Ex parte Jones

Board of Patent Appeals and Interferences

Sep 29, 1997

08040346 (B.P.A.I. Sep. 29, 1997)

Application for patent filed March 30, 1993. According to appellant, the1
application is a division of Application 07/907,050, filed July 1, 1992, now Patent No.
5,342,630.
1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today (1) was not written for
publication in a law journal and (2) is not binding precedent of the Board.
Paper No. 15
UNITED STATES PATENT AND TRADEMARK OFFICE
__________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________
Ex parte KEITH A. JONES
__________
Appeal No. 94-4329
Application 08/040,3461
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ON BRIEF
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Before WINTERS, WILLIAM F. SMITH, and GRON, Administrative Patent Judges.
WILLIAM F. SMITH, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C .§ 134 from the final rejection of claims 31
though 33 and 35 through 37, all the claims in the application.
Appeal No. 94-4329
Application 08/040,346
2
Claim 31 is illustrative of the subject matter on appeal and reads as follows:
31. A pet shampoo formulation which is an aqueous medium having an
ingredient content which comprises (1) a salt ingredient selected from C -C fatty acid8 22
alkali metal and ammonium salts; (2) an inorganic salt ingredient selected from alkali
metal and ammonium bicarbonates; (3) a fragrance ingredient; and (4) at least one
compound selected from alkali metal and ammonium carbonates providing a pH in the
range of 7.5-12.
The references relied upon by the examiner are:
Steen et al. (Steen) 4,026,825 May 31, 1977
Crammer et al. (Crammer) 5,064,859 Nov. 12, 1991
Claims 31 through 33 and 35 through 37 stand rejected under 35 U.S.C. § 103
as unpatentable over Crammer in view of Steen. We reverse.
In our view, the examiner has misconstrued the portion of the disclosure of
Crammer which is most relevant in determining the patentability of the subject matter
on appeal. As a result of this error in fact finding, the examiner’s subsequent legal
conclusion under this section of the statute is flawed.
The claims on appeal are directed to an aqueous composition which includes a
salt ingredient selected from C -C fatty acid alkali metal and ammonium salts. 8 22
Crammer describes aqueous compositions which include C -C fatty acids. As set8 12
forth at column 4, lines 26-41, of Crammer:
Other suitable formulations may include shampoos and soaps. Such
shampoos may include 10 to 30% active ingredient, ammonium lauryl
Appeal No. 94-4329
Application 08/040,346
3
sulphate, an alkylene glycol such as for example propylene glycol, an
alkaline salt of EDTA such as for example the disodium salt of EDTA,
formaldehyde and a 2-halo-2-nitropropane-1,3-diol such as for example 2-
bromo-2-nitropropane-1,3-diol. Suitable soaps are the alkali metal salts,
alkaline earth metal salts or unsubstituted ammonium salts of one of the
active ingredients such as for example capric acid, undecanoic acid,
undecenoic acid or trans chrysanthemic acid either individually or a
mixture with one of the higher fatty acids such as the sodium or potassium
salt of oleic or stearic acid or of fatty acid mixtures which can be obtained
e.g., from coconut oil or tallow oil.
Thus, Crammer distinguishes between “shampoos” and “soaps” in that shampoos
include the C -C fatty acid in acid form while soaps contain the C -C fatty acid in salt8 12 8 12
form.
The examiner states in the paragraph bridging pages 3-4 of the Examiner’s
Answer (Paper No. 12, July 11, 1994) that Crammer “discloses shampoo formulations
including fatty acid (carboxylic acid) salts such as alkali metal salts or unsubstituted
ammonium salts . . . .” This is an erroneous finding of fact. The shampoos of Crammer
include C -C fatty acids, not salts. Thus, it matters not that the examiner has8 12
identified portions of Steen describing “shampoos” which can contain bicarbonates and
carbonates because any combination of Crammer and Steen on the basis of
formulating a “shampoo” would necessarily include a C -C fatty acid, per the8 12
disclosure of Crammer, not the C -C fatty acid salt required by the claims on appeal. 8 12
The examiner has not presented a fact-based explanation as to why one of ordinary
Appeal No. 94-4329
Application 08/040,346
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skill in the art would have found it obvious to arrive at the claimed subject matter on the
basis of a “soap” composition of Crammer which would include a C -C fatty acid salt. 8 12
On this record, we are constrained to reverse the rejection.
The decision of the examiner is reversed.
REVERSED
Sherman D. Winters )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
William F. Smith ) APPEALS AND
Administrative Patent Judge ) INTERFERENCES
)
)
)
Teddy S. Gron )
Administrative Patent Judge )
Appeal No. 94-4329
Application 08/040,346
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Charles B. Barris
Church & Dwight Co., Inc.
469 North Harrison Street
Princeton, NJ 08543