Ex Parte Mattai et al

Board of Patent Appeals and Interferences

Sep 9, 2008

10964268 (B.P.A.I. Sep. 9, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte JAIRAJH MATTAI,
SUMAN CHOPRA,
PETER HILLIARD, JR.,
ERIC GUENIN,
RONALD JACOBY,
and
ELIZABETH LINN,
Appellants
____________________

Appeal 2008-4896
Application 10/964,2681
Technology Center 1600
____________________

Decided: September 9, 2008
____________________

Before CAROL A. SPIEGEL, DONALD E. ADAMS, and JEFFREY N.
FREDMAN, Administrative Patent Judges.

SPIEGEL, Administrative Patent Judge.

DECISION ON APPEAL

1 Application 10/964,268 ("the 268 application"), Underarm Products with
Superabsorbent Component, filed 13 October 2004, is a continuation-in-part
of application 10/696,764, filed 29 October 2003. The real party in interest
is Colgate-Palmolive Company (Appeal Brief under 37 C.F.R. § 41.35, filed
14 December 2007 ("Br."), 2).
Appeal 2008-4896
Application 10/964,268

I. Statement of the Case
This is an appeal under 35 U.S.C. § 134 from a final rejection of all
pending claims, claims 1-22. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
The subject matter on appeal is directed to a suspension product, such
as a stick or soft solid underarm product, comprising a polyacrylate
superabsorbent polymer ("SAP") capable of absorbing a minimum defined
amount of water in the presence of a salt. Claim 1, the only independent
claim, is illustrative and reads (Br. 6-7):
1. A stick or soft solid suspension product comprising:
(a) 0.01-20 weight % of a polyacrylate superabsorbent
polymer, with a salt or ionic strength tolerance under a
Baseline Absorption Test sufficient to give at least 25
weight % water absorption;
(b) 10-88 weight % of a volatile silicone having a flash point
of 100 degrees C or less; and
(c) a gelling agent selected from the group consisting of 5-30
weight % stearyl alcohol; 0.1-20 weight % waxes; 0.1-10
weight % (on an actives basis) silicone elastomer; 0.1-3
weight % siliconized polyamides; 0.1-20 weight % low
molecular weight polyethylene having a molecular
weight in the range of 400-1000 and combinations of the
foregoing,
wherein the water content is ≤ 2 weight % based on added
water and excluding any waters of hydration, and
wherein the Baseline Absorption Test is conducted by:
(I) preparing an antiperspirant stick having per 100g, 5g of
the polyacrylate superabsorbent polymer, 12g of C12-15
alkyl benzoate, 35.8g of cyclomethicone 345, 16g stearyl
alcohol, 4g hydrogenated castor oil, 4g PEG-8 distearate,
22g aluminum zirconium tetrachlorohydrox gly
antiperspirant active, and 1.2g fragrance by
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Application 10/964,268

(i) mixing the cyclomethicone and the C12-15 alkyl
benzoate and heating them to 70oC and
maintaining 70oC,
(ii) adding the stearyl alcohol until melted,
(iii) adding the PEG-8 distearate until dissolved,
(iv) increasing the temperature to 80oC and
maintaining 80oC,
(v) adding the hydrogenated castor oil until dissolved,
(vi) cooling to 75oC,
(vii) adding the antiperspirant and superabsorbent,
(viii) maintaining the temperature at 70-75oC for 15
minutes,
(ix) cooling to 65oC and adding the fragrance,
(x) cooling to 58oC and pouring into a container,
(II) preparing a control sample as in step I without the
polyacrylate superabsorbent polymer,
(III) adding 2g of the antiperspirant stick and the control to
separate 16x100mm culture tubes at room temperature,
(IV) adding 2 g of water to each tube,
(V) centrifuging each tube for 5 minutes at 3000 rpm,
(VI) measuring the height of water in each tube, and
(VII) calculating % water absorption as 100*(height of water
in control-height of water in tube with
superabsorbent)/(height of water in control).

Claims 1-22 stand rejected under 35 U.S.C. § 103(a) as obvious over
the combined teachings of Chopra,2 Trandai,3 Obayashi,4 and Rork5 (Ans.6
3).

2 U.S. Patent 6,436,382 B1, Underarm Products with Water Lock
Component, issued 20 August 2002, to Chopra et al. ("Chopra").
3 U.S. Patent 5,605,681, Mild Gel Deodorant Composition Containing Soap,
Polymeric Hydrogel Forming Polymer and High Level of Water, issued 25
February 1997, to Trandai et al. ("Trandai").
4 U.S. Patent 4,340,706, Alkali Metal Acrylate or Ammonium Acrylate
Polymer Excellent in Salt Solution-Absorbency and Process for Producing
Same, issued 20 July 1982, to Obayashi et al. ("Obayashi").
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Appeal 2008-4896
Application 10/964,268

Since Appellants have not separately argued the patentability of any
dependent claim, we decide this appeal on the basis of claim 1. 37 C.F.R.
§ 1.37(c)(1)(vii).
The dispositive issue is whether Obayashi and/or Rork suggest
replacing the starch graft copolymer SAP disclosed in Chopra or the
polymeric gelling agent disclosed in Trandai with an SAP meeting the
minimum Baseline Absorption Test amount recited in claim 1.
II. Findings of Fact
The following findings of fact are supported by a preponderance of
the evidence of record.
A. Appellants' invention
[1] The 268 Specification describes an underarm product comprising "a
superabsorbent polymer which is a surface modified sodium
polyacrylate salt . . . which . . . allows for greater water absorption in
the presence of salt" (Spec. 1:28-30).
[2] According to the 268 Specification, "[t]he water absorption capacity
of superabsorbent polymers are [sic] known to be affected by salts,
such as sodium chloride or an antiperspirant active" (Spec. 20:15-16).
[3] Thus, "[i]n order to select an appropriate superabsorber which can
maintain sufficient capacity in a high salt environment, it has been
found that the Baseline Absorption Test is the best predictor of which
superabsorbers will work" (Spec. 15:18-21) because "not all
superabsorbents will work in this invention" (id. 15:14-15).

5 U.S. Patent 5,882,682, Controlled Release Simvastatin Delivery Device,
issued 16 March 1999, to Rork et al. ("Rork").
6 Examiner's Answer mailed 19 March 2008 ("Ans.").
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Appeal 2008-4896
Application 10/964,268

[4] For example, a baseline absorption test comparing HySorbâ„¢ 8100
superabsorbent to a starch graft copolymer of poly(2-propenamide-co-
2-propenoic acid) ("SGC") at 20:1 water:superabsorbent was said to
show that a formula containing HySorbâ„¢ 8100 absorbed 67% of
water compared to 16.5% of water for the formula containing SGC
(Spec. 20:14 - 22:7).
[5] "Examples of superabsorber materials that work in this invention
include HySorbâ„¢ 8100 and HySorbâ„¢ CL-15 (from BASF, North
Carolina) . . . AQUAKEEP J-550 and AQUAKEEP 10SH-N (from
Kobo Products, Inc., South Plainfield, NJ) . . ." (Spec. 3:20-25).
B. Chopra
[6] Chopra discloses suspension products formulated as sticks or soft
solids comprising:
(a) 0.01-20 weight % . . . of a water lock superabsorbent
polymer selected from the group consisting of starch graft
homopolymers and copolymers of poly(2-propenamide-co-2-
propenioic acid) sodium salt;
(b) 10-88 weight % of a volatile silicone having a flash point
of 100 degrees C. or less . . ., [and]
(c) a gelling agent selected from the group consisting of 5-30
weight % stearyl alcohol; 0.1-10 weight % (on an actives basis)
silicone elastomer; 0.1-20 weight % waxes . . ., 1-3 weight %
siliconized polyamides . . ., 1-20 weight % low molecular
weight polyethylene having a molecular weight in the range of
400-1000 . . . and combinations of the foregoing (Chopra 1:63 -
2:19).

C. Trandai
[7] Trandai discloses "gel deodorant compositions with improved
mildness and increased amounts of water . . . obtained by
incorporating into the product an aqueous gel prepared from a highly
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Appeal 2008-4896
Application 10/964,268

absorbent, polymeric gelling material and a relatively high amount of
water" (Trandai 2:18-22).
[8] According to Trandai (Trandai 6:44-51),
[t]he hydrogel forming polymeric gelling agent hereof is
highly absorbent of water, and will generally be able to absorb
at least about 40 g water (deionized) per gram of gelling agent,
preferably at least about 60 g/g, more preferably at least about 8
gig [sic]. These values, referred to as "Absorptive Capacity"
herein can be determined according to the procedure in the
Absorptive Capacity "Tea Bag" test in the Experimental Section
. . . .
[9] "In general, the hydrogel forming polymeric gelling agent materials . .
. are at least partially crosslinked polymers prepared from
polymerizable, unsaturated acid-containing monomers which are
water-soluble or become water-soluble upon hydrolysis" (Trandai
7:13-17).
[10] "Acrylic acid and combinations of acrylic acid and acrylate salts (e.g.,
sodium acrylate) are particularly preferred" (Trandai 8:65-67).
[11] Trandai expressly refers to Obayashi (US 4,340,706) for its teaching
of a "[p]rior art hydrogel forming polymeric gelling agent synthesis
procedure[]" (Trandai 11:31-35).
D. Obayashi
[12] Obayashi discloses "an alkali metal acrylate or ammonium acrylate
polymer having excellent water-absorbency and particularly salt
solution-absorbency" (Obayashi 1:7-10).
[13] According to Obayashi,
[a]lthough the hydrolyzate of starch-acrylonitrile graft
copolymer has a relatively high deionized water absorbency
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Appeal 2008-4896
Application 10/964,268

corresponding to 300-500 times its own weight, the saline
solution-absorbency of the hydrolysate is only about 30-40
times its own weight and the product cannot be stored for a
long period of time because the starch, the main component,
rots (Obayashi 1:26-32).
[14] Further according to Obayashi, the disclosed water-absorbent resin
has a water-absorbency of at least 800 times its own weight, a saline
solution-absorbency of at least 80 times its own weight, and improved
stability in the both the powdery state and the water-absorbed state
(Obayashi 6:42-48).
[15] Specifically, Obayashi discloses
a process for producing an alkali metal acrylate or ammonium
acrylate polymer . . . by suspending an aqueous solution of
acrylic acid and an alkali metal acrylate or ammonium acrylate,
the mole ratio of the acrylic acid to the alkali metal acrylate or
ammonium acrylate being 50/50 to 2/98, in an alicylic or
aliphatic hydrocarbon solvent containing a surfactant having an
HLB value of 8-12, subjecting the resulting suspension to
inverse suspension polymerization in the presence of a water-
soluble radical polymerization initiator and, if necessary,
crosslinking the resulting polymer with a cross-linking agent
(Obayashi 3:55-68).
E. Rork
[16] Rork states "[t]he 'AQUAKEEP®' polymers are generically described
in U.S. Pat. No. 4,340,706", i.e., Obayashi (Rork 4:44-45), e.g.,
AQUAKEEP J-550 (Rork 4:60).
Other findings of fact follow below.

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Appeal 2008-4896
Application 10/964,268

III. Discussion
A. The Examiner's findings and conclusion
The Examiner found Chopra discloses the subject matter of claim 1
but for "the polyacrylate superabsorbent polymer, or a sodium salt of a
polyacrylate superabsorbent polymer, that meets the Baseline Absorption
Test Criterias as recited in claim 1" (Ans. 4). The Examiner found Trandai
discloses a deodorant composition containing a polymeric gelling material
comprising a polymer formed from monomers, such as acrylic acid and
sodium acrylate, capable of absorbing at least 40 g of water per gram of
gelling agent and a deodorant active that is a salt (Ans. 4-5). The Examiner
found Obayashi discloses "an alkali metal acrylate polymer having an
improved water absorption rate, and in particular a higher water absorbency
and salt-solution absorbency" (Ans. 5). The Examiner further found that
Rork teaches Obayashi "generally describes the AQUAKEEP polymers,
such as AQUAKEEP J-550" (Ans. 6). "Thus, Rork . . . teaches that the
polymers of Obayashi . . . do in fact correspond to those meeting the
Baseline Absorption Test as claimed" (Ans. 13).
The Examiner concluded it would have been "obvious to provide the
superabsorbing polyacrylate polymer with ionic strength tolerance of
Trandai . . . in the underarm product of Chopra . . . because Chopra . . .
teaches that the product desirably comprises a superabsorbing polymer to
reduce underarm wetness, and Trandai . . . teaches a superabsorbent polymer
that is suitable of deodorant products" (Ans. 5). The Examiner further
concluded it would have been "obvious to provide the sodium polyacrylate
polymer of Obayashi . . . in view of Rork . . . in the composition of Chopra .
. . and Trandai . . . because Chopra . . . and Trandai teach that a sodium
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Application 10/964,268

polyacrylate polymer that is highly water absorbent can be provided in the
composition to reduce underarm wetness, and Obayashi . . . and Rork . . .
teach a sodium polyacrylate polymer that is a good absorber of water and
salt solutions" (Ans. 6-7).
B. Appellants' position
According to Appellants (Br. 5),
Neither Chopra . . . nor Trandi . . . provide any
motivation to substitute their disclosed superabsorbent
polymers with any other superabsorbent polymers, and in
particular, those meeting the Baseline Absorption Test. While
Rork . . . and Obayashi . . . describe the AQUAKEEPâ„¢
polymers, neither disclose or suggest that these polymers
should be used in antiperspirant/deodorant compositions, such
as those in Chopra . . . or Trandi . . . . Even taking all of these
references together, there is nothing in these references to
suggest that superabsorbent polymers meeting the Baseline
Absorption Test should be used to replace the superabsorbent
polymers in the compositions of Chopra . . . or Trandi . . . .

C. Legal principles
A claimed invention is not patentable if it would have been obvious to
a person of ordinary skill in the art at the time the invention was made. 35
U.S.C. § 103(a); KSR Int'l Co. v. Teleflex Inc., 127 S.Ct. 1727 (2007);
Graham v. John Deere Co. of Kansas City, 383 U.S. 1 (1966). Facts
relevant to a determination of obviousness include (1) the scope and content
of the prior art, (2) any differences between the claimed invention and the
prior art, (3) the level of ordinary skill in the art, and (4) any relevant
objective evidence of obviousness or nonobviousness. KSR, 127 S.Ct. at
1734; Graham, 383 U.S. at 17-18.
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Appeal 2008-4896
Application 10/964,268

In addition, as explained in In re Papesch, 315 F.2d 381, 391 (CCPA
1963), “a compound and all of its properties are inseparable; they are one
and the same thing.”
D. Analysis
Here, as recognized by the Examiner (Ans. 4), Chopra discloses the
subject matter of claim 1 but for the claimed SAP. Instead, the product of
Chopra contains a starch graft copolymer SAP (FF 6). Obayashi recognizes
that while starch graft copolymers have a relatively high deionized water
absorbency (300-500 times their own weight), their saline absorbency is
much lower (30-40 times their own weight) (FF 13). Obayashi's statement is
consistent with the statement in the 268 Specification that the water
absorbency of SAPs is known to be affected by the presence of salts, such as
sodium chloride or antiperspirant active (FF 2). We find that it is commonly
known that body fluids, such as sweat, contain sodium chloride.
Obayashi discloses polyacrylate SAPs having a deionized water
absorbency of at least 800 times their own weight and a saline absorbency of
at least 80 times their own weight (FF 14). The polyacrylate SAPs of
Obayashi are AQUAKEEP® SAPs, e.g., AQUAKEEP J-550, as evidenced
by Rork (FF 16). According to the 268 Specification, AQUAKEEP® SAPs,
e.g., AQUAKEEP J-550, meet the minimum Baseline Absorption Test
amount recited in claim 1 (FF 5). Therefore, the polyacrylate SAPs of
Obayashi would have been expected to inherently meet the minimum
Baseline Absorption Test amount recited in claim 1. See In re Papesch, 315
F.2d at 391.
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Appeal 2008-4896
Application 10/964,268

In addition, Trandai teaches SAPs, particularly preferred polyacrylate
SAPs, such as those of Obayashi, that are highly absorbent of water (FF 8,
10, and 11).
Therefore, we agree with the Examiner that it would have been prima
facie obvious to one of ordinary skill in the art to replace the starch graft
copolymer of Chopra with a polyacrylate SAP, such as an AQUAKEEP®
SAP, e.g., AQUAKEEP J-550, to reduce underarm wetness in view of the
teachings of Trandai and/or Obayashi. Specifically, Trandai teaches high
water absorbency is obtained with polyacrylate SAPs, such as a polyacrylate
SAP as synthesized by Obayashi and Obayashi teaches polyacrylate SAPS,
i.e., AQUAKEEP® SAPs, have a higher water absorbency than starch graft
copolymers, especially in the presence of salt, i.e., saline. Obayashi's
AQUAKEEP® SAPs would have reasonably been expected to inherently
meet the minimum Baseline Absorption Test amount recited in claim 1 in
view of Appellants' acknowledgement of the suitability of an AQUAKEEP®
SAP, e.g., AQUAKEEP J-550. Finally, Appellants have not submitted any
evidence of secondary considerations in rebuttal to the Examiner's prima
facie conclusion of obviousness.
Accordingly, we sustain the rejection of claims 1-22 under § 103(a)
over Chopra, Trandai, Obayashi, and Rork.
IV. Order
Upon consideration of the record, and for the reasons given, it is
ORDERED that the decision of the Examiner rejecting claims 1-22
under 35 U.S.C. § 103(a) as unpatentable over the combined teachings of
Chopra, Trandai, Obayashi, and Rork is AFFIRMED, and
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Appeal 2008-4896
Application 10/964,268

FURTHER ORDERED that no time period for taking any subsequent
action in connection with this appeal may be extended under 37 C.F.R.
§ 1.146(a).
AFFIRMED

qsg

COLGATE-PALMOLIVE COMPANY
909 River Road
Piscataway, NJ 08855

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