Ex Parte Frankenbach

Board of Patent Appeals and Interferences

May 14, 2010

11252654 (B.P.A.I. May. 14, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte GAYLE MARIE FRANKENBACH
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Appeal 2009-013978
Application 11/252,654
Technology Center 1700
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Decided: May 14, 2010
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Before CATHERINE Q. TIMM, KAREN M. HASTINGS, and
JEFFREY B. ROBERTSON, Administrative Patent Judges.

TIMM, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF CASE
Appellant appeals under 35 U.S.C. § 134 from the Examiner’s
decision to reject claims 1-7 under 35 U.S.C. § 103(a) as unpatentable over
Baker (US 6,268,332 B1, issued Jul. 31, 2001) and to reject claims 8-10
under 35 U.S.C. § 103(a) as unpatentable over Baker in view of Grimm (US
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2002/0155983 A1; published Oct. 24, 2002). We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
Appellant’s invention relates to a concentrated fabric softener active
(FSA) composition (Spec. 3:1). Claim 1 is illustrative:
1. A composition comprising: (a) from about 85% to
about 95% by weight of the composition of a quaternary
ammonium compound suitable for softening fabric; and (b)
from 5% to 30% by weight of the composition of a solvent
comprising a Clog P of from about -2 to about 2;
wherein the compound comprises a monoester
component and a diester component;
wherein the weight ratio of the monoester to the diester
component is from about 15:85 to about 40:60 by the total
weight of the quaternary ammonium compound, respectively;
wherein the Iodine Value ("IV") of the quaternary
ammonium compound is from about 1 to about 60;
wherein the composition comprises less than 5% by
weight of the composition of water; and
wherein the composition comprises less than 5% by
weight of the composition of a detergent surfactant.
Appellant argues claims 1-7 as a group (Br. 3-5). We select
independent claim 1 to represent the group of rejected claims.
ISSUE ON APPEAL
An issue on appeal arising from the contentions of Appellant and
the Examiner is: did the Examiner reversibly err in concluding that a
composition having, among other components, “about 85% to about 95% by
weight of the composition of a quaternary ammonium compound” and “less
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than 5% by weight of the composition of water” would have been obvious
to one of ordinary skill in the art based on the teachings of Baker?
FACTUAL FINDINGS
1. Baker teaches a fabric softener composition having the following
components:
a) from about 1% to about 80% by weight, of a fabric softening
active;
b) less than about 15% by weight, of a principal solvent, said
principal solvent having a ClogP of from about 0.15 to about 1;
c) from about 0.5% to about 10% by weight, of a
polyoxyalkylene alkyl amide surface active agent . . . ; and
d) the balance carriers and adjunct ingredients.
(Baker, col. 1, ll. 11-13 and col. 1, l. 59 to col. 2, l. 18).
2. Baker provides examples having concentrations of fabric softening
active compound of no greater than 36% by weight and having balance of
water substantially greater than 5% by weight (Baker, col. 25, Tables I-III).
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'l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). The question to be
asked is “whether the improvement is more than the predictable use of prior
art elements according to their established functions.” KSR, 550 U.S. at 417.
ANALYSIS
Appellant contends that there is no motivation for one skilled in the
art to look to “about 85%” based on the teachings of Baker of “about 1% to
about 80%” (Br. 4). The Examiner responds that the term “about” is not
defined in Appellant’s Specification with any specificity and that one of
ordinary skill in the art would expect similar properties at 80% and 85%, as
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both are directed towards concentrated fabric softening compositions (Ans.
5-6). We agree with the Examiner’s reasoning.
The use of a concentration as high as 85% would have been no more
than the predictable use of the fabric softening agent according to its
established functions and well within the skill of the ordinary artisan based
on the teachings of Baker. After all, “[a] person of ordinary skill is also a
person of ordinary creativity, not an automaton.” KSR, 550 U.S. at 421.
Appellant asserts that Baker is not directed to a highly concentrated
fabric softening composition, since Baker’s examples disclose no greater
than 36% by weight of the softener active (Br. 4; Reply Br. 2-3). However,
disclosed examples do not constitute a teaching away from Baker’s broader
disclosure of “about 80%” (FF 1). See In re Susi, 440 F.2d 442, 446 n.3
(CCPA 1971). Appellant has not shown any critical or unexpected
properties that occur at concentrations between 80% and 85%. To the
contrary, Appellant’s Specification discloses a broad teaching of fabric
softening active concentrations in a range from at least about 20% to less
than 100% (Spec. 4:15-20) and examples of a fabric softening agent of no
greater than 75% (Spec. 35:29, Examples A-I).
Appellant also contends that there is no motivation to arrive at a
composition with less than 5% water, since Baker is silent as to the inclusion
of water and each of Baker’s examples include concentrations of water
significantly higher than 5% by weight (Br. 5). The Examiner responds that
Baker includes a broader teaching in which a person of ordinary skill in the
art could make fabric softening compositions with amounts summing to
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100% of fabric softener, surfactant, organic solvents, and carriers and
adjunct ingredients which contain no water (Br. 6). We agree.
The disclosure of Baker includes broad concentrations ranges, such
that it discloses at least one composition that comprises 100% by weight of
components other than water (FF 1). Appellant presents no rationale to
rebut the Examiner findings, which we otherwise consider reasonable.
Accordingly, the Examiner did not reversibly err in concluding that a
composition having, among other components, “about 85% to about 95% by
weight of the composition of a quaternary ammonium compound” and “less
than 5% by weight of the composition of water” would have been obvious to
one of ordinary skill in the art based on the teachings of Baker.
Although dependant claims 8-10 stand rejected separately from claims
1-7, Appellant provides no arguments in addition to the arguments made
with respect to claims 1-7 (Br. 5). Thus, we sustain the rejection of claims
8-10 for the same reasons as presented above.
IV. CONCLUSION
On the record before us1 and for the reasons discussed above, we
sustain the rejections maintained by the Examiner.
V. DECISION
We affirm the Examiner’s decision.

1Only those arguments actually made by Appellant have been considered in
this decision. Arguments which Appellant could have made but chose not to
make have not been considered and are deemed to be waived. See 37 C.F.R.
§ 41.37(c)(1)(vii) (2008).
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VI. TIME PERIOD FOR RESPONSE
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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