The Procter & Gamble Company

Patent Trials and Appeals Board

Mar 1, 2022

2021002857 (P.T.A.B. Mar. 1, 2022)

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. 15/696,282 09/06/2017 David Arthur Sturgis 14489 1027 27752 7590 03/01/2022 THE PROCTER & GAMBLE COMPANY GLOBAL IP SERVICES CENTRAL BUILDING, C9 ONE PROCTER AND GAMBLE PLAZA CINCINNATI, OH 45202 EXAMINER PARAD, DENNIS J ART UNIT PAPER NUMBER 1612 NOTIFICATION DATE DELIVERY MODE 03/01/2022 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 DAVID ARTHUR STURGIS, JIANJUN JUSTIN LI, MARC ADAM FLICKINGER, VIRGINIA TZUNG-HWEI HUTCHINS, STEVEN LOUIS DIERSING, and STEVEN MICHAEL WUJEK Appeal 2021-002857 Application 15/696,282 Technology Center 1600 Before DONALD E. ADAMS, TAWEN CHANG, and RACHEL H. TOWNSEND, Administrative Patent Judges. TOWNSEND, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims to an anhydrous stick composition as being obvious and for obviousness-type double patenting. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. 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 Procter & Gamble Company of Cincinnati, Ohio. (Appeal Br. 1.) Appeal 2021-002857 Application 15/696,282 2 STATEMENT OF THE CASE The claims are directed to antiperspirant and deodorant compositions that include cyclodextrin complexed fragrance materials. Appellant’s Specification states that “current perfume compositions are not optimized for release from a cyclodextrin complex and some components can remain within the complex and unexpressed.” (Spec. 1.) Claims 1 and 13, reproduced below, are illustrative of the claimed subject matter: 1. An anhydrous stick composition, comprising: a) a deodorant active, an antiperspirant active, or a combination thereof; b) a carrier; c) a structurant comprising stearyl alcohol; and d) a cyclodextrin perfume complex, comprising cyclodextrin and a perfume, wherein the perfume comprises perfume raw materials and wherein from about 40% to 50%, by weight of the perfume, of the perfume raw materials have: a complex stability constant of about 3.0 or less, a ClogP of about 2.5 or less; and a weight average molecular weight of about 200 Daltons or less. (Appeal Br. 6.) 13. An anhydrous stick composition, comprising: deodorant active, an antiperspirant active, or a combination thereof; a carrier; a structurant; and a cyclodextrin perfume complex, comprising cyclodextrin and a perfume, wherein the perfume comprises perfume raw materials wherein from about 40% to 70%, by weight of the perfume, of the perfume raw materials, are selected from the group consisting of: ethyl-2-methyl butyrate; beta gamma hexanol; iso amyl acetate; amyl acetate; cis-3- hexenyl acetate; gamma-octalactone; ethyl vanillin; vanillin; benzaldehyde; dimethyl anthranilate; iso- Appeal 2021-002857 Application 15/696,282 3 eugenyl acetate; canthoxal; 3,6-nonadien-l-ol, triplal; and combinations thereof. (Appeal Br. 8 (paragraphing added).) The prior art relied upon by the Examiner is: Name Reference Date Scavone et al. US 2008/0215023 A1 Sept. 4, 2008 Bianchi US 2007/0166254 A1 July 19, 2007 The following grounds of rejection by the Examiner are before us on review: Claims 13 and 15-20 under 35 U.S.C. § 103(a) as unpatentable over Scavone. Claims 1-3 and 5-12 under 35 U.S.C. § 103(a) as unpatentable over Scavone and Bianchi. Claims 1-3, 5-13, and 15-20 on the ground of non-statutory obviousness-type double patenting as being unpatentable over claims 1-8 of U.S. Patent 9,649,387, Scavone, and Bianchi. Claims 1-3, 5-13, and 15-20 the ground of non-statutory obviousness-type double patenting as being unpatentable over claims 1-9 of U.S. Patent 9,649,386, Scavone, and Bianchi. DISCUSSION The Examiner found that Scavone teaches an anhydrous stick composition that includes a deodorant or antiperspirant, a carrier, a structurant, and a cyclodextrin perfume complex. (Non-Final Action 3-4 (citing Scavone Abstr., ¶¶ 54-56, ¶¶3-11, 13-27, 40-47).) The Examiner Appeal 2021-002857 Application 15/696,282 4 further found regarding fragrance included in the composition that Scavone teaches it may be desirable to include two or more fragrance materials in the personal care product, with at least one the fragrance materials being complexed with the cyclodextrin complexing material and at least one other fragrance material being added as a neat fragrance into the personal care product where the differences can include types and numbers of perfumes or other aromatic materials employed in the individual fragrance materials, the concentration level, or both (para [0056]). (Id. at 4; see also Ans. 12.) In addition, the Examiner found that Scavone further teaches the perfume is selected from, inter alia, cis-3-hexenyl acetate, amylacetate, vanillin, anethole, isoamylacetate, benzaldehyde, and mixtures thereof (para [0044] and [0045]). Since the cyclodextrin and aforementioned list of perfume compounds/raw materials are chemically identical to the compounds/raw materials recited in the claims, the perfume raw materials and/or complex of Scavone et al necessarily has the complex stability constant, ClogP, odor detection threshold, and weight average molecular weight values as recited in the claims. See MPEP § 2112. (Non-Final Action 4-5.) The Examiner concluded that it would have been obvious to one having ordinary skill in the art to have selected one or more perfume compounds from list of preferred perfume compounds taught by Scavone et al as the specific fragrance(s) complexed with cyclodextrin because Scavone et al teach that such perfume raw materials are particularly useful for being complexed with cyclodextrin and it is prima facie obvious to substitute or combine one perfume with another, both useful for being complexed with cyclodextrin in personal care products with a reasonable expectation of success. (Id. at 5.) Appeal 2021-002857 Application 15/696,282 5 Regarding the claim requirement of claim 13 that the specifically identified group of perfume raw materials be present in range of about 40% to 70%, by weight of the perfume, the Examiner stated that because Scavone teaches it may be desirable to include two or more fragrance materials with at least one being complexed with the cyclodextrin and that differences in the fragrance materials employed includes concentration level, that Scavone teaches the amount of perfume is a result-effective variable for determining optimum or workable ranges by routine experimentation based on the type of perfumes used and the amount complexed with cyclodextrin versus neat perfume desired. (Ans. 12, see also id. at 5.)2 We do not affirm the Examiner’s rejection because we find insufficient evidence of the obviousness of including the perfume raw material in the cyclodextrin perfume complex in the range recited in claim 13. The same issue is dispositive for the obviousness-type double patenting the rejection of claim 13, as well as the rejection of claim 1 for obviousness and for obviousness type double patenting. Claim 13 requires from about 40% to 70%, by weight of the perfume, of the perfume raw materials, to be selected from a particular group of compounds. The Specification teaches that those compounds each have a complex stability constant of about 3.0 or less, a ClogP of about 2.5 or less; and a weight average molecular weight of about 200 Daltons or less. (Spec. 23.) Claim 1 does not specify specific perfume raw materials but requires 2 Bianchi was relied upon by the Examiner only for the obviousness of using stearyl alcohol as the structurant. (See Non-Final Action 6; Ans. 6.) Appeal 2021-002857 Application 15/696,282 6 from about 40% to 50%, by weight of the perfume, of the perfume raw materials to have: a complex stability constant of about 3.0 or less, a ClogP of about 2.5 or less; and a weight average molecular weight of about 200 Daltons or less. Scavone teaches that one or more fragrance can be complexed to cyclodextrin. (Id. ¶ 44 (“A representative, non-limiting, list of fragrance materials that may be complexed with the cyclodextrin includes . . . and mixtures thereof.”) However, we conclude that there is nothing in Scavone that teaches or suggests that where more than one fragrance is complexed with cyclodextrin, differences in concentration of certain fragrance materials in that complex provide for difference in result of the product. Scavone does teach the amount of perfume in the cylcodextrin perfume complex “can vary greatly depending on the manufacturing techniques employed.” (Scavone ¶ 24.) Scavone teaches the percent of fragrance material that is associated with the interior of a cyclodextrin complex as opposed to being on the exterior region is results effective. Scavone teaches that “[t]he fragrance material that is on the exterior region of the complex is essentially free to be expressed without the requirement of a triggering mechanism, such as perspiration.” (Id.) Scavone indicates that in some instances, it may not be desired to perceive scent prior to a triggering mechanism and thus, in some cases greater than about 75% fragrance material complexation may be preferred. (Id.) Thus, Scavone teaches the amount of fragrance complexed to the inside of the cyclodextrin complex is a result-effective variable. This does not speak to a recognition of a difference to the complex or product as a whole if different percentages of different perfume materials are selected to be complexed with cyclodextrin. Appeal 2021-002857 Application 15/696,282 7 Scavone also describes inclusion of “neat fragrances,” a fragrance that is not complexed with cyclodextrin, into the personal care product. (Id. ¶ 47.) Scavone teaches that the neat fragrance and the complexed fragrance should preferably be different, which difference could include the concentration levels of them. (Id.) Thus, here Scavone teaches that the concentrations of complexed fragrance and neat fragrance in the product may be different from one another. This again does not speak to a recognition of a difference to the complex or product as a whole if different percentages of different perfume materials are selected to be complexed with cyclodextrin. Moreover, we agree with Appellant that “Scavone teaches and suggests nothing about the [claimed] parameters for individual perfume raw materials.” (Appeal Br. 3.) Indeed, as the Appellant noted “Scavone fails to identify, disclose, or discuss the advantageous properties of perfume raw materials based on their complex stability constant, ClogP, and weight average molecular weight.” (Id. at 4.) Nor is there evidence that those properties are inherent in each of the materials listed as representative materials that may be complexed with cyclodextrin in Scavone. Thus, there is nothing that would suggest that should a mixture of fragrance materials to complex with cyclodextrin be chosen as indicated was a possibility in Scavone, a particular percentage range of one of those fragrances should be used, much less a percentage range of the particularly claimed materials of Appellant’s claim 13, or of materials that have the characteristics recited in claim 1. Even though it is true, as evidenced from Appellant’s Specification, that a few of the fragrance materials listed in paragraph 44 and 45 of Scavone inherently have the characteristics recited in claim 1 (and are Appeal 2021-002857 Application 15/696,282 8 chemicals in the list set forth claim 13), the Examiner has not provided sufficient evidence to establish the obviousness of the use of those materials in the percentage range recited in claim 13 and in claim 1.3 See In re Stepan Co., 868 F.3d 1342, 1345-46 (Fed. Cir. 2017) (a conclusion of obviousness cannot stand where there is a failure to provide an appropriately supported explanation why it would have been routine optimization to select and adjust particular percentages of a claim element). Thus, for the foregoing reasons we do not sustain the Examiner’s rejection of:4 claims 13 and 15-20 under 35 U.S.C. § 103(a) as unpatentable over Scavone; claims 1-3 and 5-12 under 35 U.S.C. § 103(a) as unpatentable over Scavone and Bianchi; claims 1-3, 5-13, and 15-20 on the ground of non-statutory obviousness-type double patenting as being unpatentable over claims 1-8 of U.S. Patent 9,649,387, Scavone, and Bianchi; or 3 Neither the claims of the ’387 patent, nor the claims of the ’386 patent provide any reason to select those materials in the ranges claimed. 4 In the event of further prosecution of the claims, we note that claim 7 appears to be an improper dependent claim because it fails to further limit the subject matter of claim 1 from which it depends. Claim 7 recites “wherein about 20% to about 100%, by weight of the perfume, of the perfume raw materials have: a complex stability constant of about 3.0 or less, a ClogP of about 2.5 or less; and a weight average molecular weight of about 200 Daltons or less.” Claim 1, however, requires that the perfume raw materials having a complex stability constant of about 3.0 or less, a ClogP of about 2.5 or less; and a weight average molecular weight of about 200 Daltons or less, are “from about 40% to 50%, by weight of the perfume.” Appeal 2021-002857 Application 15/696,282 9 claims 1-3, 5-13, and 15-20 the ground of non-statutory obviousness-type double patenting as being unpatentable over claims 1-9 of U.S. Patent 9,649,386, Scavone, and Bianchi. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 13, 15-20 103 Scavone 13, 15-20 1-3, 5-12 103 Scavone, Bianchi 1-3, 5-12 1-3, 5-13, 15-20 Obviousness-Type Double Patenting: US Patent 9,649,387, Scavone, Bianchi 1-3, 5- 13, 15-20 1-3, 5-13, 15-20 Obviousness-Type Double Patenting: US Patent 9,649,386, Scavone, Bianchi 1-3, 5- 13, 15-20 Overall Outcome 1-3, 5- 13, 15-20 REVERSED