Ex Parte Johnson et al

Board of Patent Appeals and Interferences

Jun 24, 2011

10957759 (B.P.A.I. Jun. 24, 2011)

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UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte ANDRESS KIRSTY JOHNSON, MAURICE DERY
and MEIYLIN FONG ANTEZZO
__________

Appeal 2010-009354
Application 10/957,759
Technology Center 1700
__________

Before DEMETRA J. MILLS, ERIC GRIMES, and FRANCISCO C.
PRATS, Administrative Patent Judges.

MILLS, Administrative Patent Judge.

DECISION ON APPEAL

This is an appeal under 35 U.S.C. § 134. The Examiner has rejected
the claims for obviousness. We have jurisdiction under 35 U.S.C. § 6(b).

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STATEMENT OF THE CASE
The following claim is representative:

1. A light duty liquid detergent composition comprising:
(c) from about 5% to about 50%, by weight, of an anionic base
surfactant formulation, wherein the anionic base surfactant
formulation comprises an alkylbenzene sulfonate having a C6-C22
alkyl group; and
(d) from about 0.1 % to about 2% by weight of at least one fatty
amine derivative selected from the group consisting of:

and mixtures thereof;

wherein R
1
is a C6-C22 , linear or branched, saturated or unsaturated alkyl;
R
4
, R
5
, and R
6
are each either hydrogen, methyl, hydroxethyl,
hydroxypropyl, or an alkyl; or R
4
and R
5
form a heterocyclic ring of up to 6
members with the nitrogen;, or R
4
and R
5
together form the group -
CH2CH2OCH2CH2-; w and y are each an integer from 2 to 6; and u is
an integer greater than or equal to 1.

Cited References

The Examiner relies on the following prior art references:

Vinson et al. US 5,990,065 Nov. 23,1999
McCune US 2,993,861 Jul. 25, 1961
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Roselle et al. US 5,244,593 Sep. 14, 1993

Grounds of Rejection
1. Claims 1, 2, and 6-19 are rejected under 35 U.S.C. §103(a) for
obviousness over Vinson in view of McCune.
2. Claims 20, 25 and 26 are rejected under 35 U.S.C. §103(a) for
obviousness over Vinson in view of McCune and Roselle.

FINDINGS OF FACT
The Examiner’s findings of fact are set forth in the Answer at pages 3-
7.
We adopt the Examiner’s fact-finding (Answer 4-5) regarding the scope
and contend to the prior art and make the following additional fact finding.
1. Example II of Vinson, col. 27, evidences a detergent composition
with 27% alkyl benzene sulfonate surfactant and 2% diamine.
2. Appellants do not dispute that the diamine of McCune is the same as
that claimed.

Discussion
1. Claims 1, 2, and 6-19 are rejected under 35 U.S.C. § 103(a) for
obviousness over Vinson in view of McCune.

ISSUE
The Examiner concludes that
[i]t would have been obvious to one of ordinary skill in the art, at the
time the invention was made, to formulate a composition containing
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an alkyl benzene sulfonate surfactant, specific amine derivative, and
the other requisite components of the composition in the specific
proportions as recited by the instant claims, with a reasonable
expectation of success and similar results with respect to other
disclosed components, because the broad teachings of Vinson et al in
combination with McCune suggest a composition containing an alkyl
benzene sulfonate surfactant, specific amine derivative, and the other
requisite components of the composition in the specific proportions as
recited by the instant claims.

(Ans. 6.)
Appellants argue that McCune teaches away from the claimed
invention because it teaches that the ratio of anionic surfactant to amine
must not be more than 2:1, and preferably not more than 1:1. (See App. Br.
13.) Appellants also argue that the proposed modification of Vinson destroys
the operability of McCune. (Id.)
The issue is: Does the cited prior art support the Examiner’s rejection
of the claims for obviousness?

PRINCIPLES OF LAW
“In rejecting claims under 35 U.S.C. § 103, the examiner bears the
initial burden of presenting a prima facie case of obviousness. Only if that
burden is met, does the burden of coming forward with evidence or
argument shift to the applicant.” In re Rijckaert, 9 F.3d 1531, 1532 (Fed.
Cir. 1993) (citations omitted). In order to determine whether a prima facie
case of obviousness has been established, we consider the factors set forth in
Graham v. John Deere Co., 383 U.S. 1, 17 (1966): (1) the scope and content
of the prior art; (2) the differences between the prior art and the claims at
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issue; (3) the level of ordinary skill in the relevant art; and (4) objective
evidence of nonobviousness, if present.
“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).

ANALYSIS
We agree with the Examiner’s fact finding, statement of the rejection
and responses to Appellants’ arguments as set forth in the Answer. We
provide the following additional comment.
Appellants argue McCune teaches away from the claimed invention
because it teaches that the ratio of anionic surfactant to amine must not be
more than 2:1, and preferably not more than 1:1. (See App. Br. 13; see also
Reply Br. 3 (“[C]laim 1 of Appellant’s invention requires that the amount of
anionic be present at a minimum of 250% of the amount of amine
present.”).) The Examiner responds:
[E]ven if one were to use, for example 2.5% of the
diamine as taught by McCune in the composition taught by
Vinson et al, the Examiner asserts that 2.5% would fall within
the scope of “about 2%” by weight as recited by instant claim 1
and would satisfy a ratio of anionic surfactant to amine of 2:1
as permissible by McCune. . . . Thus, the Examiner asserts that
the teachings of Vinson et al in combination with McCune are
sufficient to render the claimed invention obvious . . . .

(Ans. 8.)
We find that the Examiner has the better position. McCune teaches
that the detergents should not exceed “about two times that of the polyamine
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used.” (See McCune, col. 6, ll. 4-8 (emphasis added).) Vinson teaches that
the ratio of surfactant to diamine should be in the range of 40:1 to “about
2:1.” (See Vinson col. 2, ll. 38-40.) Thus the range of surfactant to diamine
amount of McCune overlaps with the range of about 2:1 of Vinson. Also, as
the Examiner points out, all of the percentages in Appellants’ claim 1 are
recited using the approximating term “about.” Thus, even if the combination
of percentages in Appellants’ claim 1 closest to the prior art (about 5%
surfactant and about 2% amine) is not encompassed by the prior art’s
suitable range of about 2:1, the range of claim 1 is clearly very close to that
taught in the references.
It is well settled that “even a slight overlap in range establishes a
prima facie case of obviousness.” In re Peterson, 315 F.3d 1325, 1329 (Fed.
Cir. 2003). Further, “a prima facie case of obviousness exists when the
claimed range and the prior art range do not overlap but are close enough
such that one skilled in the art would have expected them to have the same
properties.” Id.
A prima facie case of obviousness based on overlapping or close
ranges can be rebutted “by showing that the prior art teaches away from the
claimed invention in any material respect,” id. at 1331, or by showing that
the claimed range “is critical, generally by showing that the claimed range
achieves unexpected results relative to the prior art range.” Id. at 1330. As
the claimed concentration range falls within or adjacent to that disclosed in
Vinson and McCune as being acceptable, Appellants’ teaching away
arguments are not persuasive. Appellants do not argue unexpected results.

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As to the argument that the proposed modification of Vinson destroys
the operability of McCune, we are also unconvinced. Again the ranges of
surfactant to diamine in the two references overlap, and therefore there is no
destruction of operability in overlapping ranges of ingredients.
The obviousness rejection is affirmed.

2. Claims 20, 25 and 26 are rejected under 35 U.S.C. § 103(a) for
obviousness over Vinson in view of McCune and Roselle.
Appellants argue that for the reasons given with respect to the
rejection over Vinson in view of McCune, the combination of McCune and
Vinson is improper, and that Roselle does not overcome the deficiencies of
McCune and Vinson. (See Reply Br. 4-5.)
For the reasons given above, we have found no deficiency in the
combination of Vinson and McCune. The rejection is affirmed.

CONCLUSION OF LAW
The cited references support the Examiner’s obviousness rejections.

TIME PERIOD
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
alw

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