Milliken & Company

Patent Trials and Appeals Board

Jun 18, 2020

2019005469 (P.T.A.B. Jun. 18, 2020)

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.
14/574,429 12/18/2014 Steven Spanhove 6544B 6919
25280 7590 06/18/2020
Legal Department (M-495)
P.O. Box 1926
Spartanburg, SC 29304
EXAMINER
DOUYON, LORNA M
ART UNIT PAPER NUMBER
1761
MAIL DATE DELIVERY MODE
06/18/2020 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 STEVEN SPANHOVE
and GREGORY EDWARD FERNANDES
____________

Appeal 2019-005469
Application 14/574,429
Technology Center 1700
____________

Before KAREN M. HASTINGS, MICHAEL P. COLAIANNI, and
DEBRA L. DENNETT, Administrative Patent Judges.

HASTINGS, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 requests our review under 35 U.S.C. § 134(a) of the
Examiner’s Non-Final Rejection under 35 U.S.C. § 103(a) of claims 1, 3, 4,
7, and 8.
We have jurisdiction over the appeal under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to the “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies Milliken & Company as the real party
in interest (Appeal Br. 2).
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CLAIMED SUBJECT MATTER
Claim 1 is illustrative of the subject matter on appeal (emphasis added
to highlight key disputed limitations):
1. A colored speckle comprising:

a) a majority by weight of at least one compacted carrier
material selected from the group consisting of sodium
carbonate, sodium sulfate, sodium tripolyphosphate, sodium
chloride, sodium citrate, sodium silicate, sodium stearate,
sodium alkylbenzene sulfonate, sodium lauryl sulfate; and

b) at least one polymeric colorant, wherein the at least one
polymeric colorant is characterized as follows:

R{A[(alkyleneoxy constituent)nR1]m}x

wherein R is an organic chromophore group, A is a linking
moiety in said organic chromophore group selected from the
group consisting of N, O, SO2 or CO2, the alkylene moiety of
the alkyleneoxy constituent contains from 2 to about 4 carbon
atoms, n is an integer of from 2 to about 230, m is 1 when A is
O, SO2, CO2 and 1 or 2 when A is N, x is an integer of from 1
to 5, and the product of n times x times m (n·m·x) is from 2 to
about 230, and R1 is selected from the group consisting of

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and sulfonates and sulfates of any of the foregoing members of
said group, wherein R2 is H, an alkyl radical containing up to
about 20 carbon atoms or carboxy-terminated alkyl radical
containing up to about 20 carbon atoms, j and k are OH, OM or
OR3 wherein M is a cation moiety of an alkali metal, an
alkaline earth metal, transition metal, or ammonium, R3 is an
alkyl radical containing up to about 20 carbon atoms, and
wherein “Alk” is an alkyl radical containing up to about 20
carbon atoms;

wherein the at least one polymeric colorant is in contact with
the compacted carrier material and forms a carrier-polymeric
colorant composite, and

wherein the carrier-polymeric colorant composite comprises a
cross-sectional volume that is uniformly colored by the at least
one polymeric colorant.

Appeal Br. 11–13 (Claims Appendix).

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REJECTIONS
Claims 1, 3, 4, 7, and 8 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Cardozo et al. (US 2006/0019860 A1, published Jan. 26,
2006) (hereinafter “Cardozo”) in view of Hong et al. (US 2010/0125957 A1,
published May 27, 2010) (hereinafter “Hong”) or Bruhnke (US 5,766,268,
issued June 16, 1998).
Claims 1, 3, 4, 7, and 8 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Manske et al. (US 2003/0036497 A1, published Feb. 20,
2003) (hereinafter “Manske”) in view of Hong or Bruhnke.
Appellant’s arguments are directed solely to whether the applied prior
art describes or suggests the italicized limitations, which appear in claim 1,
supra (Appeal Br. 11–13 (Claims Appendix); generally Appeal Br.).
Accordingly, we decide each ground of rejection under 35 U.S.C. § 103(a)
on the basis of the arguments made in support of patentability of claim 1.
See 37 C.F.R. § 41.37(c)(1)(iv).

OPINION
Upon consideration of the evidence of record and each of Appellant’s
contentions as set forth in the Appeal Brief, we determine that Appellant has
not demonstrated reversible error in the Examiner’s rejections (e.g., see
generally Ans.). In re Jung, 637 F.3d 1356, 1365–66 (Fed. Cir. 2011)
(explaining the Board’s long-held practice of requiring Appellant(s) to
identify the alleged error in the Examiner’s rejection). We sustain the
rejection for the reasons expressed by the Examiner in the Non-Final Office
Action and the Answer.
We add the following primarily for emphasis.
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The Examiner’s rejections rely on Cardozo’s detergent compositions
comprising colorants in Ground 1 or Manske’s colored or speckled
detergents in Ground 2 (Non-Final Act. 3–4; 7–8). The Examiner finds that
each alternative primary references’ colored detergent discloses or suggests
each feature of the colored speckle subject matter except for: (i) the “at least
one polymeric colorant” and (ii) a “uniformly colored” bead, as recited in
claim 1 (id. at 4, 8). The Examiner, however, relies upon Hong’s or
Bruhnke’s polymeric colorants for teaching the limitations missing from
Cardozo in Ground 1 and Manske in Ground 2 (id. at 4–7; 8–9).
Appellant’s main contentions are that (1) Cardozo’s extrusion process
for making colored particles and detergents would not have prepared the
claimed “compacted carrier material” (Appeal Br. 5–6), (2) the
Specification’s examples demonstrate that colored speckles comprising
compacted carrier material are advantageous over colored speckles
comprising non-compacted carrier material (id. at 7), (3) Hong describes use
of solid polymeric colorants in laundry detergent, thus teaching away from
Manske’s detergent comprising liquid coloration components (id. at 9), and
(4) one of ordinary skill in the art would not have specifically combined
Bruhnke’s liquid polymeric colorants with Manske’s detergent particles (id.
at 9–10).
Appellant’s arguments are not persuasive of reversible error for
reasons detailed by the Examiner (Ans. 9–13).
It is well established that “the PTO must give claims their broadest
reasonable construction consistent with the specification. . . . Therefore, we
look to the specification to see if it provides a definition for claim terms, but
otherwise apply a broad interpretation.” In re ICON Health & Fitness, Inc.,
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496 F.3d 1374, 1379 (Fed. Cir. 2007) (“[A]s applicants may amend claims
to narrow their scope, a broad construction during prosecution creates no
unfairness to the applicant or patentee.”)
Here, Appellant’s Specification lacks any limiting definition for
“compacted carrier material.” The Specification describes that soda ash, a
preferred carrier material, is “compacted via a wet or a dry granulation
process” (Spec. 7:8–9 (emphasis added)). While Appellant contends that the
extrusion process of Cardozo and Exhibit A, “Plastic Extrusion Process”
available at https://www.polymeracademy.com/
plastic-extrusion-process/, is distinguished from the roller compaction
methods described in the Specification (Appeal Br. 6–7), nothing in the
claim language requires roller compaction. See also Phillips v. AWH Corp.,
415 F.3d 1303, 1323 (Fed. Cir. 2005) (en banc) (“[A]lthough the
specification often describes very specific embodiments of the invention, we
have repeatedly warned against confining the claims to those
embodiments.”).
As the Examiner finds, Exhibit A “discloses a ‘melting zone’ as one
of the three zones in most screws which is also called ‘the transition or
compression zone,’” i.e., a compaction zone (Ans. 10). Thus, Appellant has
not identified reversible error in the Examiner’s finding that Cardozo’s
colored particles comprise “compacted carrier material,” within the meaning
of claim 1.
To the extent that Appellant argues that Cardozo’s extruded colored
particles would not have exhibited a cross-sectional volume that is uniformly
colored (Appeal Br. 7), it is well established that when claimed and prior art
products are produced by identical or substantially identical processes, the
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PTO can require an applicant to prove that the prior art products do not
necessarily or inherently possess the characteristics of his claimed product.
In re Best, 562 F.2d 1252, 1255 (CCPA 1977). On this record, Appellant
has not demonstrated that Cardozo’s extruded colored particles do not
exhibit the disputed property.
Rather, Appellant has only tested a single compacted carrier material
from the claimed Markush group in an attempt to demonstrate advantages
over colored speckles comprising non-compacted carrier material (see Ans.
11). In other words, Appellant has not provided a comparison of the claimed
invention that is commensurate in scope with claim 1.
Appellant, moreover, has not sufficiently explained why the result of
coloring would not have been rendered obvious by the combination of
Cardozo with either Hong or Bruhnke (e.g., Appeal Br. 7). It has long been
established that differences in ornamentation are entitled to little weight in
determining the obviousness of a claim to a structure. Cf. In re Seid, 161
F.2d 229, 231 (CCPA 1947). Any significant differences in improved color
bleed resistance in granular or powder detergent formulations argued by
Appellant (e.g., Appeal Br. 7 (citing Spec. Tables 1A and 1B)) are de
minimis over the applied prior art, especially as Appellant’s Specification
stresses that the claimed subject matter is directed to satisfying a “need for
colored speckles that provide aesthetic appeal to detergent compositions”
(e.g., Spec. 2:5).
Appellant’s argument that Hong’s solid polymeric colorants in
laundry detergent teaches away from Manske’s detergent comprising liquid
coloration components (e.g., Appeal Br. 9) is not persuasive as it fails to
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identify any teaching in Manske that criticizes, discredits, or discourages
solid colorants. See In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004).
Appellant, furthermore, has not shown reversible error in the
Examiner’s position that it would have been obvious for one of ordinary
skill to have incorporated either Hong’s or Bruhnke’s polymeric colorant,
having a chromophore group like nitroso, nitro, or azo groups, as a coloring
dye because Manske specifically desires coloration or speckling of the
adjunct particles (e.g., Ans. 13). As the Examiner finds, one of ordinary
skill in the art would have recognized that Hong or Bruhnke provides such
dye colorants, which exhibit excellent solubility in water, are easy to handle,
and provide reduced staining to skin and textiles (e.g., id.). See also KSR
Int’l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007) (the predictable use of
known prior art elements or steps performing the same functions they have
been known to perform is normally obvious; the combination of familiar
elements/steps is likely to be obvious when it does no more than yield
predictable results); Ball Aerosol & Specialty Container, Inc. v. Ltd. Brands,
Inc., 555 F.3d 984, 993 (Fed. Cir. 2009) (under the flexible inquiry set forth
by the Supreme Court, the PTO must take account of the “inferences and
creative steps,” as well as routine steps, that an ordinary artisan would
employ) (emphasis omitted).
Accordingly, we sustain the Examiner’s rejections claims 1, 3, 4, 7,
and 8.

CONCLUSION
The decision of the Examiner is affirmed.
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In summary:
Claims
Rejected 35 U.S.C. §
References/
Basis Affirmed Reversed
1, 3, 4, 7, 8 103(a)
Cardozo,
Hong,
Bruhnke
1, 3, 4, 7, 8

1, 3, 4, 7, 8 103(a) Manske, Hong, Bruhnke 1, 3, 4, 7, 8

Overall
Outcome
1, 3, 4, 7, 8

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)(1)(iv).

AFFIRMED