Ex Parte Murray et al

Patent Trial and Appeal Board

Jul 25, 2016

13378216 (P.T.A.B. Jul. 25, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/378,216 12/14/2011 Andrew Malcolm Murray
201 7590 07/27/2016
UNILEVER PATENT GROUP
800 SYLVAN A VENUE
AG West S. Wing
ENGLEWOOD CLIFFS, NJ 07632-3100
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.
J4009USw 3441
EXAMINER
HIRT,ERINE
ART UNIT PAPER NUMBER
1616
NOTIFICATION DATE DELIVERY MODE
07/27/2016 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):
patentgroupus@unilever.com
pair_unilever@firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ANDREW MALCOLM MURRAY and THUY-ANH PHAM 1
Appeal2014-005176
Application 13/378,216
Technology Center 1600
Before ULRIKE W. JENKS, JOHN E. SCHNEIDER, and RYAN H. FLAX,
Administrative Patent Judges.
FLAX, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) involving a
claim directed to a shampoo composition. Claim 1 is on appeal as rejected
under 35 U.S.C. § 103(a). We have jurisdiction under 35 U.S.C. § 6(b ).
We affirm.
1 The Real Party in Interest is Conopco, Inc., d/b/a UNILEVER (New
York). Br. 3.
Appeal2014-005176
Application 13/378,216
STATEMENT OF THE CASE
The appealed claim can be found in the Claims Appendix of the
Appeal Brief and reads as follows:
1. Concentrated shampoo composition comprising from 2 7 to
70% wt. anionic surfactant, a conditioning gel phase, about 15%
by wt. propylene glycol, and 0.5 to 3% by wt. light mineral oil,
wherein the conditioning gel phase comprises:
(a) fatty material;
(b) a gel network anionic surfactant comprising an alkyl group
with from 16 to 30 carbons;
( c) cationic surfactant having from 16 to 30 carbons;
wherein the conditioning gel network has no overall charge or is
anionic and wherein the conditioning gel phase fatty material has
from 14 to 30 carbons and is selected from fatty alcohols, fatty
acids, fatty amides and fatty esters.
Br. 12 (Claims App'x).
Claim 1 stands rejected under 35 U.S.C. § 103(a) over Wells. 2
DISCUSSION
We adopt the Examiner's findings of fact, reasoning on scope and
content of the prior art, and conclusions set out in the Final Action and
Answer. We identify the following only to highlight certain facts:
2 U.S. Patent Application Pub. No. US 2006/0024256 Al (published Feb. 2,
2006) (hereinafter "Wells").
2
Appeal2014-005176
Application 13/378,216
FINDINGS OF FACT
FF 1. Wells disclosed:
6. Hmnectants
The compositions of the present invention may contain a
humectant. The humectants herein are selected from the group
consisting of polyhydric alcohols, water soluble alkoxylated
nonionic polymers, and mixtures thereof. The humectants,
when used herein, are preferably present in an amount by
weight of the composition from about 0.1 °/o to about 20%,
more preferably from about 0.5% to about 5%.
Polyhydric alcohols useful herein include glycerin, sorbitol,
propylene glycol, butylene glycol, hexylene glycol, ethoxylated
glucose, 1,2-hexane diol, hexanetriol, dipropylene glycol,
erythritol, trehalose, diglycerin, xylitol, maltitol, maltose,
glucose, fructose, sodium chondroitin sulfate, sodium
hyaluronate, sodium adenosine phosphate, sodium lactate,
pyrrolidone carbonate, glucosamine, cyclodextrin, and mixtures
thereof.
Wells i-fi-1229--231 (bold emphasis added); see also Final Action 3-5, 7, and
Ans. 2-5 (discussing Wells).
ANALYSIS
The evidence of record supports the Examiner's prima facie case that
the claims would have been obvious over the cited prior art combination.
The issue presented is whether Appellants' arguments that the selection and
amount of propylene glycol recited by the claim provide unexpected results
to the claimed shampoo composition (i.e., surprising "clean feel") so as to
provide compelling evidence of non-obviousness. See Ex parte Frye, 94
U.S.P.Q. 2d 1072, 1075 (BPAI 2010) (precedential) ("Filing a Board appeal
does not, unto itself, entitle an appellant to de nova review of all aspects of a
3
Appeal2014-005176
Application 13/378,216
rejection. If an appellant fails to present arguments on a particular issue -
or, more broadly, on a particular rejection - the Board will not, as a general
matter, unilaterally review those uncontested aspects of the rejection."). The
evidence of record does not support Appellants' argument.
Appellants do not dispute that Wells teaches each limitation of the
claims. Appellants contend that the recited "about 15% by wt. propylene
glycol" is an unobvious choice among the humectants disclosed by Wells as
present in amounts of"about 0.1 % to about 20%." Appellants, however,
proffer no evidence that this is so and the Specification, which describes the
conditioning benefits of the invention without identifying any special
advantage offered by propylene glycol (see Spec. 1, 11. 11-26), does not
support this contention. It is well settled that arguments of counsel cannot
take the place of factually supported objective evidence. See, e.g., In re
Huang, 100 F.3d 135, 139--40 (Fed. Cir. 1996). Therefore, we cannot agree
with Appellants.
For the above reasons, we find claim 1 would have been obvious over
Wells; therefore, the respective rejection is affirmed.
SUMMARY
The rejection of claim 1 under 35 U.S.C. § 103(a) 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).
AFFIRMED
4