Ex Parte Hardy

Patent Trial and Appeal Board

Feb 3, 2017

13993093 (P.T.A.B. Feb. 3, 2017)

United States Patent and Trademark Office
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.
13/993,093 06/11/2013 Eugene E. Hardy 9197-00-HC 7847
23909 7590 02/07/2017
COLGATE-PALMOLIVE COMPANY
909 RIVER ROAD
PISCATAWAY, NJ 08855
EXAMINER
OGDEN JR, NECHOLUS
ART UNIT PAPER NUMBER
1761
NOTIFICATION DATE DELIVERY MODE
02/07/2017 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):
Paten t_Mail @ colpal. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte EUGENE E. HARDY
Appeal 2016-001673
Application 13/993,093
Technology Center 1700
Before JEFFREY B. ROBERTSON, GEORGE C. BEST, and
JENNIFER R. GUPTA, Administrative Patent Judges.
ROBERTSON, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1—10, 12, 16—20, 22—33, and 36.1 (Appeal Brief
filed March 16, 2015, hereinafter “App. Br.,” 3—4.) We have jurisdiction
pursuant to 35 U.S.C. § 6(b).
We AFFIRM.
1 Claims 11, 13—15, 21, 34, and 35 have been canceled. (Amendment after
Final Rejection filed November 11, 2014, entered by the Examiner in the
Advisory Action mailed November 19, 2014.)
Appeal 2016-001673
Application 13/993,093
BACKGROUND
Appellant describes a cleaning composition, and in particular, a hand
dishwashing liquid in concentrated form that can be diluted to achieve
desired viscosity properties. (Spec. 15.)
Claim 1, reproduced below, is representative of the subject matter on
appeal.
1. An aqueous, acidic, self-preserving, liquid cleaning
composition comprising
a. a plurality of surfactants, the surfactants including
surfactant active components comprising from greater than 39%
to up to 55% by weight, based on the weight of the
composition, wherein the plurality of surfactants includes
i. an alkyl ethoxy sulfate in an amount from
greater than 30% to up to 50% by weight, based on the weight
of the composition; and
ii. at least one amphoteric surfactant, the total
amphoteric active component comprising from at least 5% to up
to 15% by weight, based on the weight of the composition;
b. at least one acid to provide an initial pH for the
composition of 2.5 to 5, the acid being present in an amount of
1.5% to 3% by weight, based on the weight of the composition;
and
c. solvent;
wherein the composition has a diluted pH of less than or equal
to 5, the composition has an initial viscosity of 80 to 3000 mPas
as measured at 25°C, and the composition is dilutable with
water to form a non-gelling diluted composition having up to
five times the volume of the undiluted composition and a
diluted viscosity within the range of 80 to 3000 mPas as
measured at 25°C at any dilution up to the five times dilution,
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Application 13/993,093
and wherein the solvent is present in a sufficient amount to
provide the composition with the initial viscosity and diluted
viscosity.
(App. Br. 5.)
THE REJECTIONS
(1) The Examiner rejected claims 1—10, 12, 16—20, 22—33, and 362 under
pre—AIA 35 U.S.C. § 103(a) as obvious over Bertho.3 (Final Action mailed
September 11, 2014, hereinafter “Final Act.” 2.)
(2) The Examiner rejected claims 1—10, 12, 16—20, 22—33, and 36 under
pre—AIA 35 U.S.C. § 103(a) as obvious over Szewczyk ’616.4 (Final
Act. 3.)
DISCUSSION
Appellant has not argued the claims separately. Accordingly, we
confine our discussion to appealed claim 1, which contains claim limitations
representative of the arguments made by Appellant pursuant to 37 C.F.R.
§ 41.37(c)(l)(iv) (2013).
2 As referenced above, certain claims were cancelled after the Final Action.
There appears to be a typographical error in the Examiner’s Answer, which
lists claims 1—10, 12, 16—20, 22, 23, and 36 as being subject to the rejections
set forth in the Final Action, thus omitting claims 24—33 from the listing of
claims, where the Examiner did not indicate any rejection had been
withdrawn. (Examiner’s Answer entered September 4, 2015, hereinafter
“Ans.” 2.) We view this error as harmless, as Appellant has listed the claims
subject to the rejections properly in the Appeal Brief. (App. Br. 3, 4.)
3 US 5,057,246, issued October 15, 1991.
4 WO 2009/154616 Al, published December 23, 2009.
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Application 13/993,093
Rejection (1)
The Examiner found, inter alia, that Bertho discloses a concentrated
cleansing composition comprising 10-70% by weight anionic surfactant
including alkyl ether sulfates wherein ammonium lauryl ether sulfate is
preferred. (Final Act. 2.) The Examiner found that Bertho discloses a
supplemental surfactant, which includes amphoteric and zwitterionic
surfactants in an amount of from 0.5 to 20% by weight. (Final Act. 2.) The
Examiner stated that with respect to the proportions of the ingredients,
Bertho discloses proportions that encompass the ranges recited in claim 1
such that it would have been obvious to combine the surfactants, solvents
and acids to the amounts recited in claim 1. (Final Act. 2, see also Advisory
Action mailed November 19, 2014, Continuation Sheet.)
Appellant contends that although Bertho discloses a range of anionic
surfactants from 10 to 70 % by weight, Bertho does not disclose a specific
range for an alkyl ethoxy sulfate of 30 to 50 % by weight as recited in the
claims. (App. Br. 3.) In this regard, Appellant contends that all of the
examples in Bertho disclose percentages of alkyl ethoxy sulfate of at most
8.5 % by weight, and none of the examples show a combination of alkyl
ethoxy sulfate with amphoteric surfactant in the percentages recited in the
claims. (Id.) In addition, Appellant argues that because Bertho exemplifies
weight percentages of alkoxy ethoxy sulfate below the claimed range,
Bertho teaches away from the recited 30 to 50 % by weight. (Id.)
Accordingly, the dispositive issue on appeal for Rejection 1 is:
Has Appellant shown that the Examiner reversibly erred in
determining that it would have been obvious to have formulated a cleaning
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Application 13/993,093
composition including alkoxy ethoxy sulfate in combination with an
amphoteric surfactant in the amounts recited in claim 1 in view of Bertho?
After careful review of the record before us, we are of the view that
Appellant has not shown that the Examiner erred in concluding that it would
have been obvious to have formulated a cleaning composition including
alkoxy ethoxy sulfate in combination with an amphoteric surfactant in the
amounts recited in claim 1 in view of Bertho.
In particular, as the Examiner found, Bertho discloses anionic
surfactants that may be alkyl ethoxy sulfate in amounts of 10 to 70% by
weight, which encompasses the 30 percent by weight to up to 50% by
weight recited in claim 1. (Bertho, col. 5,11. 33—35, 57—64.) In addition,
Bertho discloses amounts of surface active agent viscosity regulator, which
includes amphoteric surfactants such as alkylaminobetaine in amounts of 2
to 20% by weight, which encompasses the 5 to up to 15% by weight recited
in claim 1. (Bertho, col. 4,1. 20 — col. 5,1. 31.) Accordingly, Bertho
discloses both components in ranges that are somewhat broader than the
narrow ranges recited in claim 1.
Appellant does not draw our attention to sufficient evidence that
would demonstrate the amounts recited in the claims would not have been
obvious to one of ordinary skill in the art, such as, for example, evidence of
unexpected results. (Final Act. 3.) Thus, because Bertho discloses amounts
of alkyl ethoxy sulfate and amphoteric surfactant encompassing the range
recited in claim 1, the Examiner did not err in concluding that the amounts
of alkyl ethoxy sulfate and amphoteric surfactant would have been obvious
to one of ordinary skill in the art. In re Peterson, 315 F.3d 1325, 1330 (Fed
Cir. 2003) (“We therefore conclude that a prior art reference that discloses a
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Application 13/993,093
range encompassing a somewhat narrower claimed range is sufficient to
establish a prima facie case of obviousness.”).
As to Appellant’s argument that Bertho does not exemplify
compositions having amounts of alkyl ethoxy sulfate recited in claim 1 and
as a result teaches away from the range recited in the claims, we agree with
the Examiner, that Bertho discloses ranges encompassing those in claim 1,
which even if considered to be non-preferred embodiments, are nevertheless
disclosed in Bertho. (Ans. 6.) See Merck & Co. v. Biocraft Labs., Inc., 874
F.2d 804, 807 (Fed. Cir. 1989) (quoting In re Lamberti, 545 F.2d 747, 750
(CCPA 1976)).
In addition, regarding Appellant’s teaching away argument, “[t]he
prior art’s mere disclosure of more than one alternative does not constitute a
teaching away from any of these alternatives because such disclosure does
not criticize, discredit, or otherwise discourage the solution claimed . . . .”
In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). Here, Bertho does not
criticize, discredit, or otherwise discourage the employing amounts of alkyl
ethoxy sulfate above 8.5% by weight.
Accordingly, we affirm the Examiner’s rejection of the claims based
on Bertho.
Rejection 2
The Examiner found that Szewczyk ’616 discloses a first anionic
surfactant in an amount of 5—20% by weight and a second anionic surfactant
in an amount of 5—18% by weight, as well as a zwitterionic surfactant in an
amount of 2—8% by weight. (Ans. 3.) In this regard the Examiner further
explained that claim 1 recites that the total of the plurality of surfactants is
39% to up to 55% by weight of the composition, such that the amount of
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Application 13/993,093
alkyl ethoxy sulfate is 30 to 50% by weight of that total, or 12% to 28% by
weight of the total composition. (Ans. 5—6.) Using the same logic, the
Examiner explained that the amphoteric surfactant is present in amounts of 2
to 8% by weight. (Ans. 6.) As a result, the Examiner stated that Table Id of
Szewczyk ’616 discloses alkyl ether sulfates in amounts of 13.7% by weight
and laurylamido betaines (amphoteric surfactant) in an amount of 5.6% by
weight as claimed. (Ans. 6—7.)
Appellant contends that Szewczyk ’616 discloses a range of alkyl
ethoxy sulfate in amounts of 5—15% by weight, 2—15%, by weight, and as
high as 24.6% by weight, but Szewczyk ’616 does not disclose amounts of
alkyl ethoxy sulfate in amounts of 30—50% by weight as claimed, or a
combination of alkyl ethoxy sulfate with amphoteric surfactant in amounts
of 5—15% by weight. (App. Br. 4. (citing Szewczyk ’616 H 18 and 49,
Tables la, 7a, 8a.))
Accordingly, the dispositive issue on appeal for Rejection 2 is:
Has Appellant shown that the Examiner reversibly erred in
determining that it would have been obvious to have formulated a cleaning
composition including alkoxy ethoxy sulfate in combination with an
amphoteric surfactant in the amounts recited in the claims in view of
Szewczyk ’616?
We agree with Appellant that the Examiner has reversibly erred in
rejecting the claims as obvious over Szewczyk ’616.
Specifically, we find the Examiner’s interpretation of the amounts of
alkoxy ethoxy sulfate and amphoteric surfactant required in the claims to be
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Application 13/993,093
unreasonable.5 Contrary to the Examiner’s position, the amounts of alkyl
ethoxy sulfate and amphoteric surfactant are not based on the amount of
total surfactant present, but rather based on the weight of the composition.
Indeed, claim 1 recites expressly that the amount of alkyl ethoxy sulfate is
“from greater than 30% to up to 50% by weight, based on the weight of the
composition’'’ (emphasis added). Claim 1 includes a similar recitation for the
amphoteric surfactant.
As discussed above, the Examiner’s position with respect to
Szewczyk ’616 disclosing the amounts of the alkyl ethoxy sulfate and
amphoteric surfactant recited in the instant claims is based on this
unreasonable interpretation of the claims. As pointed out by Appellant,
Szewczyk ’616 discloses amounts of alkyl ethoxy sulfate below the claimed
range. (Szewczyk ’616 H 18 and 49, Tables la, 7a, 8a.) Thus, the
Examiner’s position that Szewczyk ’616 discloses amounts of alkyl ethoxy
sulfate encompassing the claimed range is not supported by sufficient
rational underpinnings.
Accordingly, we reverse the Examiner’s rejection of the claims as
obvious over Szewczyk ’616.
5 The Examiner’s claim interpretation set forth in the Examiner’s Answer,
which sets forth the current interpretation of the claims for the first time, is
harmless error with respect to the rejection based on Bertho discussed above
as the ranges disclosed in Bertho encompass the claimed ranges under the
correct claim interpretation. It is also noted that Appellant did not file a
Reply Brief to the Examiner’s Answer.
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Application 13/993,093
CONCLUSION
Appellant has failed to demonstrate that the Examiner reversibly erred
in determining that it would have been obvious to have formulated a
cleaning composition including alkoxy ethoxy sulfate in combination with
an amphoteric surfactant in the amounts recited in claim 1 in view of Bertho.
Appellant has demonstrated that the Examiner reversibly erred in
determining that it would have been obvious to have formulated a cleaning
composition including alkoxy ethoxy sulfate in combination with an
amphoteric surfactant in the amounts recited in the claims in view of
Szewczyk ’616.
ORDER
We affirm the Examiner’s decision rejecting claims 1—10, 12, 16—20,
22—33, and 36 under 35 U.S.C. § 103(a) as obvious over Bertho.
We reverse the Examiner’s decision rejecting claims 1—10, 12, 16—20,
22—33, and 36 under 35 U.S.C. § 103(a) as obvious over Szewczyk ’616.
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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