The Procter & Gamble Company

Patent Trials and Appeals BoardOct 14, 2020

2020000167 (P.T.A.B. Oct. 14, 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. 15/198,248 06/30/2016 Jiten Odhavji Dihora 13942 3541 27752 7590 10/14/2020 THE PROCTER & GAMBLE COMPANY GLOBAL IP SERVICES CENTRAL BUILDING, C9 ONE PROCTER AND GAMBLE PLAZA CINCINNATI, OH 45202 EXAMINER RONEY, CELESTE A ART UNIT PAPER NUMBER 1612 NOTIFICATION DATE DELIVERY MODE 10/14/2020 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 mayer.jk@pg.com pair_pg@firsttofile.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JITEN ODHAVJI DIHORA, MARC ADAM FLICKINGER JIANJUN JUSTIN LI, and JOHAN SMETS1 Appeal 2020-000167 Application 15/198,248 Technology Center 1600 Before ERIC B. GRIMES, LINDA M. GAUDETTE, and FRANCISCO C. PRATS, Administrative Patent Judges. GRIMES, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134(a) involving claims to a method of making a consumer product, which have been rejected as obvious. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 Appellant identifies the real party in interest as The Procter & Gamble Company. Appeal Br. 1. We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appeal 2020-000167 Application 15/198,248 2 STATEMENT OF THE CASE “The use of multiple distinct populations of microcapsules, each with a distinct bloom pattern, may be used to overcome the habituation experienced by some consumers to a fragrance present in an article and/or composition.” Spec. 3:23–25. The Specification states that “including populations of microcapsules with different fracture strength profiles may deliver multiple blooms.” Id. at 3:20–22. The Specification discloses that “the amount of the partitioning modifier relative to the perfume oil may . . . influence the fracture strength of the microcapsule.” Id. at 5:3–5. A “partitioning modifier promotes shell formation.” Id. at 4:18–19. “[T]he size of the microcapsule may also impact the fracture strength of the microcapsule.” Id. at 5:10–11. “The microcapsules may have a median volume-weighted particle size of from 2 microns to 80 microns, from 10 microns to 30 microns, or from 10 microns to 20 microns.” Id. at 10:13–14. Claims 1–5, 7–16, and 18–24 are on appeal. Claim 1, reproduced below, is illustrative (emphasis added): 1. A method of making a consumer product that provides multiple blooms of fragrance, the method comprising: combining a first adjunct material, a first population of microcapsules, and a second population of microcapsules to form the consumer product; wherein the first population has a first median volume weighted particle size and comprises microcapsules comprising a partitioning modifier and a first perfume oil at a first weight ratio; and Appeal 2020-000167 Application 15/198,248 3 wherein the second population of microcapsules has a second median volume weighted particle size and comprises microcapsules comprising the partitioning modifier and a second perfume oil at a second weight ratio; wherein the first median volume weighted particle size and the second median volume weighted particle size are different. The claims stand rejected as follows: Claims 1–5, 7–16, and 18–23 under 35 U.S.C. § 103 as obvious based on Reymar2 (Ans. 3) and Claim 24 under 35 U.S.C. § 103 as obvious based on Reymar and Clauss3 (Ans. 6). OPINION Claims 1–5, 7–16, and 18–23 stand rejected as obvious based on Reymar. The Examiner finds that Reymar teaches “multi-capsule compositions comprising a first and a second capsule (particle), . . . particle sizes from 1 to 15 microns . . . partitioning modifiers including mineral oil and IPM [isopropyl myristate] . . . , perfume oils and percentages thereof.” Ans. 4. The Examiner finds that Reymar “do[es] not explicitly disclose an example wherein the claimed components, at the claimed percentages are combined into a single composition.” Id. The Examiner concludes, however, that it would have been obvious “to select each component and combine 2 US 2015/0132377 A1, published May 14, 2015. 3 US 4,898,680, issued February 6, 1990. Appeal 2020-000167 Application 15/198,248 4 them as instantly claimed, because Reymar et al. suggest that the instant components can be combined or mixed together.” Id. at 5. Appellant argues that Reymar et al. does not disclose or suggest compositions comprising two populations of microcapsules wherein the median volume weighted particle sizes of the two populations of microcapsules are different. Indeed, Reymar et al. does not disclose or suggest anything about the median volume weighted particle size of its microcapsules. Appeal Br. 3. In response, the Examiner points out that “Reymar taught, at [0049], that the diameter of any of the disclosed microcapsules or particles varied from about 10 nanometers to about 1,000 microns. As per Reymar, the microcapsule distribution was narrow, broad or multi-modal.” Ans. 8. The Examiner reasons that, “[a]lthough Reymar did not disclose the word ‘median,’ Reymar’s disclosure (e.g., narrow, broad or multi-modal distributions of particles/capsules having diameters of 10 nanometers to 1,000 microns) guides an ordinarily skilled artisan to determine a median particle size.” Id. The Examiner also “responds that Reymar is not required to disclose a median volume weighted particle size. . . . It is reasonable to conclude that an ordinarily skilled artisan would be able to determine median particle sizes, and different median particle sizes, where size ranges of 10 nanometers to about 1,000 microns were disclosed.” Id. at 8–9. “In rejecting claims under 35 U.S.C. § 103, the examiner bears the initial burden of presenting a prima facie case of obviousness. Only if that burden is met, does the burden of coming forward with evidence or Appeal 2020-000167 Application 15/198,248 5 argument shift to the applicant.” In re Rijckaert, 9 F.3d 1531, 1532 (Fed. Cir. 1993). A proper § 103 analysis requires “a searching comparison of the claimed invention—including all its limitations—with the teaching of the prior art.” In re Ochiai, 71 F.3d 1565, 1572 (Fed. Cir. 1995). In this case, we conclude that the Examiner has not shown that a method meeting all of the limitations of claim 1 would have been obvious based on Reymar, which teaches a “capsule delivery system” that comprises first and second capsules containing first and second active materials, respectively. Reymar ¶ 6. “The first and second capsules differ in their wall materials, amounts of wall materials, ratios of wall materials, core modifiers, scavengers, active materials, curing temperatures, heating rates, curing times, or a combination thereof.” Id. Reymar states that “[t]he diameter of any of the microcapsules or particles described above can vary from about 10 nanometers to about 1000 microns.” Id. ¶ 49. “The microcapsule distribution can be narrow, broad, or multi-modal. Each modal of the multi-modal distributions may be composed of different types of microcapsule chemistries.” Id. Thus, Reymar at best suggests a “multi-modal” size distribution for the microcapsules in its composition. The Examiner has not provided evidence or sound technical reasoning to show that a multi-modal size distribution of microcapsules necessarily includes two populations that have different median volume weighted particle sizes. The Examiner also has not persuasively shown that a person of ordinary skill in the art would have had a reason, based on the description of a multi-modal size distribution of microcapsules, to make a composition Appeal 2020-000167 Application 15/198,248 6 comprising two populations of microcapsules, where each population has a different median volume weighted particle size. “[R]ejections on obviousness grounds cannot be sustained by mere conclusory statements; instead, there must be some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.” In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006). We conclude that the Examiner has not met the initial burden of showing prima facie obviousness. We therefore reverse the rejection of claims 1–5, 7–16, and 18–23 under 35 U.S.C. § 103 based on Reymar. For the same reason, we reverse the rejection of claim 24 based on Reymar and Clauss. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–5, 7–16, 18–23 103 Reymar 1–5, 7–16, 18–23 24 103 Reymar, Clauss 24 Overall Outcome 1–5, 7–16, 18–24 REVERSED