Ex Parte CAPUTI et al

Patent Trial and Appeal Board

Aug 21, 2018

13717820 (P.T.A.B. Aug. 21, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/717,820 12/18/2012
27752 7590 08/23/2018
THE PROCTER & GAMBLE COMPANY
Global IP Services
Central Building, C9
One Procter and Gamble Plaza
CINCINNATI, OH 45202
FIRST NAMED INVENTOR
Mariangela CAPUTI
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.
CM3718 3724
EXAMINER
CRAIG,PAULAL
ART UNIT PAPER NUMBER
3778
NOTIFICATION DATE DELIVERY MODE
08/23/2018 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 MARIANGELA CAPUTI, REMO BELLUCII, and
ADELIA ALESSANDRA TORDONE
Appeal 2017-011032
Application 13/717,820 1
Technology Center 3700
Before BIBHU R. MOHANTY, MICHAEL W. KIM, and
PHILIP J. HOFFMANN, Administrative Patent Judges.
HOFFMANN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellants appeal from the
Examiner's rejection of claims 1---6 and 8-11. We have jurisdiction under 35
U.S.C. § 6(b).
We AFFIRM.
According to Appellants, the "invention relates to an absorbent article
comprising a fastening adhesive and an effective liquid fragrance or odor
1 According to Appellants, "[t]he real party in interest is The Procter &
Gamble Company." Br. 1.
Appeal 2017-011032
Application 13/717,820
control composition [that] does not alter the properties of the adhesive."
Spec. 1, 11. 5-7. Claims 1, 8, and 11 are the independent claims on appeal.
Below, we reproduce claim 11 as illustrative of the appealed claims.
11. An absorbent article having a body-facing surface
and a garment-facing surface, said absorbent article further
compnsmg:
a topsheet;
a backsheet;
an absorbent core disposed between the topsheet and the
backsheet;
a fastening adhesive applied on said garment-facing
surface;
a liquid fragrance or liquid odor control composition
comprising one or more esters selected from the group consisting
of: menthyl acetate, menthyl lactate, menthyl propionate,
menthyl butyrrate, cis-3-hexenyl acetate, methyl-
dihydrojasmonate, methyl jasmonate, hexyl iso-butyrate, linalyl
acetate, benzyl acetate, phenyl ethyl acetate and combinations
thereof, and less than 5% of other esters.
REJECTIONS AND PRIOR ART
The Examiner rejects claims 1-5 and 8-11 under 35 U.S.C. § I03(a)
as unpatentable over Caputi et al. (US 2010/0324512 Al, pub. Dec. 23,
2010) ("Caputi").
The Examiner rejects claim 6 under 35 U.S.C. § I03(a) as
unpatentable over Caputi and Noel et al. (US 5,304,161, iss. Apr. 19, 1994)
("Noel").
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Application 13/717,820
ANALYSIS
Obviousness reiection based on Caputi
We begin by considering Appellants' arguments under heading I of the
Appeal Brief' s Arguments section. Br. 3-7. Appellants' first argument,
under this heading, is that the rejection is in error based on the following:
First, . . . each of [independent] claims 1, 8, and 11
recite[ s ], in part, wherein said liquid fragrance or liquid odor
control composition comprises "one or more esters selected
from: menthyl acetate, menthyl lactate, menthyl propionate,
menthyl butyrrate, cis-3-hexenyl acetate, methyl-
dihydrojasmonate, methyl jasmonate, hexyl iso-butyrate, linalyl
acetate, benzyl acetate, phenyl ethyl acetate; wherein the
composition also comprises less than 5%wt of other esters."
The Office acknowledges that Caputi does not teach "the
composition having less than 5%wt of other esters." . . . The
Office [incorrectly] asserts [that it would have been obvious to
use less than 5wt% of another ester].
Br. 3 ( citation omitted).
Initially, we note that Appellants argue independent claims 1, 8,
and 11 as a group. Br. 3-7. We select claim 11 for our analysis, and
independent claims 1 and 8 (as well as claims 2-5, 9, and 10 that depend
from independent claims 1 and 8, and which Appellants do not argue
separately) stand or fall with claim 11. See 37 C.F.R. § 4I.37(c)(l)(iv)
("When multiple claims subject to the same ground of rejection are argued
as a group or subgroup by appellant, the Board may select a single claim
from the group or subgroup and may decide the appeal as to the ground of
rejection with respect to the group or subgroup on the basis of the selected
claim alone.").
As set forth above, claim 11 recites, in relevant part,
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Application 13/717,820
a liquid fragrance or liquid odor control compos1t10n
comprising one or more esters selected from the group consisting
of: menthyl acetate, menthyl lactate, menthyl propionate,
menthyl butyrrate, cis-3-hexenyl acetate, methyl-
dihydrojasmonate, methyl jasmonate, hexyl iso-butyrate, linalyl
acetate, benzyl acetate, phenyl ethyl acetate and combinations
thereof [ (hereinafter referred to as "the selected ester")], and less
than 5% of other esters [(hereinafter referred to as "another
ester")].
Br., Claims App. Appellants' argument is based on an understanding that
claim 11, in fact, requires that the composition includes another ester in
addition to the selected ester, and that the amount of the another ester must
be less than 5%. See Br. 3-7. We do not read claim 11 as requiring another
ester, however. Instead, based on the language of the claim, including the
omission of an express statement in the claim that one or more other esters
are required, we read claim 11 to recite that, to the extent that the
composition includes an ester, other than the "selected ester" (i.e., to the
extent that the composition does include "another ester"), the composition
comprises less than 5% of the "another ester." Thus, we agree with the
Examiner's statement that, if in Caputi, "other esters are omitted entirely
from the composition, the composition would have less than 5% of other
esters [(i.e., the "another ester")]." Answer 4.
With respect to the rejection, the Examiner adequately supports the
finding that "Caputi teaches a working example in which menthyl acetate is
included and no other esters are present (paragraphs 32, 57)." Answer 3.
Appellants do not demonstrate that the Examiner misinterprets the identified
portions of Caputi. Thus, this argument is not persuasive of Examiner error.
Appellants' second argument, under heading I of the Appeal Brief' s
Arguments section, is that Caputi does not teach the claimed liquid fragrance
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Appeal 2017-011032
Application 13/717,820
or liquid odor control composition. Br. 5-7. More specifically, Appellants
argue that
the odo[]r control material mentioned in Caputi is complexed in
cyclodextrine. The cyclodextrine inclusion complex is then
included in polysiloxane oil. The cyclodextrine complex is a
solid dispersed in the liquid polysiloxane oil. The polysiloxane
oil in and of itself is not a fragrance or odor control material.
Br. 7. Appellants do not persuade us, however, that "a solid [ odor-control
material] dispersed in [a] liquid polysiloxane oil" fails to disclose the
claimed liquid odor control composition. In particular, Appellants do not
provide any evidence, or point to anything in the Specification or claims,
establishing that a liquid odor control composition cannot include a solid
odor-control material, or that a liquid odor control composition must
otherwise include no solid material. In the absence of such evidence, we
find that it is sufficient that Caputi discloses an odor-control material that is,
at least in part, liquid. See Answer 7 ("Caputi teaches cyclodextrin
molecules dispersed in polysiloxane oil (paragraphs 14, 40, 42, 57-58).
Caputi calls this dispersion a low viscosity liquid (paragraph 42)."). Thus,
this argument is not persuasive of Examiner error.
We now consider Appellants' argument under headings II, III, and IV
of the Appeal Briefs Arguments section. Br. 7-9. Here, Appellants'
arguments are based on assertions that modifying Caputi' s to disclose the
claimed liquid fragrance or liquid odor control composition would
impermissibly change Caputi' s principle of operation, or render Caputi
unsatisfactory for its intended purpose, and an assertion that Caputi teaches
away from using a liquid fragrance or liquid odor control composition. Id.
Inasmuch as we agree with the Examiner that Caputi discloses a liquid odor
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Application 13/717,820
control composition (supra), these arguments are not persuasive of
Examiner error.
In section V (Br. 9-10) of the Appeal Briefs Arguments section,
Appellants summarize the above-discussed arguments. Br. 10. We are not
persuade of error for the reasons detailed supra.
Thus, based on the foregoing, we sustain the rejection of claim 11. As
stated above, inasmuch as Appellants do not argue separately against the
rejection of independent claims 1 and 8, or the rejection of dependent
claims 2-5, 9, and 10, we also sustain the rejection of these claims.
Rejection based on Caputi and Noel
Appellants' argument against the Examiner's rejection of dependent
claim 6 is based on an assertion that Noel does not remedy deficiencies in
claim 1 's rejection. Br. 10. Inasmuch as Appellants do not persuade us that
claim 1 's rejection is deficient, we consequently sustain claim 6's rejection.
DECISION
We AFFIRM the Examiner's obviousness rejections of claims 1---6
and 8-11. No time period for taking any subsequent action in connection
with this appeal may be extended under 37 C.F.R. § 1.I36(a)(l).
AFFIRMED
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