Ex Parte Fernandez-Prieto et alDownload PDFPatent Trial and Appeal BoardSep 29, 201613602584 (P.T.A.B. Sep. 29, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/602,584 09/04/2012 27752 7590 10/03/2016 THE PROCTER & GAMBLE COMPANY Global IP Services Central Building, C9 One Procter and Gamble Plaza CINCINNATI, OH 45202 FIRST NAMED INVENTOR Susana FERNANDEZ-PRIETO 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. CM3699 4053 EXAMINER DELCOTTO, GREGORYR ART UNIT PAPER NUMBER 1761 NOTIFICATION DATE DELIVERY MODE 10/03/2016 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): centraldocket.im @pg.com pair_pg@firsttofile.com mayer.jk@pg.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte SUSANA FERNANDEZ-PRIETO, ISABELLE OUIMET, REGINE LABEQUE, WALTER AUGUST MARIA BROECKX, and JOHAN SMETS Appeal2015-005411 Application 13/602,584 Technology Center 1700 Before JAMES C. HOUSEL, MONTE T. SQUIRE, and JENNIFER R. GUPTA, Administrative Patent Judges. SQUIRE, Administrative Patent Judge. DECISION ON APPEAL Appellants 1 appeal the Examiner's final rejection of claims 1-18 under 35 U.S.C. § 134(a). We have jurisdiction under 35 U.S.C. § 6(b). For the reasons set forth below, we AFFIRM. 1 Appellants identify The Proctor & Gamble Company of Cincinnati, Ohio as the Real Party in Interest. App. Br. 1. Appeal2015-005411 Application 13/602,584 The Claimed Invention Appellants' disclosure relates to water-soluble unit dose articles that are stable even when comprising high water levels. Spec. 1, 11. 4--5. Claim 1 is representative of the claims on appeal and is reproduced below from the Claims Appendix to the Appeal Brief (App. Br. 7): 1. A unit dose article comprising a water soluble film encapsulating a fluid composition, wherein the fluid composition comprises: a. a di-amido gellant; and b. from about 13% to about 50% by weight of water. The References The Examiner relies on the following references in rejecting the claims on appeal: Fernandez Prieto et al., US 8,168,579 B2 May 1, 2012 (hereinafter "' 5 7 9 patent") Fernandez Prieto et al., US 8,222,197 B2 July 17, 2012 (hereinafter"' 197 patent") Fernandez Prieto et al., US 8,309,507 B2 Nov. 13, 2012 (hereinafter "'507 patent") The Rejections On appeal, the Examiner maintains the following rejections: Claims 1-18 stand rejected under pre-AIA 35 U.S.C. § 102(e) as being anticipated by the '579 patent, the' 197 patent, or the '507 patent. OPINION Having considered the respective positions advanced by the Examiner and Appellants in light of this appeal record, we affirm the Examiner's rejections for the reasons set forth in the Answer to the Appeal Brief dated 2 Appeal2015-005411 Application 13/602,584 March 11, 2015, which we adopt as our own. Nevertheless, we highlight and address specific findings and arguments for emphasis as follows. Rejection of Claims 1-18 under pre-AJA U.S.C. § 102(e) as being Anticipated by the '579 Patent or the '507 Patent Appellants argue claims 1-18 as a group.2 We select claim 1 as representative of this group, and the remaining claims stand or fall with claim 1. 37 C.F.R. § 41.37( c )(1 )(iv). The Examiner finds that the '579 patent discloses all of claim 1 's limitations and rejects claim 1 as being anticipated by the reference. Ans. 2- 4 (citing '579 patent, Abstract, col. 2, 11. 25---69, col. 4, 11. 40---69, col. 12, 11. 45---69, col. 19, 11. 1-35, col. 13, 11. 45-65, col. 21, 11. 1-15, col. 24, 1. 45---col. 25, 1. 35, col. 27, 11. 1--45, col. 29, 1. 65---col. 30, 1. 20, col. 33, Example 2, and claims 1-11). Appellants argue that the Examiner's rejection should be reversed because the cited references "do not teach each and every element of the rejected claims in the requisite level of detail" and "do not show the elements 'arranged as required by the claim."' App. Br. 2 and 3. In particular, Appellants argue that "the '579 patent does not show with the requisite 'complete detail' concentrated detergents comprising from 15% to 45% of water ... that are encapsulated in a water-soluble film" and, relying on Example 2 of the '579 patent, that "the water levels [disclosed] are less than presently claimed." Id. at 3, 4. 2 Because the disclosures of the '579 patent and the '507 patent are identical and for the sake of brevity, Appellants' arguments focus on the '579 patent but equally apply to the '507 patent. App. Br. 2 and 3. Accordingly, we limit our discussion to the '579 patent, and the Examiner's rejection based on the '507 patent stands or falls with the rejection based on the '579 patent. 3 Appeal2015-005411 Application 13/602,584 We are not persuaded by Appellants' arguments. To serve as an anticipatory reference, "the reference must disclose each and every element of the claimed invention, whether it does so explicitly or inherently." In re Gleave, 560 F.3d 1331, 1334 (Fed. Cir. 2009). Based on the record before us, the Examiner's finding (Ans. 4) that the '579 patent discloses each and every element of claim 1, including a fluid composition comprising "from about 13 % to about 50% by weight of water" and "a water soluble film encapsulating a fluid composition" is supported by a preponderance of the evidence. '579 patent, Abstract, col. 2, 11. 25---69, col. 4, 11. 40---69, col. 12, 11. 45---69, col. 19, 11. 1-35, col. 13, 11. 45- 65, col. 21, 11. 1-15, col. 24, 1. 45---col. 25, 1. 35, col. 27, 11. 1--45, col. 29, 1. 65---col. 30, 1. 20, col. 33, Example 2, and claims 1-11. As the Examiner found (Ans. 3), the '579 patent explicitly discloses that the fluid detergent composition may be dilute or concentrated aqueous liquids, and may contain "from 10 to 50%" and more preferably "from 15% to 45% by weight [of] water." '579 patent, col. 19, 11. 33-35. As the Examiner further found (Ans. 3, 4), the '579 patent explicitly discloses that "the fluid detergent composition is enclosed within a water soluble pouch material," as claimed. '579 patent, col. 29, 1. 66---col. 30, 1. 1. We discern no reversible error in the Examiner's analysis and factual findings in this regard. We do not find Appellants' argument regarding Example 2 of the '579 patent persuasive because the '579 patent's teachings are not limited to the disclosures in its examples or preferred embodiments. See In re Mills, 470 F.2d 649, 651(CCPA1972) ("[A] reference is not limited to the disclosure of specific working examples."); see also Merck & Co., Inc. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989). 4 Appeal2015-005411 Application 13/602,584 Moreover, we concur with the Examiner's findings (Ans. 6) that the prior art discloses the identical invention in as complete detail" and in the same arrangement as is contained in the instant claims and that, based on the prior art's teaching that the fluid detergent preferably contains from 15% to 45% by weight of water ('579 patent, col. 19, 11. 33-35), one of ordinary skill in the art would immediately envisage or readily ascertain the claimed invention, particularly the limitation that the fluid composition comprises from about 13% to about 50% by weight of water. See Kennametal, Inc. v. Ingersoll Cutting Tool Co., 780 F.3d 1376, 1381 (Fed. Cir. 2015) (explaining that even if a prior art reference does not expressly spell out all the limitations arranged as in the claim, the reference still anticipates if one of ordinary skill in the art could "at once envisage the claimed arrangement or combination"). Appellants' conclusory arguments, without more, are insufficient to rebut or otherwise establish reversible error in the Examiner's conclusion and findings in this regard. In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984). Accordingly, we affirm the Examiner's rejections of claims 1-18 under pre-AIA 35 U.S.C. § 102(e) as being anticipated by the '579 patent or the '507 patent. Rejection of Claims 1-18 under pre-AJA U.S.C. § 102(e) as being Anticipated by the '197 Patent Appellants argue claims 1-18 as a group. We, therefore, select claim 1 as representative of this group, and the remaining claims stand or fall with claim 1. 37 C.F.R. § 41.37(c)(l)(iv). The Examiner finds that the '197 patent discloses all of claim 1 's limitations and rejects claim 1 as being anticipated by the reference. Ans. 2, 4, 5 (citing '197 patent, Abstract, col. 2, 11. 25---69, col. 4, 11. 40---69, col. 5, 11. 5 Appeal2015-005411 Application 13/602,584 1--40, col. 20, 11. 1-35, col. 19, 11. 1-25, col. 21, 11. 1-15, col. 22, 1. 1-15, col. 25, 1. 45---col. 26, 1. 35, col. 28, 11. 1--45, col. 30, 1. 50-col. 31, 1. 20, col. 33, Example 2, and claims 1-11). In response to this rejection, Appellants repeat essentially the same arguments presented above in response the Examiner's rejections based on the '579 and '507 patents. App. Br. 4, 5. In particular, Appellants argue that the Examiner's rejection should be reversed because "the' 197 patent does not teach each and every element of the rejected claims in the requisite level of detail" and "does not show the elements 'arranged as required by the claim."' Id. Appellants also argue that the '197 patent does not "disclose such fluid detergents encapsulated by water soluble film" as recited in the claim and that "the only time the '197 patent directly relates water levels to a composition encapsulated by water-soluble film, the water levels are less than the presently claimed levels." Id. at 5. Because the '197 patent specification's disclosures are similar to those of the '579 and '507 patents' specifications, we are not persuaded by Appellants' arguments in response to the Examiner's rejection based on the '197 patent for largely the same reasons discussed above in affirming the Examiner's rejections based on the '579 and '507 prior art patents. In particular, we find that the Examiner's finding (Ans. 5) that the ' 197 patent discloses each and every element of claim 1, including a fluid composition comprising from about 13 % to about 50% by weight of water and a water soluble film encapsulating a fluid composition is supported by a preponderance of the evidence. '197 patent, Abstract, col. 2, 11. 25---69, col. 4, 11. 40---69, col. 5, 11. 1--40, col. 20, 11. 1-35, col. 19, 11. 1-25, col. 21, 11. 1- 15, col. 22, 1. 1-15, col. 25, 1. 45---col. 26, 1. 35, col. 28, 11. 1--45, col. 30, 1. 50-col. 31, 1. 20, col. 33, Example 2, and claims 1-11. 6 Appeal2015-005411 Application 13/602,584 Accordingly, we affirm the Examiner's rejection of claims 1-18 under pre-AIA 35 U.S.C. § 102(e) as being anticipated by the' 197 patent. DECISION/ORDER The Examiner's rejections of claims 1-18 under pre-AIA 35 U.S.C. § 102(e) as being anticipated by the '597 patent, the' 197 patent, or the '507 patent 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 7 Copy with citationCopy as parenthetical citation