Ex Parte Mattai et al

Patent Trial and Appeal Board

May 2, 2016

12888015 (P.T.A.B. May. 2, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/888,015 09/22/2010
23909 7590 05/25/2016
COLGATE-PALMOLIVE COMPANY
909 RIVER ROAD
PISCATAWAY, NJ 08855
FIRST NAMED INVENTOR
Jairajh Mattai
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.
7749-01-PC 3609
EXAMINER
KARPINSKI, LUKE E
ART UNIT PAPER NUMBER
1616
NOTIFICATION DATE DELIVERY MODE
05/25/2016 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):
Patent_Mail@colpal.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JAIRAJH MATT AI,
XIAOZHONG TANG, and
MARIAN HOLERCA
Appeal2013-010598
Application 12/888,015
Technology Center 1600
Before JEFFREY N. FREDMAN, JOHN G. NEW, and
JACQUELINE T. HARLOW, Administrative Patent Judges.
FREDMAN, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal 1 under 35 U.S.C. § 134 involving claims to an
antiperspirant composition. The Examiner rejected the claims as obvious.
We have jurisdiction under 35 U.S.C. § 6(b). We affirm.
1 Appellants identify the Real Party in Interest as Colgate-
Palmolive Company (see App. Br. 2).
Appeal2013-010598
Application 12/888,015
Statement of the Case
Background
"Antiperspirant compositions containing aluminum or aluminum-
zirconium salts tend to exhibit polymerization ... lower molecular weight
species have greater antiperspirant effect than higher molecular weight
species. It is thus very desirable to have compositions wherein antiperspirant
salts are stabilized to reduce polymerization" (Spec. i-f 2).
The Claims
Claims 1, 6-17, 20, and 21 are on appeal. Independent claim 1 is
representative and reads as follows:
1. An antiperspirant composition comprising a mixing
product of:
(a) at least one salt chosen from at least one aluminum
salt, at least one aluminum-zirconium salt, at least one
aluminum salt complex, and at least one aluminum-zirconium
salt complex, wherein the aluminum salt or the aluminum salt
complex is at least one salt chosen from aluminum chloride,
aluminum chlorohydrate, aluminum sequichlorohydrate, and
aluminum dichlorohydrate;
(b) at least one cosmetically acceptable beta-hydroxy
acid; and
(c) at least one betaine chosen from 1-carboxy-N,N,N-
trimethylmethanaminium hydroxide inner salt and 1-carboxy-
N ,N ,N-trimethylmethanaminium hydroxide inner salt
hydrochloride.
The Issue
The Examiner rejected claims 1, 6-17, 20, and 21under35 U.S.C.
§ 103(a) as obvious over Shen,2 Holerca,3 and D' Arcangelis4 (Ans. 2-5).
2 Shen, US 6,245,325 Bl, issued June 12, 2001.
3 Holerca et al., US 2004/0204601 Al, published Oct. 14, 2004.
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Application 12/888,015
The Examiner finds that "Shen teaches antiperspirant compositions
comprising aluminum-zirconium pentachlorohydrate" (Ans. 2). The
Examiner acknowledges that "Shen does not teach beta-hydroxy acid ...
[and] Shen does not teach betaine components" (Ans. 3). The Examiner
finds that D' Arcangelis teaches "anti-sebum agents such as alpha-hydroxy
acids and beta-hydroxy acids including salicylic acid" (Id.). The Examiner
finds that Holerca teaches "antiperspirant compositions comprising betaines
which provide important properties such as anti-irritation" (Id.).
The Examiner finds it obvious "to utilize the salicylic acid of
D'Arcangelis et al., in the compositions of Shen ... in order to use another
known anti-sebum agent" (Ans. 4). The Examiner finds it obvious "to
utilize the betaine of Holerca ... in the compositions of Shen in order to use
a known anti-irritant component" (Id.)
The issue presented is: Does the evidence of record support the
Examiner's conclusion that the ordinary artisan would have had reason to
combine the antiperspirant components taught by Shen, Holerca, and
D' Arcangelis and thereby render claim 1 obvious?
Findings of Fact
1. Shen teaches "antiperspirant salt compositions containing
calcium and an amino acid or a hydroxy acid" and "an enhanced efficacy
aluminum or aluminum-zirconium antiperspirant salt" (Shen, col. 4, 11. 14--
24).
2. Shen teaches that "preferably, the aluminum salt is aluminum
chlorohydrate" (Shen, col. 5, 1. 35).
4 D'Arcangelis et al., US 2005/0053631 Al, published Mar. 10,
2005.
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Application 12/888,015
3. Shen teaches that "[p]referred aluminum-zirconium salts are
mixtures or complexes of the above-described aluminum salts with
zirconium salts" (Shen, col. 5, 11. 40-42).
4. Shen teaches a "hydroxy acid which is effective in increasing
and/or stabilizing the HPLC peak 4:3 area ratio of the antiperspirant salt"
(Shen, col. 6, 11. 51-53).
5. Holerca teaches that "[b ]etaine ... has been found to have
properties important to the field of antiperspirant salts that
contain zirconium .... it is reported as an extremely versatile molecule with
a wide range of applications: ... anti-irritant ... and component in cosmetic
compositions" (Holerca i-f 13).
6. D' Arcangelis teaches that "[ v ]arious types of additional active
ingredients may be present in cosmetic compositions of the present
invention .... general examples include additional anti-sebum ingredients
such as ... alpha-hydroxy acids, beta-hydroxy acids, poly-hydroxy acids,
benzoyl peroxide, astringent salts such as zinc salts" (D' Arcangelis i-f 67).
7. D' Arcangelis teaches that "[b ]eta-hydroxy acids include
salicylic acid" (D' Arcangelis i-f 68).
8. D' Arcangelis teaches that "the prevention of sebum
production, for example as a result of sweating or perspiration, is also
contemplated as an appropriate application of the cosmetic methods of the
invention for reducing the appearance of oily skin" (D' Arcangelis i-f 64).
9. D' Arcangelis teaches that "[p]referably, the antiperspirant is an
aluminium salt and, more preferably, it is ... aluminium chlorohydrate"
(D' Arcangelis i-f 83).
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Application 12/888,015
Principles ofLaw
"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
We adopt the Examiner's findings of fact and reasoning regarding the
scope and content of the prior art (Ans. 2-5; FF 1-9) and agree that the
claims are rendered obvious by Shen, Holerca, and D'Arcangelis. We
address Appellants' arguments below.
Appellants contend that "there is no disclosure or suggestion in
D' Arcangelis '631 alone or in combination to combine beta-hydroxy acids
with antiperspirant salts" (App. Br. 2). Appellants contend that "[b ]eta-
hydroxy acids and antiperspirant salts are each listed individually, and at no
time does D' Arcangelis "631 disclose or suggest that beta-hydroxy acids are
to be combined with antiperspirant salts or that beta-hydroxy acids can be
used in an antiperspirant composition" (App. Br. 3).
We are not persuaded. The Examiner has established that hydroxy
acids generally were known components of antiperspirants (FF 1, 4) and that
specific hydroxyl acids including alpha-hydroxy acids, beta-hydroxy acids,
and poly-hydroxy acids were known equivalent cosmetic ingredients used
for sebum control (FF 6), a concern associated with perspiration (FF 8).
Selecting known equivalents such as beta-hydroxy acids is obvious,
consistent with Wrigley, which found a "strong case of obviousness based on
the prior art references of record. [The claim] recites a combination of
elements that were all known in the prior art, and all that was required to
obtain that combination was to substitute one well-known ... agent for
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Application 12/888,015
another." Wm. Wrigley Jr. Co. v. Cadbury Adams USA LLC, 683 F.3d 1356,
1364 (Fed. Cir. 2012). The same result obtains here.
Appellants acknowledge that Shen "discloses hydroxyl acids ... [and]
exemplifies alpha-hydroxy acids" but contend that "[a]t no time does Shen
'325 disclose or contemplate beta-hydroxy acid" (App. Br. 3). Appellants
contend that "[t]here is no disclosure or suggestion of hydroxy acids, or
specifically beta-hydroxy acids, in Holerca '601" (App. Br. 3). Appellants
contend that "[a]t no time is the combination even contemplated by
D'Arcangelis '631" (App. Br. 4).
We are not persuaded. "Non-obviousness cannot be established by
attacking references individually where the rejection is based upon the
teachings of a combination of references." In re Merck & Co., 800 F.2d
1091, 1097 (Fed. Cir. 1986). Instead, the "test for obviousness is not
whether the features of a secondary reference may be bodily incorporated
into the structure of the primary reference .... Rather, the test is what the
combined teachings of the references would have suggested to those of
ordinary skill in the art." In re Keller, 642 F.2d 413, 425 (CCPA 1981).
Here, D' Arcangelis evidences that beta-hydroxy and alpha-hydroxy
acids were predictable variations (FF 6), in the absence of secondary
considerations, and Shen teaches the use of hydroxy acids in general in
antiperspirants (FF 1). See KSR, 550 U.S. at 417 ("If a person of ordinary
skill can implement a predictable variation, § 103 likely bars its
paten tab ility. ")
Conclusion of Law
The evidence of record supports the Examiner's conclusion that the
ordinary artisan would have had reason to combine the antiperspirant
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components taught by Shen, Holerca, and D' Arcangelis and thereby render
claim 1 obvious.
SUMMARY
In summary, we affirm the rejection of claim 1 under 35 U.S.C.
§ 103(a) as obvious over Shen, Holerca, and D' Arcangelis. Claims 6-17,
20, and 21 fall with claim 1. 37 C.F.R. § 41.37(c)(iv).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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