Ex Parte FrankenbachDownload PDFBoard of Patent Appeals and InterferencesMay 14, 201011252654 (B.P.A.I. May. 14, 2010) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________________ Ex parte GAYLE MARIE FRANKENBACH ____________________ Appeal 2009-013978 Application 11/252,654 Technology Center 1700 ____________________ Decided: May 14, 2010 ____________________ 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 Appeal 2009-013978 Application 11/252,654 2 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 Appeal 2009-013978 Application 11/252,654 3 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 Appeal 2009-013978 Application 11/252,654 4 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 Appeal 2009-013978 Application 11/252,654 5 100% 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). Appeal 2009-013978 Application 11/252,654 6 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 cam THE PROCTER & GAMBLE COMPANY Global Legal Department - IP Sycamore Building - 4th Floor 299 East Sixth Street Cincinnati, OH 45202 Copy with citationCopy as parenthetical citation