Ex Parte Chopra et al

Patent Trial and Appeal Board

Sep 14, 2016

13513640 (P.T.A.B. Sep. 14, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/513,640 06/04/2012
23909 7590 09/16/2016
COLGATE-PALMOLIVE COMPANY
909 RIVER ROAD
PISCATAWAY, NJ 08855
FIRST NAMED INVENTOR
Suman K. Chopra
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.
8055-00-0C 7032
EXAMINER
WEBB, WALTERE
ART UNIT PAPER NUMBER
1612
NOTIFICATION DATE DELIVERY MODE
09/16/2016 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):
Patent_Mail@colpal.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SUMAN K. CHOPRA, LYNETTE ZAIDEL, SAYED
IBRAHIM, LEONORA LEIGH, and MICHAEL PRENCIPE
Appeal2015-003389
Application 13/513,640
Technology Center 1600
Before DEMETRA J. MILLS, ULRIKE W. JENKS, and RYAN H.
FLAX, Administrative Patent Judges.
MILLS, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134. The Examiner has
rejected claims 1-20 for obviousness. We have jurisdiction under 35
U.S.C. § 6(b).
We AFFIRM.
STATEMENT OF CASE
The following claims are representative:
1. A stable, non-aqueous dentifrice composition
compnsmg
(i) at least one enzyme, wherein the enzyme is glucose
oxidase;
(ii) at least one substrate for the at least one enzyme
wherein the substrate is glucose;
Appeal2015-003389
Application 13/513,640
and a suitable carrier, wherein the composition is non-
aqueous, the at least one substrate reacts under aqueous
conditions in the presence of the at least one enzyme to
generate hydrogen peroxide, and wherein the composition
further comprises at least one polymer or copolymer, wherein
the polymer or copolymer is polyethylene glycol, a PEG/PPG
copolymer, PVP, polyethylene, wherein the non-aqueous
dentifrice composition is contained in a single container.
3. The composition of claim 1 further comprising at least
one fluoride source.
Cited References
Wahmi
Pellico
Gordon
Grounds of Rejection
us 4,374,824
us 4,537,764
US 2007 /0189983 Al
Feb.22, 1983
Aug. 27, 1985
Aug. 16, 2007
1. Claims 1, 2, 4--9, and 12-15 are rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Pellico.
2. Claims 3, 10, 11, and 16-20 are rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Pellico, in view of
Gordon.
3. Claims 3, 10, 11, 16, and 17 are rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Pellico, in view of
Wahmi.
FINDINGS OF FACT
The Examiner's findings of fact are set forth in the Final Action
at pages 2---6. The following facts are highlighted.
2
Appeal2015-003389
Application 13/513,640
1. Pellico, Example 2 is reproduced below.
Example 2
Pellico Example 2 shows an enzymatic dentrifice containing
commercial glucose as the source of Beta-D-glucose. The
commerical [sic] glucose in this example is a dry, free-flowing
powder that contains approximately 95% of the Alpha anomer
and approximately 5% of the Beta anomer and which is
distributed by Com Products Corporation under the designation
Cerelose 2502 USP. Syloid 244FP is the designation for a food
grade amorphous silica thickener. Cocoamidopropyl betaine is
an amphoteric surfactant.
Composition
Glycerine 99% USP
Syloid 244FP
Cerelose 2502 USP {0.06 m M H-D-glucose)
Cocoamidopropyl hetaine
Methyl Salicylate
Glucose 0,11..ida.se (100,000 IU/gm)
"'1eight (gms)
65.4-S
!5.00
18.00
l.00
0,50
0.02
100.00
Pellico, col. 6, 11. 35--47. The Pellico, Example 2 composition
contains no water.
2. Pellico, Example IE is reproduced below.
IE
Composition
Propy)ene glycol
Glycerine (99%)
Polye1hylene glycol 400
Syloid 24•ff P (silica thk:kcner)
Oluc{}&e oxidase (l00,000 IU/gm)
Beta·D·glucose {0.18 miffimok$)
Color
Flavor
Water
3
weigh!. grnm5
40
35
IO
10
OJ125: (2SOO lU)
j
0 .. $
o.s
0.915
Appeal2015-003389
Application 13/513,640
Pellico, Example IE discloses a dental composition with
Beta-D-glucose, glucose oxidase, polyethylene glycol, and
0.975 weight, grams of water.
PRINCIPLES OF LAW
"The combination of familiar elements according to known
methods is likely to be obvious when it does no more than yield
predictable results." KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 416
(2007).
"[W]hen unexpected results are used as evidence of
nonobviousness, the results must be shown to be unexpected
compared with the closest prior art." In re Baxter-Travenol Labs.,
952 F.2d 388, 392 (Fed. Cir. 1991).
_,_Rejection 1 = Obviousness
We agree with the Examiner's fact finding, statement of the
rejection, and responses to Appellants' arguments as set forth in the
Answer. We find that the Examiner has provided evidence to support
a prima facie case of obviousness. We provide the following
additional comment to the Examiner's argument set forth in the Final
Action and Answer.
As to claim 1 interpretation, we agree with the Examiner that
the term "non-aqueous" has not been defined by
appellant [in the Specification] and is distinct from
"anhydrous", which is completely water-free. Note that the
instant disclosure teaches away from "anhydrous" formulations
insofar as it states, "A drawback to the use of such anhydrous
4
Appeal2015-003389
Application I3/5I3,640
products is that, due to the absence of water, application of the
oral composition tends to desiccate oral tissues, which lead to
irritation and tissue damage" (Specification p. I, para. [0003]).
Accordingly, the "non-aqueous" formulations of the instant
invention are not completely free of water. In other words,
there is a tolerance for small amounts of water. For instance,
Example IE of Pellico (see col. 6), which comprises less that
I% water, would reasonably suffice as "non-aqueous".
Ans. 6. Appellants do not take issue with or address the Examiner's
claim interpretation in the Brief. Arguments not made are waived.
The Examiner argues that Pellico teaches or suggests each
element claimed. Ans. 3. Pellico, Example 2 (FF I) illustrates an
enzymatic dentrifice containing commercial glucose as the source of
Beta-D-glucose. The composition of Example 2 also contains glucose
oxidase, and does not contain water, and is therefore non-aqueous.
Example 2, however, does not disclose the claimed polymer,
polyethylene glycol. The Examiner also relies, alternatively, on
Pellico, Example IE set forth above (FF2). Pellico, Example IE also
discloses a (lOOg) dental composition with Beta-D-glucose, glucose
oxidase, polyethylene glycol, as claimed, and also 0.975(g) of water.
Appellants contend that, "[a]lthough Pellico discloses that water
should be at a relatively low concentration level, nowhere in Pellico is there
a teaching or suggestion that the entire composition must be non-aqueous".
Br. 3.
The Examiner interprets the Pellico disclosure of "not more
than about IO wt.% of water" (Col. 4, 11. 45-47) to include water
amounts of less than about I 0% water, including 0% and less than I%
5
Appeal2015-003389
Application 13/513,640
(see Pellico at Example 1 A-IE and Example 2). Ans. 5. We find that
Pellico's, Example 2, would support the Examiner's interpretation that
0% water is encompassed by Pellico' s statement that its dentifrice
contain "less than about 10% water." In conjunction with the
Examiner's interpretation of the language of claim 1 that small
amounts of water are included in the meaning of the term "non-
aqueous" in claim 1, we find claim 1 obvious in view of Pellico,
Example IE, and in view of Pellico's additional disclosure suggesting
that its dental compositions may include water amounts of less than
about 10%, including compositions containing 0% water.
Appellants further argue that they have presented evidence of
secondary considerations by showing "surprising evidence of higher
peroxide formation when using their single phase composition as
opposed to the conventional dual tube aqueous formulation." Br. 3-4.
Ho\'l1ever, \'l.;e agree \'l1ith the Examiner that, "the issue \'l1ith regard to
dual tube aqueous formulations would not apply to the formulations of
Pellico since they are single phase formulations comprising low to 0%
water (again see Pellico at Example 1 A-IE and Example 2)." Ans. 6.
Appellants have not distinguished the disclosure of Pellico with
appropriate evidence or compared the claimed invention with the
closest prior art, in this case the Pellico disclosure.
Rejection 1 is affirmed for the reasons of record.
Rejections 2 and 3
Rejections 2 and 3 tum on the same issue as rejection 1, that is,
whether Pellico teaches a non-aqueous composition. Appellants argue
6
Appeal2015-003389
Application 13/513,640
that Rejections 2 and 3 are allowable for the reasons argued with
respect to Rejection 1. Br. 4, 5. Having found that Pellico teaches a
non-aqueous composition, Rejections 2 and 3 are also affirmed for the
reasons of record.
CONCLUSION OF LAW
The cited references support the Examiner's obviousness
rejections, which are affirmed for the reasons of record. All pending,
rejected claims fall with claim 1. 37 C.F.R. § 41.37(c)(l)(iv).
No time period for taking any subsequent action in connection
with this appeal may be extended under 3 7 C.F .R. § 1.13 6( a). See 3 7
C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
7