Ex Parte Lawshe et al

Board of Patent Appeals and Interferences

Feb 14, 2011

11466377 (B.P.A.I. Feb. 14, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte JESSICA LAWSHE, THORSTEN BASTIGKEIT,
RONNIE CASEY, and MICHAEL MATHIESEN
__________

Appeal 2010-010015
Application 11/466,377
Technology Center 1700
__________

Before DONALD E. ADAMS, LORA M. GREEN, and
JEFFREY N. FREDMAN, Administrative Patent Judges.

FREDMAN, Administrative Patent Judge.

DECISION ON APPEAL1
This is an appeal under 35 U.S.C. § 134 involving claims to a fabric
cleansing composition. The Examiner rejected the claims as obvious. We
have jurisdiction under 35 U.S.C. § 6(b). We affirm.

1 The two-month time period for filing an appeal or commencing a
civil action, as recited in 37 C.F.R. § 1.304, or for filing a request
for rehearing, as recited in 37 C.F.R. § 41.52, begins to run from
the “MAIL DATE” (paper delivery mode) or the
“NOTIFICATION DATE” (electronic delivery mode) shown on
the PTOL-90A cover letter attached to this decision.
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Statement of the Case
The Specification teaches that the invention “relates to laundry
detergent compositions which can neutralize odors on fabric while the fabric
is being worn as well as removing existing odors on such fabrics while being
laundered” (Spec. 1 ¶ 0001).
The Claims
Claims 1-16 and 18-22 are on appeal. Claim 1 is representative, and
the remaining claims have not been argued separately and therefore stand or
fall together with claim 1. 37 C.F.R. § 41.37(c)(1)(vii). Claim 1 reads as
follows:
1. A fabric cleansing composition for
neutralizing malodors by absorption comprising:
a liquid detergent;
a nonionic surfactant from about 1% to
about 10% by weight of the composition; an
anionic surfactant from about 1% to about 15% by
weight of the composition;
a metallic salt comprising zinc ricinoleate
from about 0.01% to about 3% by weight of the
composition; and
the composition having a pH level from
about 7.5 to about 7.8[].

The issue
The Examiner rejected claims 1-16 and 18-22 under 35 U.S.C.
§ 103(a) as obvious over Barnabas2 (Ans. 3-5).

2 Barnabas et al., WO 00/24856, published May 4, 2000.
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The Examiner finds that Barnabas teaches a
fabric care compositions which may be added to the wash or
rinse cycle (abstract). The compositions may comprise an
effective amount of surfactant, an effective amount of an
odor control agent; an effective amount of perfume; and an
effective amount of antimicrobial active (p. 2, bottom).
Surfactant is optional but highly preferred

(Ans. 3). The Examiner finds that “[s]uitable odor control agents, including
cyclodextrin (pp. 47-49) may be added, as may the zinc salts” (Ans. 3). The
Examiner finds that “[n]o general teaching of a pH range is provided, but
when metal salts are present, the compositions may be kept clear by
adjusting the pH to less than about 7” (Ans. 3-4).
Appellants contend that “the teaching of a pH of 7 does not suggest,
as the Examiner asserts, a pH of 8 which is ten times more alkaline” (App.
Br. 6). Appellants contend that Barnabas teaches that “the pH has to be ‘less
than about 7’ and, when a clear solution is desired, it must be so ‘in order to
keep the solution clear’” (App. Br. 6). Appellants contend that “the
difference between a pH of less than about 7 and a pH of about 7.5 is more
than a three-fold difference in hydrogen ion concentration” (App. Br. 7).
Appellants contend that the “specification specifically calls out the
importance of adjusting and stabilizing the pH range so that the fabric
cleansing composition is stable and does not suffer from the precipitation of
the zinc ricinoleate” (App. Br. 10).
The issue with respect to this rejection is: Does the evidence of record
support the Examiner’s conclusion that Barnabas’ teaching of a pH adjusted
to “less than about 7” renders obvious a pH range “from about 7.5 to about
7.8” as required by claim 1?
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Findings of Fact
1. Barnabas teaches a “[f]abric care composition . . . to be used in
the wash cycle can be either used along with a general laundry detergent or
actually a detergent composition comprising a fabric care polysaccharide”
(Barnabas 44).
2. Barnabas teaches that the detergent “comprise a surfactant or
surfactant system wherein the surfactant can be selected from nonionic and/
or anionic . . . The surfactant is typically present at a level from 0.1% to 60%
by weight. . . most preferably from 1% to 30% by weight of detergent
compositions” (Barnabas 44).
3. Barnabas teaches that the “preferred zinc salts possess malodor
control abilities. . . . zinc ricinoleate functions as a fungicide” (Barnabas 51).
4. Barnabas teaches that when “metallic salts are added to the
composition . . . they are typically present at a level of from about 0.1% to
about 10% . . . more preferably from about 0.3% to about 5% by weight of
the usage composition” (Barnabas 51).
5. Barnabas teaches that when “zinc salts are used as the metallic
salt, and a clear solution is desired, it is preferable that the pH of the solution
is adjusted to less than about 7, more preferably less than about 6, most
preferably, less than about 5, in order to keep the solution clear” (Barnabas
51).
6. The Specification teaches that “a liquid detergent composition
in accordance with an embodiment of the present invention comprises from
about 0.01% to about 3% by weight of zinc ricinoleate, about 1.0% to about
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10% by weight of a nonionic surfactant, about 1% to about 15% by weight
of an anionic surfactant and a pH of from about 6.5 to about 9, is a very
effective product” (Spec. 3 ¶ 0012).
7. The Specification teaches that the “pH should be adjusted to a
range of between about 6.5 to about 9, preferably from about 7.5 to 7.8 and
most preferably to a pH of 7.8” (Spec. 6 ¶ 0027).
Principles of Law
“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
There is no dispute that Barnabas suggests a fabric cleansing
composition comprising a liquid detergent (FF 1), a nonionic surfactant (FF
2), an anionic surfactant (FF 3), and a metallic salt comprising zinc
ricinoleate (FF 3-5) with overlapping ranges for the composition.
Barnabas also teaches that when “zinc salts are used as the metallic
salt, and a clear solution is desired, it is preferable that the pH of the solution
is adjusted to less than about 7, more preferably less than about 6, most
preferably, less than about 5, in order to keep the solution clear” (Barnabas
51; FF 5).
The dispute centers on whether the disclosure in Barnabas of a pH
“less than about 7” renders obvious a composition with a pH range of “about
7.5 to about 7.8” as required by claim 1.
In Pall Corp., the court addressed the issue of interpreting the term
“about”, noting that the “use of the word ‘about,’ avoids a strict numerical
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boundary to the specified parameter. Its range must be interpreted in its
technologic and stylistic context.” Pall Corp. v. Micron Separations, Inc., 66
F.3d 1211, 1217 (Fed. Cir. 1995). The Court stated that:
We thus consider how the term . . . was used in the patent
specification, the prosecution history, and other claims. It is
appropriate to consider the effects of varying that parameter,
for the inventor’s intended meaning is relevant. Extrinsic
evidence of meaning and usage in the art may be helpful in
determining the criticality of the parameter

(Id.)
Applying the Pall Corp. analysis to the instant claim, we begin by
noting that Appellants have not provided any extrinsic evidence for the
meaning of the term “about” nor is the use of “prosecution history” relevant
in this context. We therefore begin by looking at how the term was used in
the Specification. The Specification provides no specific definition for the
term “about”. However, the Specification teaches that the “pH should be
adjusted to a range of between about 6.5 to about 9, preferably from about
7.5 to 7.8 and most preferably to a pH of 7.8” (Spec. 6 ¶ 0027; FF 7).
Thus, the Specification teaches that varying the parameter of pH
within a range of “about 6.5 to about 9” will result in a functional fabric
cleansing composition. Thus, the intended meaning of “about” in the phrase
“about 7.5 to about 7.8” is reasonably broadly interpreted in light of the
Specification as extending the pH range to the 6.5 to 9 pH range disclosed in
the Specification. See In re Zletz, 893 F.2d 319, 321 (Fed. Cir. 1989)
(“[D]uring patent prosecution when claims can be amended, ambiguities
should be recognized, scope and breadth of language explored, and
clarification imposed.”)
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We must also interpret the pH range in the prior art of Barnabas,
which indicates that when “zinc salts are used as the metallic salt, and a clear
solution is desired, it is preferable that the pH of the solution is adjusted to
less than about 7, more preferably less than about 6, most preferably, less
than about 5, in order to keep the solution clear” (Barnabas 51; FF 5). The
use of both “less than” and “about” by Barnabas suggests that the pH may
include some values greater than pH 7, as well as values below pH 7 down
to pH 5.
Appellants did not claim the narrow range “7.5 to 7.8”, but rather
claimed the broader range “about 7.5 to about 7.8”. We therefore conclude
based upon our interpretation of the claims in light of the Specification that
the “less than about 7” pH of Barnabas reasonably renders obvious the
“about 7.5” pH of claim 1, since as broadly interpreted in light of
Appellants’ Specification, the lower end of the “about 7.5” pH claimed
reasonably overlaps the higher end of values encompassed by the “about 7”
pH of Barnabas. “In cases involving overlapping ranges, we and our
predecessor court have consistently held 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).
We find that this broad interpretation of the term “about” reasonably
allocates the duty to clarify the claims to Appellants. Appellants, in control
of both the claim and Specification language, chose to incorporate the term
“about” without providing a specific definition of the term in their
Specification and without providing specific endpoints.
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Appellants contend that “the teaching of a pH of 7 does not suggest,
as the Examiner asserts, a pH of 8 which is ten times more alkaline” (App.
Br. 6). Appellants contend that Barnabas teaches that “the pH has to be ‘less
than about 7’ and, when a clear solution is desired, it must be so ‘in order to
keep the solution clear’” (App. Br. 6). Appellants contend that “the
difference between a pH of less than about 7 and a pH of about 7.5 is more
than a three-fold difference in hydrogen ion concentration” (App. Br. 7).
We are not persuaded. While Appellants are correct regarding the
three-fold difference between a pH of 7.5 and 7, Barnabas is drawn to “about
7” and the claims are drawn to “about 7.5”. Even if we minimally
interpreted the modifier “about” in Barnabas to read on a pH of 7.2 and in
the claim to read on a pH of 7.3, these are adjacent points which would
reasonably have been expected by the ordinary artisan to share similar
properties in the absence of evidence to the contrary. See In re Peterson,
315 F.3d 1325, 1329 (Fed. Cir. 2003) (“We have also held that 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.”)
Appellants contend that the “specification specifically calls out the
importance of adjusting and stabilizing the pH range so that the fabric
cleansing composition is stable and does not suffer from the precipitation of
the zinc ricinoleate” (App. Br. 10).
We are not persuaded. While the Specification does discuss the pH
range, the Specification clearly encompasses pH ranges from 6.5 to 9, which
expressly overlaps the range disclosed by Barnabas (FF 5-6).
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Appellants contend that “more importantly, the subject application
appreciates and claims a range which takes into account not only clarity of
the product, but clarity over time. . . . Thus while initial clarity is important,
it is clarity over time, or shelf life that is also important” (App. Br. 10).
We are not persuaded. Barnabas does teach the importance of clarity
and the impact of pH on clarity (FF 3-5). We note, as did the Examiner (see
Ans. 6), that the claim has no requirement for any particular level or duration
of clarity. “Limitations are not to be read into the claims from the
specification.” In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993)
Conclusion of Law
The evidence of record supports the Examiner’s conclusion that
Barnabas’ teaching of a pH adjusted to “less than about 7” renders obvious a
pH range “from about 7.5 to about 7.8” as required by claim 1.
SUMMARY
In summary, we affirm the rejection of claim 1 under 35 U.S.C.
§ 103(a) as obvious over Barnabas. Pursuant to 37 C.F.R.
§ 41.37(c)(1)(vii)(2006), we also affirm the rejection of claims 2-16 and 18-
22, as these claims were not argued separately.

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Application 11/466,377

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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv)(2006).

AFFIRMED

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