Ex Parte Chapple et al

Board of Patent Appeals and Interferences

Jan 30, 2004

09803612 (B.P.A.I. Jan. 30, 2004)

The opinion in support of the decision being entered today was not written
for publication and is not binding precedent of the Board.
Paper No. 26
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte ANDREW PAUL CHAPPLE, JANE ANN JONES, JOHN LLOYD,
ROB THIJSSEN, and SIMON MARINUS VEERMAN
____________
Appeal No. 2004-0149
Application No. 09/803,612
____________
ON BRIEF
____________
Before OWENS , WALTZ, and TIMM, Administrative Patent Judges.
WALTZ, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on an appeal from the primary examiner’s
final rejection of claims 1 through 14 and 16, which are the only
claims remaining in this application. We have jurisdiction
pursuant to 35 U.S.C. § 134.
`According to appellants, the invention is directed to a
method of reducing dye fading in the laundering of fabrics bearing
fadeable dyes in the presence of bleaching compositions, which
method comprises contacting stained fabrics bearing fadeable dyes,
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Application No. 09/803,612
2
in a wash liquor, with a bleaching composition that contains a
specified transition metal complex bleach catalyst (Brief, page 3).
The bleaching of stains is accomplished with the catalyst in the
presence of atmospheric oxygen without use of aldehydes, and is
substantially devoid of peroxygen bleach or a peroxy-based or
-generating bleach system (id.).
Appellants state that all claims stand or fall together
(Brief, page 5). Therefore, according to the provisions of 37 CFR
§ 1.192(c)(7)(2000), we select independent claim 1 from each
grouping of claims and decide every ground of rejection in this
appeal on the basis of this claim alone. Illustrative claim 1 is
reproduced below:
1. A method of reducing dye fading of fabrics in laundering
of fabrics bearing fadeable dyes in the presence of bleaching
compositions, comprising contacting stained fabrics bearing
fadeable dyes, in a wash liquor, with a bleaching composition that
comprises a bleach catalyst,
wherein the bleach catalyst comprises an organic ligand which
forms a complex with a transition metal, the complex catalysing
bleaching of stains by atmospheric oxygen without use of aldehydes,
and the composition allows at least 50% of any bleaching of the
fabric to be effected by oxygen sourced from the air and is
substantially devoid of peroxygen bleach or a peroxy-based or
-generating bleach system.
Appeal No. 2004-0149
Application No. 09/803,612
1All of the rejections on appeal are stated “as set forth in
prior Office Action, Paper No. 17.” Answer, page 3. However,
the final rejection, as set forth in Paper No. 17 dated Oct. 2,
2002, recites the rejections over WO ‘628, WO ‘787, and Appel but
presents findings from Racherla (U.S. Patent No. 6,074,437). See
Paper No. 17, pages 4-5. The examiner had previously stated that
the rejections under sections 102 and 103 over Racherla “have
been withdrawn.” Paper No. 17, page 2. Furthermore, the
examiner repeats the “withdrawn” rejection of claims 9 and 10
under section 103(a) over Racherla on page 5 of Paper No. 17.
Appellants presented these contradictions to the examiner in
their response dated Dec. 9, 2002, Paper No. 18. In the Advisory
Action dated Dec. 23, 2002, Paper No. 19, the examiner clarified
the final Office action by stating that all rejections over
Racherla have been withdrawn. Appellants clearly have responded
to the rejections the examiner meant to present in the final
Office action (Brief, page 5, part VI). Therefore we consider
the rejections presented above as the rejections on appeal, and
consider all rejections based on Racherla as withdrawn. We also
consider the examiner’s factual findings as set forth in Paper
(continued...)
3
The examiner relies upon the following references as support
for the rejections on appeal:
Appel et al. (Appel) 6,242,409 Jun. 05, 2001
(filed Sep. 01, 1999)
Feringa et al. (WO ‘628) WO 95/34628 Dec. 21, 1995
(published International Application)
Hermant et al. (WO ‘787) WO 97/48787 Dec. 24, 1997
(published International Application)
Claims 1, 2, 6-14 and 16 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over WO ‘628 or WO ‘787 (Answer, page 3).
Claims 1-14 and 16 stand rejected under 35 U.S.C. § 102(e) as
anticipated by Appel (id.).1 We affirm all of the rejections on
Appeal No. 2004-0149
Application No. 09/803,612
1(...continued)
No. 4 dated Jun. 19, 2001, as clarified in the action dated Dec.
4, 2001, Paper No. 9, and as incorporated into Paper No. 17 (see
page 4).
2We do not find appellants’ definition of “substantially
devoid” on page 23 of appellants’ specification. We do find the
(continued...)
4
appeal essentially for the reasons stated in the Answer and those
reasons set forth below.
OPINION
A. The Rejection over WO ‘628 or WO ‘787
The examiner finds that both WO ‘628 and WO ‘787 disclose
bleach catalysts within the scope of the claimed bleach catalyst,
where these metal complex catalysts activate hydrogen peroxide,
peroxy acids, or molecular oxygen, useful for the washing and
bleaching of laundry (see Paper No. 4, pages 6-8). The examiner
asserts that there would be no difference between bleaching using
molecular oxygen as taught by these references and the use of
atmospheric oxygen as recited by the claims on appeal (id. at page
7; Answer, page 4). The examiner also construes the claimed term
“substantially devoid” of peroxy-bleaching agents as allowing up to
50% by molar weight on an oxygen basis of peroxygen bleach or
peroxy-based or -generating systems (Answer, page 4, citing the
specification, page 23, ll. 20-30).2 The examiner further finds
Appeal No. 2004-0149
Application No. 09/803,612
2(...continued)
definition referred to by the examiner on page 4 of the Answer at
page 57, ll. 5-17, of the specification. We deem this citation
error harmless since appellants have not challenged the
examiner’s interpretation of “substantially devoid.”
5
that WO ‘628 and WO ‘787 both are directed to laundry bleaching
compositions having “remarkable dye transfer inhibition properties”
which would have suggested use with fabrics bearing fadeable dyes
to one of ordinary skill in this art (Answer, page 3). We agree.
Appellants argue that an “essential element” of the claims is
the presence of a fabric with a fadeable dye and none of the
references disclose any dye fading problem nor this essential
element. This argument is not well taken since both references
disclose that dye transfer is “a well-known problem in the art” (WO
‘628, page 2, ll. 10-16; WO ‘787, page 2, ll. 10-16).
Additionally, both references teach that the metal complex
bleaching catalyst provides “efficient dye-transfer inhibiting
properties in the presence of H2O2.” WO ‘787, page 3, ll. 5-6;
page 4, ll. 33-35; see also WO ‘628, page 2, ll. 32-37; and page 4,
ll. 30-31. Accordingly, we agree with the examiner that this
teaching would have reasonably suggested using the bleach system of
WO ‘628 or WO ‘787 with all laundry, including fabrics with
fadeable dyes, to one of ordinary skill in this art.
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Appellants argue that WO ‘628 and WO ‘787 disclose peroxygen
bleach or peroxy-based or -generating bleach systems as essential
elements (Brief, page 6). This argument is not well taken for two
reasons. First, both references teach the alternative use of
molecular oxygen as a bleach system and thus are not limited to the
peroxy-generating system (see WO ‘787, abstract; page 1, ll. 15-17;
page 4, ll. 7-9; WO ‘628, page 10, l. 36-page 11, l. 1). Second,
the claims do not exclude peroxy-based bleaching systems, including
up to 50% by molar weight of peroxy-based bleaches (Answer, page 4,
citing the specification, page 23, ll. 20-30; see footnote 2
above).
Appellants argue that the references do not disclose the use
of atmospheric oxygen, and the term “molecular oxygen” taught by
the references would not be interpreted by those skilled in the
laundry art as the same as “atmospheric oxygen” or even air (Brief,
pages 6-11). This argument is not persuasive. Appellants have not
proferred any objective evidence to support their argument. See In
re Scarborough, 500 F.2d 560, 566, 182 USPQ 298, 302 (CCPA
1974)(Attorney’s arguments are generally held to be insufficient to
take the place of evidence or expert testimony). With regard to
enablement (Brief, page 8), appellants have not shown that the
alternative bleaching system using molecular oxygen, taught by WO
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7
‘628 and WO ‘787, would have required undue experimentation to
practice the invention. In light of the reference disclosure, the
burden is on appellants to establish that one of ordinary skill in
this art would be unable to resort to routine experimentation to
determine the optimum concentrations and process conditions for
utilizing molecular oxygen as an alternative to peroxy compounds in
a bleaching system. Accordingly, appellants’ argument of non-
enablement is not persuasive. See Genentech, Inc. v. Nova Nordisk
A/S, 108 F.3d 1361, 1365, 42 USPQ2d 1001, 1004 (Fed. Cir. 1997).
We agree with the examiner that “oxygen is oxygen,”
whether the oxygen supplied is “sourced from the air” or other
sources (Answer, page 4). Appellants have not established by
convincing evidence or technical reasoning that “molecular oxygen”
differs from other oxygen sources. As discussed above, we agree
with the examiner that the claimed bleaching method is not devoid
of peroxy bleach or peroxy-based or -generating bleach systems as
the term “substantially devoid” is defined in appellants’
specification. Additionally, since both references teach molecular
oxygen as an alternative to peroxy compounds in a bleaching system,
it would have been obvious for one of ordinary skill in this art to
formulate a bleaching system comprising a mixture of peroxy
compounds and molecular oxygen, which mixture is also within the
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scope of the bleaching composition recited in the claimed method.
See In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA
1980).
For the foregoing reasons and those set forth in the Answer,
we determine that the examiner has established a prima facie case
of obviousness in view of the reference evidence. Based on the
totality of the record, including due consideration of appellants’
arguments, we determine that the preponderance of evidence weighs
most heavily in favor of obviousness within the meaning of section
103(a). Accordingly, we affirm the examiner’s rejections of claims
1, 2, 6-14 and 16 under 35 U.S.C. § 103(a) over WO ‘628 or WO ‘787.
B. The Rejection over Appel
The examiner finds that Appel discloses a bleach catalyst
comprising an organic ligand complexed with a transition metal
within the scope of the claimed bleach catalyst (Paper No. 4, pages
9-10). The examiner further finds that Appel teaches using this
catalyst to bleach laundry fabrics with atmospheric oxygen which
comprises contacting the stained fabrics in an aqueous medium with
the bleaching composition, which is substantially devoid of
peroxygen bleach or a peroxy-based or -generating bleach system
(id.). The examiner further finds that the disclosure of “laundry”
by Appel encompasses the fabric having “fadeable dyes” recited in
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the claims (Paper No. 17, page 7; Answer, page 5). Accordingly,
the examiner states that every limitation recited in the claims on
appeal is described by Appel within the meaning of section 102
(Answer, page 5). We agree.
Appellants argue that Appel does not disclose fabrics bearing
dyes which are susceptible to fading, nor does the reference
appreciate the use of transition metal catalysts as important for
preventing or reducing dye damage (Brief, page 11). These
arguments are not persuasive for the following reasons. Appellants
are correct that Appel does not specifically disclose fabrics with
fadeable dyes as a laundry substrate (Brief, page 12) but the term
“laundry” disclosed by Appel can reasonably be interpreted as
encompassing white fabrics and fabrics with dyes (all dyes may be
considered as “fadeable” to some extent). Disclosure of such a
small genus would have put every species within this genus within
the possession of the public, i.e., the disclosure of “laundry”
describes each of the above listed species. See In re Petering,
301 F.2d 676, 681-82, 133 USPQ 275, 279-80 (CCPA 1972); In re
Schaumann, 572 F.2d 312, 315-317, 197 USPQ 5, 8-9 (CCPA 1978); and
In re Sivaramakrishnan, 673 F.2d 1383, 1384, 213 USPQ 441, 442
(CCPA 1982).
Appeal No. 2004-0149
Application No. 09/803,612
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Appellants argue that not all laundry contains fadeable dyes
but a very significant portion of the laundry is simply white
fabric (Brief, page 12). Appellants further argue that fadeable
dyes are not ubiquitous in laundry and in fact bleach systems are
usually avoided when laundering such fabrics (id.). These
arguments are also not persuasive. Appellants apparently admit
that fabrics with fadeable dyes are a portion of laundry, even if
not a significant portion. Accordingly, fabrics with fadeable dyes
are a species of “laundry” (see Petering, Schaumann and
Sivaranakrishnan, supra). Additionally, we note that Appel teaches
that bleaching compositions are employed in “dye transfer
inhibition,” thus teaching the safe use of the disclosed bleaching
system with fabrics bearing fadeable dyes (col. 19, ll. 19-20).
Therefore, we determine that Appel describes every limitation of
the method of claim 1 on appeal within the meaning of section 102.
Accordingly, we affirm the examiner’s rejection of the claims on
appeal under 35 U.S.C. § 102(e) over Appel.
C. Other Issues
In the event of further or continuing prosecution before the
examiner, the examiner should review the various applications and
patents containing similar claimed subject matter that were the
basis of obviousness-type double patenting rejections (Paper No. 4,
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Application No. 09/803,612
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pages 11-13). It is noted that appellants’ terminal disclaimer
filed Sep. 13, 2001, Paper No. 8, only lists some of these patents
and applications (e.g., U.S. Patents 6,617,299 and 6,638,901,
issued from applications 09/539,756 and 09/796,210, respectively,
are not listed in this terminal disclaimer).
D. Summary
The rejections of claims 1, 2, 6-14 and 16 under 35 U.S.C.
§ 103(a) over WO ‘628 or WO ‘787 are affirmed.
The rejection of claims 1-14 and 16 under 35 U.S.C. § 102(e)
over Appel is affirmed.
The decision of the examiner is affirmed.
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No time period for taking any subsequent action in connection
with this appeal may be extended under 37 CFR § 1.136(a).
AFFIRMED
TERRY J. OWENS )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
THOMAS A. WALTZ ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
CATHERINE TIMM )
Administrative Patent Judge )
TAW/jrg
Appeal No. 2004-0149
Application No. 09/803,612
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