RUPPERT, Stephan et al.

Patent Trials and Appeals Board

Sep 11, 2019

15359841 - (D) (P.T.A.B. Sep. 11, 2019)

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.
15/359,841 11/23/2016 Stephan RUPPERT 3321-P50349 8803
13897 7590 09/11/2019
Abel Schillinger, LLP
8911 N. Capital of Texas Hwy
Bldg 4, Suite 4200
Austin, TX 78759
EXAMINER
JUSTICE, GINA CHIEUN YU
ART UNIT PAPER NUMBER
1617
NOTIFICATION DATE DELIVERY MODE
09/11/2019 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):
hmuensterer@abel-ip.com
mail@Abel-IP.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte STEPHAN RUPPERT, CLAUDIA STEIKERT, and
ALEXANDRA BLOHM1
Appeal 2019-004116
Application 15/359,841
Technology Center 1600
BEFORE RYAN H. FLAX, RACHEL H. TOWNSEND, and
CYNTHIA M. HARDMAN, Administrative Patent Judges.
HARDMAN, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) involving claims to a
process for the preparation of a cosmetic oil-in-water (“O/W”) emulsion.
The Examiner rejected the claims for lack of adequate written description
and as obvious over the prior art. We have jurisdiction under 35 U.S.C.
§ 6(b).
We affirm-in-part.

1 Appellants identify the real party in interest as “Beiersdorf AG.” Appeal
Br. 3.
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STATEMENT OF THE CASE
The claims are directed to a process for the preparation of a cosmetic
O/W emulsion containing UV filters and a licorice extract. Spec. 3:25–4:7.
Claim 1, reproduced below, is illustrative of the claimed subject matter:
1. A process for the preparation of a cosmetic O/W
emulsion, wherein the process comprises
(i) adding a heated oil phase comprising 2-ethylhexyl
2-cyano-3,3-diphenylacrylate, 4-(tert-butyl)-4'-
methoxydibenzoylmethane and, optionally, one or
more further oil-soluble UV filters to a hot
aqueous phase,
(ii) homogenizing the oil and water phases to obtain an
O/W emulsion,
(iii) externally cooling the emulsion, and
(iv) adding at least one of licorice extract dissolved in
ethanol and licochalcone A dissolved in ethanol to
the cooled emulsion with stirring.
Appeal Br. 18 (Claims Appendix).
REFERENCES
The Examiner relied upon the following prior art references:
Binder
Blatt
US 2005/0058680 A1
US 2007/0196289 A1
Mar. 17, 2005
Aug. 23, 2007

REJECTIONS
The claims stand rejected as follows:
Claims 1–16 and 18–21 are rejected under 35 U.S.C. § 112, as failing
to comply with the written description requirement (new matter rejection).
Final Act. 3.
Claims 1–16 and 18–21 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Blatt and Binder. Id.
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ANALYSIS
Written Description
The Examiner rejected claims 1–16 and 18–21 as failing to comply
with the written description requirement, asserting that independent claims
1, 18, and 21 contain new matter. Final Act. 3. These claims recite
“externally cooling the emulsion,” but according to the Examiner,
Appellants’ Specification “fails to provide any support for such method.”
Id.
While the Specification refers to “cooling” (see, e.g., Spec. 4:4, 9:25–
26), Appellants concede that it “does not disclose in which specific way the
cooling of the emulsion was accomplished.” Appeal Br. 8. However,
relying on Binder, they assert that both internal and external cooling of
emulsifications were well known in the art, and as such, “it cannot
reasonably be assumed that the instant inventors did not know that external
cooling during emulsification is possible and did not consider external
cooling as a method of cooling the formed emulsion.” Id.
To satisfy the written description requirement, the specification must
“clearly allow persons of ordinary skill in the art to recognize that [the
inventor] invented what is claimed.” Ariad Pharms. Inc. v. Eli Lilly and Co.,
598 F.3d 1336, 1351 (Fed. Cir. 2010) (en banc) (citations omitted). “For
generic claims, [the Federal Circuit has] set forth a number of factors for
evaluating the adequacy of the disclosure, including ‘the existing knowledge
in the particular field, the extent and content of the prior art, the maturity of
the science or technology, [and] the predictability of the aspect at issue.’”
Id. (quoting Capon v. Eshhar, 418 F.3d 1349, 1359 (Fed. Cir. 2005)).
“[T]he level of detail required to satisfy the written description requirement
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varies depending on the nature and scope of the claims and on the
complexity and predictability of the relevant technology.” Ariad Pharms.
Inc., 598 F.3d at 1351.
Appellants admit that “the instant specification does not disclose in
which specific way the cooling of the emulsion was accomplished.” Appeal
Br. 8. We are mindful that “a description that merely renders the invention
obvious does not satisfy” the written description requirement. Ariad
Pharms. Inc., 598 F.3d at 1352. Yet we are also mindful of the Federal
Circuit’s directive to apply the written description requirement “in the
context of the particular invention and the state of the knowledge.” Capon v.
Eshhar, 418 F.3d at 1358.
Here, although the Specification does not mention external cooling—
or any particular method of cooling for that matter—the prior art indicates
that with respect to preparing emulsions, it was well known that various
methods are commonly used to cool products, including both internal and
external cooling methods. See, e.g., Binder ¶ 5 (noting that product
temperatures can be kept low using cold aqueous phases or a heat
exchanger), ¶ 48 (exemplifying both internal and external cooling). The
Examiner and Appellants appear to agree that both cooling methods were
common and well-known. See Final Act. 9–10 (“Binder clearly teaches both
either internal or external cooling in emulsification are well known . . . .”);
Appeal Br. 8 (acknowledging that “externally cooling a liquid doubtlessly is
a wide-spread cooling method”). Thus, in view of the existing knowledge as
demonstrated by Binder, we determine that the Specification’s generic
disclosure of “cooling” sufficiently signals to a person of ordinary skill in
the art that the inventors invented processes that include externally cooling
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the emulsion. We therefore reverse the rejection of claims 1–16, 18, 19, and
21 under 35 U.S.C. § 112 for the inclusion of new matter.
Independent claim 20 is cited in the heading for the written
description rejection, but is not addressed in the body of that rejection. See
Final Act. 3. To the extent the Examiner also rejected claim 20 under 35
U.S.C. § 112, we note that this claim does not include the “externally
cooling” limitation. See Appeal Br. 21 (Claims Appendix). Accordingly,
we summarily reverse the rejection of claim 20 under 35 U.S.C. § 112 for
lack of adequate written description.
Obviousness
Claims 1–16
With respect to obviousness, the Examiner found that in Example 14,
Blatt discloses a water-in-oil (“W/O”) emulsion comprising the three active
ingredients recited in appealed claim 1 (i.e., 2-ethylhexyl 2-cyano-3,3-
diphenylacrylate (also known as octocrylene), 4-(tert-butyl)-4'-
methoxydibenzoylmethane (also known as butyl methoxydibenzoyl
methane), and licochalcone A. See Final Act. 3–4 (citing Blatt ¶ 62). The
Examiner found, however, that Blatt fails to disclose method steps to make
an O/W emulsion. Id. at 4.
The Examiner found that Binder teaches a continuous process for
preparing an emulsion containing temperature-sensitive active ingredients
such as perfume oil or plant extracts. Id. The Examiner found that Binder
teaches that “O/W emulsions with improved quality (e.g., stability, no oil
loss, etc) [are] obtained by employing the continuous process and adding
temperature sensitive active ingredients in a stepwise cooling stage to avoid
thermal stress.” Id. (citing Binder ¶ 8). The Examiner found that
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Binder Example (5) illustrates such process comprising (i)
adding a heated oil phase comprising organic UV filters (octyl
methoxycinnamate, etc) to 60-95 °C to a heated water phase (80
°C), (ii) mixing the mixture at a stirring speed [of] 1000
revolutions per minute, where emulsification takes place; (iii)
cooling the mixture to 35-38 °C with cold water; (iv) adding the
phase containing temperature sensitive agents, namely
preservatives and perfume in ethanol to the cooled emulsion and
further homogenizing the mixture to obtain the final emulsion.
Id.
With respect to motivation to combine, the Examiner stated:
Given the Blatt formulation of a sunscreen O/W emulsion
comprising a plant extract, one of ordinary skill in the art would
have been motivated to search [for] and apply prior art teachings
such as Binder which teaches specific method steps to make
cosmetic O/W emulsions containing temperature sensitive
actives which include plant extracts. Since Binder also teaches
specific examples of process[es] of making O/W emulsions
comprising organic sunscreen and temperature sensitive actives
in ethanol, the skilled artisan would have had a reasonable
expectation of successfully producing a stable O/W emulsion
comprising the UV filters and licochalcone A/licorice extract by
combining the Blatt and Binder teachings and following the
method steps as taught and suggested by the latter.
Id. at 5.
We adopt the Examiner’s findings of fact and reasoning regarding the
scope and content of the prior art (id. at 3–10; Ans. 5–7), and agree that
claim 1 would have been obvious over the identified prior art for the reasons
the Examiner articulated. We address Appellants’ arguments below.
Appellants argue that a person of ordinary skill in the art would not
have been motivated to combine the composition of Example 14 of Blatt
with the process of Example 5 of Binder because the former is a W/O
emulsion, whereas the latter relates to an O/W emulsion. Appeal Br. 10.
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Appellants also assert that the question to be answered is not whether one of
ordinary skill in the art would have known how to formulate an O/W
emulsion, but rather
whether one of ordinary skill in the art would assume that a W/O
emulsion which contains significant amounts (> 8 wt.%) of oil-
soluble UV filter substances in the continuous phase of the
emulsion (BLATT) can be prepared in substantially the same
way as an O/W emulsion which contains significant amounts of
oil-soluble UV-filter substances in the discontinuous phase of the
emulsion.
Appeal Br. 11; see also Reply Br. 3–4.
We are not persuaded by these arguments. Blatt demonstrates that the
combination of octocrylene, butylmethoxydibenzoyl methane, and
licochalcone A was known in the prior art. See Blatt ¶ 133 (Ex. 14). While
Blatt exemplifies this particular combination of active ingredients in a W/O
emulsion, we agree with the Examiner that both Binder and Blatt indicate
that both W/O and O/W emulsions are “well known in the art, and there is
nothing unobvious, surprising or inventive about formulating a[n] O/W
emulsion containing well known active ingredients such as licorice extract
or licochalcone A in a conventional method set out in Binder.” Final Act. 9.
Indeed, Blatt teaches that the active ingredients disclosed therein “can
advantageously be incorporated in[to] conventional cosmetic and
dermatological preparations,” including either W/O or O/W emulsions.
Blatt ¶ 68. Moreover, nothing in the Examiner’s rejection requires that a
person of ordinary skill in the art convert the entire formulation disclosed in
Example 14 of Blatt from a W/O formulation to an O/W formulation, let
alone do so without modifying the concentration of any ingredient therein.
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Appellants further argue that Binder’s process differs from the
claimed process based on when the “homogenization” step takes place. That
is, Appellants argue that Binder’s process is different because in Binder,
“homogenization takes place after the temperature-sensitive components”
are added, which “expose[s] these components to the heat generated during
the homogenization.” Appeal Br. 12; see also Reply Br. 4. This argument is
not persuasive, because it conflates two different steps in Binder’s process—
the emulsification step, and the homogenization step.
In Example 5, Binder first combines heated oil-phase ingredients,
heated water-phase ingredients, and thickeners. Binder ¶ 48. The mixture
passes through a static inline mixer, and “is then emulsified in a loop mixer.”
Id. The resulting emulsion is “cooled suddenly” with cold water; the
temperature-sensitive ingredients (i.e. perfume oil and active ingredients) are
added; and the mixture passes through a static mixer. Id. The emulsion is
then homogenized, followed by cooling using a heat exchanger. Id.
Step 1(ii) of Appellants’ claim 1 recites, “homogenizing the oil and
water phases to obtain an O/W emulsion.” This step reads on Binder’s step
of emulsifying in the loop mixture. See also Ans. 6 (explaining why
Appellants’ “homogenizing” step 1(ii) reads on Binder’s emulsification
step). Both Binder’s emulsification step and step 1(ii) of claim 1 occur prior
to the addition of temperature-sensitive components. Thus, contrary to
Appellants’ argument, the timing of addition of the temperature-sensitive
components relative to formation of the emulsion does not distinguish
Appellants’ claimed process from Binder’s process. Moreover, that Binder
includes a further homogenization step after addition of temperature-
sensitive components does not distinguish the claimed invention. Claim 1
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(and claim 18) use the transition term “comprising,” which “indicates that
the claim is open-ended and allows for additional steps.” Invitrogen Corp. v.
Biocrest Mfg., L.P., 327 F.3d 1364, 1368 (Fed. Cir. 2003).
Appellants additionally argue that Binder cools the emulsion by
adding cold water (internal cooling), and does not teach or suggest external
cooling, as recited in the claims. Appeal Br. 13–14. We are not persuaded
by this argument. As discussed above and, in fact, as urged by Appellants as
the basis for their arguments over the written description rejection here,
persons of ordinary skill in the art were well aware of both internal and
external methods for cooling products. See, e.g., Binder ¶ 5. Moreover, as
noted by the Examiner, “there is nothing in appellant’s original disclosure
indicating any significance of one cooling method over another.” Final Act.
7; see also Ans. 7. Accordingly, on this record we determine that the recited
step of “externally cooling” does not patentability distinguish the claims
from the prior art.
For the reasons discussed above, we affirm the rejection of claim 1 as
being obvious over Blatt and Binder. Appellants did not provide separate
arguments for claims 2–16, which depend directly or indirectly from claim
1. Accordingly, we affirm the rejection of dependent claims 2–16 for the
same reasons discussed above with respect to claim 1. See 37 C.F.R.
§ 41.37(c)(1)(iv).
Claims 18–19
Independent claim 18 is similar to claim 1, but adds specific
temperature ranges to process steps (i), (iii), and (iv), and adds a specific
time period and stirring speed range to process step (ii). The Examiner and
Appellants focused their additional arguments for this claim on step (iv),
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which recites: “adding at least one of licorice extract dissolved in ethanol
and licochalcone A dissolved in ethanol to the cooled emulsion with stirring
at a temperature of below 30ºC.” Appeal Br. 21 (Claims Appendix).
The Examiner found that “lowering the cooling temperature in step
(iv) to below 30° C would have been obvious to protect the temperature
sensitive ingredients.” Final Act. 7. The Examiner found that “Binder
teaches that emulsions are cooled to ‘less than 40º C’ before temperature
sensitive actives are added,” and stated: “[t]hus, manipulation of the
temperature to make a stable composition would have been obvious.” Id. at
7–8. The Examiner also noted that “differences in concentration or
temperature will not support the patentability of subject matter encompassed
by the prior art unless there is evidence indicating such concentration or
temperature is critical.” Id. at 7.
In response, Appellants state that in Example 5 of Binder, the
temperature-sensitive ingredients are added to an emulsion that has a
temperature of 35–38° C, but the temperature of the emulsion subsequently
rises to 49° C (due to the heat generated during homogenization). Appeal
Br. 14. Appellants argue that in view of this temperature increase, “it is not
seen that ‘lowering the cooling temperature in step (iv) to below 30° C
would have been obvious to protect the temperature sensitive ingredients.’”
Id. (quoting Final Act. 7).
We are not persuaded by Appellants’ argument, which narrowly
focuses on the temperatures in Binder Example 5, while ignoring the broader
teachings of Binder. Binder teaches and suggests the benefits of protecting
temperature-sensitive ingredients, including by maintaining emulsions
containing such ingredients at temperatures below 30º C. For example,
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Binder teaches that a preferred temperature range for homogenization after
addition of temperature-sensitive ingredients is 20–50° C, with a range of
28–40º C being particularly preferable. Id. ¶ 16; see also id. at ¶ 22 (stating
that homogenization at a temperature range of 28–45º C is particularly
preferred). These temperature ranges overlap with the claimed range of
“below 30° C.” Such overlap between the prior art temperature ranges and
the claimed range is evidence of obviousness, and the record lacks any
evidence of criticality of the claimed range. In re Applied Materials, Inc.,
692 F.3d 1289, 1295 (Fed. Cir. 2012) (obviousness affirmed where prior art
taught groove dimensions that overlapped with claimed dimensions).
Appellants further argue that neither Blatt nor Binder indicate that
licorice extract or licochalcone A is temperature-sensitive. Appeal Br. 14–
15, 16–17; see also Reply Br. 5. They assert that without this knowledge,
persons of ordinary skill in the art would have had no reason to look for
ways to increase the stability of licorice extract and licochalcone A in O/W
emulsions. Appeal Br. 14–15, 17.
We are not persuaded by this argument. Binder teaches that plant
extracts are temperature-sensitive, and Blatt teaches that licorice extract and
licochalcone A are plant extracts. Binder ¶¶ 6, 29; Blatt ¶¶ 50, 51. Further,
as indicated by the Examiner, both Binder and Blatt concern sunscreen
emulsions that can comprise plant extracts. See, e.g., Final Act. 5.
Accordingly, we find sufficient motivation to combine Binder and Blatt,
despite the lack of an express statement in these references that licorice
extract or licochalcone A is temperature-sensitive.
Accordingly, for the reasons discussed above for both claims 1 and
18, we affirm the rejection of claim 18 as being obvious over Blatt and
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Binder. Claim 19 depends from claim 18. Appellants did not provide
separate arguments for claim 19. Accordingly, we affirm the rejection of
dependent claim 19 for the same reasons discussed above with respect to
claim 18. See 37 C.F.R. § 41.37(c)(1)(iv).
Independent Claim 20
Claim 20 recites (spacing added):
20. A method of increasing the stability of one or both of
a licorice extract and licochalcone A in a cosmetic O/W
emulsion that comprises one or both of a licorice extract and
licochalcone A, wherein the method comprises
including in the emulsion a combination of (a) 2-
ethylhexyl 2-cyano-3,3-diphenylacrylate and (b) 4-(tert-butyl)-
4'-methoxydibenzoylmethane in an amount that is sufficient to
increase the stability of one or both of the licorice extract and
licochalcone A in the emulsion.
Appeal Br. 21 (Claims Appendix). The Examiner found that the amounts of
octocrylene and butyl methoxydibenzoyl methane disclosed in Blatt (e.g.
Example 14) are within the ranges disclosed in the Specification as amounts
sufficient to stabilize the emulsion during storage. Final Act. 8; Spec. 5.
The Examiner also stated that the “prior art shows that [any problems with
stabilizing licorice extract and licochalcone A] had been solved before the
time of the present invention: Blatt teaches formulating stable compositions
with licorice extract and Binder specifically teaches how to make a stable
O/W emulsion comprising temperature-sensitive actives.” Ans. 7.
Appellants respond that
[I]t must not be overlooked that instant claim 20 refers to an
O/W emulsion, whereas the composition of Example 14 of
BLATT is a W/O emulsion. The Examiner has not provided
any evidence that the difference between an O/W emulsion and
a W/O emulsion does not play any role in this regard, let alone
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has provided any explanation why one of ordinary skill in the
art would allegedly have assumed that the concentrations of
octocrylene and butyl methoxydibenzoyl methane in the W/O
emulsion of Example 14 of BLATT are sufficient to stabilize
licorice extract and/or licochalcone in an O/W emulsion.
Appeal Br. 16.
We are not persuaded by this argument. Appellants have not cited
any evidence of record to establish that the concentrations of octocrylene
and butyl methoxydibenzoyl methane in Blatt’s Example 14 could not have
been used to form an O/W emulsion, or are insufficient to stabilize licorice
extract and/or licochalcone in an O/W emulsion. See, e.g., Johnston v. IVAC
Corp., 885 F.2d 1574, 1581 (Fed. Cir. 1989) (noting that attorney argument
is “no substitute for evidence”). Nor have Appellants argued any reason
why a person of ordinary skill in the art would not have modified the
concentrations of octocrylene and butyl methoxydibenzoyl methane in
Blatt’s Example 14 when making an O/W emulsion. Accordingly, for the
reasons above, we affirm the rejection of claim 20 as being obvious over
Blatt and Binder.
Independent Claim 21
Claim 21 recites the same steps as claim 1, but while claim 1 uses the
transition term “comprises,” claim 21 uses the transition term “consists of.”
See Appeal Br. 18, 21 (Claims Appendix). The Examiner again relied on
Binder Example 5, finding that it “teaches to mix separately heated oil and
aqueous phases, mix to emulsify the composition, cool the composition and
add heat-sensitive ingredients and mix.” Final Act. 8. The Examiner stated:
Although the present claim recites the mixing step in (iii) is
‘homogenizing’ the phases to obtain an O/W emulsion and the
mixing step in (iv) is stirring, there is nothing significantly and
patentably different in these two processes, as both methods
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simply require steps of i) mixing heated phases before cooling
to form emulsions, ii) cool the mixed composition, and iii)
adding heat-sensitive ingredients to the composition and iv)
mixing.
Id. at 8–9.
In response, Appellants argue that Binder Example 5 includes an
emulsification step (corresponding step (ii) in claim 21), and a separate
homogenization step. Appeal Br. 15. Appellants argue that the “Examiner
has not explained why it would allegedly have been obvious to one of
ordinary skill in the art to modify the process of Example (5) of BINDER to
result in the process of instant claim 21.” Appeal Br. 15.
We agree. “[C]losed transition phrases such as ‘consisting of’ are
understood to exclude any elements, steps, or ingredients not specified in the
claim.” AFG Indus., Inc. v. Cardinal IG Co., 239 F.3d 1239, 1245 (Fed. Cir.
2001). Here, the process in Binder’s Example 5 not only includes steps
corresponding to each of the steps enumerated in appealed claim 21, but
includes additional steps as well. Specifically, claim 21 ends with step (iv),
which recites “adding at least one of licorice extract dissolved in ethanol and
licochalcone A dissolved in ethanol to the cooled emulsion with stirring.”
Appeal Br. 21 (Claims Appendix). The corresponding step in Binder is
addition of the perfume oil and active ingredients from mixing container (5),
with the resulting composition being passed through a static mixer. Binder
¶ 48. The Binder process then goes on to homogenize the emulsion in a
homogenizer, and cool the resulting product using a heat exchanger. Id.
The Examiner did not address these additional steps and their
interplay with the “consisting of” transition language. Because of this
omission in the Examiner’s analysis, we conclude that the Examiner has not
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met the initial burden of establishing a prima facie case of obviousness of
claim 21. In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992).
Accordingly, for the reasons discussed above for both claims 1 and
21, we reverse the rejection of claim 21 as being obvious over Blatt and
Binder.
SUMMARY
We reverse the rejection of claims 1–16 and 18–21 under 35 U.S.C.
§ 112 as failing to comply with the written description requirement.
We affirm the rejection of claims 1–16 and 18–20 under 35 U.S.C.
§ 103(a) as being unpatentable over Blatt and Binder.
We reverse the rejection of claim 21 under 35 U.S.C. § 103(a) as
being unpatentable over Blatt and Binder.
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-IN-PART