The Procter & Gamble Company

Patent Trials and Appeals Board

Mar 1, 2022

2021001217 (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. 15/616,993 06/08/2017 Lynette Anne Makins Holland AA929C 8842 27752 7590 03/01/2022 THE PROCTER & GAMBLE COMPANY GLOBAL IP SERVICES CENTRAL BUILDING, C9 ONE PROCTER AND GAMBLE PLAZA CINCINNATI, OH 45202 EXAMINER WHITELEY, JESSICA ART UNIT PAPER NUMBER 1763 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 LYNETTE ANNE MAKINS HOLLAND, JULIEN CLOUDE PLOS, SANDRA SABINE MEYER, LARA KATHARINE GOODMAN, CHRISTELLE MARIE SANDRINE BONNET, FABIENNE PASTOR, JOSE MARIA VELAZQUEZ, JONATHAN RICHARD STONEHOUSE, WILLIAM EOGHAN STAITE, JONATHAN ROBERT CETTI, ZERLINA GUZDAR DUBOIS, VIRGINIA TZUNG-HWEI HUTCHINS, MICHAEL WAYNE KINSEY, and CHRISTINE MARIE READNOUR __________ Appeal 2021-001217 Application 15/616,993 Technology Center 1700 ____________ Before MICHAEL P. COLAIANNI, DEBRA L. DENNETT, and SHELDON M. MCGEE, Administrative Patent Judges. COLAIANNI, Administrative Patent Judge. DECISION ON APPEAL Appellant1 appeals under 35 U.S.C. § 134(a) the final rejection of claims 1, 4, 7, and 9-13. We have jurisdiction over the appeal pursuant to 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 (2022). Appellant identifies the real party in interest as The Procter & Gamble Company (Appeal Br. 1). Appeal 2021-001217 Application 15/616,993 2 STATEMENT OF THE CASE Appellant’s invention is directed to methods for making and using fragrance compositions, which are said to reduce and eliminate consumer fragrance habituation (Spec. 1:5-7). Conventional perfuming compositions can provide desirable scents initially, but consumers can become habituated to the perfume raw materials that form the fragrance over time (Spec. 2:1- 2). In other words, the users of the perfume fragrance and people around them develop a decreased sensitivity to perceiving the fragrance or fragrance material (Spec. 2:1-2; 5:10). According to the Specification, the claimed perfume raw materials are not subject to the fragrance habituation phenomenon because these materials possess certain chemical moieties (Spec. 2:31-32; claim 1). Claim 1 is illustrative (emphasis added): 1. A method of resisting the fragrance habituation of a fragrance composition, the method comprising forming a fragrance composition comprising a fragrance oil such that the fragrance oil resists the fragrance habituation of a consumer to the fragrance composition, and wherein the fragrance oil comprises one or more perfume raw materials comprising from about 0.1% to 0.4% of a perfume raw material comprising a pyrazine moiety, based on the total perfume weight; wherein the pyrazine moiety is present in an amount below its odor detection threshold. Appeal Br. 5 (Claims App.). REJECTION The Examiner maintains the rejection of claims 1, 4, 7, and 9- 13 under 35 U.S.C. § 102(a)(1) as anticipated by Heltovics et al. (US 2003/0087776 A1, published May 8, 2003, “Heltovics”) (Final Act. 2-4). Appeal 2021-001217 Application 15/616,993 3 DISCUSSION Claim 1 is directed to a method requiring the step of “forming a fragrance composition comprising a fragrance oil.” Appeal Br. 5 (Claims App.). The claimed fragrance oil includes “one or more perfume raw materials comprising from about 0.1% to 0.4% of a perfume raw material.” Id. Claim 1 further requires that the perfume raw material comprises a “pyrazine moiety . . . in an amount below its odor detection threshold.” Id. The Examiner finds Heltovics teaches a composition that contains a fragrance oil, which includes a top note perfume raw material at a concentration of 4.5% or less (Final Act. 2). The Examiner finds that Heltovics’ perfume raw material includes pyrazine in an amount below its odor detection threshold value as required by claim 1. Id. Appellant argues the Examiner errs in finding that Heltovics expressly or inherently discloses the presence of the pyrazine moiety in an amount below its odor detection threshold (Appeal Br. 2-3). In particular, Appellant argues Heltovics “specifies that ‘the top note fragrance character remains detectable for greater than about 2 hours, preferably greater than about 4 hours, more preferably greater than about 6 hours.’” Id. at 2 (citing Heltovics Abstract). Appellant contends that Heltovics repeatedly describes that the top note fragrance should be “detectable for considerable amounts of time.” Id. (citing Heltovics ¶¶ 6, 48, 101). The Examiner counters that Heltovics’ fragrance oils are not limited to one top note perfume raw material (Ans. 6 (citing Heltovics ¶ 35 (disclosing that “[i]n a very specific embodiment . . . , the fragrance oil comprises less than 5%, preferably less than 4.5%, by weight of the fragrance oil, of top note perfume raw materials.”))). The Examiner finds Appeal 2021-001217 Application 15/616,993 4 Heltovics describes that suitable top note perfume raw materials include mixtures of aldehydes, terpenes, alcohols, ketones, nitriles, and pyrazines (Ans. 5 (citing Heltovics ¶ 39)). The Examiner finds that Heltovics exemplifies fragrance compositions containing an aggregate of perfume raw materials, where a suitable top note fragrance raw material is included within the claimed concentration range of about 0.1 to 0.4% (Ans. 6 (citing Heltovics ¶ 106)). According to the Examiner, because Heltovics teaches that the detectable fragrance is “light, fresh, fruity, citrus, green or delicate floral,” and pyrazine is well known to possess a hazelnut fragrance, Heltovics’ “composition contains other top note fragrances that are not detectable.” (Ans. 6). The Examiner finds Heltovics “does not indicate that the detectable scent is that which is derived from a pyrazine compound.” Id. Appellant argues that the Examiner errs in reasoning that “it is possible pyrazine may be present in a low amount” merely “because Heltovics describes other possible odors” (Appeal Br. 3). Appellant argues that the Examiner’s reasoning cannot support a finding of anticipation. Id. Appellant’s argument is persuasive of reversible error. We find that the Examiner’s citations to Heltovics fail to identify a pyrazine moiety in an amount from about 0.1% to 0.4% based on the total perfume weight. “Inherency . . . may not be established by probabilities or possibilities. The mere fact that a certain thing may result from a given set of circumstances is not sufficient.” In re Olerich, 666 F.2d 578, 581 (CCPA 1981) (quoting Hansgirg v. Kemmer, 102 F.2d 212, 214 (CCPA 1939)). Merely because a non-hazelnut top note fragrance character remains Appeal 2021-001217 Application 15/616,993 5 detectable for greater than about 2 hours does not necessarily mean that a pyrazine moiety is present in an amount from about 0.1% to 0.4%. A preponderance of evidence weighs in favor of Appellant’s arguments that Heltovics fails to disclose each and every element of the method recited in claim 1. We do not sustain the Examiner’s § 102(a)(1) rejection. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 4, 7, 9- 13 102(a)(1) Heltovics 1, 4, 7, 9- 13 REVERSED