Ex Parte SI et al

Patent Trial and Appeal BoardNov 5, 2018

14669014 (P.T.A.B. Nov. 5, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/669,014 03/26/2015 27752 7590 11/07/2018 THE PROCTER & GAMBLE COMPANY Global IP Services Central Building, C9 One Procter and Gamble Plaza CINCINNATI, OH 45202 FIRST NAMED INVENTOR Gang SI 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. AA919MQL 7868 EXAMINER MRUK,BRIANP ART UNIT PAPER NUMBER 1761 NOTIFICATION DATE DELIVERY MODE 11/07/2018 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 GANG SI, KOUSHIK MUKHERJEE, QI ZHANG, PENG QIN, MARK ROBERT SIVIK, AARON FLORES- FIGUEROA, and SUSANNE BIRKEL Appeal2018-001520 Application 14/669,014 1 Technology Center 1700 Before BEYERL YA. FRANKLIN, BRIAND. RANGE, and JENNIFER R. GUPTA, Administrative Patent Judges. RANGE, Administrative Patent Judge. DECISION ON APPEAL SUMMARY Appellant appeals under 35 U.S.C. Â§ 134(a) from the Examiner's decision rejecting claims 1-7 and 10-22. We have jurisdiction. 35 U.S.C. Â§ 6(b ). We AFFIRM. 1 Appellant is the Applicant, The Procter & Gamble Company, which according to the Appeal Brief, is also the real party in interest. Appeal Br. 1. Appeal2018-001520 Application 14/669,014 STATEMENT OF THE CASE2 Appellant describes the invention as relating to a laundry detergent composition with cationic polymer in an effective amount for optimizing sudsing profile while also minimizing fabric whiteness loss. Spec. 1 :5-8. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A laundry detergent composition, comprising an effective amount of a cationic polymer for sudsing profile optimization, said cationic polymer comprising: (i) from about 60 mol% to about 90 mol% of a first structural unit derived from (meth)acrylamide (AAm); (ii) from about 5 mol% to about 40 mol% of a second cationic structural unit; and (iii) from O mol% to about 25 mol% of a third nonionic structural unit that is different from the first structural unit, wherein said cationic polymer is characterized by a molecular weight of from about 20,000 to about 350,000 Daltons and is substantially free of any silicone-derived structural component. Appeal Br. 12 (Claims App.). 2 In this Decision, we refer to the Final Office Action dated March 9, 201 7 ("Final Act."), the Appeal Brief filed July 10, 2017 ("Appeal Br."), the Examiner's Answer dated October 2, 2017 ("Ans."), and the Reply Brief filed November 29, 2017 ("Reply Br."). 2 Appeal2018-001520 Application 14/669,014 REJECTIONS AND REFERENCES The Examiner maintains the following rejections on appeal: Rejection 1. Claims 1-7 and 10-22 under 35 U.S.C. Â§ 103 as unpatentable over Panandiker et al., US 2012/0309663 Al, Dec. 6, 2012 ("Panandiker"). 3 Ans. 2. Rejection 2. Provisionally, claims 1-7 and 10-22 on the ground of nonstatutory double patenting as being unpatentable over claims 1-21 of copending Application No. 14/669,013. Final Act. 2. Rejection 3. Provisionally, claims 1-7 and 10-22 on the ground of nonstatutory double patenting as being unpatentable over claims 1-23 of copending Application No. 14/937,910. Id. Rejection 4. Provisionally, claims 1-7 and 10-22 on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of copending Application No. 14/848,596. Id. at 3. Rejection 5. Provisionally, claims 1-7 and 10-22 on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of copending Application No. 14/848,610. Id. ANALYSIS We review the appealed rejections for error based upon the issues identified by Appellant and in light of the arguments and evidence produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential), cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) ("[I]t has long been the Board's practice to require an applicant to identify the 3 The Examiner has withdrawn the prior rejection based on 35 U.S.C. Â§ 102. Ans. 4. 3 Appeal2018-001520 Application 14/669,014 alleged error in the examiner's rejections .... "). After considering the evidence presented in this Appeal and each of Appellant's arguments, we are not persuaded that Appellant identifies reversible error. Thus, we affirm the Examiner's rejections for the reasons expressed in the Final Office Action and the Answer. We add the following primarily for emphasis. Rejection 1. Appellant does not make any substantively distinct arguments for any claims. See Appeal Br. passim. Therefore, consistent with the provisions of 37 C.F.R. Â§ 4I.37(c)(l)(iv) (2013), we limit our discussion to claim 1, and all other claims on appeal stand or fall together with claim 1. The Examiner rejects claims 1-7 and 10-22 under 35 U.S.C. Â§ 103 as unpatentable over Panandiker. Ans. 2. The Examiner finds that Panandiker teaches a cationic polymer formed from 60-95 mole percent of acrylamide, 1--40 mole percent of dially dialkyl ammonium chloride ("DADMAC"), and 1-80% by weight anionic surfactants. Ans. 2-5 (citing Panandiker). The Examiner finds that Panandiker teaches a molecular weight for the cationic polymer of 10,000 to 1,500,000 daltons and preferably 200,000 daltons. Id. at 2. Appellant argues that a person of skill in the art would not have reason to modify Panandiker' s broad disclosure to arrive at claim 1 's recited combination without hindsight. Appeal Br. 7. Appellant argues that Panandiker does not identify specific monomers, monomeric ratios or molecular profile as impacting sudsing profile or whiteness. Id. Appellant's argument does not persuade us of reversible error. Rather, the preponderance of the evidence supports the Examiner's findings. See, e.g., Panandiker ,r,r 68---69 (teaching use of DAD MAC and acrylamides 4 Appeal2018-001520 Application 14/669,014 to form cationic polymers), 76 (teaching an acrylamide to DADMAC ratio of 70:30), 77 (teaching molecular weight between 10,000 and 5,000,000 daltons and preferably from 200,00 and 1,500,000 daltons); see also, e.g., id. at Table 2 (indicating that Panandiker refers to molecular weight in daltons ). Appellant does not persuasively dispute the Examiner's findings. The ranges taught by Panandiker overlap with the ranges of claim 1. Even the ratio taught by Panandiker falls within the range of ratios taught by claim 1. 4 Because the recited ranges are entirely encompassed by ranges taught by Panandiker, prima facie obviousness of the ranges is established. In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003) ("A primafacie case of obviousness typically exists when the ranges of a claimed composition overlap the ranges disclosed in the prior art."); In re Geisler, 116 F.3d 1465, 1469 (Fed. Cir. 1997) (acknowledging that claimed invention was rendered prima facie obvious by prior art reference whose disclosed range (50-100 Angstroms) overlapped the claimed range (100-600 Angstroms)). Appellant also argues "surprising" (i.e., unexpected) results. Appeal Br. 7-8. In the Appeal Brief, Appellant refers to Examples IV and V of the Specification, and Appellant additionally refers to Examples I and III in the Reply Brief. Id.; Reply Br. 1-3. A party asserting unexpected results as evidence of nonobviousness has the burden of proving that the results are unexpected. In re Geisler, 116 F.3d at 1469-70. The evidence of unexpected results also must also be reasonably commensurate with the scope of the claims. In re Peterson, 4 Claim 1 encompasses a ratio of component (i) to component (ii) between 1.5 (60 mol% divided by 40 mol%) and 18 (90 mol% divided by 5 mol%). Panandiker expressly teaches, for example, a ratio of 2.5 (70 mol% divided by 30 mol%). See, e.g., Panandiker ,r 76. 5 Appeal2018-001520 Application 14/669,014 315 F.3d at 1330-31 (explaining that applicant may overcome a prima facie case of obviousness by showing unexpected results but the showing of unexpected results "must be commensurate in scope with the claims which the evidence is offered to support" (internal quotes and citation omitted)). "If an applicant demonstrates that an embodiment has an unexpected result and provides an adequate basis to support the conclusion that other embodiments falling within the claim will behave in the same manner, this will generally establish that the evidence is commensurate with scope of the claims." In re Huai-Hung Kao, 639 F.3d 1057, 1068 (Fed. Cir. 2011). We have carefully considered Appellant's evidence and arguments, but the proffered evidence is ultimately unpersuasive. Here, we agree with the Examiner that Appellant's evidence is not reasonably5 commensurate in scope with claim 1. Ans. 5. Claim 1, for example, permits inclusion of any structural unit derived from (meth)acrylamide for component (i), permits any second cationic structural unit for component (ii), and permits a wide range of mole percent composition for each of these components. Appellant fails to explain how the data provided would adequately support a conclusion that other embodiments within the scope of the claim would exhibit the same results. Appellant also fails to present evidence that the proffered results are unexpected. Establishing that results are unexpected requires, for example, Appellant to proffer factual evidence that shows unexpected results relative 5 Appellant argues that the Examiner erred by stating that the results are not commensurate in scope rather than stating the results are not reasonably commensurate in scope. Reply Br. 2. Because Appellant does not meet the burden of establishing unexpected results for the reasons explained herein, this argument does not identify harmful or reversible error. 6 Appeal2018-001520 Application 14/669,014 to the closest prior art. See In re Baxter Travenol Labs., 952 F.2d 388, 392 (Fed. Cir. 1991). Appellant does not explain why Examples I, II, IV, or V provide better or unexpected results as compared to any Panandiker examples. Because Appellant's arguments do not demonstrate reversible error, we sustain the Examiner's rejection. Rejections 2-5. Appellant does not dispute the Examiner's provisional obviousness type double patenting rejections. Appeal Br. 2. We summarily affirm these rejections. DECISION For the above reasons, we affirm the Examiner's rejections of claims 1-7 and 10-22. 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 7