Ex Parte Huang et al

Patent Trial and Appeal Board

Oct 14, 2014

11094496 (P.T.A.B. Oct. 14, 2014)

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.
11/094,496 03/30/2005 Lei Huang KCX-949 (21052) 1471
22827 7590 10/14/2014
DORITY & MANNING, P.A.
POST OFFICE BOX 1449
GREENVILLE, SC 29602-1449
EXAMINER
WEBB, WALTER E
ART UNIT PAPER NUMBER
1612
MAIL DATE DELIVERY MODE
10/14/2014 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 PATENT TRIAL AND APPEAL BOARD
____________

Ex parte LEI HUANG and SHU-PING YANG
____________

Appeal 2014-006414
Application 11/094,496
Technology Center 1600
____________

Before DONALD E. ADAMS, JEFFREY N. FREDMAN, and
CHRISTOPHER G. PAULRAJ, Administrative Patent Judges.

ADAMS, Administrative Patent Judge.

DECISION ON APPEAL1
This appeal2 under 35 U.S.C. § 134 involves claims 7, 9–12, 15, 16,
20–28, 46, and 54 (Br. 2). Examiner entered rejections under 35 U.S.C.
§ 103(a). We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

1 The Real Party in Interest is Kimberly-Clark Worldwide, Inc. (Br. 1.)
2 This appeal is related to Appeal 2012-000816, Application 11/094,496 (see
Br. 1).
Appeal 2014-006414
Application 11/094,496

2
STATEMENT OF THE CASE
The claims are directed to a method for inhibiting and/or treating
infection caused by Candida albicans. Claim 21 is representative and is
reproduced in the Claims Appendix of Appellants’ Brief.
Claims 7, 9–12, 15, 16, 20–24, 26–28, 46, and 54 stand rejected under
35 U.S.C. § 103(a) as unpatentable over the combination of Resheski-
Wedepohl3 and Liu.4,5
Claim 25 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over the combination of Resheski-Wedepohl, Liu, and Wright.6
Claim 25 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over the combination of Resheski-Wedepohl and Wright.
The rejection of claim 25 over Resheski-Wedepohl and Wright is
cumulative to the rejection of claim 25 over the combination of Resheski-
Wedepohl, Liu, and Wright. Therefore, we vacate, and will not further
discuss, the rejection of claim 25 over the combination of Resheski-
Wedepohl and Wright.

3 Resheski-Wedepohl et al., US 6,531,435 B1, issued Mar. 11, 2003.
4 Hui Liu et al., Interaction between chitosan and alkyl β-D-glucopyranoside
and its effect on their antimicrobial activity, 56 CARBOHYDRATE POLYMERS
243–250 (2004).
5 Examiner separately rejected various groups of claims over the
combination of Resheski-Wedepohl and Wright (see Final Rej. 3–6).
Claims 7, 9–12, 15, 16, 20, 22–24, 26–28, 46, and 54 depend directly or
indirectly from claim 21. Appellants consolidated Examiner’s rejections in
to a single statement of the rejection over the combination of Resheski-
Wedepohl (see Br. 3). We do the same.
6 Wright et al., US 2,649,398, issued Aug. 18, 1953.
Appeal 2014-006414
Application 11/094,496

3
ISSUE
Does the preponderance of evidence relied upon by Examiner support
a conclusion of obviousness?
FACTUAL FINDINGS (FF)
FF 1. Appellants disclose that “any saccharide-based nonionic surfactant
that achieves the desired antimicrobial effect may be used in the present
invention. For instance, one particularly effective class of saccharide-based
nonionic surfactants is alkyl glycosides” (Spec. 5: 26–29).
FF 2. Appellants disclose that “suitable alkyl glycosides include
GlucoponTM 220, 225, 425, 600 and 625” (Spec. 7: 12–13).
FF 3. Resheski-Wedepohl is directed to a “vaginal cleanser comprising a
vaginal cleansing formulation comprising an alkyl polyglycoside and a
pharmaceutically acceptable carrier . . . and a douche for delivering said
formulation into a vagina” (Resheski-Wedepohl, col. 17, ll. 55–57; see
generally, id. at Abstract; Final Rej. 3; Ans. 3; see also Resheski-Wedepohl,
claim 3, wherein the “vaginal cleanser . . . formulation comprises no more
than about 5 mmol of the alkyl polyglycoside,” e.g., no more than about 1.7
mg/mL of Glucopon 600).
FF 4. Resheski-Wedepohl suggests that “[c]ommercially available
examples of suitable alkyl polyglycosides include Glucopon 220, 225, 425,
600 and 625” (Resheski-Wedepohl, col. 7, ll. 60–61; Ans. 3).
FF 5. Examiner finds that Resheski-Wedepohl suggests an experiment,
wherein an alkyl polyglucoside concentration of 20 mM, “which is about 8
milligrams/milliliter,” was used to inhibit the growth of S. aureus (Final Rej.
3; see Resheski-Wedepohl, col. 12, l. 13 and col. 13, ll. 12–14).

Appeal 2014-006414
Application 11/094,496

4
FF 6. Resheski-Wedepohl fails to suggest using the vaginal cleanser for
inhibiting and/or treating infection “caused by Candida albicans [sic]” (Final
Rej. 4).
FF 7. Liu suggests that Glucopon 600 exhibited “antifungal activity on C.
albicans” (Liu 248: col. 1, ll. 4–6 and 244: col. 1, ll. 26–28; Final Rej. 4;
Ans. 3).
FF 8. Liu’s FIG. 7(c) is reproduced below:

Liu’s FIG. 7(c) illustrates the “[b]iocidal activity of . . . C. albicans treated
with acetate butter, pH 4.8 (■), 0.4% chitosan acetate solution (●), 0.4% AG
(▲), and . . . 0.4% chitosan + 0.4% AG . . . (▼)” (Liu 247: FIG. 7 legend).
FF 9. Examiner relies on Wright to suggest “that the acidity of . . . [a]
douche composition be established and maintained at a value approximating
that of the normal vagina” (Final Rej. 5 and 6).
ANALYSIS
Based on the combination of Resheski-Wedepohl and Liu, Examiner
concludes that, at the time Appellants’ invention was made, it would have
been prima facie obvious “to have used the alkyl glycoside, e.g., Glucopon
600, of Resheski-Wedepohl et al. to inhibit or treat an infection caused by
Candida albicans [sic], since Glu[c]opon 600 has been shown to have
antifungal activity against candida albicans [sic], as taught by Liu et al.”
(Final Rej. 4.) As Examiner explains
[I]t is the composition of the primary reference, i.e. Resheski-
Wedepohl et al., that would have been obvious to use as claimed,
and that reference teaches concentrations of AG within the
Appeal 2014-006414
Application 11/094,496

5
claimed range. Thus, the compositions of Resheski-Wedepohl et
al. would have been reasonably expected to possess
the same properties as claimed, i.e. a 99.8% to 100% reduction
in the amount of Candida albicans [sic] present.
(Ans. 5.) In sum, Resheski-Wedepohl suggests a vaginal cleanser
comprising a concentration of AG that falls within the scope of Appellants’
claimed invention (FF 3). Examiner relies on Liu to suggest that alkyl
glycosides exhibit “antifungal activity on C. albicans” (FF 7). Taken
together, a person of ordinary skill in this art would have found it prima
facie obvious to use Resheski-Wedepohl’s vaginal cleanser to treat C.
albicans. In doing so, a person of ordinary skill in this art would have found
it obvious to optimize the alkyl glycoside concentration of Resheski-
Wedepohl’s vaginal cleanser with the expectation of achieving a reduction
in the amount of C. albicans present. For example, person of ordinary skill
in this art using the cleanser suggested by Resheski-Wedepohl’s claim 3
would have necessarily achieved a 99.8% to 100% reduction in the amount
of Candida albicans present as is required by Appellants’ claim 21 (Cf. Br.
4–5 (“Resheski-Wedepohl . . . fails to disclose . . . the limitation of
administering a treatment composition into a vagina of a female who has a
vaginal infection caused by Candida albicans . . . wherein administering the
treatment composition results in a 99.8% to 100% reduction in the amount of
Candida albicans present”)). For the foregoing reasons, we are not
persuaded by Appellants’ contention that Examiner’s rejection is based on
hindsight reconstruction (Br. 8).
We recognize, but are not persuaded by, Appellants’ contention that
Liu suggests the use of “a 0.4% (i.e., 4 mg/mL) AG [(nonionic alkyl
glycoside)] solution, which falls within the 1 mg/mL to 100 mg/mL
Appeal 2014-006414
Application 11/094,496

6
concentration range of independent claim 21” (Br. 6–8; see, e.g., FF 8).
Notwithstanding Appellants’ contention to the contrary, a 0.4% AG solution
represents a solution having an AG concentration of 0.4 mg/mL, not 4
mg/mL.
We recognize, but are not persuaded by, Appellants’ contention that
the use of Resheski-Wedepohl’s composition to treat a Candida albicans
infection will upset “the delicate balance of microorganisms in the vagina”
(Br. 5). Resheski-Wedepohl suggests “a vaginal cleanser comprising alkyl
polyglycoside as the active agent,” therefore, “the artisan would not expect
the composition of Resheski-Wedepohl . . . to upset the delicate balance of
microorganisms in the vagina” (Ans. 3).
Appellants do not dispute Examiner’s rejection of claim 25 over the
combination of Resheski-Wedepohl, Liu, and Wright. Therefore, we
summarily affirm this rejection (see Ans. 6).
CONCLUSION OF LAW
The preponderance of evidence relied upon by Examiner supports a
conclusion of obviousness.
The rejection of claim 21 under 35 U.S.C. § 103(a) as unpatentable
over the combination of Resheski-Wedepohl and Liu is affirmed. Claims 7,
9–12, 15, 16, 20, 22–24, 26–28, 46, and 54 are not separately argued and fall
with claim 21.
We summarily affirm the rejection of claim 25 under 35 U.S.C.
§ 103(a) as unpatentable over the combination of Resheski-Wedepohl, Liu,
and Wright.

Appeal 2014-006414
Application 11/094,496

7
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

cdc