11573695 (B.P.A.I. Nov. 22, 2011)

Ex Parte Fregonese

Board of Patent Appeals and InterferencesNov 22, 2011

11573695 (B.P.A.I. Nov. 22, 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. 11/573,695 04/27/2007 Daniele Fregonese 10792-685 (11491P4 US) 4984 27389 7590 11/22/2011 PARFOMAK, ANDREW N. NORRIS MCLAUGHLIN & MARCUS PA 875 THIRD AVE, 8TH FLOOR NEW YORK, NY 10022 EXAMINER ASDJODI, MOHAMMAD REZA ART UNIT PAPER NUMBER 1763 MAIL DATE DELIVERY MODE 11/22/2011 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 DANIELE FREGONESE ______________ Appeal 2011-000823 Application 11/573,695 Technology Center 1700 _______________ Before CHARLES F. WARREN, CATHERINE Q. TIMM, and MICHAEL P. COLAIANNI, Administrative Patent Judges. WARREN, Administrative Patent Judge. DECISION ON APPEAL Applicant appeals to the Board from the decision of the Primary Examiner finally rejecting claims 1-20 in the Office Action mailed November 13, 2009. 35 U.S.C. §§ 6 and 134(a) (2002); 37 C.F.R. § 41.31(a) (2009). An oral hearing was held November 10, 2011.1 1 An appeal, whether on brief or heard, is decided on the record. 37 C.F.R. § 41.37(c)(1)(vii) (2006) provides in pertinent part: “Any arguments or authorities not included in the brief or reply brief filed pursuant to § 41.41 will be refused consideration by the Board, unless good cause is shown.” Appeal 2011-000823 Application 11/573,695 2 We affirm the decision of the Primary Examiner. Claim 1 illustrates Appellant’s invention of a multi-chamber bottle comprising a liquid bleach composition in one chamber and a bleach sensitive formulation in another chamber, and is representative of the claims on appeal: 1. A multi-chamber bottle comprising in one chamber a liquid bleach composition and in another chamber a bleach sensitive formulation, the viscosity of the bleach composition being controlled by an admixture of thickener and a hydrocarbon, and the density of the bleaching composition being controlled by the presence of an ionic salt. Appellant requests review of the grounds of rejection under 35 U.S.C. § 103(a) advanced on appeal by the Examiner: claims 1-14 and 16-20 over Murray (US 2002/0074347 A1) in view of Schmiedel (US 2006/0178285 A1); and claim 15 Murray and Schmiedel, further in Muehlhausen (US 2005/0139608 A1). App. Br. 3; Ans. 3 and 4. Appellant argues the ground of rejection on the claims as a group, and relies on the same position with respect to the second ground of rejection. App. Br. 4-7. Thus, we decide this appeal based on claim 1. 37 C.F.R. § 41.37(c)(1)(vii) (2009). Opinion The principal issue in this appeal is whether Appellant has established that the Examiner erred in combining Murray and Schmiedel and concluding that the combination would have led one of ordinary skill in the art to modify Murray’s aqueous flowable bleach composition, in compartment 2 of Murray’s multi-chamber bottle, by adding thereto paraffin oil and sodium See also Manual of Patent Examining Procedure (MPEP) §§ 1205.02 and 1209 (8th ed., Rev. 3, August 2005; 1200-14 and 1200-48). Appeal 2011-000823 Application 11/573,695 3 sulphate as taught by Schmiedel for aqueous liquid washing compositions, thus arriving at a multi-chamber bottle encompassed by claim 1. Ans. 3-4 and 5-6; App. Br. 4-6; Reply Br. 1-3. We are of the opinion Appellant’s arguments do not establish that the evidence in the totality of the record weighs in favor of the nonobviousness of the claimed liquid bleach composition in one of the chambers of a multi-chamber bottle encompassed by claim 1 over the combined teachings of Murray and Schmiedel applied by the Examiner. We initially interpret the plain language of claim 1 to specify that one chamber of the multi-chamber bottle contains any manner of liquid bleach composition that contains an admixture of any thickener and any hydrocarbon, which affects the viscosity of the liquid bleach composition to any extent, and any ionic salt, which affects the density of the liquid bleach composition to any extent. Claim 1 does not specify the extent to which the viscosity and density is “controlled” by these ingredients. We interpret the claim term “admixture” to specify that the thickener and hydrocarbon are added to the composition as a mixture. The plain language of claim 1 specifies that another chamber of the multi-chamber bottle contains any manner of bleach sensitive composition. Appellant does not dispute the Examiner’s finding that Murray would have disclosed to one of ordinary skill in the art a multi-chamber bottle having in compartment 2 a flowable composition that contains the bleaching agent phtaloyamido peroxycaprioc acid (PAP)2 and the thickener xanthan gum. Ans. 3, citing Murray ¶ 0062; App. Br. 4. Appellant also does not 2 PAP is also named 6-phthalimidopercapric acid and 6-phthalimido- perhexanoic acid. See, e.g., Schmiedel ¶0030. Appeal 2011-000823 Application 11/573,695 4 dispute the Examiner’s findings that Schmiedel would have disclosed to one of ordinary skill in the art using hydrocarbon paraffin and the ionic salt sodium sulphate in a bleach composition. Ans. 3-4, citing Schmiedel ¶¶ 0032 and 0062; App. Br. 4. Appellant submits that one of ordinary skill in the art would not look to Schmiedel to modify Murray’s liquid bleach composition because Schmiedel is not “working with a liquid bleach” but with a suspension of “solid bleach particles in a gel capsule.” App. Br. 4-5 and 6. Appellant contends that one of ordinary skill in the art would have had no “expectation of success when combining a paraffin into a liquid bleach composition,” arguing that Appellant found it “surprising that the control agents, i.e., hydrocarbons, permitted equal or appropriate release of each of the formulations is achieved even if stored for long periods of time.” App. Br. 6. We cannot subscribe to Appellant’s position. We find that Appellant, like Schmiedel, describes PAP as a solid that is used in bleach compositions as solid particles. Schmiedel ¶0030; Spec. 3:10-16. We further find that Schmiedel would have disclosed to one of ordinary skill in the art that PAP particles are added to an admixture of an oil phase, which can be paraffin oil, and a thickener, which can be xanthan gum, to which water is added forming a composition in which a matrix medium containing the PAP particles can form such that the PAP particles are incorporated in, encapsulated by, or coated with the oil phase/stabilizer-gel matrix, wherein the composition can be used without removing the water and drying the particles, to which sodium sulphate can be added. Schmiedel ¶¶ 0023, 0024, 0026-0029, 0032 0033, 0057, 0058, 0062, and 0063. We find Schmiedel Appeal 2011-000823 Application 11/573,695 5 discloses that the thus formed compositions contain particles in storage stable form, and can be used as bleaching agents in washing and cleaning agents. Schmiedel, e.g., ¶¶ 0004 and 0014. Thus, on this record, Schmiedel would have taught one of ordinary skill in the art a composition containing an admixture of the hydrocarbon paraffin oil and the thickener xanthan gum, PAP particles, the ionic salt sodium sulphate, and water, thus forming a storage stable liquid bleach composition, which is all that the claimed liquid bleaching composition in claim 1 requires, regardless of subsequent interaction between these ingredients. See, e.g., Exxon Chem. Pats., Inc. v. Lubrizol Corp., 64 F.3d 1553, 1556-58 (“Consequently, as properly interpreted, Exxon’s claims are to a composition that contains the specified ingredients at any time from the moment at which the ingredients are mixed together.”). Accordingly, contrary to Appellant’s position, the combined teachings of Murray and Schmiedel would have reasonably suggested to one of ordinary skill in the art that modifying Murray’s flowable composition in compartment 2 by including paraffin oil and sodium sulphate therein would result in a composition containing an admixture of the thickener xanthan gum and the hydrocarbon paraffin oil, PAP particles, the ionic salt sodium sulphate, and water which is a storage stable liquid bleach composition as taught by Schmiedel, thus arriving at the claimed multi-chamber bottle encompassed by claim 1. We determine that one of ordinary skill in the art would have reasonably observed that the addition of paraffin and sodium sulphate to Murray’s flowable composition as taught by Schmiedel would affect the viscosity and density of the modified composition, and would have adjusted the concentration of the ingredients for Murray’s purposes of Appeal 2011-000823 Application 11/573,695 6 dispensing flowable compositions from the compartments of the multi- chamber bottle in a 1:1 ratio under the influence of gravity, as the Examiner contends: Ans. 4-5. Murray ¶¶ 0003 and 0059. In this respect, we interpreted claim 1 to encompass control of the viscosity and density of the liquid bleach composition to any extent by these ingredients. See above p. 3. A discussion of Muehlhausen is not necessary to our decision.3 Accordingly, based on our consideration of the totality of the record before us, we have weighed the evidence of obviousness found in the combined teachings of Murray and Schmiedel alone, and as further combined with Muehlhausen, with Appellant’s countervailing evidence of and argument for nonobviousness and conclude, by a preponderance of the evidence and weight of argument, that the claimed invention encompassed by appealed claims 1-20 would have been obvious as a matter of law under 35 U.S.C. § 103(a). The Primary 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)(1)(iv). AFFIRMED cam 3 We have not considered the patent documents cited at page 6 of the Answer which have not been included in the statements of the grounds of rejection advanced on appeal. See In re Hoch, 428 F.2d 1341, 1342 n. 3, (CCPA 1970); cf. Ex parte Raske, 28 USPQ2d 1304, 1304-05 (BPAI 1993).