The Procter & Gamble Company

Patent Trials and Appeals Board

Oct 15, 2021

2021000335 (P.T.A.B. Oct. 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.
15/198,234 06/30/2016 Jiten Odhavji Dihora 13941M 8846
27752 7590 10/15/2021
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
10/15/2021 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):
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 2021-000335
Application 15/198,234
Technology Center 1600
Before ERIC B. GRIMES, RACHEL H. TOWNSEND, and
JAMIE T. WISZ, 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
fabric and home care composition, which have been rejected as being
obvious and, provisionally, based on obviousness-type double patenting.
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM the provisional double patenting rejection.

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.
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Application 15/198,234

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STATEMENT OF THE CASE
The Specification states that consumer products often contain
fragrances, but “because of the volatility of many fragrances and/or
habituation, a consumer may be unable to notice the fragrance shortly after
using/applying the consumer product, potentially leading the user to believe
the benefits are dissipating or have dissipated.” Spec. 1:10–15. The
Specification states that
[i]t has surprisingly been found that including a first population
of microcapsules and a second population of microcapsules
where the first and second populations differ in fracture
strengths may provide multiple blooms of fragrance. It has also
been surprisingly found that varying the ratio of the partitioning
modifier to the perfume oils within the core of the microcapsule
can affect the fracture strength of the microcapsules.
Id. at 2:33 to 3:5.
The Specification also states that an oil phase that includes highly
polar materials can lead to microcapsules with a relatively thin shell, but
“[i]ncorporating a partitioning modifier to adjust the polarity of the core may
alter the partitioning coefficient of the polar materials, allowing for the
establishment of a thicker, well defined shell.” Id. at 3:33 to 4:4. “[E]xamples
of partitioning modifiers include isopropyl myristate, mono-, di-, and triesters
of C4-C24 fatty acids, castor oil,” etc. Id. at 6:25–26.
Claims 1, 4, and 7–24 are on appeal. Claim 1, reproduced below, is
illustrative:
1. A consumer product comprising a composition, the
composition comprising:
an adjunct material;
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Application 15/198,234

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a first population of microcapsules, the first population
having a first median volume weighted particle size of from
2 microns to 80 microns and comprising microcapsules
comprising a partitioning modifier and a first perfume oil at
a first weight ratio, wherein the first weight ratio is a weight
ratio of from 2:3 to 3:2 of the partitioning modifier to the
first perfume oil; and
a second population of microcapsules, the second
population having a second median volume weighted
particle size of from 2 microns to 80 microns and
comprising microcapsules comprising the partitioning
modifier and a second perfume oil at a second weight ratio,
wherein the second weight ratio is a weight ratio of greater
than 0 to less than 2:3 of the partitioning modifier to the
second perfume oil;
wherein the first median volume weighted particle size
and the second median volume weighted particle size are
different;
wherein the composition is a fabric and home care
composition.

The claims stand rejected as follows:
Claims 1, 4, and 7–24 under 35 U.S.C. § 103 as obvious based on
Dihora2 (Final Action3 3) and
Claims 1, 4, and 7–24, provisionally, for obviousness-type double
patenting based on claims 1, 3–5, and 7–22 of application 15/198,306 (“the
’306 application”) and Dihora (Final Action 10).

2 Dihora et al., US 2011/0268802 A1, published Nov. 3, 2011.
3 Office Action mailed December 9, 2019.
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Application 15/198,234

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OPINION
Obviousness-Type Double Patenting
Claims 1, 4, and 7–24 stand provisionally rejected for obviousness-
type double patenting based on claims 33–52 of the ’306 application in view
of Dihora.
Appellant acknowledges the provisional rejection and states that
“[u]pon resolution of the § 103 rejection[] at hand, the Appellant will
consider filing a terminal disclaimer if necessary.” Appeal Br. 3, fn. 1.
Because Appellant does not present any arguments disputing the
merits of this rejection, we affirm it. See Hyatt v. Dudas, 551 F.3d 1307,
1314 (Fed. Cir. 2008):
When the appellant fails to contest a ground of rejection to the
Board, . . . the Board may treat any argument with respect to
that ground of rejection as waived. In the event of such a
waiver, the PTO may affirm the rejection of the group of claims
that the examiner rejected on that ground without considering
the merits of those rejections.

Obviousness
Claims 1, 4, and 7–24 stand rejected as obvious based on Dihora. The
Examiner finds that Dihora discloses “a process of making a composition,
comprising combining an adjunct ingredient and particles, each of said
particles independently having a particle size of from about 2 microns to
about 80 microns, each particle comprising (e.g., a first and second
population of microcapsules[)].” Final Action 3 (citing Dihora ¶ 53, claim
7). The Examiner finds that Dihora’s microcapsules comprise “a) a core that
comprised, based on total particle weight, from about 6% to about 95%, of a
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Application 15/198,234

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benefit agent (a perfume oil . . .) and from about 5% to about 94%, of a
partitioning modifier; and b) a shell that encapsulated said core, to form a
consumer product.” Id. (citing Dihora ¶¶ 9, 29).
Regarding the requirement of claim 1 for two populations of
microcapsules with weight ratios of partitioning modifier to perfume oil
within specific ranges, and different median volume weighted particle sizes,
the Examiner reasons that “Dihora disclosed particle sizes (microcapsules) at
about 2 microns to about 80 microns, each particle comprising perfume oil at
6–95% and a partitioning modifier at 5–94%,” and “[i]n the case where the
claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’, a
prima facie case of obviousness exists.” Id. at 4–5.
Appellant argues that “Dihora does not teach or suggest a composition
comprising a first population of microcapsules and a second population of
microcapsules. Instead, Appellant believes that Dihora discloses a single
population of microcapsules.” Appeal Br. 4 (citing Dihora ¶ 53). Appellant
also argues that “Dihora does not teach or suggest first and second
populations of microcapsules having the recited weight ratios of partitioning
modifiers to perfume oils (from 2:3 to 3:2, and from greater than 0 to less
than 2:3, respectively).” Id. at 5. Finally, Appellant argues that “Dihora does
not teach or suggest first and second populations of microcapsules, where
the median volume weighted particle size of each population is different.”
Id. at 6.
We agree with Appellant that the Examiner has not persuasively
shown that the claimed composition would have been obvious based on
Dihora, which discloses “encapsulated benefit agents [and] compositions
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comprising such encapsulated benefit agents . . . [that] provide formulators
with additional perfume delivery opportunities.” Dihora ¶ 8. Dihora
discloses consumer products comprising its particles. Id. ¶ 64. Dihora states
that consumer products include fabric and home care products. Id. ¶ 9.
Dihora describes a method of making a consumer product
comprising combining an adjunct ingredient and . . . particles,
each of said particles independently having a particle size of
from about 2 microns to about 80 microns, from about 5
microns to about 50 microns or even from about 10 microns to
about 30 microns, each particle comprising:
a) a core that comprises, based on total particle weight, from
about 6% to about 99.9%, from about 11% to about 85%, or
from about 50% to about 75%, of a benefit agent and from
about 5% to about 94%, from about 15% to about 89%, or
even from about 25% to about 50% of a partitioning
modifier and/or density modifier; and
b) a shell . . . comprising . . . a polyacrylate.
Id., claim 7. Dihora also states that “said benefit agent may comprise: a.) a
perfume oil; and b.) a partitioning modifier.” Id. ¶¶ 29–31.
Regarding claim 1’s requirement for two populations of
microcapsules that differ in median volume weighted particle size and in the
ratio of partitioning modifier to perfume oil, the Examiner (Final Action 4–
5) points to the following disclosure in Dihora: “The reaction product of the
first composition and second composition results in the formation of a
population of microcapsules having a microcapsule wall of low leakage of
the core material.” Dihora ¶ 53 (emphasis added).
As Appellant has pointed out, Dihora’s paragraph 53 expressly
describes “a population” of microcapsules, not two populations that differ in
median particle size and partitioning modifier:perfume oil ratio. The
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Examiner reasons that “Dihora’s teachings, that the emulsifier reaction
forms a population of microcapsules, does not suggest that Dihora teaches a
single population of microcapsules. Rather, the emulsifier reaction occurs at
each core within the emulsion, . . . forming individual particles, distinct by
size . . . , over the ranges of 2–80 microns.” Ans. 8–9.
As we understand it, the Examiner’s position is that Dihora’s
composition will comprise microcapsules that, individually, differ in size
and therefore can be divided into groups that have different median particle
sizes. The population described by Dihora, however, will have a single
“median volume weighted particle size,” as recited in claim 1, but claim 1
requires two populations having different median volume weighted particle
sizes. In other words, Dihora describes a population with particle sizes that
can be mapped to a bell-shaped curve, whereas claim 1 requires a
composition with two populations of particles, the sizes of which would
form a curve shaped like an “M” instead of a bell.
With regard to claim 1’s requirement for two populations of
microcapsules that differ in the ratio of partitioning modifier to perfume oil,
the Examiner reasons that
Dihora’s teachings of 6–99% (or 5–94%) partitioning modifier
and 6–95% benefit agent [e.g., perfume oil] overlaps the
claimed first weight ratio of the partitioning modifier to the
perfume oil at 2:3 to 3:2, and second weight ratio of the
partitioning modifier to perfume oil [at] greater than zero to less
than 2:3.
Ans. 10.
Again, however, while Dihora might have led those skilled in the art
to choose amounts of partitioning modifier and perfume oil for inclusion in
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its microcapsules that would fall within one of the ratios recited in claim 1,
the Examiner has not persuasively explained what disclosure in Dihora
would have suggested a composition comprising two populations of
microcapsules with different ratios of partitioning modifier to perfume oil.
We therefore reverse the rejection of claim 1, and dependent claims 4
and 7–24, under 35 U.S.C. § 103 based on Dihora.
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 4, 7–24 Provisional
Obviousness-type
Double Patenting
1, 4, 7–24
1, 4, 7–24 103 Dihora 1, 4, 7–24
Overall
Outcome
1, 4, 7–24
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