11447388 (B.P.A.I. May. 10, 2010)

Ex Parte Morgan et al

Board of Patent Appeals and InterferencesMay 10, 2010

11447388 (B.P.A.I. May. 10, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte GEORGE KAVIN MORGAN III and ZAIYOU LIU ____________ Appeal 2010-000488 Application 11/447,388 Technology Center 1700 ____________ Decided: May 11, 2010 ____________ Before EDWARD C. KIMLIN, BRADLEY R. GARRIS, and ADRIENE LEPIANE HANLON, Administrative Patent Judges. KIMLIN, Administrative Patent Judge. DECISION ON APPEAL This is an appeal from the final rejection of claims 1-11. We have jurisdiction under 35 U.S.C. § 6(b). Claim 1 is illustrative: Appeal 2010-000488 Application 11/447,388 1. A multiple use fabric conditioning composition comprising: (a) a fabric conditioning active; (b) a carrier component; (c) a free perfume composition comprises at least one perfume ingredient comprising a ClogP equal to or higher than about 3.0; and (d) wherein the composition is operably connectable to an inside surface of an automatic clothing dryer. The Examiner relies upon the following references as evidence of obviousness (Ans. 2): Santos 2003/0013632 Jan. 16, 2003 Lentsch 2004/0167056 A1 Aug. 26, 2004 Appellants’ claimed invention is directed to a fabric conditioning composition that is connectable to the inside surface of an automatic clothing dryer. The composition comprises a fabric conditioning active, a carrier component and a free perfume composition. The perfume composition comprises at least one perfume ingredient comprising an octanol/water partitioning coefficient (ClogP) equal to or greater than 3.0. The conditioning composition is capable of multiple uses in the dryer. Appealed claims 1-11 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Lentsch in view of Santos. Appellants have not presented separate arguments for any particular claim on appeal.1 Accordingly, all the appealed claims stand or fall together with claim 1. 1 We will not consider Appellants’ separate arguments for claims 3 and 5 in the Reply Brief. It is well settled that arguments not raised in the Principal 2 Appeal 2010-000488 Application 11/447,388 We have thoroughly reviewed each of Appellants’ arguments for patentability, as well as the Specification data relied upon in support thereof. However, we are in complete agreement with the Examiner that the claimed subject matter would have been obvious to one of ordinary skill in the art within the meaning of § 103 in view of the applied prior art. Accordingly, we will sustain the Examiner’s rejection for essentially those reasons expressed in the Answer, and we add the following for emphasis only. There is no dispute that Lentsch, like Appellants, discloses a multiple use fabric conditioning composition that is operably connectable to an inside surface of an automatic clothing dryer, which composition comprises a fabric conditioning active, a carrier component and a free perfume composition. As acknowledged by the Examiner, Lentsch does not specify any particular perfume ingredient or fragrance for the conditioning composition. However, Santos, who also discloses a fabric conditioning composition, teaches that, preferably, at least about 70% of the free perfume composition is composed of substantive ingredients that tend to remain on fabrics after the drying process. The reference discloses that “[s]ubstantive perfume ingredients are characterized by having a boiling point equal to or higher than about 250° C. and a ClogP value equal to or greater than about 3” ([0130]). Accordingly, based on the collective teachings of Lentsch and Santos, we find no error in the Examiner’s legal conclusion that one of ordinary skill in the art would have found it obvious to select a perfume Brief are waived. Cross Med. Products, Inc. v. MedTronic Sofamor Danek, 424 F.3d 1293, 1320-21 n.3 (Fed. Cir. 2005). See also 37 C.F.R. § 41.37(c)(1)(vii). 3 Appeal 2010-000488 Application 11/447,388 composed of substantive ingredients having a ClogP value greater than about 3 for the perfume in Lentsch’s multiple-use fabric conditioning composition. Appellants submit that it is undisputed that Lentsch fails to disclose specific perfumes for use with multiple-use fabric softening compositions and that Santos fails to disclose a multiple-use softener (App. Br. 3, third para.). However, Appellants fail to present any argument why it would have been non-obvious for one of ordinary skill in the art to select a perfume having a ClogP value greater than 3 when Santos explicitly discloses that such substantive perfumes tend to remain on fabrics after the drying process. Appellants have advanced no reason why one of ordinary skill in the art would not have reasonably expected that perfumes having a ClogP value greater than 3 are suitably effective for both single and multiple-use conditioning compositions. We agree with the Examiner that Appellants’ argument is, for the most part, an ineffective attack on the references considered individually. Appellants cite Specification data that “establishes the impact that claimed fragrance technologies has[sic] on the release profile of the multiple-use fabric conditioning composition has [sic] over the course of the ten dryer cycles” (App. Br. 3, last para.). However, the Examiner has properly assessed the Specification data as not being germane to the claimed subject matter. Perfume C, which Appellants assert is representative of the claimed invention, contains 100% of free perfume ingredients with a ClogP value of 3.0 or greater, whereas perfumes A and B, which are purportedly outside the claimed invention, contain 36.8% and 77.2% of free perfume ingredients with a ClogP value of 3.0 or greater, respectively. Appealed 4 Appeal 2010-000488 Application 11/447,388 claim 1, however, with which all the appealed claims stand or fall, does not recite any percentage value for free perfume ingredients with a ClogP value of 3.0 or greater. Appealed claim 1 places no limit on the amount of such perfume ingredient. Consequently, the Specification data is not probative of the non-obviousness of subject matter within the scope of the appealed claims. Also, Appellants have not refuted the Examiner’s reasoning that “it is not clear how the release behavior changes when no high C logP perfume is present [and] whether the slower release is a function of the Clog p values of the perfumes, or of their volatilities at dryer temperatures, which are related to their boiling points” (Ans. para. bridging 4-5). In addition, Appellants have not established that the Specification data would be considered truly unexpected by one of ordinary skill in the art. In re Merck & Co., 800 F.2d 1091, 1098-99 (Fed. Cir. 1986). In conclusion, based on the foregoing and the reasons well stated by the Examiner, the Examiner’s decision rejecting the appealed claims is 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) (2008). AFFIRMED ssl THE PROCTER & GAMBLE COMPANY GLOBAL LEGAL DEPARTMENT - IP SYCAMORE BUILDING - 4TH FLOOR 299 EAST SIXTH STREET CINCINNATI, OH 45202 5