L'OREAL

Patent Trials and Appeals Board

Apr 1, 2022

2021002837 (P.T.A.B. Apr. 1, 2022)

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. 15/581,993 04/28/2017 Allison PERNER 085137-563616 3729 143687 7590 04/01/2022 POLSINELLI PC (L''Oreal USA) PO Box 140310 Kansas City, MO 64114-0310 EXAMINER PHAN, DOAN THI-THUC ART UNIT PAPER NUMBER 1613 NOTIFICATION DATE DELIVERY MODE 04/01/2022 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): DC-IPDocketing@Polsinelli.com LBrabson@Polsinelli.com patentdocketing@polsinelli.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ALLISON PERNER, ANAND MAHADESHWAR, MIAO WANG, MARIE HUYNH, BAYLE AUGUSTIN, and LINDSAY MENZER Appeal 2021-002837 Application 15/581,993 Technology Center 1600 Before ULRIKE W. JENKS, TAWEN CHANG, and RACHEL H. TOWNSEND, Administrative Patent Judges. CHANG, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1-3, 5, 7, 9-19, 23, and 24. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as L’Oréal. Appeal Br. 2. Appeal 2021-002837 Application 15/581,993 2 STATEMENT OF THE CASE According to the Specification, “[t]he instant disclosure relates to essentially anhydrous hair-treatment compositions, which are particularly useful for improving hair manageability, imparting long-lasting style and frizz control to hair, and for protecting hair from damage.” Spec. 1:5-7. CLAIMED SUBJECT MATTER The claims are directed to an essentially anhydrous hair-treatment composition. Claim 1 is illustrative: 1. An essentially anhydrous hair-treatment composition comprising: - about 0.01 to about 10 wt.% of one or more polyurethane latex polymers; - about 0.1 to about 10 wt.% of one or more bis-urea derivatives of formula (I): wherein R is a C3-C18 linear, branched, or cyclic moiety; and R’ and R” may be the same or different and are selected from the group consisting of C1-C36 linear or branched alkanes or aryl alkanes, α- methyl branched C2-C36 alkanes, α-methyl branched C2-C36 ethers, β-methyl branched C2-C36 alkanes, and β-methyl branched C2-C36 ethers; wherein if R’ and R” are the same, then both of said groups is selected from the group consisting of a-methyl branched C2-C18 ethers and β-methyl branched C2-C18 ethers; wherein L and L’ may be same or different and are selected from the group consisting of ethylene oxide chains, propylene oxide chains, and Appeal 2021-002837 Application 15/581,993 3 mixtures thereof, and the chains may comprise one or a plurality of repeat units; and - about 70 to about 98 wt.% of one or more esters of fatty acids, wherein the fatty acids have from about 10 to about 30 carbon atoms; wherein all percentages by weight are based on the total weight of the hair-treatment composition. Appeal Br. 20 (Claims App.). REJECTION(S) A. Claims 1-3, 5, 7, 9-16, 23, and 24 are rejected under 35 U.S.C. § 103 as being unpatentable over Hong,2 Feltin,3 and Tan.4 Ans. 5. B. Claims 17-19 are rejected under 35 U.S.C. § 103 as being unpatentable over Ascione,5 Hong, Feltin, and Tan. Ans. 15. OPINION A. Issue The Examiner has rejected claims 1-3, 5, 7, 9-16, 23, and 24 as obvious over Hong, Feltin, and Tan, and claims 17-19 as obvious over Ascione, Hong, Feltin, and Tan. The same issues are dispositive for both rejections; we therefore consider them together. The Examiner finds that Hong teaches a hair treatment composition comprising at least one bis-urea derivative encompassed by claim 1 in an amount between about 0.1% to about 10% by weight, as well as “anhydrous 2 Hong et al., US 2013/0224139 A1, published Aug. 29, 2013. 3 Feltin, US 2011/0144208 A1, published June 16, 2011. 4 Tan et al., US 2015/0004121 A1, published Jan. 1, 2015. 5 Ascione et al., US 2004/0198895 A1, published Oct. 7, 2004. Appeal 2021-002837 Application 15/581,993 4 liquid medium that includes organic liquid such as fatty acid esters, particularly[] C12-15 Alkyl benzoate,” wherein the “organic liquid such as fatty acid esters can be present in an amount of up to 98% by weight of the composition.” Ans. 5. The Examiner finds that it would have been routine for a skilled artisan to optimize the amount of fatty acid esters such as C12-15 alkyl benzoate in Hong’s composition to arrive at the claimed invention. Ans. 5. The Examiner finds that a skilled artisan would have been motivated to do so, with a reasonable expectation of success, because prior art such as Feltin “teaches amounts of fatty acid esters in a hair composition containing bis- urea derivatives [that] overlaps the claimed parameter of about 70 to about 98 wt.%.” Id. at 5-6. The Examiner acknowledges that Hong and Feltin do not teach the polyurethane latex polymer cited in claim 1. However, the Examiner finds that Tan teaches “hair-treatment composition[s] comprising polyurethane latex polymer(s)” that do not contain water, wherein the polyurethane latex polymer is present in an amount from about 0.05% to about 10% by weight. Ans. 7. The Examiner finds that a skilled artisan would have had reason to add the polyurethane latex polymers disclosed in Tan to Hong’s composition, with a reasonable expectation of success, because Tan teaches incorporation of such polymers in compositions similar to those disclosed in Hong, and further teaches that adding these polymers “provide[s] a resultant hair treatment composition with superior film-forming properties for long- lasting hold and style memory and with little residue when applied to the hair.” Id. at 7-8. Appeal 2021-002837 Application 15/581,993 5 Appellant contends that the Examiner has not shown that the prior art suggests the claimed amounts of the esters of fatty acids, which also “cannot be derived based on a theory of ‘optimization’ because the art does not describe it as a result-effective variable.” Appeal Br. 10-12. Appellant also contends that “there is no reason to modify the art to derive what is claimed.” Id. at 12-13. Finally, Appellant contends that the claimed subject matter exhibits unexpected results. Id. at 13-18. Appellant does not separately argue the claims. We therefore focus our analysis on claim 1 as representative.6 The issues with respect to these 6 Appellant purports to separately argue claims 15, 16, 23, and 24. Appellant’s arguments with respect to these claims, however, consist of noting the additional limitations in the claims and stating: Deriving what is set forth in these claims entails specific picking and choosing from the art (and exclusions from the art), further evidencing non- obviousness. In addition, these claims more specifically relate to the inventive compositions used to generate the data showing unexpected and surprising results. Accordingly, these claims further undermine the Examiner’s concerns relating to the scope of the claims in relationship to the exemplified inventive compositions. Appeal Br. 18-19. Arguments such as these, which essentially consists of recitation of additional claim limitations in the dependent claims and a general denial, are not sufficient to separately argue that the Examiner erred in rejecting a claim. See 37 C.F.R. § 41.37(c)(1)(iv). In any event, even assuming claims 15, 16, 23, and 24 have been separately argued, we are not persuaded. As the predecessor of our reviewing court has explained, “picking and choosing may be entirely proper in the making of a 103, obviousness rejection.” In re Arkley, 455 F.2d 586, 587 (CCPA 1972). Similarly, although claims 15, 16, 23, and 24 recite the specific polyurethane (polyurethane-34) and bis-urea derivative (BIS-(C12-14 alkyl PPG-4) hexamethylenediurea) in the inventive composition compared in Appellant’s Appeal 2021-002837 Application 15/581,993 6 rejections are (1) whether the cited prior art suggest “[a]n essentially anhydrous . . . composition comprising . . . about 70 to about 98 wt.% of one or more esters of fatty acids, wherein the fatty acids have from about 10 to about 30 carbon atoms”; (2) whether a skilled artisan would have had reason to combine the cited references to arrive at the claimed invention; and (3) whether Appellant has provided evidence of unexpected results that, when considered together with the evidence of obviousness, shows claim 1 to be non-obvious. B. Findings of Fact 1. Hong teaches bis-urea gelling agents represented by the structure of Formula (I) proffered data on unexpected results (and claim 24 further recites the ester of fatty acid used in that composition (C12-C15 alkyl benzoate)), this does not obviate the other deficiencies of the proffered unexpected results data discussed below. We further note that claims 16, 23 and 24 all differ from the inventive composition compared in the proffered unexpected results data in requiring 0.01% to about 40 wt.% of one or more recited silicones. Finally, although claims 23 and 24 additionally use the transitional phrase “consisting essentially of,” Appellant has neither articulated the “basic and novel properties of the invention” nor persuasively explained how the Examiner fails to show how the cited prior art combination renders prima facie obvious compositions that do not include ingredients that materially affect such properties. PPG Indus. v. Guardian Indus. Corp, 156 F.3d 1351, 1354 (Fed. Cir. 1998) (“By using the term ‘consisting essentially of,’ the drafter signals that the invention necessarily includes the listed ingredients and is open to unlisted ingredients that do not materially affect the basic and novel properties of the invention.”). Appeal 2021-002837 Application 15/581,993 7 wherein R is a C3-C18 linear or branched alkylene chain or an aromatic ring; and R' and R" may be the same or different and are selected from the group consisting of C1-C36 linear or branched alkanes or aryl alkanes, α- methyl branched C2-C36 alkanes, α-methyl branched C2- C36 ethers, β-methyl branched C2-C36 alkanes, and β- methyl branched C2-C36 ethers; wherein if R' and R" and the same, then both of said groups is selected from the group consisting of α-methyl branched C2-C18 ethers and β-methyl branched C2-C18 ethers; wherein L and L' may be same or different and are selected from the group consisting of ethylene oxide chains, propylene oxide chains, and mixtures thereof, and the chains may comprise one or a plurality of repeat units. Hong ¶ 15; see also id. at Abstr., ¶ 37. 2. Hong teaches that its gelling agents “impart a number of unexpected benefits within various gelled formulation and exhibit great versatility in terms of gelling capabilities for many types of solvents.” Id. at Abstr.; see also id. ¶ 2. In particular, Hong teaches that its gelling agents provides “control in temperature, compatibility, and efficiency.” Id. ¶ 2. 3. Hong teaches gelled solvent system comprising at least about, e.g., 0.1% to about 20% by weight of its gelling agent. Id. ¶¶ 14, 38. 4. Hong teaches C12-C15 alkyl benzoate gels formed with its bis- urea gelling agents. Id. ¶ 252 (Example 15A, Table 1). 5. Hong teaches examples wherein the organic solvent is in an amount up to 98.0% by weight. See, e.g., id. ¶ 261 (setting forth example of clear candle gel consisting of 98% mineral oil and 2% gelling agent). 6. Feltin teaches hair treatment compositions comprising at least one continuous liquid fatty phase, which comprises (1) one or more bis-urea derivative(s) represented by the formula(s) recited in the reference and (2) at Appeal 2021-002837 Application 15/581,993 8 least one non-silicone oil having the recited solubility parameter. Feltin Abstr., ¶¶ 2-3, 8, 15-18, 44-54, 225. 7. Feltin teaches that its compositions may be anhydrous. Id. ¶¶ 200, 225. 8. Feltin teaches that the effective amount of the bis-urea derivative “may represent from 0.01% to 20% . . . by weight of the liquid fatty phase” and that its compositions “may contain from 0.01% to 20% by weight . . . of [the bis-urea derivative] relative to the total weight of the composition.” Id. ¶¶ 34-36. 9. Feltin teaches that the non-silicone oil of its invention may be chosen from, among other compounds, C12-C15 alkyl benzoate. Id. ¶¶ 93, 103, claim 19. 10. Feltin teaches that the non-silicone oil “may be present in compositions . . . in an amount ranging from 20% to 100%, by weight, for example from 40% to 99% by weight, for example from 60% to 95% by weight, relative to the total weight of the continuous liquid fatty phase.” Id. ¶ 104. 11. Feltin further teaches that “[t]he liquid fatty phase may be present . . . in an amount ranging from 10% to 95% by weight . . . relative to the total weight of the composition.” Id. ¶ 130. 12. Tan teaches “hair styling compositions comprising at least two latex polymers,” one chosen from acrylate polymers and the other chosen from polyurethane polymers. Tan Abstr., ¶ 19, 22, 25, 36, 84; see also id. ¶ 73 (describing examples of polyurethane latex polymers). Appeal 2021-002837 Application 15/581,993 9 13. Tan teaches embodiments in which each of the latex polymers is present in an amount ranging from about 0.05% to about 10% by weight relative to the weight of the composition. Id. ¶ 85. 14. Tan teaches that its composition may further comprise a cosmetically acceptable organic solvent, which may be present in an amount ranging up to about 95%. Id. ¶¶ 92-93. 15. Tan teaches that its compositions may impart a flexible coating on the hair during or after application that (1) is cleaning-feeling, not sticky or tacky, and leaves little to no residue, (2) leaves the hair relatively natural, bouncy, springy with little to no frizz or flaking, and/or less prone to breakage, and (3) imparts “relatively high definition with individualized curls, style control, volume, and shine, and/or . . . allow for relatively long- lasting hold and style memory.” Tan ¶¶ 100, 103. 16. Tan teaches that its compositions “may have effective hair styling and/or hold properties, even in conditions of high, or relatively high, humidity” and may be “quick-drying, which may allow drying and/or styling time to be reduced, as well as further improve ease of styling and curl retention.” Id. C. Analysis Unless otherwise noted, we adopt the Examiner’s findings of fact and reasoning regarding the rejection of claim 1 under 35 U.S.C. § 103 as obvious over Hong, Feltin, and Tan (FF1-FF16; Final Act. 4-7, 14-22, Ans. 5-8, 18-28). We address Appellant’s arguments below. Only those arguments timely made by Appellant in the Appeal Brief have been considered (no Reply Brief was filed); arguments not so presented are waived. See 37 C.F.R. § 41.37(c)(1)(iv) (2020); see also Ex parte Borden, Appeal 2021-002837 Application 15/581,993 10 93 USPQ2d 1473, 1474 (BPAI 2010) (informative) (“Any bases for asserting error, whether factual or legal, that are not raised in the principal brief are waived.”). Appellant first contends that the rejection “does not properly account for the claimed amount of esters of fatty acids,” i.e., about 70 to about 98 wt.% in claim 1. Appeal Br. 10. Appellant contends that “[t]he claimed amount of esters of fatty acids cannot be derived based on a theory of ‘optimization’ because the art does not describe it as a result-effective variable.” Appeal Br. 10. Appellant contends that Feltin “identifies amounts of non-silicone oils, relative to the total weight of a continuous liquid fatty phase (not relative to the total weight of the final composition).” Appeal Br. 11. Appellant contends that “[t]he examples of Feltin include a continuous liquid fatty phase in amounts far lower than the claimed amounts of esters of fatty acids.” Appeal Br. 12. We are not persuaded. Appellant does not dispute that C12-C15 alkyl benzoate is a “ester[] of fatty acid[]” within the meaning of claim 1. See also Appeal Br. 21 (Claims App.) (Claim 7 claims “[a]n essentially anhydrous hair-treatment composition of claim 1, wherein the one or more esters of fatty acids comprises C12-C15 alkyl benzoate.”). Hong teaches that the claimed bis-urea derivatives may be combined with solvents, including C12-C15 alkyl benzoate, in a gelled composition. FF1, FF4. As the Examiner points out, Hong also teaches compositions of its bis-urea gelling agent and solvent wherein the solvent is, e.g., 98% by weight of the composition. Ans. 18; FF5. Thus, we agree with the Examiner that Hong suggests a composition comprising an amount of fatty acid ester(s) (e.g., 98%) that overlaps with the claimed amounts of about 70 to about 98 wt.%. Appeal 2021-002837 Application 15/581,993 11 See, e.g., In re Peterson, 315 F.3d 1325, 1329-30 (Fed. Cir. 2003) (“A prima facie case of obviousness typically exists when the ranges of a claimed composition overlap the ranges disclosed in the prior art. . . . The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages.”). Likewise, Feltin teaches an anhydrous composition comprising a bis- urea derivative and a liquid fatty phase, wherein the liquid fatty phase comprises C12-C15 alkyl benzoate. FF6, FF7, FF9. Appellant is correct Feltin teaches that the non-silicone oil (which may be chosen from, among other compounds, C12-C15 alkyl benzoate) may be 20% to 100% of the total weight of the continuous liquid fatty phase, not the total weight of the composition. FF10. However, this contention does not persuade us that the rejection “does not properly account for the claimed amount of esters of fatty acids” (i.e., about 70 to about 98 wt.% in claim 1) (Appeal Br. 10), because, as the Examiner points out, Feltin also teaches that the liquid fatty phase may be 10% to 95% by weight of the total composition. We agree with the Examiner that the combinations of these two teachings suggest amounts of fatty acid ester (e.g., C12-C15 alkyl benzoate) that overlaps the claimed range of about 70 to about 98 wt.% of the composition. Thus, the Examiner has established a prima facie case of obviousness as to the claimed amount of esters of fatty acid. In re Peterson, 315 F.3d at 1329-30. As for Appellant’s contention that Feltin’s examples disclose continuous liquid fatty phase in amounts “far lower than the claimed amounts of esters of fatty acids” (Appeal Br. 12), we are not persuaded because it is well established that “‘all disclosures of the prior art, Appeal 2021-002837 Application 15/581,993 12 including unpreferred embodiments, must be considered’ in determining obviousness.” In re Burckel, 592 F.2d 1175, 1179 (CCPA 1979) (quoting In re Lamberti, 545 F.2d 747, 750 (CCPA 1976)). Appellant contends that “there is no reason to modify the art to derive what is claimed.” Appeal Br. 12. In particular, Appellant contends that “deriving what is claimed requires . . . selectively pick[ing] out esters of fatty acids from extremely long lists of other components (from Hong or Feltin)” and then “includ[ing] the esters of fatty acids in amounts that are in direct contradiction to the teachings of Feltin.” Id. at 13. We are not persuaded. As discussed above, Hong and Feltin both suggest the claimed amounts of esters of fatty acids; thus, there is no contradiction. As for Appellant’s argument that the rejection requires “selectively pick[ing] out esters of fatty acids from extremely long lists of other components (from Hong or Feltin),” we note as discussed above that “picking and choosing may be entirely proper in the making of a 103, obviousness rejection.” Arkley, 455 F.2d at 587. The fact that Hong and Feltin “disclose[] a multitude of effective combinations does not render any particular formulation less obvious,” especially “because the claimed composition is used for the identical purpose taught by the prior art,” e.g., hair treatment (see, e.g., FF6). Merck & Co., Inc. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989). Finally, citing the Perner Declaration,7 Appellant contends that the claimed invention shows “unexpected and surprising improvements that the 7 Declaration of Allison Perner, Ph.D. Pursuant to 37 C.F.R. § 1.132 (Jan. 28, 2020). Appeal 2021-002837 Application 15/581,993 13 compositions of the instant case provide to hair, for example, in terms of frizz control, manageability, and smoothness.” Appeal Br. 14 (citing Perner Decl. ¶ 13); see also id. at 15-16 (citing Perner Decl. ¶¶ 9, 11, 13). In particular, Appellant contends that “Tan . . . indicates that acrylate polymers and polyurethane polymers provide similar results in an aqueous system, for example, in controlling frizz, manageability, and smoothness,” whereas the results in the Perner Declaration shows that, “in an essentially anhydrous system, polyurethane latex polymers surprisingly provided better anti-frizz, manageability, and styling benefits to hair.” Id. at 16. We are not persuaded. Appellant is correct that [o]ne way for a patent applicant to rebut a prima facie case of obviousness is to make a showing of ‘unexpected results,’ i.e., to show that the claimed invention exhibits some superior property or advantage that a person of ordinary skill in the relevant art would have found surprising or unexpected. In re Soni, 54 F.3d 746, 750 (Fed. Cir. 1995). Nevertheless, “[m]ere improvement in properties does not always suffice to show unexpected results.” In re Soni, 54 F.3d at 751. Moreover, “when unexpected results are used as evidence of nonobviousness, the results must be shown to be unexpected compared with the closest prior art,” In re Baxter Travenol Labs., 952 F.2d 388, 392 (Fed. Cir. 1991), and “[t]he evidence . . . must be commensurate in scope with the claims to which it pertains,” In re Dill, 604 F.2d 1356, 1361 (CCPA 1979). We agree with the Examiner that Appellant has not provided evidence of unexpected results that, when considered together with the evidence of obviousness, shows the results to be non-obvious. Ans. 22-28. Appeal 2021-002837 Application 15/581,993 14 First, we agree with the Examiner that the results set forth in the Perner Declaration are not persuasive of unexpected results. Our reviewing court has explained that, “when an applicant demonstrates substantially improved results . . . and states that the results were unexpected, this should suffice to establish unexpected results in the absence of evidence to the contrary.” In re Soni, 54 F.3d at 751. In this case, Appellant has not provided us sufficient information to evaluate whether the claimed invention demonstrates “substantially improved” results. Ans. 26. For example, the Perner Declaration does not state how many swatches of hair were evaluated for each composition and how many individuals assessed the degree of frizz.8 We acknowledge that Dr. Perner states in her declaration that “[t]he degree of improvement in frizz control, manageability, and smoothness provided by the inventive composition is significant and surprising.” Perner Decl. ¶ 13 (emphasis added). However, the Perner Declaration fails to provide objective statistical information such as standard deviation and/or p value.9 In this regard, we note that “it is well settled that unexpected results 8 The Perner Declaration does state that “the degree of frizz . . . was assessed by experts,” thus suggesting assessment by two or more individuals. Perner Decl. ¶ 6; see also id. ¶¶ 9, 11. 9 Indeed, although the Perner Declaration states that the inventive composition “provided the best shape control, smoothness, and manageability . . . , as assessed by experts,” and that “hair treated with the inventive composition exhibited the least amount of tangling when blow drying,” the bases for these assessments were not provided in the declaration. Perner Decl. ¶ 9 (stating that results for the assessment regarding shape control, smoothness, and manageability were not shown); see also id. ¶ 11. Appeal 2021-002837 Application 15/581,993 15 must be established by factual evidence.” In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997). We further note that [t]he Board has broad discretion as to the weight to give to declarations offered in the course of prosecution. See Velander v. Garner, 348 F.3d 1359, 1371 (Fed.Cir.2003) (“[A]ccord[ing] little weight to broad conclusory statements [in expert testimony before the Board] that it determined were unsupported by corroborating references [was] within the discretion of the trier of fact to give each item of evidence such weight as it feels appropriate.”). In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1368 (Fed. Cir. 2004) (alterations in original). Similarly, Dr. Perner explains that the results of the testing described in the Perner Declaration is surprising because “Tan . . . indicates that acrylate polymers and polyurethane polymers provide similar results in an aqueous system, for example, in controlling frizz, manageability, and smoothness,” whereas the data in the Perner Declaration shows that “in an essentially anhydrous system, polyurethane latex polymers surprisingly provided better anti-frizz, manageability, and styling benefits to hair.” Perner Decl. ¶ 13. The paragraphs of Tan cited by Dr. Perner, however, do not support these assertions. More particularly, those paragraphs (paragraphs 100 and 103) teach that compositions according to Tan’s invention “may appear less frizzy and/or may be less prone to breakage,” and “may have effective hair styling and/or hold properties, even in conditions of high, or relatively high, humidity.” Tan ¶¶ 100, 103; FF15. However, they do not teach acrylate and polyurethane polymers provide similar results in an aqueous system. Instead, Tan teaches that its composition should contain both polymers, suggesting that they are not functionally equivalent. FF12. Appeal 2021-002837 Application 15/581,993 16 In light of the above, we also agree with the Examiner that the comparative testing proffered by Appellant does not provide comparison to the closest prior art. That is, as the Examiner points out, Tan’s composition requires both a polyurethane latex polymer, as well as an acrylic polymer, FF12, whereas the comparative compositions tested in the Perner Declaration contained either polyurethane-34 or acrylates copolymer, but not both. Ans. 27. Dr. Perner asserts in her declaration that “the comparative composition used in the testing . . . are more closely related to what is claimed than any of the compositions described and exemplified in Tan,” because “Tan . . . exemplifies the use of acrylates copolymer and suggests that polyurethane latex polymers and acrylate polymers (such as acrylates copolymer) are equivalent and interchangeable,” and further contends that “Example 1 of Tan compares films formed using acrylates copolymer with films formed using polyurethane-34,” wherein none of the compositions include a bis-urea derivative or the claimed esters of fatty acids. Perner Decl. ¶ 12; see also Appeal Br. 14 (asserting that “the comparative compositions are more closely related to what is claimed that the compositions in the art”). As discussed, however, Tan does not suggest that polyurethane latex polymers and acrylate polymers are interchangeable. Moreover, the compositions in Example 1 of Tan all comprise both polyurethane (NEOREZ® R989) and acrylic polymers (DAITOSOL® 5000AD) in a combined weight of 2% and at 1:1 latex polymer ratio. Tan ¶¶ 73, 146-147. Finally, as the Examiner also points out, Appellant provides comparative data for only one composition within the invention, comprising Appeal 2021-002837 Application 15/581,993 17 0.2 wt.% polyurethane-34, 2% Bis-(C12-14 alkyl PPG-4) hexamethylenediurea, 97.3% solvent, and 0.5% water. As the Examiner points out, however, claim 1 is broader both in terms of the number of compounds encompassed and the weight ranges of each ingredient of the composition. Ans. 23-26. Accordingly, we agree with the Examiner that Appellant has not provided evidence of unexpected results commensurate with the scope of the claim. We acknowledge that Dr. Perner states in her declaration that she “would expect similar results” if other polyurethane latex polymers and bis- urea derivatives of Formula (I) were used, because these compounds are “structurally and functionally related” to the polyurethane latex polymers and bis-urea derivatives used in the inventive composition tested for purposes of unexpected results. Perner Decl. ¶¶ 14-15. Dr. Perner states that she would further expect “the bis-urea derivatives of Formula (I) to provide similar results because . . . Hong . . . teaches that the bis-urea derivatives of Formula (I) share common properties.” Id. ¶ 15. Similarly, Dr. Perner states that she “would expect other fatty acid esters to provide similar results [to C12-C15 alkyl benzoate] because they share the same special physicochemical properties.” Id. ¶ 16. Finally, Dr. Perner states that “[i]f the polyurethane latex polymer and the bis-urea derivatives are used in . . . amounts [other than those used in the comparative testing], the results should be similar.” Id. ¶ 17. More particularly, she states that “if the amounts are increased, [she] expect[s] the differences between the inventive and comparative compositions would probably be even more pronounced, as more polyurethane latex polymer and bis-urea derivative would be available to form more film on the hair.” Id. Appeal 2021-002837 Application 15/581,993 18 We are not persuaded. It is true that, “[i]f 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 [the] scope of the claims.” In re Huai-Hung Kao, 639 F.3d 1057, 1068 (Fed. Cir. 2011). Dr. Perner relies primarily on the structural and functional similarities of the ingredients as the basis for concluding that other compositions falling within the claims would behave in the same manner as the single tested embodiment. While we agree in general that compounds known to have the same structure and function may be expected to behave similarly, we note that Appellant is arguing that the combination of the components in its invention achieves unexpected results. Thus, we are not persuaded that unexpected results commensurate with the scope of the claims may be established merely by mentioning, without more, known structural and functional similarities of individual ingredients. For similar reasons, we are not persuaded by Dr. Perner’s assertion that using compositions comprising different amounts of polyurethane latex polymer and bis-urea derivatives than the embodiment tested would have similar “unexpected” results. For example, although Dr. Perner states that increasing the amounts of polyurethane latex polymer and bis-urea derivatives should result in even more pronounced differences between the inventive and comparative compositions, the data set forth in the Perner Declaration shows that, other than the inventive composition, the composition which appeared to have performed the best in the frizz assessment protocols is Composition C, which contains neither a polyurethane nor a bis-urea derivative. Perner Decl. ¶¶ 3, 8. Moreover, Appeal 2021-002837 Application 15/581,993 19 even if Dr. Perner is correct that a skilled artisan would expect increasing the amounts of polyurethane and/or bis-urea derivative would render the difference between the inventive and comparative compositions more profound, we note that neither the amount of polyurethane nor the amount of bis-urea derivative used is at the lowest point of the claimed range (0.01 wt.% and 0.1 wt.% respectively for the polyurethane latex polymers and the bis-urea derivatives). Dr. Perner does not explain why a skilled artisan would expect a composition comprising lesser amounts of polyurethane and bis-urea derivative would nevertheless exhibit the same alleged unexpected properties as the tested embodiment. Appellant contends that the Examiner did not provide any evidence to support the assertions that Appellant’s results are not surprising or that “Tan does not suggest that polyurethane latex polymers and acrylate polymers . . . are equivalent and interchangeable in its compositions.” Appeal Br. 16-17. Appellant similarly contends that the Examiner did not provide any evidence to support the assertion that Appellant’s evidence of unexpected results is not commensurate with the scope of the claims. Id. at 17. Appellant contends that these assertions “directly contradicts” statements in the Perner Declaration. Id. (citing Perner Decl. ¶¶ 12-14, 16, 17). We are not persuaded for the reasons discussed above. We further note that “the burden of showing unexpected results rests on he who asserts them.” In re Klosak, 455 F.2d 1077, 1080 (CCPA 1972). Appellant’s citation to In re Zeidler is misplaced. Appeal Br. 17-18 (citing In re Zeidler, 682 F.2d 961 (CCPA 1982)). The claims in Zeidler relate to dyes of a particular formula. Appellant in that case submitted an expert declaration, which stated that the new dyes have “surprising Appeal 2021-002837 Application 15/581,993 20 advantages in the dyeing of retanned chrome leather and in the washfastness,” as well as “much better solubility than the prior art [d]yes.” Zeidler, 682 F.2d at 964. The declaration further explained the importance of these properties in the dye trade. Id. The predecessor to our reviewing court held in that case, where “the qualifications of [the declarant] and the test procedures which he employed are unchallenged, the board’s holding that ‘a more dramatic difference in results’ is required constitutes reversible error,” because “[the declarant’s] unequivocal analysis of washfastness, water-solubility, and color cannot be ignored in favor of the board’s visual inspection and characterization of the evidence.” Id. at 966-967. In this case, as we have explained above and in contrast to the situation in Zeidler, the determination that Appellant has not provided persuasive evidence of unexpected results is based on critiques of (1) the test procedures described in the Perner Declaration and (2) Dr. Perner’s stated rationales for finding the results to be unexpected. Accordingly, we affirm the Examiner’s rejection of claim 1 as obvious over Hong, Feltin, and Tang. Claims 2, 3, 5, 7, 9-16, 23, and 24, which are not separately argued, fall with claim 1. Appellant also did not provide additional arguments with respect to the rejection of claims 17-19 as obvious over Ascione, Hong, Feltin, and Tan, stating only that “the . . . rejection should be reversed for the same reasons the obviousness rejection above is improper and should be reversed.” Appeal Br. 19. We therefore affirm the Examiner’s rejection of claims 17-19 as obvious over Ascione, Hong, Feltin, and Tan for the same reasons. Appeal 2021-002837 Application 15/581,993 21 CONCLUSION In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1-3, 5, 7, 9-16, 23, 24 103 Hong, Feltin, Tan 1-3, 5, 7, 9-16, 23, 24 17-19 103 Ascione, Hong, Feltin, Tan 17-19 Overall Outcome 1-3, 5, 7, 9-19, 23, 24 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). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED