Ex Parte Carter et al

Board of Patent Appeals and Interferences

Aug 31, 2011

12054476 (B.P.A.I. Aug. 31, 2011)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
12/054,476 03/25/2008 John David Carter 10730M 6157
27752 7590 09/01/2011
THE PROCTER & GAMBLE COMPANY
Global Legal Department - IP
Sycamore Building - 4th Floor
299 East Sixth Street
CINCINNATI, OH 45202
EXAMINER
ASDJODI, MOHAMMAD REZA
ART UNIT PAPER NUMBER
1763
MAIL DATE DELIVERY MODE
09/01/2011 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte JOHN DAVID CARTER,
CORINNE DAUMER,
and SHARON MCINTYRE
__________

Appeal 2010-003552
Application 12/054,476
Technology Center 1700
____________

Before JEFFREY T. SMITH, KAREN M. HASTINGS, and
MICHAEL P. COLAIANNI, Administrative Patent Judges.

COLAIANNI, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2010-003552
Application 12/054,476

2
Appellants appeal under 35 U.S.C. § 134 the final rejection of claims
1-15. We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b).
We AFFIRM.
Appellants’ invention is said to be directed to a liquid detergent
composition having a visual indication change when diluted in a volume of
water (Spec. 1).
Claims 1 and 15 are illustrative:
1. A liquid composition system comprising:
(a) a liquid composition with a pH of from 8.0 to 10
comprising:
(i) a pH dye capable of a first visual indication and
capable of a second visual indication;
(ii) a sulfate or sulphonate surfactant; and
(b) a volume of water;
wherein the liquid composition comprising the first
visual indication of the pH dye and when the liquid
composition is diluted in a volume of water forming a liquid
composition system and the liquid composition system
comprises the second visual indication of the pH dye, the
second visual indication being selected from the group
consisting of blue or green.
15. A process of producing a visual change in the color
of a liquid composition comprising the steps of:
(a) providing a liquid composition with a pH of from 7.5
to 13 having a first visual color comprising:
(i) a pH sensitive dye;
(ii) a sulfate or sulphonate surfactant;
Appeal 2010-003552
Application 12/054,476

3
(b) providing instructions to add the liquid composition
to a volume of water; and
(c) communicating that the mixture resulting from the
liquid composition and volume of water results in a second
visual color, the second visual color being selected from the
group consisting of blue or green.
Appellants appeal the following rejection:
Claims 1-151 are rejected under 35 U.S.C. § 103(a) as being unpatentable
over MacDonald (US 2005/0049157 A1 published Mar. 3, 2005) in view of
Su (US Patent 4,329,334 issued May 11, 1982).

We observe that claims 1-6 are also provisionally rejected on the
ground of non-statutory obviousness-type double patenting as being
unpatentable over claims 1-6, and 8 of copending application 12/054,485
(Ans. 7). Appellants do not list the provisional obviousness double
patenting rejection as being appealed and do not argue the merits of the
rejection (App. Br. 3). Though acknowledging that Appellants’ statement of
the ground of rejection to be reviewed on appeal is correct, the Examiner
lists this obviousness-type double patenting rejection as being on appeal
(Ans. 2, 7). No reply brief was filed by Appellants. On this record, it is
clear to us that Appellants did not intend to have the obviousness-type
double patenting rejection reviewed on appeal and we do not pass judgment
on that rejection.

1 The Examiner also rejects claims 16 and 17 under § 103 over MacDonald
in view of Su and Boucher (US 2004/0005991 A1 published Jan. 8, 2004)
(Ans. 5-6). Although Appellants recognize that claims 1-17 are rejected,
Appellants only appeal the rejection of claims 1-15 (App. Br. 1).
Appeal 2010-003552
Application 12/054,476

4
Appellants’ arguments focus on subject matter common to
independent claims 1 and 15 only (App. Br. 3).

ISSUE
Did the Examiner reversibly err in determining that MacDonald
teaches the same chemical indicators (i.e., pH dye) such that MacDonald’s
liquid composition system would have inherently had the same color change
in any given pH range? We decide this issue in the negative.

FINDINGS OF FACT AND ANALYSES
Appellants argue that the neither MacDonald nor Su teach visual dye
indicators in the presence of decreasing pH due to dilution with water (App.
Br. 3).
Appellants’ argument is unpersuasive because it fails to address the
Examiner’s stated case. The Examiner finds that MacDonald teaches the
same pH dyes as disclosed by Appellants such that the argued property of
providing visual indication in the presence of decreasing pH due to dilution
would have been inherent or at least reasonably expected (Ans. 7-9).
Appellants’ argument never addresses this finding of the Examiner.
The Examiner’s stated case, based upon the identity of the pH dyes
having the same properties, appears reasonable absent Appellants providing
evidence to the contrary. In re Best, 562 F.2d 1252, 1255 (CCPA 1977).
Appellants have not directed our attention to any evidence that persuades us
this finding is in error. Rather, MacDonald teaches that the pH dyes are
activated between a pH range of 4 to 9, which overlaps with the pH ranges
Appeal 2010-003552
Application 12/054,476

5
in Appellants’ claim 1 (i.e., pH range of 8 to 10) and claim 15 (i.e., pH range
of 7.5 to 13). (MacDonald, para. [0033]).
On this record, we affirm the Examiner’s § 103 rejection of claims 1-
15 over MacDonald in view of Su.

DECISION
The Examiner’s decision is affirmed
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136.

ORDER
AFFIRMED

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