Ex Parte Gohl et al

Board of Patent Appeals and Interferences

Sep 26, 2011

10345090 (B.P.A.I. Sep. 26, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte DAVID W. GOHL, KIM R. SMITH,
JOSH KASSANCHUK and BRANDON CARLSON
____________

Appeal 2010-004947
Application 10/345,090
Technology Center 1700
____________

Before PETER F. KRATZ, CATHERINE Q. TIMM, and BEVERLY A.
FRANKLIN, Administrative Patent Judges.

KRATZ, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on an appeal under 35 U.S.C. § 134 from the
Examiner’s final rejection of claims 1, 14-19, 21-23, 25, 32-33, 37, 42, and
43. We have jurisdiction pursuant to 35 U.S.C. § 6.

App
App

deter
parti
relat
(b) w
comp
surfa
and r
eal 2010-0
lication 10
Appellan
gent comp
culate com
ive to the t
ater, (c) a
onent com
ctants. Th
atios.
Claim 1
1. A str
(a) ab
comp
a mix
branc
nonio
to ab
(b) ab
comp
propo
follow
04947
/345,090
ts’ claime
osition. T
ponent su
otal amou
specified
prising a
e surfacta
is illustrat
uctured liq
out 1 wt%
onent, wh
ture of a f
hed nonio
nic surfac
out 1:16;
out 1 wt%
onent, wh
xylated qu
ing form
d inventio
he compo
ch as a bu
nt of the b
cationic su
mixture o
nts are req
ive and rep
uid deterg
to about
erein the n
irst, linear
nic surfact
tant to the
to about
erein the c
aternary a
ula:
2
n is direct
sition com
ilder or seq
elow ident
rfactant a
f linear and
uired to be
roduced b
ent compo
80 wt% of
onionic su
nonionic
ant, where
second no
20 wt% of
ationic sur
mmonium
ed to a stru
prises (a)
uestrant i
ified surfa
nd (d) a no
branched
present i
elow:
sition com
a nonioni
rfactant c
surfactant
in the wei
nionic sur
a cationic
factant co
surfactan
ctured liq
a suspend
n a specifi
ctant com
n-ionic su
non-ionic
n specified
prising:
c surfactan
omponent
and a seco
ght ratio o
factant is
surfactan
mponent c
t having th
uid
ed solid
ed amount
ponents,
rfactant

amounts
t
comprises
nd,
f the first
about 1:4
t
omprises
e

a

Appeal 2010-004947
Application 10/345,090

3
wherein R1, R2, R3 are alkyl groups having 1 to 4 carbons and R4
is a polyoxyalkylene group;
(c) about 5 wt% to about 94 wt% water; and
(d) at least about 5 wt% of a suspended solid particulate
component;
wherein the weight ratio of the nonionic surfactant component to
the cationic surfactant component is about 1:1 to about 8:1 and the
structured liquid detergent composition has a conductivity of less
than about 30 mS/cm.
The Examiner relies on the following prior art references as evidence
in rejecting the appealed claims:
Zen 5,723,426 Mar. 3, 1998
Houghton EP 510762 Oct. 28, 1992
Baillely WO98/04668 Feb. 5, 1998

Claims 1, 14-19, 21-23, 25, 32, 33, 37, 42, and 43 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over Zhen in view of Houghton
and Baillely.
We reverse the stated rejection.
A dispositive issue on appeal can be stated as:
Has the Examiner established that the teachings of Houghton and
Baillely taken together with Zhen would have prompted one of ordinary skill
in the art to modify the aqueous liquid detergent of Zhen to include a
propoxylated quaternary ammonium compound of a formula that
corresponds to the quaternary ammonium compound required by the
appealed claims together with the required nonionic surfactant mixture and
in amounts as required by any of the appealed claims (see independent
claims 1 and 23)?
We answer this question in the negative.
Appeal 2010-004947
Application 10/345,090

4
All of the appealed claims require Appellants’ structured liquid
detergent to include a particular propoxylated quaternary ammonium
surfactant of a formula wherein three alkyl groups containing one through
four carbon atoms are attached to a quaternary nitrogen together with a
fourth polyoxyalkylene group, a nonionic surfactant component that includes
linear and branched nonionic surfactants, water and a solid that is suspended
as part of the recited structured liquid detergent (see claims 1 and 23, the two
independent claims on appeal).
In maintaining the obviousness rejection that is before us for review
on appeal, the Examiner recognizes that Zhen does not disclose a liquid
detergent that includes all of the claimed components. The Examiner states
that (Ans. 4):
Zhen et al do not teach the use of a suspended solid
particulate, a propoxylated quaternary ammonium surfactant,
or a cleaning composition containing a linear nonionic
surfactant, a branched nonionic surfactant, a propoxylated
quaternary ammonium cationic surfactant, a suspended solid
particulate component, water, and the other requisite
components of the composition in the specific amounts as
recited by the instant claims.

Concerning the required cationic and nonionic surfactant requirements
of the appealed independent claims 1 and 23, the Examiner principally relies
on Baillely to allegedly teach the claimed surfactants and argues that it
would have been obvious to one of ordinary skill in the art to modify Zhen’s
liquid detergent with the cationic and nonionic surfactants taught by Baillely
Appeal 2010-004947
Application 10/345,090

5
(Ans. 6-9).1 In so doing, the Examiner asserts that Baillely (‘668) discloses
that:
Suitable cationic surfactants include cationic mono and bis-
alkoxylated amine surfactants which may contain 1 to about
30 ethoxylated groups. See page 15, lines 10-30. The levels
of the cationic mono-alkoxylated surfactants used in the
compositions can range from 0.1% to 20% by weight of the
composition. Suitable monoalkoxylated cationic surfactants
include ethoxylated or propoxylated cationic surfactants in
which two R groups are methyl and one R group is an alkyl
group containing from about 6 to about 18 carbon atoms. See
page 15, lines 1-20. Note that, the Examiner asserts that a
"about 6" would encompass an alkyl group containing 4
carbon atoms as recited by the instant claims. Alternatively,
even if "about 6" as taught by '668 does not encompass 4
carbon atoms as recited by the instant claims, which the
Examiner clearly is not conceding, the Examiner asserts that
one of ordinary skill in the art would have a reasonable
expectation of success to formulate the monoalkoxylated
surfactant of '668 containing a third R group having 4 carbon
atoms from a teaching of "about 6" by '668 due to an
expectation of similar properties at when using an alkyl
group containing "about 6" carbon atoms as compared to an
alkyl group containing 4 carbon atoms. Note that, a prima
facie case of obviousness exists where the claimed ranges
and prior art ranges do not overlap but are close enough that
one skilled in the art would have expected them to have the
same properties. Titanium Metals Corp. of America v.
Banner, 778 F.2d 775, 227 USPQ 773 (Fed. Cir. 1985).

1 The Examiner relies on the other applied reference, Houghton, for
allegedly teaching, inter alia, the use of suspended particulates comprising
silicates and peroxygen compounds in a non-aqueous liquid cleaning
product, which the Examiner argues would have been obvious to one of
ordinary skill in the art to employ in Zhen (Ans. 4, paragraph bridging 7 and
8).
Appeal 2010-004947
Application 10/345,090

6
However, as argued by Appellants, the Examiner has not reasonably
established that Baillely discloses the use of a propoxylated quaternary
ammonium surfactant of a formula wherein three alkyl groups containing
one through four carbon atoms are attached to a quaternary nitrogen together
with a fourth polyoxyalkylene group, which surfactant can be used as the
cationic surfactant of Zhen’s liquid detergent by referencing the about 6 to
about 18 carbon atom alkyl group disclosure of Baillely with respect to an
“R1” group that is attached to the nitrogen of the amine surfactant of Baillely
(Br. 6-7; Ans. 6-9; Baillely, p. 14). As basically argued by Appellants, the
Examiner has not established that the about 6 carbon atom lower limit for
this disclosed R1 group of Baillely’s cationic surfactant would have been
understood by one of ordinary skill in the art as teaching or suggesting that a
four carbon atom alkyl group should be employed there (Br. 6). We
recognize that Baillely discloses 6 or about 6 carbon atoms as a lower limit
for this alkyl group for the preferred and most preferred carbon atom range
limits for this substituent of the alkoxylated amine surfactant (Baillely, pp.
14 and 15). However, this disclosure has not been shown by the Examiner
to provide a viable reason for one of ordinary skill in the art to expect that a
four carbon atom alkyl group was included by the “about” term in the given
ranges or was included as an equivalent thereby (Br. 6; Baillely, p 14).2

2 Appellants further substantiate there argument by references to a
Declaration pursuant to 37 C.F.R. §1.132 of Kim R. Smith. However, we do
not further discuss this Declaration as the Examiner has not carried the
initial burden of substantiating that the asserted range of carbon atoms in the
alkyl moiety of Baillely with a disclosed lower limit of six carbon atoms or
about six carbon atoms would have been understood by one of ordinary skill
in the art as including a four carbon alkyl group, in the first instance.
Appeal 2010-004947
Application 10/345,090

7
Indeed, Baillely makes it clear when a lower carbon limit is being disclosed.
For example Baillely discloses a C1-C4 alkoxy group (P. 14, l. 14).
The Examiner has not proffered a sustainable rationale explaining
why one of ordinary skill in the art would have been prompted by Baillely in
combination with Zhen to employ an alkoxylated amine cationic surfactant
with a lower carbon atom alkyl group R1 than that disclosed by Baillely
(with selections for the other attached groups of the cationic amine
surfactant of Baillely so as to match the claimed requirements for
Appellants’ claimed cationic surfactant) as a substitute surfactant for the
cationic surfactant disclosed by Zhen, while employing such a substitute
surfactant in a relative amount as claimed at by Appellants. This is because
the asserted equivalence of these surfactants in a similar composition being
taught by Baillely, as advocated by the Examiner as a reason for the
substitution, is not substantiated by our review of Baillely, as discussed
above, or by any references to Zhen made by the Examiner (see generally
Ans.). In this regard, we further note that Baillely appears to be primarily
directed to formulating a granular product with Baillely’s preferred
formulations, not a liquid detergent of the type disclosed by Zhen (Baillely,
p. 15, ll. 1-4 and p.41, ll. 5-9). In this regard, the Examiner has not directed
us to any information in Baillely that teaches a particular cationic mono-
alkoxylated amine surfactant for use in a structured liquid detergent.
Given the above-noted deficiencies in the presentation set forth by the
Examiner with respect to establishing the obviousness of formulating Zhen’s
detergent with a cationic surfactant in a manner corresponding to
Appellants’ detergent, we need not further burden the record with a
discussion of the other argued deficiencies in the Examiner’s attempt at
Appeal 2010-004947
Application 10/345,090

8
establishing the obviousness of certain other claimed detergent limitations,
such as the ratio of the first nonionic surfactant to the second nonionic
surfactant, as called for in claim 1 (Br. 8).
After all, “rejections on obviousness grounds cannot be sustained by
mere conclusory statements; instead, there must be some articulated
reasoning with some rational underpinning to support the legal conclusion of
obviousness” being asserted. In re Kahn, 441 F.3d 977, 988 (Fed. Cir.
2006) (quoted with approval in KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398,
418 (2007)). Rejections based on § 103(a) must rest on a factual basis with
these facts being interpreted without hindsight reconstruction of the
invention from the prior art. See In re Warner, 379 F.2d 1011, 1017 (CCPA
1967).
On this record, we reverse the Examiner’s obviousness rejection of
the appealed claims.

REVERSED

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