Ex Parte Bianchetti et al

Patent Trial and Appeal Board

May 27, 2016

13613072 (P.T.A.B. May. 27, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/613,072 09/13/2012
27752 7590 06/01/2016
THE PROCTER & GAMBLE COMPANY
Global Patent Services - Legal IP
Central Building, CS
One Procter and Gamble Plaza
CINCINNATI, OH 45202
FIRST NAMED INVENTOR
Giulia Ottavia Bianchetti
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
CM3393C2 1802
EXAMINER
DELCOTTO, GREGORYR
ART UNIT PAPER NUMBER
1761
NOTIFICATION DATE DELIVERY MODE
06/01/2016 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 GIULIA OTT A VIA BIANCHETTI,
GLORIA DICAPUA, ANDREA ESPOSITO, SARAH GERMANA,
VINCENZO GUIDA, and LUCA SARCINELLI
Appeal2014-008074
Application 13/613,072
Technology Center 1700
Before KAREN M. HASTINGS, GEORGE C. BEST, and
N. WHITNEY WILSON, Administrative Patent Judges.
WILSON, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's
December 20, 2013 decision finally rejecting claims 1, 4, 5, 7, and 9-14.
We have jurisdiction over the appeal under 35 U.S.C. § 6(b).
We affirm.
1 Appellants identify the real party in interest as The Procter & Gamble
Company of Cincinnati, Ohio (Appeal Br. 1 ).
Appeal2014-008074
Application 13/613,072
CLAHvIED SUBJECT ivIATTER
Appellants' invention is directed to particulate bleaching
compositions comprising oxygen bleach or mixtures thereof, a bleach
activator, and a perfume delivery system (Spec. 1: 10-11 ). Claim 1 is
representative and is reproduced below from the Claims Appendix of the
Appeal Brief (key claim limitations shown in italics):
1. A particulate bleaching composition comprising:
c. [2J a bleaching system comprising oxygen bleach and
bleach activator; and
d. a perfume delivery system comprising Polymer
Assisted Delivery (PAD), wherein the Polymer Assisted
Delivery (PAD) comprises perfume microcapsules
(PMC);
wherein the composition comprises from about 20% to
about 60% by weight of the total composition of oxygen
bleach, wherein the oxygen bleach is a peroxygen source
consisting of an alkali metal salt of percarbonate; wherein
tlze co111positiorz co111prises fi,.0111 about 39{J to about 309{J
of a bleach activator of the formula:
0
CH4-· (CH,),-~-o-0-s&',"Na.
and wherein the composition comprises from about 0. 01
% to about 8% by weight of surfactant.
Appeal Br. 10 (Claims Appendix).
2 The claim elements are identified by c. and d. (not a. and b.).
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Application 13/613,072
REJECTIONS
I. Claims 1, 4, 5, 7, 9, and 12-14 are rejected under
35 U.S.C. § 103(a) as unpatentable over Morgan3 in view of
Chung.4
II. Claims 1, 4, 5, 7, 9, and 14 are rejected under
35 U.S.C. § 103(a) as unpatentable over Chung in view of
Morgan.
III. Claims 10 and 11 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Morgan in view of Chung as applied to
claims 1, 4, 5, 7, 9, and 12-14 above, and further in view of
Baillely.5
IV. Claims 10-13 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Chung in view of Morgan as applied to
claims 1, 4, 5, 7, 9, and 14 above, and further in view of
Baillely.
DISCUSSION
Rejections I and II
The Examiner finds that Morgan teaches or suggests all the limitations
of independent claim 1, except that Morgan is silent as to "the use of a
bleach activator such as nonanoyloxybenzene sulfonate[, e.g., NOBS,] or a
particulate composition containing a perfume delivery system comprising a
starch encapsulated accord, an oxygen bleach, a bleach activator ... and the
3 Morgan et al., U.S. 2008/0194454 Al, published Aug. 14, 2008.
4 Chung et al., U.S. Patent No. 4,412,934, issued Nov. 1, 1983.
5 Baillely et al., U.S. Patent No. 5,780,410, issued July 14, 1998.
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Appeal2014-008074
Application 13/613,072
other requisite components of the composition in the specific amounts as
recited by the instant claims" (Ans. 5). The Examiner finds Chung teaches
"suitable bleaching systems, ... bleaching compositions containing a
peroxygen bleaching compound capable of yielding hydrogen peroxide ...
bleach activator," surfactants, and perfumes (id.).
The Examiner finds that Morgan teaches that surfactants may be used
in amounts from 0.1 % to 80% by weight (id. at 12, citing Morgan i-f 107)
and Chung teaches that "surfactants may be used in amounts from 1 % to
30% by weight ... , wherein such amounts would overlap with 0.1 % to 8%
by weight of surfactant as recited by the instant claims" (Ans. 12, citing
Chung col. 8, 1.1---col. 10, 1. 20). The Examiner further finds Chung "clearly
teach[ es] ... that bleach activators including NOBS may be used in amounts
from 0.5% to 20% by weight ... , which would overlap with the amounts
recited by the instant claims" (Ans. 12, citing Chung col. 40, 1. 5---col. 7, 1.
65). Regarding the range of peroxygen bleaching compounds, the Examiner
finds that Chung teaches that "[ s ]uitable peroxygen bleaching compounds
include alkali metal perborates, percarbonates, etc., which may be used in
amounts from about 1 % to 60% by weight" (Ans. 5, see Chung col. 5, 11. 33-
35).
The Examiner, inter alia, determines that it would have been obvious
to the ordinary skilled artisan:
to use an oxygen bleach such as sodium percarbonate and a
bleach activator such as NOBS in the composition taught by
Morgan[] in the specific amounts as recited by the instant claims,
with a reasonable expectation of success, because Chung[]
teach[ es] the use of sodium percarbonate and a bleach activator
such as NOBS in the same amounts as recited by the instant
claims in a similar granule and further, Morgan[] teach[ es] the
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Appeal2014-008074
Application 13/613,072
use or 01eaches such as percarbonate and bleach activators,
including mixtures of bleach activators[, in general.
(Ans. 12-13; see also id. at 6 and 7). The Examiner further determines that
the ordinary skilled artisan:
clearly would have been motivated to use a perfume delivery
system comprising a starch encapsulated accord in the
composition taught by Chung[], with a reasonable expectation of
success, because Morgan[] teach[ es] the use of a perfume
delivery system comprising a starch encapsulated accord in a
similar composition and further, Chung[] teach[ es] the use of
perfumes in general. Thus, the Examiner asserts that the
teachings of Morgan[] in view of Chung[] or Chung[] in view of
Morgan[] are sufficient to render the claimed invention obvious
under" 35 U.S.C. § 103(a).
(Id. at 13).6
Appellants' arguments seeking reversal of Rejections I and II are
directed to limitations recited in independent claim 1 (see generally Appeal
Br. 2---6; Reply Br. 2): (1) the prior art does not suggest the particular
combination of "a perfume delivery system compnsmg a perfume delivery
system comprising Polymer Assisted Delivery (PAD), where the Polymer
Assisted Delivery (PAD) comprises perfume microcapsules (PMC), an alkali
metal salt of percarbonate, and from about 3% to about 30% of a bleach
activator known as" NOBS (Appeal Br. 3), (2) "even if a prima facie case
has been established, the argument of obviousness is rebutted by the
6 Appellants assert that the present invention is directed to a bleaching
composition containing a perfume delivery system comprising Polymer
Assisted Delivery (PAD), wherein the Polymer Assisted Delivery (PAD)
comprises perfume microcapsules (PMC), not a starch encapsulated accord
as the Examiner finds (Reply Br. 2, citing Ans. 3, 5, and 6). Appellants,
however, acknowledge the Examiner finds that Morgan discloses
microcapsules (Reply Br. 2, citing Ans. 3).
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Appeal2014-008074
Application 13/613,072
Applicant[sic, Applicant's] showing of unexpected results" in the§ 1.132
declaration of Michael Green, filed on November 18, 2013 (id. at 4), and
(3) the Declaration data is reasonably commensurate in scope with the
claimed invention when viewed by a skilled artisan (id. at 5).
With regard to argument ( 1 ), Appellants argue that that a prima facie
case has not been established because the cited references do not suggest the
particular perfume delivery system, oxygen bleaches or bleach activators
claimed (id. at 3). In particular, Appellants argue that Chung exemplifies:
(i) use of perborate, not percarbonate as presently claimed (id., citing Chung
col. 12-17, Examples I-V) and (ii) use in excess of 8% by weight of
surfactant, not from about 0.01 % to about 8% by weight as presently
claimed (Appeal Br. 3, citing Chung col. 12-17, Examples I-VI).
Regarding argument (1): "Aprimafacie case of obviousness
typically exists when the ranges of the claimed composition overlap the
ranges disclosed in the prior art." In re Peterson, 315 F.3d 1325, 1329 (Fed.
Cir. 2003)); see also In re Malagari, 499 F.2d 1297, 1303 (CCPA 1974)
(concluding that a claimed invention was rendered prima facie obvious by a
prior art reference whose disclosed range (0.020--0.035% carbon)
overlapped the claimed range (0.030--0.070% carbon)).
In this instance, the ranges of a percarbonate oxygen bleach recited in
claim 1, about 20% to about 60% by weight of the total composition,
overlaps the range explicitly taught by Chung. The ranges, furthermore, of a
surfactant recited in claim 1, about 0.01 % to about 8% by weight of the total
composition, overlaps the range explicitly taught by Chung and Morgan.
The claimed ranges for a bleach activator, about 3% to about 30% by weight
of the total composition, overlaps the range explicitly taught by Chung. For
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Application 13/613,072
the reasons stated in the Examiner's Answer and above, Appellants'
arguments have not identified reversible error in the Examiner's prima facie
case of obviousness for these rejections.
With regard to Appellants' argument (2) and (3), that they have
adequately rebutted the prima facie showings of obviousness by virtue of
their demonstration of the unexpected results produced by the claimed
invention (Appeal Br. 4--5; Reply Br. 2), the burden of showing unexpected
results rests on the person who asserts them by establishing that the
difference between the claimed invention and the closest prior art was an
unexpected difference. See In re Klosak, 455 F.2d 1077, 1080 (CCPA
1972). Further, the showing of unexpected results must be commensurate in
scope with the claims. See In re Peterson, 315 F.3d 1325, 1330-31 (Fed.
Cir. 2003).
We do not find Appellants' Rule 132 Declaration convincing as
evidence of unexpected results because the Declaration provides data testing
only one specific embodiment of the claimed invention. This testing of a
single data point is not reasonably commensurate with the scope of the
claims, which recites broad ranges and multiple variables (see claim 1 ).
Therefore, for the reasons set forth in the Examiner's Answer (see Ans. 17-
18) and above, the Rule 132 Declaration relied upon by Appellants is not
persuasive evidence of non-obviousness.
Accordingly, we affirm Rejection I of independent claim 1 under 35
U.S.C. § 103(a). In the absence of arguments specific to their patentability,
dependent claims 4, 5, 7, 9, and 12-14 fall with claim 1 under Rejection I.
37 C.F.R. § 41.37(c)(iv). Likewise, we affirm Rejection II of claim 1 under
35 U.S.C. § 103(a). In the absence of arguments specific to their
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Application 13/613,072
patentability, dependent claims 4, 5, 7, 9, and 14 fall with independent claim
1 under Rejection II. 37 C.F.R. § 41.37(c)(iv).
Rejections III and IV
In the absence of arguments specific to their patentability:
(i) dependent claims 10 and 11 fall with claim 1 under Rejection III and
(ii) dependent claims 10-13 fall with claim 1 under Rejection IV. 37 C.F.R.
§ 41.37(c)(iv).
The Examiner's decision is affirmed.
CONCLUSION
We AFFIRM the rejection of claims 1, 4, 5, 7, 9, and 12-14 under 35
U.S.C. § 103(a) as obvious over Morgan in view of Chung.
We AFFIRM the rejection of the rejection of claims 1, 4, 5, 7, 9, and
14 under 35 U.S.C. § 103(a) as obvious over Chung in view of Morgan.
We AFFIRM the rejection of claims 10 and 11under35 U.S.C.
§ 103(a) as obvious over Morgan in view of Chung as applied to claims 1, 4,
5, 7, 9, and 12-14 above, and further in view ofBaillely.
We AFFIRM the rejection of claims 10-13 under 35 U.S.C. § 103(a)
as obvious over Chung in view of Morgan as applied to claims 1, 4, 5, 7, 9,
and 14 above, and further in view of Baillely.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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