon application the surface treated is visualized by a color and then, with time, the color disappears.” See Sabnis Abstract (emphasis added); see also id. 129 (“The combination can then be applied ... so that the initial application 5 Appeal 2016-008044 Application 13/491,980 can be readily visualized and then, when some action (evaporation, friction, etc.), the color disappears at the site of application”.). According to Sabnis, “[i]t is often difficult to visualize when and/or where a surface has been treated with a substance due to poor contrast, poor lighting or a myriad of other factors” and use of an indicator remedies this problem. Id. 13; see also id. 4 and 6 (exemplifying car polishes and car washes and the need to provide complete coverage to the entire vehicle). Therefore, Sabnis fails to teach a color change from one color to a different color. Moreover, the Examiner’s finding that Sabnis and Veltman teach the use of a pH adjuster does not establish that the requisite color change is inherent. The Examiner does not explain nor does the prior art suggest to the skilled artisan how to use the pH adjuster to achieve the Appellants’ invention. Neither reference teaches or suggests selecting a pH adjuster to complement the chosen dye. Instead, Sabnis is silent as to the reason for its pH adjuster, and Veltman describes use of pH control agents as a lime scaling removal agent. Sabnis 147 and Veltman 1 65. On this record, the Examiner has not made an adequate showing that a change from a first color to a second color where the first color is different from the second color will necessarily be present—i.e., more than a possibility or probability—based on the combination of references. Thus, we cannot sustain the Examiner’s rejection. See In re Oelrich, 666 F.2d 578, 581 (CCPA 1981) (“The mere fact that a certain thing may result from a given set of circumstances is not sufficient.”). 6 Appeal 2016-008044 Application 13/491,980 CONCLUSION Appellants have identified a reversible error in the Examiner’s rejection of Examiner’s rejection of claims 1, 2, 4—7, 10-12, 14, 18—25, 27, and 31—38 as unpatentable over the combination of Veltman, Sabnis, Purzycki, and Klinkhammer. DECISION For the above reasons, the Examiner’s rejection of claims 1, 2, 4—7, 10-12, 14, 18—25, 27, and 31—38 is reversed. REVERSED 7