Milliken & Company

Patent Trials and Appeals BoardMar 15, 2021

2020002427 (P.T.A.B. Mar. 15, 2021)

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. 14/937,914 11/11/2015 Randy D. Petrea 6866A 5311 25280 7590 03/15/2021 Legal Department (M-495) P.O. Box 1926 Spartanburg, SC 29304 EXAMINER DELCOTTO, GREGORY R ART UNIT PAPER NUMBER 1761 NOTIFICATION DATE DELIVERY MODE 03/15/2021 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): patents@milliken.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte RANDY D. PETREA, LAURENT D. KIEKEN, and SHIRLEY A. WHITESIDE Appeal 2020-002427 Application 14/937,914 Technology Center 1700 Before TERRY J. OWENS, JEFFREY B. ROBERTSON, and BRIAN D. RANGE, Administrative Patent Judges. RANGE, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1–20. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Milliken & Company. Appeal Br. 2. Appeal 2020-002427 Application 14/937,914 2 CLAIMED SUBJECT MATTER2 Appellant describes the invention as relating to “cleaning compositions with controlled dissolution and [an] improved chelation system.” Spec. ¶ 2. Appellant states the composition is ideal for cleaning appliances such as automatic washing machines and dishwashers. Id. The composition addresses, for example, microbial growth that can be a particular problem for front loading washing machines. Id. ¶ 6. Claim 1 is illustrative: 1. A composition comprising: (a) a majority by weight of a percarbonate-based compound; (b) a chelation system, wherein the chelation system is comprised of at least one carboxylic acid compound; (c) a binder system, wherein the binder system is comprised of at least one polyol and a second binder component; and (d) a flame retardant system, wherein the flame retardant system is comprised of sodium sulfate and magnesium sulfate; and wherein the composition is free from boric acid and surfactant. Appeal Br. 9 (Claims App.). REFERENCES The Examiner relies upon the prior art below in rejecting the claims on appeal: 2 In this Decision, we refer to the Final Office Action dated March 13, 2019 (“Final Act.”), the Appeal Brief filed September 13, 2019 (“Appeal Br.”), and the Examiner’s Answer dated November 25, 2019 (“Ans.”). Appeal 2020-002427 Application 14/937,914 3 Name Reference Date Smith US 2002/0082186 A1 June 27, 2002 Weuthen et al. (“Weuthen”) US 2003/0027740 A1 Feb. 6, 2003 Hazenkamp et al. (“Hazenkamp”) US 2007/0072787 A1 Mar. 29, 2007 Gefvert US 2007/0111925 A1 May 17, 2007 Wiedemann et al. (“Wiedemann”) US 2012/0067764 A1 Mar. 22, 2012 Frey et al. (“Frey”) US 2013/0117941 A1 May 16, 2013 Strenger et al. (“Strenger”) US 2013/0261042 A1 Oct. 3, 2013 Schmidt3 EP 0 737 738 B1 June 25, 2003 REJECTIONS The Examiner maintains the following rejections on appeal: A. Claims 1–6, 8–10, and 12–20 under 35 U.S.C. § 103 as obvious over Schmidt in view of Weuthen or Smith and Wiedemann. Ans. 3. B. Claim 7 under 35 U.S.C. § 103 as obvious over Schmidt in view of Weuthen or Smith and Wiedemann and further in view of Gefvert. Id. at 6. C. Claim 11 under 35 U.S.C. § 103 as obvious over Schmidt in view of Weuthen or Smith and Wiedemann and further in view of Strenger, Frey, or Hazenkamp. Id. at 7. OPINION We review the appealed rejections for error based upon the issues identified by Appellant and in light of the arguments and evidence produced 3 The Examiner labels this reference as “EP 737,738” or “’738.” Ans. 3. Appeal 2020-002427 Application 14/937,914 4 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 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. The Appellant does not provide substantively distinct arguments for any rejection or dependent claims. Appeal Br. 2, 6–8. We therefore limit our discussion to claim 1. All other claims stand or fall with claim 1. 37 C.F.R. § 41.37(c)(1)(iv) (2013). The Examiner finds that Schmidt (i.e., ’738) teaches tablets for cleaning textiles that comprise, for example, claim 1’s recited percarbonate, carboxylic acid, and second binder component. Ans. 3–4. The Examiner finds that Weuthen and Smith teach use of sodium sulfate as a filler for cleaning products. Id. at 4–5. The Examiner finds that Wiedmann teaches use of magnesium sulfate and sodium sulfate as fillers for a detergent. Id. at 5. The Examiner determines that it would have been obvious to use sodium sulfate and magnesium sulfate in the Schmidt composition as filler because the art recognizes the equivalence and suitability of these fillers. Id. at 5–6. Appellant argues that the references do not recognize the combination of sodium sulfate and magnesium sulfate as a fire retardation system. Appeal Br. 4. This argument is unpersuasive because the cited art recognizes these sodium sulfate and magnesium sulfate components as filler material, and the Examiner proposes adding these components to Schmidt as filler material. Appeal 2020-002427 Application 14/937,914 5 Appellant’s inclusion of these components for a different purpose does not make the composition patentable. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 419–20 (2007) (““In determining whether the subject matter of a patent claim is obvious, neither the particular motivation nor the avowed purpose of the patentee controls . . . . The first error of the Court of Appeals in this case was . . . holding that courts and patent examiners should look only to the problem the patentee was trying to solve.”). Appellant also argues that the combination of sodium sulfate and magnesium sulfate has a synergistic effect “with respect to burn time, oxidizer status, and tablet residue.” Appeal Br. 4. As the Examiner explains, Appellant’s argument regarding synergy is unclear. Ans. 15–17. For example, Appellant does not explain whether a high or low burn time is desirable or why high or low burn time is unexpected. Appellant cites Specification Table 8. Table 8, however, indicates a burn time of 58 seconds for material having no magnesium sulfate and no sodium sulfate. Spec. ¶¶ 106–107. The table indicates a burn time of 215 or 200 seconds for only magnesium sulfate and for only sodium sulfate respectively. Id. The table indicates a burn time of either 150 or 393 seconds if both magnesium sulfate and sodium sulfate are used. Id. It is unclear from this data that using both magnesium sulfate and sodium sulfate necessarily leads to unusually low or high burn times. Rather, the table suggests that the process of making the composition—a factor that claim 1 does not address—is important to burn time. Appellant further argues that the Warren, Smith, and/or Widemann references, contrary to claim 1, suggest inclusion of boric acid and/or surfactant. Appeal Br. 4–5. As the Examiner explains, however, the primary Appeal 2020-002427 Application 14/937,914 6 reference, Schmidt, teaches embodiments that exclude boric acid and surfactant. Ans. 9–10. The Examiner’s rejection is based upon modification of the Schmidt composition; the modified compositions, thus, will lack boric acid and surfactant. Moreover, Appellant does not identify any portion of the references that disparage compositions lacking boric acid or surfactant. “The prior art’s mere disclosure of more than one alternative does not constitute a teaching away from any of these alternatives because such disclosure does not criticize, discredit, or otherwise discourage the solution claimed in the ’198 application.” In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). Because Appellant’s arguments do not identify error, we sustain the Examiner’s rejections. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–6, 8–10, 12–20 103 Schmidt, Weuthen, Smith, Wiedemann 1–6, 8–10, 12–20 7 103 Schmidt, Weuthen, Smith, Wiedemann, Gefvert 7 11 103 Schmidt, Weuthen, Smith, Wiedemann, Strenger, Frey, Hazenkamp 11 Overall Outcome 1–20 Appeal 2020-002427 Application 14/937,914 7 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