Ex Parte Wenzel et al

Patent Trial and Appeal BoardSep 21, 2012

11863433 (P.T.A.B. Sep. 21, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE 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. 11/863,433 09/28/2007 Scott W. Wenzel KCX-1394 (64371836US01) 1691 22827 7590 09/21/2012 DORITY & MANNING, P.A. POST OFFICE BOX 1449 GREENVILLE, SC 29602-1449 EXAMINER ASDJODI, MOHAMMADREZA ART UNIT PAPER NUMBER 1767 MAIL DATE DELIVERY MODE 09/21/2012 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte SCOTT W. WENZEL, JEFFERY SEIDLING, STACY A. MUNDSCHAU, and JASON LAUMER ____________ Appeal 2011-003890 Application 11/863,433 Technology Center 1700 ____________ Before ADRIENE LEPIANE HANLON, BEVERLY A. FRANKLIN, and MARK NAGUMO, Administrative Patent Judges. FRANKLIN, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal1 under 35 U.S.C. § 134 from the Examiner's rejection of claims 1-11 and 26. We have jurisdiction under 35 U.S.C. § 6. STATEMENT OF THE CASE Claims 1, 2, and 26 are representative of the subject matter on appeal and are set forth below: 1 We consider the Appeal Brief filed on July 21, 2010. Appeal 2011-003890 Application 11/863,433 2 1. A bath treatment kit comprising: a first formulation, the first formulation including a rheology modifier, the rheology modifier being present in a liquid, the rheology modifier capable of thickening an aqueous bath; a second formulation, the second formulation comprising a surfactant; a third formulation, the third formulation including a deswelling agent, the deswelling agent capable of thinning an aqueous bath previously thickened by the rheology modifier. 2. The bath treatment kit of claim 1, wherein the first formulation further comprises a beneficial skin chemistry. 26. A bath treatment kit comprising: a first formulation, the first formulation including a rheology modifier and a surfactant, the rheology modifier being present in a liquid, the rheology modifier capable of thickening an aqueous bath; a second formulation, the second formulation including a deswelling agent, the deswelling agent capable of thinning an aqueous bath previously thickened by the rheology modifier. The prior art relied upon by the Examiner in rejecting the claims on appeal is: Sabatelli et al. (Sabatelli) 4,147,650 Apr. 3, 1979 Dixon et al. (Dixon) 6,033,680 Mar. 7, 2000 Moriyama 6,281,177 B1 Aug. 28, 2001 THE REJECTION Claims 1-11 and 26 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Moriyama in view Dixon taken with Sabatelli. Appeal 2011-003890 Application 11/863,433 3 ISSUE Did the Examiner err in determining that the applied prior art suggests the claimed subject matter, and in particular, the aspect of claims 1 and 26 pertaining to a bath treatment kit including a rheology modifier “being present in a liquid”? We answer this question in the negative and AFFIRM. ANALYSIS As an initial matter, Appellants have not presented separate arguments for all of the rejected claims. Rather, Appellants’ arguments are principally directed to independent claims 1 and 26. Appellants also argue claims 2 and 3 together, and we select claim 2 as representative of this group. Any claim not separately argued will stand or fall with its respective independent claim. See 37 C.F.R. § 41.37(c)(1)(vii). One aspect of Appellants’ position is that the applied art does not suggest a rheology modifier “being present in liquid form.” Br. 7. The Examiner relies upon Sabatelli in particular for suggesting this aspect of the claimed invention. Ans. 4. We are not convinced of error because Appellants argue limitations not present in the claims. Each of claims 1 and 26 recites a rheology modifier “being present in a liquid.” This is to be contrasted with “being present in liquid form” as argued by Appellants. We also note that Appellants’ Specification, at page 4, states: The present disclosure contemplates predispersion of one or more rheology modifiers in an anhydrous vehicle or utilizing vendor created raw materials that are emulsions that can be dispersed easily into water to form thickened solutions. Such Appeal 2011-003890 Application 11/863,433 4 rheology modifiers present in liquid will allow for an even and quick dispersion and create a more mud-like composition. [Emphasis added] The emphasized language indicates that the rheology modifier itself need not be a liquid, which is consistent with the plain language of the claim, which requires only that the rheology modifier be present in a liquid. We thus agree with the Examiner that the slurry of Sabatelli suggests this aspect of the claimed invention because a slurry is a suspension of solids present in a liquid. Appellants also argue that the Examiner failed to distinguish between the three formulation kit of claim 1 and the two formulation kit of claim 26. Br. 4. We agree with the Examiner’s response to this argument as set forth in the first full paragraph on page 7 of the Answer, and incorporate it as our own, and we are not convinced of error for the reasons set forth therein. Appellants also argue that Moriyama discloses that the product described in Moriyama “should not be used with other bathing products such as bathing salts or bubble bath.” Appellants go on to state that “[t]hese other bathing products may disturb the chemistry of the [invention of Moriyama] thereby prohibiting formation of the gelatinous mixture.” Br. 4. Appellants conclude that therefore Moriyama teaches away from combining a surfactant and rheology modifier together, and that for similar reasons one would not have combined Moriyama with Dixon. Br. 5-6. However, the Examiner correctly explains, in the paragraph bridging pages 6-7 of the Answer, that Dixon shows that surfactants can be combined with the type of rheology modifier as used by Moriyama and Appellants without disturbing the Appeal 2011-003890 Application 11/863,433 5 chemistry of the composition. We therefore are not convinced of error in this regard. Finally, with regard to claim 2, Appellants argue that claim 2 requires “beneficial chemistry”, and that by contrast, Moriyama indicates that the product described therein “should not be used by persons with sensitive skin, allergies, open wounds, eczema, or other skin conditions.” Br. 9. However, we agree with the Examiner’s response made in the paragraph bridging pages 8-9 of the Answer, and incorporate it as our own. In view of the above, we affirm the Examiner’s decision. CONCLUSIONS OF LAW AND DECISION The rejection is 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)(1). AFFIRMED cam