Ex Parte Evers

Board of Patent Appeals and Interferences

Dec 19, 2011

12166534 (B.P.A.I. Dec. 19, 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.
12/166,534 07/02/2008 Marc Francois Theophile Evers CM3196 3826
27752 7590 12/19/2011
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
12/19/2011 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 MARC FRANCOIS THEOPHILE EVERS
____________

Appeal 2010-007211
Application 12/166,534
Technology Center 1700
____________

Before CHUNG K. PAK, JEFFREY T. SMITH, and
MICHAEL P. COLAIANNI, Administrative Patent Judges.

SMITH, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2010-007211
Application 12/166,534

2

STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134 from the final rejection of
claims 1-9. We have jurisdiction under 35 U.S.C. § 6.

Appellant requests review of the following rejection (App. Br. 2) from
the Examiner’s final office action:
Rejection of claims 1-9 under 35 U.S.C. § 103(a) over Sommerville-
Roberts, US Patent 6,878,679 B2 issued April 12, 2005.

Appellant’s claimed invention relates to a method of treating fabrics by
placing a multi-compartment pouch in the drum of a washing machine.
Claim 1 is illustrative:

1. A method of treating fabrics comprising placing a
multi-compartment pouch in the drum of a washing machine;
said pouch having at least two compartments, being free of
bleach activator and comprising a water-soluble film, and a
composition comprising a solid and a liquid component;
(a) said first compartment comprising said liquid component
(b) said second compartment comprising said solid component,
said solid component from about 60 to about 95% of a
peroxide.
Did the Examiner err in determining that a person having ordinary
skill in the art would have been led to perform a method of treating fabrics
by placing a multi-compartment pouch being free of bleach activator in the
drum of a washing machine wherein the pouch comprises a solid component
comprising from about 60 to about 95% of peroxide as required by the
Appeal 2010-007211
Application 12/166,534

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subject matter of independent claim 1 within the meaning of 35 U.S.C.
§ 103? On this record, we answer this question in the negative.1
Appellant argues that Sommerville-Roberts does not teach “(1) a
pouch that is free of bleach activator OR (2) a solid component comprising
from about 60 to about 95% peroxide” as required by the subject matter of
claim 1. (App. Br. 5). Appellant further argues that the Examiner’s
explanation presented in the final rejection for obtaining from about 60 to
about 95% of percarbonate is evidence that the Examiner has relied upon
hindsight in rejecting the claimed subject matter. (Id. at 4).
The Examiner found that Sommerville-Roberts would have suggested
a method of treating fabrics by placing a multi-compartment pouch which is
free of bleach activator in the drum of a washing machine wherein the pouch
comprises a solid component comprising percarbonate (a peroxide source).
(Ans. 3). The Examiner found that at col. 23, Example VI, describes a
composition that is free of bleach activator. (Id.). The fact that
Sommerville-Roberts describes at col. 5, ll. 18-22, a bleach activator as one
of the alternative detergent agents further supports this finding. The
Examiner also found that Sommerville-Roberts teaches that percarbonate is
a bleaching agent. (Id. at 4; Sommerville-Roberts, col. 12, ll. 60-68).
Although Sommerville-Roberts prefers at col. 13, ll. 3-7, to employ 0.01 %
to 50% by weight of percarbonate, it does not foreclose one of ordinary skill
in the art from employing a higher percentage of percarbonate for the
bleaching purpose. From the disclosure of Sommerville-Roberts as a whole,
one of ordinary skill in the art would have reasonably expected that

1 Appellant did not argue the appealed claims separately. Accordingly, the
appealed claims will stand or fall together. We select claim 1 as
representative of the appealed subject matter.
Appeal 2010-007211
Application 12/166,534

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percarbonate would function as a bleaching agent regardless of the amounts
of percarbonate employed. Thus, the Examiner correctly concluded that a
person of ordinary skill in the art would have found it obvious to use the
percarbonate bleaching source within the claimed range of from 60 to about
95% to increase the cleaning efficiency of the composition. (Ans. 4).

We agree with the Examiner’s determination that a person of ordinary
skill in this art would have recognized the function of percarbonates in
bleaching compositions and therefore would have reasonably arrived at the
claimed amount of from about 60 to about 95% of percarbonate to increase
the bleaching function of the composition. See, e.g., KSR Int’l Co. v.
Teleflex Inc., 550 U.S. 398, 418 (2007); In re Bozek, 416 F.2d 1385, 1390
(CCPA 1969) (“Having established that this knowledge was in the art, the
examiner could then properly rely, as put forth by the solicitor, on a
conclusion of obviousness ‘from common knowledge and common sense of
the person of ordinary skill in the art without any specific hint or suggestion
in a particular reference.’”).2
Appellant’s contention that Sommerville-Roberts does not teach a
pouch that is free of bleach activator is not persuasive. The Examiner cited

2 The Examiner, Answer 6, cites column 3 of US Patent 5,720,896 for
describing bleaching compositions comprising up to 80% of percarbonate
compounds. The Examiner cited this document in the Answer to respond to
Appellant’s arguments and to support the position that it was known to
persons of ordinary skill in the art to use a higher concentration of peroxide
ingredients in bleaching compositions. We will not rely on this evidence
presented by the Examiner because it is inappropriate for the Examiner to
rely on references not cited in the statement of the ground of rejection to
support a position when responding to Appellant’s arguments. In re Hoch,
428 F.2d 1341, 1342 n. 3, (CCPA 1970);
Appeal 2010-007211
Application 12/166,534

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column 23, in particular Example VI, as evidence of compositions that
excluded a bleach activator. As acknowledged by Appellant, this example
does not expressly identify a bleach activator. Moreover, the fact that
Sommerville-Roberts describes at col. 5, ll. 18-22, a bleach activator as one
of the alternative detergent agents further supports this finding Appellant
has not presented evidence to support his argument that the “bleach activator
could arguably be one of the ‘Minors’ that brings the total weight percentage
of solid components to 100%.” . (App. Br. 4). We note that Example VI, is
an exemplary embodiment of patentees invention. We have not been
directed to evidence that establishes the ‘Minors’ necessarily includes bleach
activators as argued by Appellant.

For the foregoing reasons and those presented in the Answer, we
affirm the rejection of claims 1-9 under 35 U.S.C. § 103(a).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(v).

AFFIRMED

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