Ex Parte WOO et al

Patent Trial and Appeal Board

Mar 21, 2017

13006644 (P.T.A.B. Mar. 21, 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.
13/006,644 01/14/2011 Ricky Ah-Man WOO 11975 4950
27752 7590 03/23/2017
THE PROCTER & GAMBLE COMPANY
Global IP Services
Central Building, C9
One Procter and Gamble Plaza
CINCINNATI, OH 45202
EXAMINER
KARPINSKI, LUKE E
ART UNIT PAPER NUMBER
1616
NOTIFICATION DATE DELIVERY MODE
03/23/2017 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 RICKY AH-MAN WOO, CAHIT EYLEM, LARISSA
AZIRBAYEVA, ZAIYOU LIU, RADHAKRISHNAN JANARDANAN
NAIR, and KEVIN ROBERT JOHNSTONE1
Appeal 2016-004087
Application 13/006,644
Technology Center 1600
Before DEMETRA J. MILLS, JEFFERY N. FREDMAN, and RACHEL H.
TOWNSEND, Administrative Patent Judges.
MILLS, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35U.S.C. § 134. The Examiner has rejected
the claims for obviousness. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 The Appellants identify the Real Party in Interest as Procter & Gamble
Company of Cincinnati Ohio.
Appeal 2016-004087
Application 13/006,644
STATEMENT OF CASE
The following claim is representative.
1. A composition for reducing malodor comprising:
(a) about 0.01% to about 10%, by weight of said
composition, of a metallated malodor polymer comprising a
water-soluble metal ion and a polymer selected from the group
consisiting of: partially hydrolyzed hydrophobically modified
PVam, hydrophobically modified PEI, hydrophobically
modified PAMam, hydrophobically modified PAam,
hydrophobically modified PEam, and mixtures thereof, wherein
said polymer is modified with a C2 to C6 alkyl or alkenyl;
(b) a malodor counteractant comprising a perfume material,
where said perfume material comprises at least one aliphatic
aldehyde present in the amount of about 0.001 % to about 5%
by total weight of said composition; and
(c) an aqueous carrier;
wherein said composition comprises a pH of about 5 to
about 10 wherein said composition is essentially free of citric
acid.
Grounds of Rejection
1. Claims 1—3, 8, 11—15, and 17—19 are rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Detering in view of Wu,
Peterson, and Illergard.
2. Claims 1—3, 8, 11—15, and 17—19 are rejected under 35 U.S.C.
§ 112(b) or 35 U.S.C. § 112 (pre-AIA), second paragraph, as
indefinite.
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Appeal 2016-004087
Application 13/006,644
Cited References
Peterson et al.,
Detering et al.,
Wu et al.,
US 5,861,144 Jan. 19, 1999
US 7,141,077 B2 Nov. 28, 2006
US 2010/0275915 Al Nov. 4, 2010
Illergard, Development of new bacteria-reducing surfaces, Chemical Science
and Engineering 1—36 (2009).
FINDINGS OF FACT
The Examiner’s findings of fact are set forth in the Final Action at
pages 3—13. The following facts are highlighted.
1. According to Appellants’ Specification,
a hydrophobically modified malodor control polymer (HMP)
has the general formula:
P(R)x (I)
wherein:
P is a polyamine polymer;
R is a C2 to C26 hydrophobic group', and
x is the total degree of substitution, which is less than 100%, of
amine sites on the polymer.
Spec. 3, emphasis added.
PRINCIPFES OF FAW
In making our determination, we apply the preponderance of the
evidence standard. See, e.g., Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427
(Fed. Cir. 1988) (explaining the general evidentiary standard for proceedings
before the Office).
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Appeal 2016-004087
Application 13/006,644
“The combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield predictable results.”
KSRInt’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007).
“Where ... a patentee defines a structurally complete invention in the
claim body and uses the preamble only to state a purpose or intended use for
the invention, the preamble is not a claim limitation.” Rowe v. Dror,
112 F.3d 473, 478 (Fed. Cir. 1997).
“[F]or the purpose of combining references, those references need not
explicitly suggest combining teachings, much less specific references.”
In re Nilssen, 851 F.2d 1401, 1403 (Fed. Cir. 1988).
Obviousness Rejection 1
To support the obviousness rejection, the Examiner relies on Detering
for the disclosure of hydrophobic polyvinylamines in combination with odor
reducing antibacterial agents, and an aqueous surfactant carrier (Final Act.
5), and Wu for the disclosure of a complex between polyvinylamine and a
metal such as zinc and ratios for odor reduction (Final Act. 6). Illergard
teaches that polyvinylamines may be hydrophobically modified with a C4-
C8 in order to achieve an antibacterial compound and that the modified
composition is intended for application to cellulose fibers (Final Act 6).
Petersen discloses the inclusion of perfumes in odor reducing compositions.
The Examiner concludes that,
Overall both references [Detering and Illergard] teach
polyvinylamine polymers with a hydrophobic modification, it
would have been obvious to one of ordinary skill in the art to
produce a C4—C8 modified polyvinylamine for incorporation in
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Application 13/006,644
Detering as said modification was also known to provide a
hydrophobic compound.
Ans. 2. The Examiner further finds that, “it would have been obvious to
utilize the zinc/polyvinylamine complex and ratios thereof of Wu et al., with
the polyvinylamines of Detering et al. in order to modify a compound found
in Detering to have an additional odor reducing benefit.” Final Act. 8.
Appellants contend that
1) There is no motivation to combine the wrinkle proofing polymer of
Detering with Illergard’s hydrophobically modified 04—08 polymer
for making antibacterial fibers. Br. 3.
2) There is no reasonable expectation that the proposed modification of
the Detering polymer would provide wrinkle-proofing efficacy since
Illergard’s C4—C8 substitution is for antibacterial efficacy. Br. 3.
3) There is no reasonable expectation of success in combining two
polymer ingredients that are taught in the art to possess two different
benefits-wrinkle proofing and antibacterial efficacy. Br. 3.
ANALYSIS
We agree with the Examiner’s fact finding, statement of the rejection
and responses to Appellants’ arguments as set forth in the Answer. We find
that the Examiner has provided evidence to support a prima facie case of
obviousness. We provide the following additional comment to the
Examiner’s argument set forth in the Final Rejection and Answer.
We are not persuaded by Appellants’ enumerated arguments.
Illergard discloses an antibacterial fabric treatment composition including a
hydrophobically modified polyvinylamine (PVAm) having a C4-C8
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Application 13/006,644
substituent which can reduce bacterial growth and its consequent associated
“odours” (Illergard p. 4). Illergard further teaches that “one may tune the
self-associative behavior of the polymers by varying the pH (1.5.2), that the
pH greatly influences the charges and electrostatic interaction (3.1.1) and
exemplify a pH of 7.5 (2.2).” Final Act. 6. Wu discloses that
polyvinylamine can incorporate a metallated complex and provide odor
control for a fabric (112). Peterson teaches compositions for odor reduction
comprising 0.01-5% perfume including citronellyl oxyacetaldehyde (abstract
and col. 6) and application to textiles (col. 11). Ans. 7.
We agree with the Examiner that
it would have been obvious to utilize the zinc/polyvinylamine
complex and ratios thereof of Wu et al., with the
polyvinylamines of Detering et al., [.. .or Illergard] in order to
modify a compound found in Detering [or Illergard] to have an
additional odor reducing benefit. It further would have been
obvious to modify said metal: poly dentate ratio to achieve the
desired results as suggested by Wu et al.
Final Act. 8.
Appellants argue there is no motivation to combine or substitute
Detering’s wrinkle reducing, hydrophobically modified PVAm with
Illergard’s hydrophobically modified PVAm. We are not persuaded. Both
of the compositions of Detering and Illergard are hydrophobically modified
PVAm for the treatment of fabric. Ans. 2. Illergard specifically discloses
Appellants’ intended use of reducing fabric odors caused by bacteria with
C2-C6 hydrophobically modified PVAm. Alternatively, even without the
teachings of Detering, one of ordinary skill in the art would have had
motivation to combine Illergard’s odor reducing fabric PVAm treatment
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Application 13/006,644
with Wu’s odor reducing fabric PVAm treatment.2 Therefore, Appellants’
arguments with respect to Detering’s wrinkle proofing benefits are without
merit.
Furthermore, Appellants’ claims are to a composition. “Where ... a
patentee defines a structurally complete invention in the claim body and uses
the preamble only to state a purpose or intended use for the invention, the
preamble is not a claim limitation.” Rowe v. Dror, 112 F.3d 473, 478 (Fed.
Cir. 1997). On this record, the Examiner has provided a reason to modify
Deterings’ similar hydrophobically modified PVam composition for fabric
treatment with Illergard’s hydrophobically modified PVam composition for
fabric treatment, notwithstanding Appellants’ claimed intended use.
As to Appellants’ arguments numbered 2 and 3 above, Appellants
provide no evidence to support either argument. “Attorney’s argument in a
brief cannot take the place of evidence.” In re Pearson, 494 F.2d 1399,
1405 (CCPA 1974).
Rejection 1 is affirmed for the reasons of record.
Indefiniteness Rejection 2
Claims 1—3, 8, 11—15, and 17—19 are rejected under 35 U.S.C.
§ 112(b) or 35 U.S.C. §112 (pre-AIA), second paragraph, as indefinite.
Final Act. 3. The Examiner does not indicate in the Answer that this
rejection has been withdrawn.
2 The Board may rely on less than all of the references applied by an
Examiner in an obviousness rationale without designating it as a new ground
of rejection. In re Bush, 296 F.2d 491, 496 (CCPA 1961); In re Boyer, 363
F.2d 455, 458, n.2 (CCPA 1966).
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Appellants do not respond to this rejection in the Appeal Brief and
therefore, the indefiniteness rejection is summarily affirmed.
CONCLUSION OF LAW
The cited references support the Examiner’s obviousness rejection,
which is affirmed for the reasons of record. The indefmiteness rejection is
also affirmed. All pending, rejected claims fall.
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
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