Ex Parte PATEL

Board of Patent Appeals and Interferences

Feb 28, 2002

08728337 (B.P.A.I. Feb. 28, 2002)

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The opinion in support of the decision being entered
today was not written for publication in a law journal
and is not binding precedent of the Board.
Paper No. 19
UNITED STATES PATENT AND TRADEMARK OFFICE

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES

Ex parte RASHESH N. PATEL

Appeal No. 1999-0823
Application No. 08/728,337

ON BRIEF

Before KIMLIN, WARREN and JEFFREY T. SMITH, Administrative Patent
Judges.
KIMLIN, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal from the final rejection of claims 1-16
and 18-21. Claim 1 is illustrative:
1. A liquid, alkaline detergent composition consisting
essentially of, by weight of said composition:
(a) from about 0.01% to about 10% diacyl peroxide having the
general formula:
RC(O)OO(O)CR1
wherein R and R1 can be the same or different;
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Application No. 08/728,337
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(b) from about 20% to about 90% solvent having a solubility
parameter value outside about ±4 of said diacyl peroxide's
solubility parameter; and
(c) from about 0.01% to about 10% chelant, said chelant
selected from the group consisting of sodium, potassium,
lithium, ammonium and substituted ammonium salts of
ethylenediamine tetraacetic acid, ethylenediamine disuccinic
acid, nitrilotriacetic acid, tartarate monosuccinic acid,
tartarate disuccinic acid, oxydisuccinic acid, carboxy-
methyloxysuccinic acid, mellitic acid, sodium benzene
polycarboxylate salts, nitrilotris(methylene phosphonic
acid), diethylenetrinitrilopentakis(methylenephosphonic
acid), 1-hydroxyethane-1,1-diphosphonic acid, ethylene-N,N'-
bis(o-hydroxy-phenylglycine), dipliolinic acid, diethylene
triamine penta(methylene phosphonate), hexamethylene diamine
tetra(methylene phosphonate), ethylenediaminotetracetic
acid, ethylenetriamine pentacetic acid, ethylenediamine-
N,N'-disuccinic acid, iminodiacetic acid derivatives,
ethylene diphosphonic acid, organo phosphonic acid, and
mixtures thereof;
wherein said composition has a neat pH from about 7 to about 13;
and wherein said diacyl peroxide is undissolved in said liquid,
alkaline detergent composition.
The examiner relies upon the following references as
evidence of obviousness:
Kamel et al. (Kamel) 5,230,822 Jul. 27, 1993
Van Dijk et al. (Van Dijk) 5,246,612 Sep. 21, 1993
Appellant's claimed invention is directed to a liquid,
alkaline detergent composition, such as dishwasher detergent,
which consists essentially of a diacyl peroxide of the recited
formula, a solvent having a solubility parameter outside the
diacyl peroxide's solubility parameter and a chelant. The diacyl
peroxide is undissolved in the liquid detergent composition.
Appeal No. 1999-0823
Application No. 08/728,337
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Appealed claims 1-7, 9-16 and 18-21 stand rejected under
35 U.S.C. § 103 as being unpatentable over Kamel. Claims 1-16
and 18-21 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Kamel further in view of Van Dijk.
Appellant has not separately argued any particular claim on
appeal. Accordingly, the examiner has properly held that all the
appealed claims stand or fall together. As a result, our
consideration of this appeal is limited to the examiner's
rejection of claim 1.
We have thoroughly reviewed each of appellant's arguments
for patentability. However, we are in complete agreement with
the examiner's analysis and application of the prior art, as well
as her cogent disposition of the arguments raised by appellant.
Accordingly, we will sustain the examiner's rejections for the
reasons set forth in the Answer, which we adopt as our own, and
we add the following for emphasis only.
Appellant asserts at page 2 of the Brief that "[t]he truly
novel and unobvious feature of this invention is that the diacyl
peroxide does not require a wax coating to remain stable, nor do
the other components of the detergent composition such as enzymes
or surfactants require a coating to be protected from the diacyl
peroxide" (last paragraph). However, the examiner properly
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states at page 2 of the Answer that appellant's specification
"never excludes such wax coatings, and never states that this is
a novel and unobvious feature of the claimed invention" (page 2
of Answer, last paragraph). Rather, at page 2 of appellant's
specification, it is stated that although diacyl peroxides have
been used in the art in the laundry and anti-acne area, they have
not been used in the alkaline liquid or automatic dishwasher
detergent area. The specification further states that "[i]t has
now been discovered that DAPs [diacyl peroxides] can improve
stain removal performance of ADDs [automatic dishwashing
detergents] on plastics" (page 2, lines 31-32). Furthermore, the
examiner has appropriately noted that the specification discloses
at page 11 that "[t]here are numerous waxy materials which can
readily be used to form suitable coated particles of any such
otherwise incompatible components" (lines 19-20).
Accordingly, although appellant emphasizes that Kamel
discloses a wax coating on the diacyl peroxide, the examiner has
properly found that the appealed claims do not preclude a wax
coating on the recited diacyl peroxide, notwithstanding the claim
language "consisting essentially of." Claim language must be
read in light of the specification and appellant's specification
gives no indication that the diacyl peroxide should be free of a
Appeal No. 1999-0823
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wax coating. Indeed, as noted above, the specification, at
page 11, indicates that appellant contemplates the use of waxy
materials as a coating on incompatible components of the
detergent composition, such as diacyl peroxide. Moreover, we
agree with the examiner that appellant has not demonstrated on
this record that the inclusion of a wax coating on the claimed
diacyl peroxide would materially affect the basic nature of the
claimed composition as a liquid, alkaline detergent. While
appellant asserts that compositions comprising a waxy coating
"would not have a negligible amount of streaking and spotting on
the washed tableware" (page 6 of Brief, second paragraph),
appellant's specification provides no nexus between wax-free
components and the asserted "spotlessness advantages such as
enhanced glass care (i.e. reduction of cloudiness and iridescence
negatives)" (page 3 of specification, lines 3-4). Also, we agree
with the examiner's analysis that appellant's specification
provides no definition of the asserted "spotlessness advantages"
and "provides no Examples which show the degree of spotting
obtained with the claimed compositions" (page 7 of Answer, second
paragraph). Consequently, appellant has offered no factual basis
for comparing the "spotlessness advantages" with the
standardized, objective results for spotlessness reported by
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Kamel (see Kamel at EXAMPLE IV and Figure 2). We concur with the
examiner's assessment that it would appear that the results for
Kamel's test for spots "would fall within the 'spotlessness
advantages' as described in Applicant's specification, i.e.
negligible to no spotting occurs with Kamel's compositions"
(page 7 of Answer, last paragraph).
Regarding the examiner's 35 U.S.C. § 103 rejection over
Kamel in view of Van Dijk, appellant has not refuted the
examiner's legal conclusion that it would have been obvious for
one of ordinary skill in the art to use the particular bleach
catalysts disclosed by Van Dijk in the detergent of Kamel. In
essence, it is appellant's position that Van Dijk does not remedy
the argued deficiencies of Kamel. We note that claim 1, with
which all the appealed claims stand or fall, does not require a
bleach catalyst.
As a final point, we note that appellant bases no argument
upon objective evidence of nonobviousness, such as unexpected
results.
In conclusion, based on the foregoing and the reasons well-
stated by the examiner, the examiner's decision rejecting the
appealed claims is affirmed.
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Application No. 08/728,337
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No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a).
AFFIRMED
EDWARD C. KIMLIN )
Administrative Patent Judge )
)
)
)
)
CHARLES F. WARREN ) BOARD OF PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
)
)
)
JEFFREY T. SMITH )
Administrative Patent Judge )
ECK:clm
Appeal No. 1999-0823
Application No. 08/728,337
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Michael D. Jones
The Proctor & Gamble Co.
Ivorydale Technical Center
5299 Spring Grove Ave.
Cincinnati, OH 45217-1087