Ex Parte Staudigel et al

Patent Trial and Appeal BoardFeb 23, 2016

11328302 (P.T.A.B. Feb. 23, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 111328,302 0110912006 27752 7590 02/25/2016 THE PROCTER & GAMBLE COMPANY Global Patent Services - Legal IP Central Building, CS One Procter and Gamble Plaza CINCINNATI, OH 45202 FIRST NAMED INVENTOR James Anthony Staudigel 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. 10272 5029 EXAMINER MATTISON, LORI K ART UNIT PAPER NUMBER 1619 NOTIFICATION DATE DELIVERY MODE 02/25/2016 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 JAMES ANTHONY STAUDIGEL and MARJORIE MOSSMAN PEFFLY Appeal2013-003631 Application 11/328,302 Technology Center 1600 Before ERIC B. GRIMES, ULRIKE W. JENKS, and ROBERT A. POLLOCK, Administrative Patent Judges. PERCURIAM DECISION ON APPEAL This is a decision on appeal 1 under 35 U.S.C. Â§ 134 from the Examiner's rejection of claims 1-3, 5-13, 15, and 16. We have jurisdiction under 35 U.S.C. Â§ 6(b). We affirm. 1 Appellants identify the Real Party in Interest as The Procter & Gamble Company (App. Br. 1 ). Appeal2013-003631 Application 11/328,302 STATEMENT OF THE CASE The Specification discloses "personal care compositions comprising an anionic surfactant system and a cationically modified starch polymer" (Spec. 1:8-9). The Specification states that "[t]he combination of the cationically modified starch polymer with the anionic surfactant system ... provides enhanced deposition of conditioning agents to hair and/or skin without reducing cleansing performance" (id. at 3: 13-16). Claim 1 is representative of the claims on appeal and reads as follows: 1. A shampoo composition comprising: a) from about 0.01 wt.% to about 10 wt.% of a water-soluble cationically modified tapioca polymer, wherein said water-soluble cationically modified starch polymer has a molecular weight from about 250,000 to about 15,000,000 and a charge density from about 0.2 meq/g to about 5 meq/ g; b) from about 5 wt. % to about 50 wt. % of an anionic surfactant system, said anionic surfactant system comprising at least one anionic surfactant and having an ethoxylate level and an anion level, Issue i) wherein said ethoxylate level is from 2.94 to about 6, and ii) wherein said anion level is from about 1 to about 6; and c) a cosmetically acceptable medium. The Examiner has rejected claims 1-3, 5, 7-13, 15, and 16 under 35 U.S.C. Â§ 103(a) as obvious in view ofMelby,2 Wells, 3 and Polyquatemium- 114 (Ans. 3). 5 The Examiner has also rejected claims 1-3, 5-13, 15, and 16 2 Melby et al., US 6,365,140 Bl issued April 2, 2002. 3 Wells, US 5,573,709 issued November 12, 1996. 4 Polyquatemium - PQ-11 Nanhang Industrial Co., Ltd. www.nhpvp.com/pq-11.html (2006). 2 Appeal2013-003631 Application 11/328,302 under 35 U.S.C. Â§ 103(a) as obvious in view of Melby, Wells, Schrader,6 and Polyquatemium-11 (id.). We will consider these rejections together. The issue presented is: Has the Examiner established by a preponderance of the evidence that the combination of Melby and Wells would have made obvious a shampoo composition comprising the polymer and anionic surfactant system having the characteristics recited in claim 1? Findings of Fact 1. The Examiner finds that Melby discloses a shampoo comprising anionic and nonionic surfactants (Office Action mailed Oct. 5, 2011 (Non-Final Rej.) at 5). "MELBY teaches inclusion of a cationic modified starch in the shampoo" (id. at 6 (citing Melby, Example 3) ). 2. Melby discloses "novel aqueous modified starch solutions" and their use "in a cosmetically acceptable medium for the treatment of a keratin-containing substrate" (Melby, Abstract). 3. Melby discloses that the molecular weight of the modified starch "is preferably ... about 1,000 to about 1,000,000 with a weight average molecular weight of about 5,000 to about 500,000 being most preferred" (id. at col. 6, 11. 63---67). 4. Melby discloses that its "invention is preferably directed to a cationic modified starch" (id. at col. 7, 11. 38-39), where the "starch base 5 The Examiner cites Polyquatemium-11 only with respect to dependent claim 7. For the reasons discussed below, we need not address the teachings of Polyquatemium-11. 6 Schrader et al., US 6,004,544 issued December 21, 1999. 3 Appeal2013-003631 Application 11/328,302 from which the cationic modified starch is derived can come from various sources such as potato, com, rice, tapioca or wheat" (id. at col. 7, 11. 65---67). 5. Melby discloses that the "modified starch conditioning additives are added to hair or skin care product formulations in amounts ranging from about 0.01 to about 20% by weight" (id. at col. 9, 11. 33-35). "They are particularly compatible with anionic surfactant-containing products such as shampoos, generally providing clear formulations without the loss of conditioning properties" (id. at col. 9, 11. 36-40). 6. Melby discloses that its shampoo compositions "contain anionic, cationic, nonionic and/or amphoteric surface-active agents typically in an amount from 3-50% by weight, preferably 3-20%" (id. at col. 12, 11. 43--45). 7. Melby exemplifies a shampoo composition comprising ammonium lauryl sulfate (7.5%), ammonium laureth sulfate (17.5%), a cationic modified starch (0.26% ), and water, among other things (id. at col. 13, 1. 50-col. 14, 1. 20 (Example 3)). 8. The Examiner finds that ammonium laureth sulfate is an anionic surfactant having the characteristics recited in claim 1, based on its description in Appellants' Specification as suitable for use in the disclosed compositions (Non-Final Rej. 5---6). 9. Appellants' Specification states that "[p ]referred anionic surfactants suitable for use in the personal care compositions are alkyl sulfates and alkyl ether sulfates" (Spec. 10:12-13) and that "[e]xamples of anionic surfactants for use in the personal care compositions include ammonium lauryl sulfate, ammonium laureth sulfate," etc. (id. at 11 :23-24). 4 Appeal2013-003631 Application 11/328,302 10. The Examiner finds that the composition of Melby's Example 3 has an ethoxylate level of 5.79 and an anionic level of 4.18 (Ans. 4). 11. The Examiner finds that Wells discloses a shampoo comprising "a cationically modified polymer which has a charge density of at least about 0.2 meq/g and preferably less than 2.75 meq/g. WELLS teaches the cationic charge density of the polymer provides the substantivity between the polymer and the hair" (Non-Final Rej. 6). "The cationic charge density can be controlled and adjusted by techniques known in the art such as adjusting the pH of the shampoo or altering the proportions of amine or quaternary ammonium moieties in the polymer" (id. at 6-7 (citing Wells, col. 14, 11. 25-35)). 12. Wells discloses "shampoo compositions comprising anionic detersive surfactants, silicone hair conditioning agents, and cationic polymeric hair conditioning agents" (Wells, col. 1, 11. 13-15). 13. Wells discloses that the shampoo compositions "comprise a soluble, organic, polymeric cationic hair conditioning agent as an essential element" (id. at col. 12, 11. 56-58). Wells states that the charge density of the polymeric conditioning agent is preferably less than about +2.75 meq/gram and "should be of a level such that efficient substantivity between the polymer and the hair can be attained" (id. at col. 13, 11. 3-9). "[I]t is preferred that cationic charge density be at least about 0.2 meq/gram" (id. at col. 13, 11. 9-11). 14. The Examiner concludes that it would have been obvious to one of ordinary skill in the art to modify "the cationic charge density of the cationic tapioca polymer taught by MELBY to be between 0.2-2.75 meq/g 5 Appeal2013-003631 Application 11/328,302 as taught by WELLS in order to alter the substantivity between the cationic polymer and hair" (Non-Final Rej. 7). "The skilled artisan would have been motivated to modify the cationic charge density of the polymer to improve the detangling of hair and decrease the incidence of static flyaway hair" (id.). Analysis Melby discloses a shampoo composition comprising a cationically modified starch and ammonium laureth sulfate (an anionic surfactant, FF 9) in the concentrations required by claim 1, together with water, a cosmetically acceptable medium (FF 7). Melby also discloses that the starch can be derived from tapioca (FF 4) and most preferably has a molecular weight of 5000 to 500,000 (FF 3). The Examiner finds that the composition of Melby's Example 3 has an ethoxylate level and an anion level within the ranges required by claim 1 (FF 10). Wells discloses a shampoo composition comprising a cationic polymer preferably having a charge density of +0.2 to +2.75 meq/g (FF 13). Wells discloses that this charge density allows "efficient substantivity between the polymer and the hair" (FF 13). We agree with the Examiner that it would have been obvious to modify the tapioca-derived cationically modified starch suggested by Melby to have a charge density between +0.2 and +2.75 meq/g, because Wells discloses that the charge density of the cationic polymer in its shampoo "should be of a level such that efficient substantivity between the polymer and the hair can be attained" (FF 13), and that charge densities between +0.2 meq/g and +2.75 meq/g are preferred (FF 13). 6 Appeal2013-003631 Application 11/328,302 Appellants argue that one of ordinary skill in the art would not have been motivated, in view of the cited references, "to arrive at a shampoo composition comprising a surfactant system having an anionic surfactant, wherein the system has an ethoxylate level of 2.94 to about 6 and an anion level of about 1 to about 6, and then ... arrive at the combination of the aforementioned surfactant system with the particular cationic tapioca starch polymer" recited in claim 1 (App. Br. 2). Appellants argue that there are "many suppliers of these surfactant materials-and the ethoxylation distribution of these materials varies significantly" and "there are vast numbers of cationic polymers (with varying properties) which can be selected from to combine together with the claimed surfactant system" (id. at 3). Appellants argue that, therefore, the "use of a particular ethoxylate and anion level in a surfactant system (which comprises an anionic surfactant) in combination with a particular cationic tapioca polymer (having a certain wt. %, molecular weight and charge density) has no finite number of predictable solutions with anticipated successes" (id. at 2-3). We conclude that the Examiner has the better position. The Examiner has found that the composition of Melby' s Example 3 has an ethoxylate level of 5.79 and an anionic level of 4.18 (FF 10). Appellants have not provided any argument, evidence, or reasoning to rebut the Examiner's calculations (see App. Br. 2-5). The Examiner further responds that "MELBY' s Example 3 teaches inclusion of a water-soluble cationic starch polymer in which the starch may be derived from tapioca," with a molecular weight that is "preferably 5,000 to 500,000" (Ans. 4). (id.). Finally, the Examiner finds that Wells discloses a shampoo containing a cationically 7 Appeal2013-003631 Application 11/328,302 modified polymer having a charge density that is preferably between 0.2 meq/g and 2.75 meq/g (id.). In view of the disclosures in Melby and Wells, we agree with the Examiner that it would have been obvious to one of ordinary skill in the art to formulate a shampoo composition according to Melby with a tapioca- based starch conditioning agent that has a charge density as disclosed in Wells in order to achieve efficient substantivity between the hair and the tapioca-based conditioning agent. Appellants' argument-that claim 1 requires selecting parameters for the cationically modified starch and anionic surfactant in the composition- does not persuade us that the claimed composition would have been nonobvious, because the evidence shows that the ranges recited in claim 1 were all recognized as appropriate for a cationically modified starch or an anionic surfactant in a shampoo composition. Appellants have not pointed to evidence of unexpected results obtained by using a starch or surfactant having the recited characteristics. Thus, we conclude that the Examiner has made a prima facie case that claim 1 would have been obvious to a person of ordinary skill in the art, and Appellants have not provided persuasive evidence or reasoning to support a contrary conclusion. \Ne therefore affirm the rejection of claim l as being obvious in view of J\lfolby and WeIIs. See In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992). Claims 2, 3, 5, 7-13, 15, and 16 have not been argued separately from claim 1 and therefore fall with that claim. See 37 C.F.R. Â§ 41.37(c)(l)(iv). 8 Appeal2013-003631 Application 11/328,302 The Examiner has also rejected claims 1-3, 5-13, 15, and 16 under 35 U.S.C. Â§ 103(a) as obvious in view of Melby and Wells, Schrader, and Polyquatemium-11 (Ans. 3). For this rejection, Appellants present the same argument as discussed above (App. Br. 4--5). This argument is not persuasive for the reasons discussed above. Thus, we affirm the rejection of claim 1 as being obvious in view of Melby, Wells, and Schrader. Claims 2, 3, 5-13, 15, and 16 have not been argued separately from claim 1 and therefore fall with that claim. See 37 C.F.R. Â§ 41.37(c)(l)(iv). Conclusion of Law A preponderance of the evidence supports the Examiner's conclusion that the combination of Melby and Wells would have made obvious a shampoo composition comprising the polymer and an anionic surfactant system having the characteristics recited in claim 1. SUMMARY We affirm the rejections of claims 1-3, 5-13, 15, and 16 under 35 U.S.C. Â§ 103(a). Claims 1-3, 5-13, 15, and 16 also stand provisionally rejected on the ground of nonstatutory obviousness-type double patenting over claims 1-5, 7, 14--16, 18, 19, and 20-25 of Application No. 12/338,666 in view of Melby (Ans. 3). Appellants have not provided arguments to dispute this rejection, and thus we affirm it. 9 Appeal2013-003631 Application 11/328,302 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. Â§ 1.136(a). AFFIRMED 10