Ex Parte Capretta et al

Patent Trial and Appeal Board

Feb 11, 2016

12854985 (P.T.A.B. Feb. 11, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/854,985 08/12/2010
27752 7590 02/16/2016
THE PROCTER & GAMBLE COMPANY
Global Patent Services - Legal IP
Central Building, CS
One Procter and Gamble Plaza
CINCINNATI, OH 45202
FIRST NAMED INVENTOR
Amy Michelle Capretta
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.
11423 8971
EXAMINER
TCHERKASSKAYA, OLGA V
ART UNIT PAPER NUMBER
1615
NOTIFICATION DATE DELIVERY MODE
02/16/2016 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 AMY MICHELLE CAPRETTA, MELISSA ANN KREUZER, and
ANTHONY CHARLES LANZALAC0 1
Appeal2013-008881
Application 12/854,985
Technology Center 1600
Before JEFFREYN. FREDMAN, ULRIKE W. JENKS, and
RICHARD J. SMITH, Administrative Patent Judges.
SMITH, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to method
for managing underarm malodor that have been rejected as obvious. (Br. 6-
9.) We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 According to Appellants, the real party in interest is The Procter & Gamble
Company. (Br. 1.)
Appeal2013-008881
Application 12/854,985
STATEMENT OF THE CASE
"The present invention is directed to rinse-off products containing
particulate an [sic] antimicrobial agent for use on targeted body parts, such
as the underarm, to manage malodor." (Spec. 1, 11. 6-7.)
Claims on Appeal
Claims 25-29, 31-33, 46, and 48-54 are on appeal.2 (Br. 6-9.)
Independent claim 25 is illustrative and reads as follows:
25. A method for managing underarm malodor, the method
comprising the steps of:
(a) applying a first consumer product to an underarm and
rubbing the same onto the skin of the underarm, the first
consumer product comprising a liquid carrier material and an
antimicrobial agent, the antimicrobial agent being in the form of
solid particles within the liquid carrier material, wherein at least
some of the solid particles have a particle size of from about 0.5
µm to about 100 µm and at least a portion of the solid particles
are deposited into one or more hair follicles;
(b) thereafter rinsing the underarm; and
( c) thereafter applying a second consumer product to the
underarm without rinsing the same for a period of at least one
hour, the second consumer product comprising an
antiperspirant active and/or deodorant agent.
In claim 32, the only other independent claim, the "first consumer
product" comprises "a zinc containing material" rather than "a liquid carrier
material and an antimicrobial agent. .. in the form of solid particles within
the liquid carrier material, wherein at least some of the solid particles have a
particle size of from about 0.5 µm to about 100 µm." (Br. 6-7.) In addition,
2 Claims 1-24 and 34--45 are cancelled.
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Application 12/854,985
claim 32 recites that the "zinc containing material," rather than the solid
particles, "is deposited into one or more hair follicles." (Id. at 7.)
Examiner's Rejections
1. Claims 25-29, 31-33, 46, and 48-54 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Johnson, 3 Wells,4 Ramirez, 5 and Causton. 6
(Final Act. 2.)7
2. Claims 25-29, 31-33, 46, and 48-54 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Johnson, Wells, Hurley,8 and Kasuga. 9 (Final
Act. 4.)
Appellants have presented arguments for the patentability of claims
25-29, 31-33, 46, and 48-54 as a group. (Br. 2-5.) Therefore, we limit our
discussion to independent claims 25 and 32 as representative of those
claims. 37 C.F.R. § 41.37(c)(l)(iv).
FINDINGS OF FACT
We adopt the Examiner's findings and analysis concerning the scope
and content of the prior art. The following findings are included for
emphasis and reference convenience.
FF 1. The Examiner finds that Johnson teaches applying a liquid containing
zeolite, in which an antimicrobial particulate material (zeolite) is in a liquid
carrier (e.g., a liquid soap containing zeolite). (Ans. 3, citing Johnson, col. 3,
3 Johnson, US Patent No. 6,893,632 B2, issued May 17, 2005.
4 Wells, et al., US 2007/0110700 Al, published May 17, 2007.
5 Ramirez, et al., US Patent No. 4,654,213, issued Mar. 31, 1987.
6 Causton, et al., WO 00149996 A2, published Aug. 31, 2000.
7 Office Action dated July 18, 2012.
8 Hurley, et al., US Patent No. 7,659,233 B2, issued Feb. 9, 2010.
9 Kasuga, et al., US Patent No. 6,624,126 Bl, issued Sept. 23, 2003.
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Appeal2013-008881
Application 12/854,985
11. 6-7; see also 11. 2-3 and 10-11.)
FF 2. The Examiner finds that Wells shows the process of washing, then
rinsing. (Final Act. 2, citing Wells i-f 247.)
FF 3. The Examiner finds that Wells teaches the use of zinc pyrithione of
colloidal size. (Id. at 3, citing Wells i-f 219 .)
FF 4. The Examiner finds that Ramirez teaches deodorant compositions that
include a zinc salt. (Id., citing Ramirez Table 1.)
FF 5. The Examiner finds that Causton shows the use of zinc oxide (in an
antiperspirant) having a size of 5-50 micrometers. (Id., citing Causton 3, 11.
1--4.)
FF 6. The Examiner finds that Hurley teaches an antiperspirant/deodorant
formula and a shampoo formula that include zinc pyridinethione. (Ans. 4,
citing Hurley Examples 9, 10.)
FF 7. The Examiner finds that Kasuga discloses a body shampoo. (Id.,
citing Kasuga, col. 7, 11. 16-35.)
ISSUE NO. 1
Whether a preponderance of evidence of record supports the
Examiner's conclusion of obviousness based on Johnson, Wells, Ramirez,
and Causton. 10
ANALYSIS
The Examiner concluded that it would have been obvious to one of
ordinary skill in the art, desiring to utilize odor control means, to use any of
the art recognized means, such as Johnson, in order to enhance reduction of
odor by killing bacteria. (Final Act. 3.) Furthermore, the Examiner found
10 Appellants limit their arguments to Johnson and Ramirez. (Br. 2--4.)
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Appeal2013-008881
Application 12/854,985
that the selection of each ingredient or administration method is a result
effective parameter chosen to obtain the desired effects, and that it would
have been obvious to vary the nature of each ingredient to optimize the
desired effects. (Id.)
In light of the foregoing and the Examiner's findings (see e.g. FF 1-
5), we find that the Examiner has satisfied the burden of showing "some
articulated reasoning with some rational underpinning to support the legal
conclusion of obviousness." KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,
418 (2007). The Examiner has thus established a prima facie case of
obviousness and, as discussed below, Appellants have not overcome that
prima facie case.
Appellants disagree with the Examiner's reading of Johnson, stating
that Johnson is "referring to the form of the final product as applied." (Br.
3.) Appellants also argue that "personal care products in a powder form are
generally sprinkled or gently applied to the skin, not rubbed into the skin."
(Id.) We agree with the Examiner's reading of Johnson, particularly as
teaching a liquid containing zeolite. (FF 1.) In addition, in response to
Appellants' argument regarding products "rubbed into the skin," we agree
with the Examiner that "one wishing to cleanse the body of germs & odor"
would have found it obvious to use "more or less stringent washing &
scrubbing as required to facilitate the degree of cleanliness desired." (Ans.
5.)
Appellants also point to the "water soluble" nature of the zinc salts
disclosed by Ramirez and argue that "they would not be particulate within a
liquid carrier as stated in claim 25." (Br. 3.) However, Ramirez was cited
for disclosing the use of zinc, as recited in claim 32, and claim 32 does not
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Appeal2013-008881
Application 12/854,985
recite "solid particles within the liquid carrier" as recited in claim 25. (Ans.
3.)
Finally, Appellants argue that the Examiner "combines a multitude of
references to try to show teachings of individual aspects of the claims, but
gives no motivation for why one of skill in the art would select the particular
pieces and put them together." (Br. 4.) In support of that argument,
Appellants give as an example the selection of "a particulate ... of a size
which allows for deposition of at least some of the antimicrobial agent or
zinc containing material into underarm hair follicles." (Id. at 4--5.)
We are unpersuaded by Appellants' arguments. As an initial matter,
the mere number of references used does not weigh against a conclusion of
obviousness. In re Gorman, 933 F.2d 982, 986 (Fed. Cir. 1991).
Furthermore, a conclusion of obviousness "may include recourse to logic,
judgment, and common sense available to the person of ordinary skill
that do not necessarily require explication in any reference or expert
opinion." Perfect Web Technologies, Inc. v Info USA, Inc., 587 F.3d
1324, 1329 (Fed. Cir. 2009). In addition, the size of the particulate in
Causton falls within the range claimed by Appellants, see In re Peterson,
315 F.3d 1325, 1329-31 (Fed. Cir. 2003), and it would be common sense to
expect deposition of at least some of the particulate into underarm hair
follicles. Moreover, we agree with the Examiner that "[t]he selection of
each ingredient or administration method is a result effective parameter
chosen to obtain the desired effects." (Final Act. 3.); see also In re Aller, 220
F.2d 454, 456 (CCPA 1955).
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Application 12/854,985
CONCLUSION OF LAW
A preponderance of evidence of record supports the Examiner's
conclusion that claims 25 and 32 are obvious under 35 U.S.C. § 103(a)
based on Johnson, Wells, Ramirez, and Causton. Claims 26-29, 31, 33, 46,
and 48-54 were not argued separately and therefore fall with claims 25 and
32.
ISSUE NO. 2
Whether a preponderance of evidence of record supports the
Examiner's conclusion of obviousness based on Johnson, Wells, Hurley, and
Kasuga.
ANALYSIS
The Examiner also concludes that the claims are obvious by applying
Hurley and Kasuga, rather than Ramirez and Causton, with Johnson and
Wells. (Final Act. 4.) Similarly, in light of the above discussion and the
Examiner's findings regarding Hurley and Kasuga (see e.g. FF 6, 7), we find
that the Examiner has established a prima facie case of obviousness and that
Appellants have not overcome that prima facie case.
Appellants argue that both Hurley and Kasuga teach "a shampoo and
thus not applied to the underarm for malodor benefits." (Br. 4.) We are
unpersuaded. As the Examiner points out, Kasuga teaches a body shampoo.
(FF 7.) Appellants also repeat their argument regarding the applicability of
Johnson, and further repeat their arguments regarding "a multitude of
references" and "no motivation." (Br. 4.) We are unpersuaded by these
arguments for the reasons set forth above.
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Application 12/854,985
CONCLUSION OF LAW
A preponderance of evidence of record supports the Examiner's
conclusion that claims 25 and 32 are obvious under 35 U.S.C. § 103(a)
based on Johnson, Wells, Hurley, and Kasuga. Claims 26-29, 31, 33, 46,
and 48-54 were not argued separately and therefore fall with claims 25 and
32.
SUMMARY
We affirm the rejection of claims 25-29, 31-33, 46, and 48-54 under
35 U.S.C. § 103(a).
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).
AFFIRMED
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