Ex Parte Avey et al

Patent Trial and Appeal Board

Dec 13, 2016

12364213 (P.T.A.B. Dec. 13, 2016)

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.
12/364,213 02/02/2009 Ryan Joseph Avey 11242 3575
27752 7590 12/15/2016
THE PROCTER & GAMBLE COMPANY
Global IP Services
Central Building, C9
One Procter and Gamble Plaza
CINCINNATI, OH 45202
EXAMINER
CHANG, KYUNG SOOK
ART UNIT PAPER NUMBER
1613
NOTIFICATION DATE DELIVERY MODE
12/15/2016 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
pair_pg @ firsttofile. com
mayer.jk @ pg. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RYAN JOSEPH AVEY, MICHAEL JOHN BOLANDER,
JOSEPH ESTILL LENNON, DAVID WILLIAM WALLING, and
STEVEN MICHAEL WUJEK1
Appeal 2015-004881
Application 12/364,213
Technology Center 1600
Before DEMETRA J. MILLS, RICHARD J. SMITH, and
JOHN E. SCHNEIDER, Administrative Patent Judges.
SMITH, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35U.S.C. § 134 involving claims to an
antiperspirant product. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.
STATEMENT OF THE CASE
Background
“[Pjolyolefm resins are typically employed for molding the plastic
containers” of non-pressurized antiperspirant compositions. “The resins can
1 According to Appellants, the real party in interest is The Procter & Gamble
Company. (Br. 1.)
Appeal 2015-004881
Application 12/364,213
include processing aids, such as anti-oxidants . . . [hjowever, it has been
discovered that some processing aids can interact with antiperspirant actives
and fragrances to produce an undesirable off-odor.” (Spec. 1,11. 9—13.)
“The present invention provides antiperspirant products that employ
polyolefin dispensing packages capable of containing antiperspirant
compositions including high efficacy actives and fragrances in the absence
of the above-mentioned off-odor.” {Id. at 11. 16—18.)
Claims on Appeal
Claims 1,2, 16, 17, and 20-23 are on appeal. (Claims Appendix, Br.
8—9.) Claim 1 is illustrative and reads as follows (emphasis added):
1. An antiperspirant product, comprising:
(a) a dispensing package comprising a chamber for holding an
antiperspirant composition, the chamber being made from a polyolefin resin
that includes an anti-oxidant which includes 0% of phosphorus compounds',
and
(b) an antiperspirant composition disposed within the chamber, the
antiperspirant composition comprising:
i) a carrier material;
ii) an antiperspirant active comprising a zirconium-aluminum-
glycine complex;
and
iii) a fragrance material.
{Id. at 8.)
Examiner’s Rejection
Claims 1,2, 16, 17, and 20-23 stand rejected under 35 U.S.C.
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Appeal 2015-004881
Application 12/364,213
§ 103(a) as unpatentable over Campbell2 and Stewart,3 as evidenced by
Down.4 (Final Act. 3—9.)5
ISSUE
Whether a preponderance of evidence of record supports the
Examiner’s conclusion of obviousness under 35 U.S.C. § 103(a).
ANALYSIS
The issue in this case focuses on the claim limitations “an anti-oxidant
which includes 0% of phosphorus compounds” (claim 1) and “an anti­
oxidant that is substantially devoid6 of phosphorus compounds” (claim 16).7
Claims 1 and 16 are the only independent claims on appeal. (Br. 8—9.)
The Examiner’s position is that “it is implicit to use an antioxidant
with respect to polyolefin resin and it is obvious to select the antioxidant
other than a phosphorus containing antioxidant, e.g., phenolic type
antioxidant, in the manufacture of polyolefin resin.” (Ans. 3.) The
Examiner supports this position by referencing Campbell and Stewart, as
2 Campbell et al., WO 2006/133725 Al, published Dec. 21, 2006
(“Campbell”).
3 Stewart, US 5,139,164, issued Aug. 18, 1992 (“Stewart”).
4 Down, Antioxidants in polyolefins: By HPLC of the total solution extract,
1—2, published Oct. 18, 2010 (retrieved from the Internet Apr. 29, 2014),
http ://www. separationsno w. com/ details/ezine/ sepspec243 75ezine/ Antioxida
nts-in-polyolefms-By-HPLC-of-the-total-solution-extract.html?tzcheck=l
&tzcheck=l > (“Down”).
5 Office Action dated May 2, 2014.
6 The Specification states that “[substantially devoid includes less than
about 10%, 5%, 4%, 3%, 2%, and 1%, and 0%, by weight of the polymeric
resin.” (Spec. 2,11. 8—9.)
7 For ease of reference, both claim limitations (0% and “substantially
devoid”) are sometimes referred to herein as “phosphorous free.”
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Appeal 2015-004881
Application 12/364,213
evidenced by Down, as well as Appellants’ Specification, for the position
that “it is implicit for the polypropylene container to have an antioxidant and
an ordinary artisan already recognizes the use of antioxidant during
[production of] polyolefin resin.” {Id. at 4.) Based on that proposition, the
Examiner then states that “it is obvious to select a known phenolic type
antioxidant” (such as Irganox 1010 referenced in both Appellants’
Specification and Down),8 and that “it would be obvious to select the well-
known phenolic type antioxidants as a matter of design or choice.” {Id. at
5.)
Appellants argue that the Examiner has failed to set forth a prima
facie case of obviousness because neither Campbell nor Stewart teach an
antiperspirant chamber or dispensing package made from a polyolefin resin
that includes an antioxidant “which either includes 0% of phosphorous, or is
substantially devoid of phosphorous compounds.” (Br. 3 4.) Appellants
argue further that “[e]ven if antioxidants are implicit in the polyolefin
packaging container, the presence of ‘antioxidant’ does not suggest or
motivate one skilled in the art to select a specific antioxidant having 0% of
phosphorus compounds or that is substantially devoid of phosphorus
compounds.” {Id. at 4.)
We agree with Appellants. A prima facie case for obviousness
“requires a suggestion of all limitations in a claim,” CFMT, Inc. v. Yieldup
Int’l Corp., 349 F.3d 1333, 1342 (Fed. Cir. 2003) and “a reason that would
have prompted a person of ordinary skill in the relevant field to combine the
8 The Specification identifies IRGANOX 1010 as an example of a phenolic
type anti-oxidant that is substantially free of phosphite. (Spec. 2,11. 19-20.)
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Appeal 2015-004881
Application 12/364,213
elements in the way the claimed new invention does” KSR Int 7 Co. v.
Teleflex Inc., 550 U.S. 398, 418 (2007). Moreover, the Examiner bears the
initial burden of establishing a prima facie case of obviousness and, in this
case, the Examiner has not done so. See In re Oetiker, 977 F.2d 1443, 1445
(Fed. Cir. 1992).
The Examiner does not point to any teaching or suggestion in
Campbell or Stewart that the antiperspirant container is made of polyolefin
resin that includes an antioxidant “which includes 0% of phosphorus
compounds” or is “substantially devoid of phosphorus compounds.”9
Rather, the Examiner relies on Down, but that reliance is misplaced. Down
is a post-filing reference that describes a procedure for measuring
antioxidants in polyolefins. (Down 1.) While Down mentions Irganox 1010
as one of several antioxidants measured {id. at 2), Down does not show that
at the time of the invention it was known to use phosphorous free
antioxidants for any purpose, let alone in connection with the polyolefins
used in containers for antiperspirants “comprising a zirconium-aluminum-
glycine complex” (Claims 1 and 16, Br. 8).
The Examiner’s reference to the selection of phosphorous free
antioxidants as a matter of design or choice is also misplaced. According to
the Examiner, Appellants could have selected “well-known phenolic type
antioxidants” (Ans. 5), but the Examiner fails to provide a teaching or
suggestion from the prior art that would have prompted a person of ordinary
9 At most, the Examiner points to an embodiment of an antiperspirant in
Campbell that does not include a phosphorus compound (Final Act. 5), and
states that “Stewart does not mention the presence of the phosphorous
compounds” (Ans. 4).
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Appeal 2015-004881
Application 12/364,213
skill to use a polyolefin resin, that includes a phosphorous free antioxidant,
to make a chamber having a zirconium-aluminum-glycine complex
antiperspirant therein. See KSR, 550 U.S. at 418. Moreover, use of the
phosphorous free antioxidant in the combination as claimed solves an
identified problem (off-odor produced by processing aids which interact
with antiperspirant actives), thereby indicating that the use of phosphorus
free antioxidants is not merely a matter of design or choice. (Spec. 1.) See
In re Chu, 66 F.3d 292, 298—99 (Fed. Cir. 1995) (holding that placement of
catalyst within bag retainer would not have been merely a matter of “design
choice” based in part on solution to problem in prior art).
CONCLUSION OF LAW
A preponderance of evidence of record fails to support the Examiner’s
conclusion that claims 1, 2, 16, 17, and 20-23 are obvious under 35 U.S.C.
§ 103(a).
SUMMARY
We reverse the rejection of all claims on appeal.
REVERSED
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