Ex Parte Oehms et al

Patent Trial and Appeal Board

Sep 26, 2016

12679567 (P.T.A.B. Sep. 26, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/679,567 07/12/2010 DianaOehms
6980 7590 09/28/2016
TROUTMANSANDERSLLP
600 Peachtree Street
Suite 5200
Atlanta, GA 30308
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.
RB218 7599
EXAMINER
DOUYON, LORNA M
ART UNIT PAPER NUMBER
1761
NOTIFICATION DATE DELIVERY MODE
09/28/2016 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):
j im. schutz@troutmansanders.com
ryan. schneider@troutmansanders.com
patents@troutmansanders.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DIANA OEHMS, ROY PAL VLINKA, and
RALF WIEDEMANN 1
Appeal2015-001704
Application 12/679,567
Technology Center 1700
Before CATHERINE Q. TIMM, WESLEY B. DERRICK, and
MONTE T. SQUIRE, Administrative Patent Judges.
DERRICK, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on an appeal under 35 U.S.C. § 134 from the
Examiner's maintained rejections under 35 U.S.C. § 103 of claims 1, 2, 6-
10, 13-18, and 20-22 over Rahse2 and over Euser3 in view of Suzuki,4 and
of claim 19 in further view of W aschenbach. 5 We have jurisdiction pursuant
to 35 U.S.C. § 6. We Affirm.
1 Appellants identify Reckitt Benckiser N.V. as the real party in interest.
Appeal Br. 2.
2 Rahse et al., US 2005/0020469 Al, published January 27, 2005.
3 Euser et al., EP 1 239 029 Al, published September 11, 2002.
4 Suzuki et al., US 2007/0167343 Al, published July 19, 2007.
5 Waschenbach et al., US 2003/0050206 Al, published March 13, 2003.
Appeal2015-001704
Application 12/679,567
BACKGROUND
Appellants' claimed invention is directed to a detergent composition
comprising two or more distinct regions with a builder6 and an enzyme
located in a first distinct region and a bleaching compound located in a
second. Spec. Abstract.
Independent claim 1 is illustrative:
1. A detergent composition in the form of a shaped body
comprising an enzyme and a bleaching compound and said
detergent composition comprising two or more distinct regions,
wherein the enzyme is located in a first distinct region of said
shaped body and the bleaching compound is located in a second
distinct region of said shaped body and further wherein a
builder comprising an amino acid based compound is located in
the said first distinct region, wherein the amino acid-based
builder is selected from methyl-glycine-diacetic acid, and salts
and derivatives thereof and/or glutamic-N,N-diacetic acid and
salts and derivatives thereof and wherein the bleaching
compound is selected from inorganic peroxides, salts of
peroxides, percarbonates, salts of percarbonates, persulphates
and salts of persulphates.
Appeal Br. (Claims Appendix) 9.
DISCUSSION7
Upon consideration of the evidence, we are unpersuaded of reversible
error in the Examiner's decision rejecting the claims as unpatentable for
obviousness over the cited prior art. Rather, we find the Examiner's factual
6 As is known in the art, builders are chemical compounds or agents that
remove calcium and/or magnesium ions by complexation or precipitation to
improve detergent function. See, e.g., Euser iii! 62-81.
7 We refer to the Final Office Action mailed January 16, 2014, the Appeal
Brief filed July 16, 2014, and the Examiner's Answer mailed September 26,
2014.
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Application 12/679,567
findings, reasoning, and conclusions well-founded. See generally, Final
Act.; Ans. We add the following.
Claims 1, 2, 6-10, 13-18, and 20-22 over Rahse
The Examiner relies on Rahse for disclosing: (i) granulates
containing builders prepared by neutralizing mixtures of anionic surfactant
acids and builder acids with solid neutralizing agents, where the builder can
be formed by neutralizing methyl-glycinediacetic acid (MGDA)-identified
as a builder acid-with a solid neutralizing agent, such as the preferred
sodium carbonate; (ii) that bleaching agents (including sodium perborate
tetrahydrate and sodium percarbonate ), detergents, and enzymes can be
included with the builder in cleaning compositions, including in detergent or
cleaner tablets; and (iii) that detergent or cleaner tablets can be formed with
multiple layers in which one layer includes a bleaching agent and another
layer includes an enzyme. Final Act. 2--4 (citing, inter alia, Rahse ,-i,-i 22, 57,
82-83, 104, 143, 199, 213, 239--40). In the Answer, the Examiner finds
"that MGDA builder may be combined with the enzymes and/or bleaches"
and "that the end products, i.e., surfactant granulated containing builders,
can also be used in detergent or cleaner tablets." Ans. 3 (citing, inter alia,
Rahse ,-i,-i 22, 57, 160, 198, 219).
The Examiner concludes that it would have been obvious to one of
ordinary skill in the art at the time the invention was made to prepare a
shaped body comprising at least two layers where a peroxy bleach is
included in one layer, an enzyme is included in a second layer, and where
the second layer includes neutralized methyl-glycinediacetic acid because
Rahse teaches incorporating the surfactant granules comprising the
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Application 12/679,567
neutralized methyl-glycinediacetic acid into detergent or cleaner tablets.
Final Act. 4; see also Ans. 3.
Appellants contend it was surprisingly found that including an amino
acid builder selected from methyl-glycine-diacetic acid and glutamic-N,N-
diacetic acid, or respective salts and derivatives thereof, further improved
stability and/or performance of detergent compositions comprising bleaching
compound and enzyme in different regions. Appeal Br. 4-5. Appellants
argue that Rahse does not teach using the enzymes and specifically claimed
builders in the same distinct region. Appeal Br. 5. Rather, characterizing
Rahse's disclosure as a laundry list of builders without guidance that amino
acid or succinate-based builders would improve stability of enzymes if these
are included in the same distinct region, Appellants argue the Examiner's
rejection is grounded on impermissible hindsight. Appeal Br. 5-6.
On this record, we do not find Appellants' argument persuasive that
the Examiner has erred reversibly. While Rahse does not disclose a specific
example of a detergent composition meeting the limitations of claim 1, nor
disclose further improved stability and/or performance, Rahse does teach
tablet layers wherein the bleaching agent and enzyme are separated, that the
tablet layer including enzyme can include a builder, and that the bleaching
agent and builder can be those set forth in claim 1. Appellants have not,
accordingly, identified any reversible error because the selections are
suggested by Rahse. "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).
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Application 12/679,567
Moreover, Rahse's disclosure of a multitude of effective combinations
does not render any particular formulation less obvious. A reference is
available for all that it teaches to a person of ordinary skill in the art. Merck
& Co., Inc. v. Biocraft Labs, Inc., 874 F.2d 804, 807 (Fed. Cir. 1989) ("That
the '813 patent discloses a multitude of effective combinations does not
render any particular formulation less obvious. This is especially true
because the claimed composition is used for the identical purpose."); In re
Susi, 440 F.2d 442, 445 (CCPA 1971) (obviousness rejection affirmed where
the disclosure of the prior art was "huge, but it undeniably include[ d] at least
some of the compounds recited in appellant's generic claims and [was] of a
class of chemicals to be used for the same purpose as appellant's additives").
Not being persuaded that the Examiner erred in relying on Rahse, as
explained above, we are likewise not persuaded that the Examiner relied on
impermissible hindsight. See In re Kahn, 441 F.3d 977, 988 (Fed. Cir.
2006) (requiring "some articulated reasoning with some rational
underpinning to support the legal conclusion of obviousness") (cited with
approval in KSR Int'l Co. v. Teleflex Inc., 550 U.S. at 418).
Accordingly, we sustain the Examiner's rejection of claims 1, 2, 6-10,
13-18, and 20-22 over Rahse.
Claims 1, 2, 6-10, 13-18, and 20-22 over Euser in view of Suzuki
The Examiner relies on Euser for disclosing, inter alia: (i) a three-
layer tablet derived by compaction from respective particulate compositions,
where the tablet comprises an enzyme, a bleach, and a builder, with the
enzyme and builder in the same layer and the bleach in a separate layer;
(ii) that the builder serves to remove or sequester calcium and/or magnesium
ions; and (iii) that sodium perborate monohydrate-used in Example 2 of
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Euser-is an equivalent of sodium percarbonate as an inorganic persalt or
bleach. Final Act. 4-5 (citing, interalia, Euser Abstract, ,-i,-i 1, 5, 12, 16-17,
62, 68-71, 86, 105, 145-46 (Example 2)). The Examiner further relies on
Euser for disclosing examples of builders, including non-phosphorus
builders like oxydisuccinates, and phosphorus builders, including sodium
tripolyphosphate-used in Example 2. Final Act. 5 (citing Euser 68-71,
145--46 (Example 2)).
The Examiner relies on Suzuki for teaching "the equivalency of
oxydisuccinate with ... methylglycine diacetate as chelating or sequestering
agents, or builders." Final Act. 6 (citing Suzuki ,-i 311 ).
The Examiner concludes it would have been obvious to one of
ordinary skill in the art at the time of the invention to have included, or
substituted, methylglycine diacetate for the sodium tripolyphosphate
included in the layer with the enzyme in Euser' s Example 2 because
methylglycine diacetate is a known builder which can be added to remove or
sequester calcium and/or magnesium ions and this is the same function
performed by the included sodium tripolyphosphate. Final Act. 6-7; Ans.
5-6.
The Examiner also concludes it would have been obvious to one of
ordinary skill at the time of the invention to have substituted the sodium
perborate monohydrate with sodium percarbonate because they are shown to
be recognized equivalents and does no more than yield predictable results.
Final Act. 7; Ans. 6.
Appellants contend that the skilled artisan would have to make at least
two modifications to Euser to arrive at the claimed invention-( I) select
MGDA from a list of at least 60 different builders and (2) include a
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peroxide, percarbonate, or persulfate bleach along with Euser' s perborate
bleach-and that this would be outside the level of ordinary skill in the art.
Appeal Br. 6-7. Appellants emphasize that "none of the 20 Examples in
Suzuki use MGDA." Appeal Br. 6.
On this record, we find Appellants' arguments unpersuasive of
reversible error. As to the builder, Appellants do not dispute that methyl
glycine diacetate (MGDA) is a known equivalent builder, but only contend
that it is not particularly identified as preferred over others, which does not
direct us to reversible error where the Examiner's reasoning was grounded
on substitution of art recognized equivalents. Ans. 5-6. As to the bleaching
agent, Appellants' argument fails to address the Examiner's determination
that percarbonate bleach is a known equivalent bleaching agent or the
Examiner's reasoning grounded on substituting sodium perborate
monohydrate with sodium percarbonate. Ans. 6.
Accordingly, we sustain the Examiner's rejection of claims 1, 2, 6-10,
13-18, and 20-22 over Euser in view of Suzuki.
Claim 19
The Examiner finds Rahse and Euser fail to disclose a gel phase.
Final Act. 7. The Examiner relies on W aschenbach for its teaching related
to including a gel in detergent compositions for use in the form of a tablet.
Final Act. 7-8. The Examiner concludes it would have been obvious to one
of ordinary skill in the art at the time of the invention to incorporate a pellet
containing a gel into the multi-layered tablet provided by the prior art relied
on in rejecting claims 1, 2, 6-10, 13-18, and 20-22.
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Appellants proffer no separate argument as to the rejections of claim
19, but rely wholly on the arguments set forth with respect to Rahse and
Euser. Appeal Br. 7.
Having found these arguments unpersuasive as explained above, we
also sustain the rejections of claim 19.
CONCLUSION
The Examiner's rejection of claims 1, 2, 6-10, and 13-22 under
35 U.S.C. § 103 is AFFIRMED.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § l.136(a)(l).
AFFIRMED
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