Ex Parte Dery et al

Patent Trials and Appeals Board

Feb 9, 2016

12302912 - (D) (P.T.A.B. Feb. 9, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/302,912 12/01/2008
27384 7590 02/09/2016
Briscoe, Kurt G.
Norris McLaughlin & Marcus, PA
875 Third Avenue, 8th Floor
New York, NY 10022
FIRST NAMED INVENTOR
Maurice 0. Dery
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.
110963-23 1282
EXAMINER
BOYER, CHARLES I
ART UNIT PAPER NUMBER
1761
MAILDATE DELIVERY MODE
02/09/2016 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 PATENT TRIAL AND APPEAL BOARD
Ex parte MAURICE 0. DERY, ANDREW SOLIMAN, and
JOHNP. BELL
Appeal2014-003848
Application 12/302,912
Technology Center 1700
Before TERRY J. OWENS, JAMES C. HOUSEL, and
WESLEY B. DERRICK, Administrative Patent Judges.
OWENS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
The Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
rejection of claims 1-5, 8-10, 12, 13 and 15-18. We have jurisdiction under
35 U.S.C. § 6(b).
The Invention
The Appellants claim a 2-in-l laundry detergent composition. 1
Claim 1 is illustrative:
1 A 2-in-l laundry detergent composition is one having good cleaning
properties together with textile softening properties (Spec. 1: 10-14 ).
Appeal2014-003848
Application 12/302,912
1. A 2-in- l laundry detergent composition comprising about 10 to 40%
by weight of at least one anionic detersive surfactant component and
at least one cationic softening agent comprising an amidoalkylamine
quaternary ammonium compound of the formula:
0)
wherein
R is a saturated or unsaturated, branched or straight chain alkyl group
having from 6 to about 26 carbon atoms, wherein R contains not more than
80% of a single chain length,
R2 and R3 are each alkyl, alkoxyalkyl, hydroxyalkyl, polyalkoxy alkyl,
hydroxyl alkyl sulfonate, alkyl sulfonate or alkylarylsulfonate;
R 4 is a saturated or unsaturated hydrocarbon such as alkyl, aryl,
aralkyl, alkaryl; wherein any two of R2, R3 and R4, together with the nitrogen
atom to which they are attached, may optionally form a heterocyclic ring,
y is an integer from 0 to 12,
x- is an anion, and the IV of said cationic softening agent is from 20
to 100, and wherein the detergent composition reduces an amount of static
on laundered fabric.
Mayer
Lin
The References
US 2005/0119151 Al
US 2008/0051309 Al
The Rejections
June 2, 2005
Feb.28,2008
Claims 1-5, 8-10, 12, 13 and 15-18 stand rejected under
35 U.S.C. § 103 over Lin and over Mayer.
OPINION
We affirm the rejections.
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Appeal2014-003848
Application 12/302,912
The Appellants argue the claims as a group (App. Br. 5-12). We
therefore limit our discussion to one claim, i.e., claim 1. Claims 2-5, 8-10,
12, 13 and 15-18 stand or fall with that claim. See 37 C.F.R.
§ 41.37(c)(l)(iv) (2012).
Lin discloses a laundry liquid detergent composition "containing
ingredients to condition laundered fabrics by reducing the static buildup and
soften the fabrics" (i-f l ). The composition comprises about 1.5 wt% to about
11 wt% of an anionic surfactant and about 0.1 wt% to about 5 wt% of a
quaternary ammonium fabric softening agent (i1i17-9).
Mayer discloses a laundry liquid detergent composition which cleans,
softens and reduces the static charge buildup of textile fabrics (i1i12, 27).
The composition comprises a fabric softening component which can be a
quaternary ammonium compound and preferably comprises up to 30 wt% of
an anionic surfactant (i1i1 90, 115).
Lin's and Mayer's quaternary ammonium fabric softening agent can
be "3-tallowamidopropyltrimethyl ammonium methosulfate obtainable
under the name Stepantex® X 9124" which is characterized by good
conditioning effect, color-transfer-inhibiting effect and biodegradability
(Lin, i152; Mayer, i-f 131) (and is within the Appellants' claim 1 's
formula 1).
The Appellants argue that Lin discloses many quaternary ammonium
fabric softening agents and provides no disclosure which would have led one
of ordinary skill in the art to select 3-tallowamidopropyltrimethyl
ammonium methosulfate from among them (Reply Br. 2).
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Appeal2014-003848
Application 12/302,912
The fact that Lin discloses many quaternary ammonium fabric
softening agents would not have made any of them less obvious. See Merck
& Co. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989); In re
Lemin, 332 F.2d 839, 841(CCPA1964).
The Appellants argue that not all of Lin's or Mayer's quaternary
ammonium fabric softening agents have an iodine value (IV) of 20 to 100
and provide an antistatic effect, and neither Lin nor Mayer provides a
suggestion to select a quaternary ammonium fabric softening agent having
those properties (App. Br. 6-7, 11-12).
Lin's and Mayer's disclosures that 3-tallowamidopropyltrimethyl
ammonium methosulfate is an effective quaternary ammonium fabric
softener and, further, provides good conditioning effect, color-transfer-
inhibiting effect and biodegradability (Lin, i-f 52; Mayer, i-f 131) would have
led one of ordinary skill in the art, through no more than ordinary creativity,
to use it as the quaternary ammonium fabric softener. See KSR Int 'l Co. v.
Teleflex Inc., 550 U.S. 398, 418 (2007) (in making an obviousness
determination one "can take account of the inferences and creative steps that
a person of ordinary skill in the art would employ"). The Appellants' recited
iodine value and antistatic effect are properties of
3-tallowamidopropyltrimethyl ammonium methosulfate. See In re Papesch,
315 F.2d 381, 391 (CCPA 1963) ("From the standpoint of patent law, a
compound and all of its properties are inseparable; they are one and the same
thing"). Merely reciting those properties does not render the use of
3-tallowamidopropyltrimethyl ammonium methosulfate as Lin's or Mayer's
quaternary ammonium fabric softener unobvious. See In re Spada, 911 F .2d
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Appeal2014-003848
Application 12/302,912
705, 708 (Fed. Cir. 1990) ("The discovery of a new property or use of a
previously known composition, even when that property and use are
unobvious from the prior art, can not impart patentability to claims to the
known composition").
Accordingly, we are not persuaded of reversible error in the
rejections.
DECISION/ORDER
The rejections of claims 1-5, 8-10, 12, 13 and 15-18 under
35 U.S.C. § 103 over Lin and over Mayer are affirmed.
It is ordered that 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(a).
AFFIRMED
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