The Procter & Gamble Company

Patent Trials and Appeals Board

Jul 2, 2020

2019006706 (P.T.A.B. Jul. 2, 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.
14/105,489 12/13/2013 Jonathan Robert CETTI 13159 7554
27752 7590 07/02/2020
THE PROCTER & GAMBLE COMPANY
GLOBAL IP SERVICES
CENTRAL BUILDING, C9
ONE PROCTER AND GAMBLE PLAZA
CINCINNATI, OH 45202
EXAMINER
MATOS NEGRON, TAINA DEL MAR
ART UNIT PAPER NUMBER
1627
NOTIFICATION DATE DELIVERY MODE
07/02/2020 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 JONATHAN ROBERT CETTI, ZERLINA GUZDAR DUBOIS,
VIRGINIA TZUNG-HWEI HUTCHINS, and
MICHAEL WAYNE KINSEY
____________

Appeal 2019-006706
Application 14/105,489
Technology Center 1600
____________

Before JEFFREY N. FREDMAN, DEBORAH KATZ, and JOHN G. NEW,
Administrative Patent Judges.

KATZ, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 seeks our review,2 under 35 U.S.C. § 134(a), of the
Examiner’s decision to reject claims 1, 2, 4, 6, 9, and 17 (Appeal Br. 3.)
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 The Proctor
& Gamble Company. (See Appeal Br. 1.)
2 We consider the Specification dated July 28, 2015 (“Spec.”), the Final
Office Action issued November 26, 2018 (“Final Act.”), the Appeal Brief
filed April 25, 2019 (“Appeal Br.”), and the Examiner’s Answer issued July
10, 2019 (“Ans.”).
Appeal 2019-006706
Application 14/105,489

2
Appellant’s Specification teaches that people use perfume raw
materials provide for desirable scents and masking of undesirable odors, but
that users can become habituated, that is, develop a decreased sensitivity to
the scents. (See Spec. 1:9–13 and 3:17–18.) Appellant reports the
development of personal care compositions that resist habituation and the
need for increasingly more product. (Spec. 1:4–6.) Appellant explains that
some compounds, including thiols, sulfides, oxathianes, isothiocyanates, and
other compounds comprising sulfur, are not subject to habituation. (See id.
at 4:33–5:2.)
Appellant’s claim 1 is directed to antiperspirant or deodorant
compositions comprising perfume that includes a concentration of recited
chemical alternatives within a range of concentrations. Claim 1 recites:
An antiperspirant or deodorant composition comprising
an anti-habituating perfume, the perfume comprising, based on
total composition weight, from about 0.000001 to about
0.00125 %, of a perfume raw material comprising a sulfur
moiety selected from the group consisting of
1-butylsulfanylbutane; ethyl 3-methylsulfanylpropanoate;
2-(methylsulfanylmethyl)furan; methylsulfanylmethane;
methylsulfanylethane; 3-methylsulfanylprop-1-ene; S-methyl
ethanethioate; ethylsulfanylethane; 1-methylsulfanylpropane;
S-ethyl ethanethioate; 1-methylsulfanylbutane; 2-propan-2-
ylsulfany1 propane; bis(methylsulfanyl)methane;
1-ethylsulfanylpropane; thiolane; 1-propylsulfanylpropane;
1-ethylsulfanylbutane; S-ethylpropanethioate; S-methyl
butanethioate; S-methyl 3-methylbutanethioate;
3-methylsulfanylpropanal; 3-prop-2-enylsulfanylprop-1-ene;
methyl2-methylsulfanylacetate; S-prop-2-enylpropanethioate;
1-methylsulfanylbutan-2-one; 4-methylsulfanylbutan-2-one;
3-methylsulfanylpropan-1-am; 2,4,6-trimethyl-1,3,5-trithiane;
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3-methylsulfanylbutanal; 2-methyl-1,3-thiazolidine; 2-methyl-
4,5-dihydro-1,3-thiazole; ethyl 2-methylsulfanylacetate;
methyl 3-methylsulfanylpropanoate; S-propan-2-yl3-
methylbutanethioate; 4-methyl-4-methylsulfanylpentan-2-one;
2-methyl-1,3-dithiolane; methyl 2-methylsulfanylbutanoate;
S-methyl furan-2-carbothioate; S-propan-2-yl3-methylbut-2-
enethioate; thiolan-3-one; 3,5-diethyl-1,2,4-trithiolane;
methylsulfanylmethylbenzene; 3-methylsulfanylpropan-1-ol;
2-(propan-2-ylsulfanylmethyl)furan; 2-methyl-5-
methylsulfanylfuran; S-(furan-2-ylmethyl)methanethioate;
1,2,4-trithiolane; 2-methylthiolan-3-one;
4-methylsulfanylbutan-1-ol; S-butan-2-yl 3-methylbutane
thioate; S-butan-2-yl 3-methylbut-2-enethioate; S-(furan-2-
ylmethyl) ethanethioate; 2-propyl-1,3-thiazolidine;
3-methyl-1,1-bis(methylsulfanyl)butane;
3-ethylsulfanylpropan-1-ol; S-methylbenzenecarbothioate; 3,5-
dimethyl-1,2,4-trithiolane; S-butan-2-yl 2-methylbutanethioate;
methylsulfanylbenzene; 1-pentylsulfanylpentane; (2R,4S)-2-
methyl-4-propyl-l,3-oxathiane; 2-methyl-4-propyl-1,3-
oxathiane; ethyl 2-methyl-2-methylsulfanylpropanoate;
S-(furan-2-ylmethyl)propanethioate; 4,7,7-trimethyl-6-
thiabicyclo[3.2. l ]octane; 3-methyl-1,2,4-trithiane;
methylsulfanylmethyl hexanoate; 1-(4,5-dihydro-1,3-thiazol-2-
yl)ethanone; 3-methylsulfanylpropanoic acid;
5-methylsulfanyl-2-(methylsulfanylmethyl)pent-2-enal;
4,5-dimethyl-2-(2-methylpropyl)-2,5-dihydro-l,3-thiazole;
3-methylsulfanylhexan-1-ol; 2-methyl-4,5-dihydrofuran-3-thiol
acetate; 4-(3-oxobutylsulfanyl) butan-2-one; 3-methylsulfanyl
butanoic acid; 2-methylsulfanylpyrazine; 2-methyl-3-
methylsulfanylpyrazine; 2-(furan-2-ylmethylsulfanyl
methyl)furan; 2-(methylsulfanylmethyl)pyrazine;
3,5-di(propan-2-yl)-1,2,4-trithiolane; 2-methylsulfanylphenol;
2-methyl-3-methylsulfanylpyrazine; ethyl 3-(furan-2-
ylmethylsulfanyl)propanoate; 2,2,4,4,6,6-hexamethyl-l,3,5-
trithiane; 2-methyl-5,7-dihydrothieno[3,4-d]pyrimidine;
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2-amino-4-methylsulfanylbutanoic acid; (2S)-2-amino-4-
methylsulfanylbutanoic acid; 2',3a-dimethylspiro[6,6a-dihydro-
5H-[l,3]dithiolo[4,5-b]furan-2,3'-oxolane]; 2,5-dimethyl-l,4-
dithiane-2,5-diol; Methyl 2-thiofuroate; and a mixtures thereof;
wherein the perfume raw material is below the odor
detection threshold in the antiperspirant or deodorant
composition.

(Appeal Br. 5–6, emphasis added.)
The Examiner rejects the claims under 35 U.S.C. § 103 as obvious
over the combination of Mookherjee,3 Ishihara,4 and Dykstra.5 (Final Act.
3–7.) The Examiner cites Mookerjee for its teaching of perfume
compositions comprising dibutyl sulfide, i.e., 1-butylsulfanylbutane, Ishihara
for its teaching of fragrance compositions comprising concentrations of
sulfur-containing compounds that overlap with the range recited in claim 1,
and Dyskstra for its teaching of perfume delivery systems. (See Final Act.
3–5.)
Appellant argues that the Examiner erred because the claims require
“the raw material perfume is below the odor detection threshold in the
antiperspirant or deodorant composition,” but that Mookherjee teaches 1-
butylsulfanylbutane contributes to the composition’s odor. (See Appeal Br.
4.) Similarly, Appellant argues that Ishihara teaches using its compositions,
including sulfur materials, to provide an odor. (See id.) Appellant contends

3 Mookherjee et al., U.S. Patent 3,928,248, issued December 23, 1975.
4 Ishihara et al., U.S. Patent Publication 2005/0245407 A1, published
November 3, 2005.
5 Dykstra, U.S. Patent Publication 2007/0275866 A1, published November
29, 2007.
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Application 14/105,489

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that the amount of sulfur moiety recited in claim 1 is below the odor
detection threshold, allowing the consumer to avoid habituation to the other
perfumes in the antiperspirant. (See id.)
We are not persuaded by Appellant’s arguments because Ishihara
teaches concentrations of 1-butylsulfanylbutane in a range that overlaps the
range recited in Appellant’s claim 1. Specifically, Ishihara teaches dibutyl
sulfide from 0.00001 to 1 wt%, which overlaps the claimed range of about
0.000001 to about 0.00125 wt%. (See Ishihara ¶¶ 63, 64, claims 1–2; see
Final Act. 4.) “A prima facie case of obviousness typically exists when the
ranges of a claimed composition overlap the ranges disclosed in the prior
art.” In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003). Appellant fails
to direct us to evidence showing a difference between the prior art
compositions and the claimed compositions or evidence that the prior art
amount of sulfur-containing compounds is above the odor detection
threshold. After a prima facie case is made out, the burden shifts to
Appellant to show a difference between the prior art compounds and the
claimed compound. See In re Best, 562 F.2d 1252, 1254–1255 (CCPA
1977).
Appellant argues further that Ishihara teaches fragrance compositions
for hair compositions, not for antiperspirant and deodorant compositions as
claimed. (Appeal Br. 4) Similarly, Appellant asserts that Dykstra does not
teach a sulfur-related perfume material. (See id.)
We are not persuaded by Appellant’s arguments. “Non-obviousness
cannot be established by attacking references individually where the
rejection is based upon the teachings of a combination of references.” In re
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Application 14/105,489

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Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Contrary to
Appellant’s argument, the combined prior art teaches an antiperspirant or
deodorant composition because Dykstra teaches a perfume delivery system
(see Dykstra abstract), Mookherjee teaches using 1-butylsulfanylbutane, to
provide a perfume characterized by an orris aroma (see Mookherjee abstract,
14:42–15:12 (Examples V and VI)), and Ishihara teaches using 1-
butylsulfanylbutane in concentrations ranging from 0.00001 to 1 wt% to
mask smells (see Ishihara ¶¶ 63, 64, claims 1–2).
Appellant argues further that the Examiner has not shown why it
would be obvious to combine Ishihara with Mookherjee. (Appeal Br. 4.)
Appellant’s argument is unpersuasive because, as the Examiner explains,
Mookherjee teaches perfume compositions that can be used to mask a smell
(see Mookherjee abstract) and Ishihara teaches that the amount of sulfur
compound in the fragrance is sufficient to mask an acid smell and ensure
balance with other materials (see Ishihara ¶ 65). (See Final Act. 5.) “[T]he
law does not require that the references be combined for the reasons
contemplated by the inventor.” In re Beattie, 974 F.2d 1309, 1312 (Fed. Cir.
1992).
Similarly, Appellant’s argument that Dykstra is unrelated to perfumes
(see Appeal Br. 4), is unpersuasive because Dykstra teaches a perfume
delivery system that allows for perfume bloom of antiperspirant or
deodorant products in their neat or water-diluted form. (See Dykstra
abstract, ¶ 59.) (See Final Act. 4.) Because the Examiner articulated
reasoning with rational underpinning to combine the references, and has
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Application 14/105,489

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identified a reasonable expectation of success in the combination, we sustain
the Examiner’s rejection of claim 1.
Appellant does not separately argue dependent claims 2, 4, 6, 9, and
17. (Appeal Br. 3–4.) Accordingly, we sustain the Examiner’s rejection of
claims 1, 2, 4, 6, 9, and 17 as obvious over the combined prior art.

CONCLUSION
Upon consideration of the record and for the reasons given, we affirm
the Examiner’s rejection.
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 2, 4, 6, 9,
17
103 Mookherjee, Ishihara,
Dykstra
1, 2, 4, 6,
9, 17

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136.

AFFIRMED