Ex Parte LI et al

Patent Trials and Appeals Board

May 13, 2019

14032888 - (D) (P.T.A.B. May. 13, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/032,888 09/20/2013
27752 7590 05/15/2019
THE PROCTER & GAMBLE COMPANY
Global IP Services
Central Building, C9
One Procter and Gamble Plaza
CINCINNATI, OH 45202
FIRST NAMED INVENTOR
Jianjun Justin LI
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
12604M 8108
EXAMINER
RIDER, LANCE W
ART UNIT PAPER NUMBER
1618
NOTIFICATION DATE DELIVERY MODE
05/15/2019 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):
centraldocket.im @pg.com
pair_pg@firsttofile.com
mayer.jk@pg.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JIANJUN JUSTIN LI, JITEN ODHA VJI DIHORA,
JONATHAN ROBERT CETTI, STEVEN EDWARD WITT,
VIRGINIA TZUNG-HWEI HUTCHINS, MARC ADAM FLICKINGER,
KEVIN MAX LABITZKE, ZERLINA GUZDAR DUBOIS,
CHANCHAL KUMAR GHOSH, and DEAN ARTHUR ZIMMERMAN
Appeal2018-008191
Application 14/032,888
Technology Center 1600
Before JEFFREY N. FREDMAN, DEBORAH KATZ, and
JOHN G. NEW, Administrative Patent Judges.
KATZ, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2018-008191
Application 14/032,888
Introduction
Appellants 1 seek our review, under 35 U.S.C. § 134(a), of the
Examiner's decision to reject claims 1, 6-9, and 14--18. 2 ( Appeal Brief filed
March 5, 2018 ("App. Br.") 2--4.)
We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM.
Appellants' Specification provides a composition containing a parent
fragrance and microcapsules encapsulating another fragrance. (Specification
("Spec.") Abstract.) The Specification refers to the encapsulated fragrance
as a "non-parent" fragrance that differs from the parent fragrance. (See
Spec. 3:1-8.) "Non-limiting examples of differences between a fragrance
and a non-parent fragrance include differences in chemical make-up." (Spec.
3:5---6.) The combination of parent fragrance and non-parent fragrance
allows a consumer to notice the bloom of both fragrances. (See Spec. 1: 19-
21.)
Appellants' claim 1 recites:
A composition comprising:
a parent fragrance that is dispersed throughout the
composition; and
a friction-triggered fragrance delivery technology
comprising a plurality of microcapsules;
wherein the microcapsules comprise a core
material and a shell encapsulating the core material;
wherein the core material comprises a first non-
parent fragrance and the shell comprises a polyacrylate
material.
1 Appellants identify the real part in interest as The Proctor & Gamble
Company (App. Br. 1.)
2 Claims 19 and 20 were withdrawn from prosecution.
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Application 14/032,888
(App. Br. 6.) Appellants also present independent claim 18, which is drawn
to an anhydrous composition containing an "antiperspirant active," a parent
fragrance, and an encapsulated non-parent fragrance, among other features.
(App. Br. 7.) Our analysis focuses on claim 1, as Appellants do not argue
the claims separately. See 37 C.F.R. § 4I.37(c)(iv).
Analysis
Anticipation over Schwantes
The Examiner rejects claims 1 and 6-8 under 35 U.S.C. § 102(a)(l) as
anticipated by Schwantes. 3 (See Examiner's Answer mailed June 11, 2018
("Ans.") 3.) As the Examiner finds, Schwantes discloses deodorant
compositions including a free fragrance and microcapsules containing a core
fragrance oil within a polyacrylate shell. (See Ans. 3, see Schwantes 74:3-
24, Example 1; 75:1-5, Example 3; 89-90, Example 26.)
Appellants argue that "Example 26 from Schwantes does not disclose
a parent fragrance distributed throughout the composition which differs from
the fragrance of the microcapsules as provided in claim 1." (App. Br. 2.)
(Emphasis in original.) Appellants argue that Example 26 uses Scent A for
both the "continuous phase fragrance" and the "microcapsule fragrance,"
resulting in identical parent and non-parent fragrances. (App. Br. 2, citing
Schwantes 73: 1-2.)
We are not persuaded by Appellants' arguments. Schwantes' s
Example 3 teaches that the microcapsules contain Scent A fragrance.
(Schwantes 75: 1-5.) Scent A, as cited by Appellants, contains numerous
components including "Ethyl Linalool" and "Dihydro Myrcenol."
3 Schwantes et al., WO 2010/079468 A2, published July 15, 2010.
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Appeal 2018-008191
Application 14/032,888
(Schwantes 73, Table 1.) As cited by the Examiner, Examples 26(VI}-(IX)
teach solid deodorant formulations that contain "Fragrance capsules of
Example 3." (Schwantes 90:5-12; see also Ans. 8.) The same solid
deodorant formulations of Examples 26(VI}-(IX) include a continuous
phase containing dispersed "Fragrance," linalool, and additional
dihydromyrcenol. (See id.; see also Ans. 8.) Linalool and ethyl linalool are
distinct fragrance components, as shown by Appellants' Specification. (See
Spec. 23-24, Table 4A.) Therefore, Schwantes' combined fragrance
ingredients of the continuous phase (parent) fragrance differ from those of
the microcapsule (non-parent) fragrance. As such, we find that Schwantes
teaches a parent fragrance and a non-parent fragrance which differs from the
parent fragrance in chemical make-up.
After consideration of Appellants' arguments, we are not persuaded
that the Examiner erred in finding the prior art anticipates Appellants'
pending claims 1 and 6-8.
Obviousness over Chan, Schwantes and Goldberg
The Examiner rejects claims 1, 6-9, 14, and 16-18 under 35 U.S.C.
§ 103 as being obvious over Chan4 and Schwantes. (See Ans. 4---6.) The
Examiner rejects claim 15 under 35 U.S.C. § 103 as being obvious over
Chan, Schwantes, and Goldberg. 5 (See Ans. 6-7.) As the Examiner finds,
Chan teaches anhydrous antiperspirant compositions including a non-
encapsulated fragrance, an antiperspirant active, and capsules including a
shear-sensitive shell, which encapsulates perfume. (See Ans. 4; see Chan
4 Chan et al., US 2010/0104611 Al, published April 29, 2010.
5 Goldberg et al., US 5,176,903, issued January 5, 1993.
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Appeal 2018-008191
Application 14/032,888
,r,r 11-12, claims 1 and 13.) In addition, we agree with the Examiner that
Goldberg teaches an antiperspirant composition containing microcapsules
that encapsulate a fragrance within a starch shell. (See Ans. 6; see Goldberg,
7:60-65.)
Appellants repeat their argument that Schwantes teaches an identical
fragrance for both the continuous phase fragrance and the microcapsule
fragrance. (See App. Br. 3--4.) Appellants argue that, in contrast, the claims
require dissimilar parent (continuous phase) and non-parent (microcapsule)
fragrances. (See id.) Appellants further argue that neither Chan nor
Goldberg "cure[s] this underlying deficiency." (App. Br. 4.)
As discussed above, we find Schwantes teaches a formulation having
different fragrances in the continuous phase and the microcapsules.
Therefore, we are not persuaded by Appellants' arguments against the
combination of Chan, Schwantes, and Goldberg.
Appellants do not address any other aspect of the Examiner's
obviousness rejection. (See App. Br. 1--4.)
After consideration of Appellants' arguments, we are not persuaded
that the Examiner erred in determining that Appellants' pending claims 1, 6-
9, and 14--18 would have been obvious to a person of ordinary skill in the
art.
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Application 14/032,888
Conclusion
Upon consideration of the record and the reasons given, the rejection
of claims 1 and 6-8 under 35 U.S.C. § 102(a)(l) over Schwantes is
sustained.
Upon consideration of the record and the reasons given, the rejection
of claims 1, 6-9, and 14--18 under 35 U.S.C. § 103 over Chan, Schwantes,
and Goldberg ( as to claim 15) is sustained.
Therefore, we affirm the decision of the Examiner.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136.
AFFIRMED
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