Ex Parte Matsuo et al

Patent Trial and Appeal Board

Dec 26, 2017

12743864 (P.T.A.B. Dec. 26, 2017)

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.
12/743,864 10/04/2010 Takayuki Matsuo 14203-10 7343
80711 7590 12/27/2017
ROT /Ann Arhnr
EXAMINER
524 South Main Street ALKER, KATHLEEN IWASAKI
Suite 200
Ann Arbor, MI 48104 ART UNIT PAPER NUMBER
3643
MAIL DATE DELIVERY MODE
12/27/2017 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 TAKAYUKI MATSUO, TAKESHI IKEGAMI,
KENJI HIROSHIMA, HIROSHI MATSUMOTO, and
HIROYUKI KAMEYAMA
Appeal 2016-007373
Application 12/743,864
Technology Center 3600
Before LYNNE H. BROWNE, NATHAN A. ENGELS, and
BRENT M. DOUGAL, Administrative Patent Judges.
BROWNE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Takayuki Matsuo et al. (Appellants) appeal under 35 U.S.C. § 134(a)
from the rejection of claims 1, 3—6, and 8—12. We have jurisdiction under
35 U.S.C. § 6(b).
We affirm.
Appeal 2016-007373
Application 12/743,864
CLAIMED SUBJECT MATTER
Sole independent claim 1, reproduced below, is illustrative of the
claimed subject matter:
1. An animal litter that comprises a plurality of granular
particles, each of the plurality of granular particles comprising:
an inorganic porous material;
silica gel; and
an inorganic binder that integrally binds both the inorganic
porous material and the silica gel,
wherein a content of the inorganic porous material in the
granular particles is 70 to 95% by mass, the particle diameter of
the particles of inorganic porous material is 100 pm or less,
a content of the silica gel in the granular particles is 3 to
20% by mass, and the inorganic binder includes calcium silicate
based cement.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Hahn US 5,450,817 Sept. 19, 1995
Jenkins US 2006/0243212 A1 Nov. 2, 2006
Urayama JP 2006/246797 A Sept. 21, 2006
REJECTIONS
I. Claims 1, 3—5, 8, 9, 11, and 12 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Jenkins and Urayama.1
II. Claims 6 and 10 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Jenkins, Urayama, and Hahn.
1 The rejection refers to the English machine translation of Urayama. See
e.g. Final Act. 3. We do so as well.
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Application 12/743,864
DISCUSSION
Rejection I
Appellants argue claims 1, 3—5, 8, 9, 11, and 12 together. See Appeal
Br. 3—8. We select independent claim 1 as the representative claim, and
claims 3—5, 8, 9, 11, and 12 stand or fall with claim 1. See 37 C.F.R.
§41.37(c)(l)(iv).
The Examiner finds that Jenkins discloses:
an animal litter that comprises a plurality of granular particles
700, each of the plurality of granular particles (Fig. 7)
comprising: an inorganic porous material 702 (para 0042
teaches the absorbent clay materials including attapulgite,
diatomaceous earth, sepiolite, and zeolites); silica gel 704 (para
0044 discloses the light-weighting materials including silica
gels); and an inorganic binder 706 (para 0052 teaches
performance-enhancing actives including binders; see also para
0057) that integrally binds both the inorganic porous material
and the silica gel (Fig. 7; paras 0029 and 0072); wherein a
content of the inorganic porous material in the granular
particles is 70 to 95% by mass (see claim 5 reciting 70-100
wt.% absorbent clay material; para 0042), and a content of the
silica gel in the granular particles is 3 to 20% by mass (see
claim 5 reciting 0-30 wt. % light-weighting materials; para
0044 teaches the light-weighting materials including silica gel),
the silica gel comprises C-type silica gel (para 0099 describes
Type C silica powder), and the inorganic binder includes
cement (note that "cement" is any substance that binds or makes
things adhere; para 0072 discloses the binder causing particles
to stick together, thus, functioning as cement).
Final Act. 2—3.
The Examiner finds that Jenkins discloses a “particle diameter of the
particles of inorganic porous material [that] is 25 to about 150 microns (para
0042 and claim 9), which overlaps with the claimed range of 100 pm or
less.” Id. at 3. The Examiner determines that it would have been obvious
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“to modify the particle diameter of the particles of inorganic porous material
of Jenkins et al. to be 100 pm or less, since it has been held that where the
general conditions of a claim are disclosed in the prior art, discovering the
optimum or workable ranges involves only routine skill in the art.” Id.
(citing In re Alter, 220 F. 2d 454 (CCPA 1955)).
The Examiner further finds that Urayama discloses “an animal litter
comprising an inorganic binder including calcium silicate based cement
(paras 0040 and 0048 teach the use of Portland cement, which is known to
include calcium silicate; see col 3, In 41—48 of US 5328508 to Lin, for
example, describing the composition of Portland cement).” Final Act. 3.
Based on this finding, the Examiner reasons that it would have been “an
obvious substitution of functional equivalents] to substitute the inorganic
binder of Jenkins et al. with Portland cement as taught by Urayama et al.,
since a simple substitution of one known element for another would obtain
predictable results.” Id. at 4 (citing KSR Int’l Co. v. Teleflex Inc., 550 U.S.
398,418 (2007).
In an attempt to distinguish the structure of Jenkins’ litter from the
claimed invention, Appellants proffer a new Figure allegedly illustrating the
present invention. Appeal Br. 5. However, as noted by the Examiner, “no
formal drawings were filed in the current application.” Ans. 3. Moreover,
the Examiner is correct that the proffered illustration does not show the
invention as claimed because the claims recite a composition comprising
70-95% by mass of inorganic porous material, whereas the Figure shows a
composition comprised mostly of binder and there is no way to determine
the mass of the illustrated components. See id. at 2—\\ see also Appeal Br. 5,
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Application 12/743,864
11 (Claims App.). Accordingly, Appellants’ Figure is of little probative
value.
In addition, Appellants contend that Jenkin’s “performance enhancing
active” 706 is not a binder “(such as water) that. . . functions] to
‘raise/maintain the moisture content of the particles so as to allow the
particles to stick together and form the agglomerate particles.’” Appeal Br.
6; see also Reply Br. 2—3. However, Jenkins describes its performance
enhancing actives as “includ[ing] but are not limited to antimicrobials, odor
absorbers/inhibitors, binders, fragrances, health indicating materials,
nonstick release agents, superabsorbent materials, and mixtures thereof.”
Jenkins f 52 (emphasis added). Thus, Appellants’ argument is
unconvincing.
Appellants further argue that because “Jenkins et al. requires a binder
that can be sprayed onto the particles of absorbent material and particles of
light-weighting material to ‘raise/maintain the moisture content of the
particles at a desired level so that they stick together,”’ “Portland cement as
taught by Urayama et al. is not functionally equivalent” to Jenkin’s binder.
Appeal Br. 7, 8; see also Reply Br. 4.
Responding to this argument, the Examiner explains that “several
inorganic binders other than water” are contemplated by Jenkins. Ans. 5
(citing Jenkins ff 52, 57, and 68). Jenkins paragraph 57 states that these
binders include
water, lignin sulfonate (solid), polymeric binders, fibrillated
Teflon® (polytetrafluoroethylene or PTFE), and combinations
thereof. Useful organic polymerizable binders include, but are
not limited to, carboxymethylcellulose (CMC) and its
derivatives and its metal salts, guar gum cellulose, xanthan
gum, starch, lignin, polyvinyl alcohol, polyacrylic acid, styrene
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Application 12/743,864
butadiene resins (SBR), and polystyrene acrylic acid resins.
Water stable particles can also be made with crosslinked
polyester network, including but not limited to those resulting
from the reactions of polyacrylic acid or citric acid with
different polyols such as glycerin, polyvinyl alcohol, lignin, and
hydroxyethylcellulose.
and paragraph 68 explains that
Surprisingly, low levels of PAC (0.05-5%) have been
found to provide excellent odor control in cat litter when they
are bound to the porous surfaces of a sodium bentonite
clay/expanded perlite composite material. For example,
agglomerating small amounts of PAC particles to sodium
bentonite/expanded perlite composites using water as binder
results in litter materials with superior odor adsorbing
performance. In this configuration, the PAC is highly effective
at capturing malodorous volatile organic compounds as they
escape from solid and liquid wastes due to the high surface area
of the PAC, and its preferred location within the porous
surfaces of the composites. Alternatively, xanthan gum, acrylic
polymer, natural and synthetic polymer, fibrillatable PTFE, or
other binders known to those in the art could be used in place of
water as the binder.
Jenkins ff 57, 68. Thus, Appellants’ argument that Jenkins requires water to
be the binder is unconvincing. Consequently, as Appellants do not explain
why Portland cement is not an equivalent to the other binders disclose by
Jenkins, Appellants do not apprise us of error.
For these reasons, we sustain the Examiner’s decision rejecting claim
1, and claims 3—5, 8, 9, 11, and 12, which fall therewith.
Rejection II
Appellants rely upon the same arguments for claim 10, as for claim 6.
See Appeal Br. 9. Accordingly, we limit our discussion of this rejection to
claim 6 and, claims 6 and 10 stand or fall together.
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Given that Jenkins does not disclose cement, the Examiner determines
that Jenkins does not address the alkali content of cement. See Final Act. 6.
The Examiner finds that Urayama teaches that “the cement is low-alkali
cement in which amounts of alkali metals in the cement are limited.” Id.
(citing Urayama ff 13, 24, 51). The Examiner further finds that Urayama’s
low-alkali cement is used “to prevent harm to the animal’s feet.” Id. In
addition, the Examiner finds that Hahn teaches
an animal litter comprising cement (col 3, In 36 describes using
bentonite, which is known to exhibit self-stickiness and binding
ability, thus, functioning as cement; note that "cement" is any
substance that binds or makes things adhere), wherein the
cement is low-alkali cement in which amounts of alkali metals
in the cement are limited (col 3, In 45 49 describes a limited
alkali metal content of 0.1 to 1.5%) so that the animal litter has
a pH of 12 or less (col 4, In 10—17 describe an animal litter
having a pH of not more than 10.5, preferably not more than
10.0; see also Table) in order to reduce odor (col 3, In 53—57).
Id. at 7. Based on this finding, the Examiner reasons that it would have been
obvious “to make the animal litter of Jenkins et al. as modified by Urayama
et al. having a pH or 12 or less as taught by Hahn et al. in order to reduce
odor.” Id. (citing Aller for the proposition that “it has been held that where
the general conditions of a claim are disclosed in the prior art, discovering
the optimum or workable ranges involves only routine skill in the art.”).
Appellants argue that “substituting the bentonite of Hahn et al. with
the liquid binder that is sprayed onto the particles in the agglomerate is not
obvious.” Appeal Br. 9; see also Reply Br. 4—5. However, Appellants’
argument is not responsive to the rejection as articulated by the Examiner.
As discussed supra, the rejection does not propose substituting Hanh’s
bentonite for Urayama’s cement. Rather, the rejection proposes restricting
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Urayama’s low alkali cement to cement have a pH of 12 or less.
Accordingly, Appellants do not apprise us of error.
We sustain the Examiner’s decision rejecting claim 6, and claim 10
which falls therewith.
DECISION
The Examiner’s rejections of claims 1, 3—6, and 8—12 are
AFFIRMED.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l)(iv).
AFFIRMED
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