Ex Parte Popplewell et al

Patent Trials and Appeals Board

May 2, 2019

13163320 - (D) (P.T.A.B. May. 2, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO.
13/163,320
23679 7590
Licata & Tyrrell P.C.
66 East Main Street
Marlton, NJ 08053
FILING DATE FIRST NAMED INVENTOR
06/17/2011 Lewis Michael Popplewell
05/02/2019
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.
IFF-181-2 CIP 9405
EXAMINER
PHAN, DOANTHI-THUC
ART UNIT PAPER NUMBER
1613
MAIL DATE DELIVERY MODE
05/02/2019 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte LEWIS MICHAEL POPPLEWELL, JOHAN GERWIN
LODEWIJK PLUYTER, XIAO HUANG and Y ABIN LEI
Appeal 2018-008928
Application 13/163,320
Technology Center 1600
Before ULRIKE W. JENKS, TIMOTHY G. MAJORS, and
MICHAEL A. VALEK, Administrative Patent Judges.
VALEK, Administrative Patent Judge.
DECISION ON APPEAL
Appellants submit this appeal 1 under 35 U.S.C. § 134 involving
claims to a microcapsule composition containing a fragrance oil
encapsulated by a polyurea polymer and an additional polymer, which have
been rejected as obvious. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
STATEMENT OF THE CASE
Claims 67, 68, 75-78, 80-83, 86-91, 93-99, and 101-106 are on
1 Appellants identify the real party in interest as International Flavors &
Fragrances Inc. Appeal Br. 1. Herein we refer to the Final Office Action
mailed January 24, 2018 ("Final Act."), Appeal Brief filed June 4, 2018
("App. Br."), Examiner's Answer mailed July 31, 2018 ("Ans."), and Reply
Brief filed September 18, 2018 ("Reply").
Appeal 2018-008928
Application 13/163,320
appeal, and can be found in the Claims Appendix of the Appeal Brief.
Claims 67 and 95 are independent claims. Claim 67 is representative of the
claims on appeal and reads as follows:
67. A microcapsule composition comprising an encapsulating
polymer and an active material encapsulated by the
encapsulating polymer and dispersed in an aqueous phase,
wherein the encapsulating polymer comprises:
a polyurea polymer that is a reaction product between a
polyisocyanate and a crosslinking agent in the presence of a
dispersant, the crosslinking agent containing hexamethylene
diamine, and
at least one additional polymer selected from the group
consisting of polyquatemium-6, polyvinylamine,
polyethyleneimine, a mixture of polyquatemium-6 and
polyvinylamine, a mixture of polyquatemium-6 and
polyethyleneimine, a mixture of polyquatemium-6 and a
polyvinylamine and vinylformamide copolymer, and
combinations thereof, wherein
the active material is a fragrance oil present in an amount
of about 5 to about 80%,
the amount of the encapsulating polymer is about 0.1 to
about 15%,
the polyisocyanate, in the amount of about 0.1 to about
10%, is an aromatic polyisocyanate,
the amount of the hexamethylene diamine is about O .1 to
about 5%,
the dispersant, in the amount of about 0.1 to about 6%, is
a salt of alkyl naphthalene sulfonate condensate, and
the amount of the at least one additional polymer is, on a
solid basis, about 0.1 to about 10%.
App. Br. 24.
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Application 13/163,320
Appellants seek review of the following obviousness rejections:
I. Claims 67, 68, 75-78, 81, 82, 86-88, 94-99 and 102-106 under
35 U.S.C. § 103 as unpatentable over Popplewell2 and Becher,3 as
evidenced by PAPI 1354
II. Claims 80 and 101 under 35 U.S.C. § 103 as unpatentable over
Popplewell, Becher, and Schocker. 5
III. Claim 83 under 35 U.S.C. § 103 as unpatentable over Popplewell,
Becher, and Ouali. 6
IV. Claims 89-91 under 35 U.S.C. § 103 as unpatentable over
Popplewell, Becher, and Kleban. 7
V. Claim 93 under 35 U.S.C. § 103 as unpatentable over Popplewell,
Becher, and Markus. 8
Appellants argue that rejections II-V should be reversed for the "same
reasons" as the first rejection and do not advance any additional arguments
for rejections II-V. App. Br. 20-22. Thus, any argument concerning the
teachings of Shocker, Ouali, Kleban, and Markus and Examiner's rationale
2 Lewis Michael Popplewell et. al., US 2005/0153135 Al, published July 14,
2005 ("Popplewell").
3 David Z. Becher et al., US 4,563,212, issued Jan. 7, 1986 ("Becher").
4 PAPI 135 Product Information, Dow Plastics, published 3/01 ("PAPI 135
Info.").
5 Petra Schocker et al., US 2008/0103265 Al, published May 1, 2008
("Schocker").
6 Lahoussine Ouali et al., US 2008/0206291 Al, published Aug. 28, 2008
("Ouali").
7 Martin Kleban et al., US 2002/0079599 Al, published June 27, 2002
("Kleban").
8 Arie Markus et al., US 2007/0042182 Al, published Feb. 22, 2007
("Markus").
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Application 13/163,320
for combining those teachings in rejections II-V has been waived. See
MPEP § 1205.02 ("If a ground of rejection stated by the examiner is not
addressed in the appellant's brief, appellant has waived any challenge to that
ground of rejection and the Board may summarily sustain it, unless the
examiner subsequently withdrew the rejection in the examiner's answer.").
In addition, Appellants do not argue any claim separately from claim 67 so
claims 68, 75-78, 80-83, 86-91, 93-99, and 101-106 stand or fall with
claim 67. 37 C.F.R. § 41.37 (c)(l)(iv).
The issue then is: Does the preponderance of evidence of record
support Examiner's conclusion that Popplewell and Becher ( as evidenced by
Dow Plastics) renders obvious the microcapsule composition of claim 67?
Findings of Fact
FF 1. Popplewell teaches the encapsulation of a fragrance material in the
hydrophobic core of a polymer capsule. Popplewell Abst., ,-J 15. Popplewell
teaches that "there is an ongoing need to develop fragrance . . . systems
which are designed to retain the fragrance ... with minimal losses" and to
obtain "high fragrance loading" within the core of the capsule. Id. ,-i,-i 8, 9,
15, and 75.
FF2. Popplewell teaches that a broad range of polymers are suitable for
encapsulating a fragrance material, including "polyureas/urethanes."
Popplewell ,-J 88. Popplewell teaches that the encapsulated fragrance "can
then be further coated with a second coating, preferably a cationic coating."
Id. at Abst. According to Popplewell, this additional cationic polymer acts as
a "deposition aid." Id. ,-i,-i 154, 184. Popplewell teaches that polyquatemium-
6 is a "preferred cationically charged material[]" for this purpose. Id. ,-i 158.
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FF3. Popplewell teaches that the level of cationic polymer is "most
preferably" from about 10% to about 500% of the weight fragrance material.
Popplewell ,i 161. Popplewell teaches that the "weight ratio of the
encapsulating polymer to fragrance is about 1:25 to about 1:1." Id. ,i 162.
FF4. Becher teaches "a process of encapsulating a water-immiscible
material within a shell wall of polycondensate" such as "polyurea." Becher
col. 4, 11. 49-51. The process taught in Bechers uses an "emulsifier" such as
a sulfonated naphthalene formaldehyde condensate in an aqueous solution.
Id. at col. 4, 11. 54-56. Becher teaches that a "polyurea skin" is formed by
adding a polyisocyanate and a diamine, such as "hexamethylene diamine," to
the emulsifier. Id. at col. 6, 11. 24-26; col. 7, 11. 39-44. In examples 1-6,
Becher teaches the use of this process to form polyurea capsules through the
condensation reaction of 3.2% wt polyisocyanate (PAPI 135)9 with 3.3% wt
1,6-hexamethylenediamine using a salt of an alkylnapthalene sulfonic acid at
1 % wt as the emulsifier. Id. at col. 10, 11. 7-54.
FF5. Becher teaches that its "new and improved encapsulation process ...
is rapid and effective to encapsulate high concentrations of water-immiscible
material and which avoids the necessity of separation of the encapsulated
material from the continuous, i.e., aqueous, phase liquid." Becher col. 3, 11.
20-26. According to Becher, this process is also advantageous because it
results in microcapsules that "do not agglomerate" and do not solidify when
stored for extended periods of time. Id. at col. 3, 11. 43-47. Further, Becher
teaches that such microencapsulation can prevent "evaporative losses" and
9 The product information sheet published by Dow Chemical for PAPI 135
confirms that PAPI 135 contains polyisocyanate. PAPI 135 Info. 1.
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"reduce leaching," thereby prolonging the "life" of the active material in the
core. Id. at col. 13, 11. 56-65.
Analysis
Examiner determined that claim 67 is obvious over the combination of
Popplewell and Becher. Specifically, Examiner found that Popplewell
teaches a microcapsule composition comprising polyurea and
polyquatemium-6 (i.e., an "additional polymer" as claimed) encapsulating a
fragrance wherein the relative amounts of each of those components falls
within the weight percentages recited in claim 67. Final Act. 4. Examiner
found that Becher teaches a polyurea capsule that is a reaction product
between a polyisocynate and a hexamethylene diamine crosslinking agent in
the presence of a dispersant comprising a salt of an alkyl naphthalene
sulfonate condensate, as claimed. Id. at 4-5. Examiner determined that it
would be obvious for the skilled artisan to use Becher' s polyurea capsules
"as the encapsulating material of the microcapsule of Popplewell" because:
(1) Becher teaches that such materials "achieve microencapsulation of
concentrated amounts of water-immiscible material ... and do not
agglomerate[,] nor does the aqueous capsule mass solidify;" and (2)
"[ s ]imilar to Becher" it is "the goal of Popplewell ... to provide
microcapsules with higher fragrance loading, retrain fragrance/flavor with
minimal losses ... and reduce and slow the effects of leaching." Final Act.
5.
We agree that Examiner's rejection is supported by the preponderance
of the evidence and are not persuaded by the arguments Appellants make to
the contrary. We address each of Appellants' arguments in tum below.
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Appellant first argues that the rejection is conclusory because
"Examiner has not explained why one or [sic] ordinary skill in the art would
have looked to the teachings of Becher ... to identify an encapsulating
material for encapsulating the fragrances of Popplewell." App. Br. 11-12.
We disagree. As Examiner found, both Popplewell and Becher are directed
to a "similar ... goal" of achieving a high loading and reducing leaching of
a hydrophobic active material within a polymer capsule. Final Act. 5; see
also FFl and FF5. That Becher is primarily directed to encapsulating an
herbicide does not, as Appellants urge, undermine Examiner's determination
that it would be obvious to combine the two references. See App. Br. 13.
Both references are directed to the encapsulation of a hydrophobic active
ingredient within a polymer capsule. Moreover, several of the same benefits
that Becher teaches its microencapsulation process achieves ( e.g., higher
loading and reduced loss/leaching) are also taught by Popplewell to be
desirable for the encapsulation of a fragrance material. Accordingly, both
Becher and Popplewell provide an express motivation for the skilled artisan
to use Becher' s polyurea encapsulating material to encapsulate Popplewell' s
fragrance material. See Bayer Healthcare Pharms., Inc. v. Watson Pharms.,
Inc., 713 F.3d 1369, 1376 (Fed. Cir. 2013) (finding an express motivation to
combine where the references not only identify a "known problem," but
"also expressly propose the claimed solution").
We are similarly unpersuaded by Appellants' argument that there is
no motivation to select polyurea from the "long list" of polymers in the cited
references. App. Br. 14. Both references teach that polyurea is a suitable
encapsulating material for a hydrophobic active material. FF2; FF4. The
fact that these references also identify other types of polymers does not
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make the use of polyurea as an encapsulating material any less obvious. See
Merck & Co., Inc. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989)
( explaining that a reference's disclosure of "a multitude of effective
combinations does not render any particular formulation less obvious").
Moreover, Becher not only teaches polyurea generally, but the particular
polyurea recited in claim 67, i.e., one formed by the condensation reaction of
a polyisocyanate and a cross-linking agent comprising hexamethylene
diamine in the presence of a salt of an alkyl naphalene sulfonate condensate,
in each of its first six examples. FF4. The fact that Becher teaches the
claimed polyurea as a preferred embodiment further supports Examiner's
finding that it would be obvious to use that polymer in Popplewell's
capsules. See Bayer Healthcare, 713 F.3d at 1376.
We also disagree with Appellants' contention that the cited references
do not "teach or suggest" the use of the claimed "additional polymer." App.
Br. 17. Popplewell specifically teaches this limitation. FF2. Indeed,
Popplewell teaches the same additional polymer recited in claim 67,
"polyquatemium-6," as a preferred embodiment to act as a "deposition aid."
Id. Given that both references teach that it is advantageous to achieve a high
loading of active material in the capsule, we agree with Examiner's
determination that it would be obvious to use polyquatemium-6 along with
Becher's polyurea to encapsulate a fragrance material. FFl; FF5.
Finally, we determine that Appellants' unexpected results evidence is
insufficient to overcome Examiner's showing of obviousness. Appellants
contend that Specification Examples 32-35 and the Declaration of Johan
Pluyter dated February 27, 2015 ("Pluyter Deel.") demonstrate that "the
present invention exhibits properties that could not be predicted based upon
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the combined teachings of the cited references." App. Br. 18. Examples
32-35 provide data"[ c Jontrasting the fragrance deposition in coated and
uncoated capsules," i.e., comparing a polyurea capsule coated with
polyquatemium-6 to the same capsule without the polyquatemium-6 coating.
Spec. 66-67 (Tables 1-3). 10 The data show a 66-145% improvement in
fragrance deposition for the coated capsules. Id. But that result is not
unexpected in light of Popplewell' s teaching of "polyquatemium-6" as a
"deposition aid." FF2. Indeed, a skilled artisan reading Popplewell would
expect that coating the capsules with polyquatemium-6, or another cationic
polymer as taught therein, would improve fragrance deposition. Thus, the
results in Examples 32-35 are at most a difference in degree, not kind, from
what would be expected in light of the prior art. See Galderma Labs., L.P. v.
Tolmar, Inc., 737 F.3d 731, 739 (Fed. Cir. 2013) ("Unexpected results that
are probative of nonobviousness are those that are different in kind and not
merely in degree from the results of the prior art.") (internal quotations
omitted).
The results in the Pluyter Declaration are similar to those in
Specification Examples 32-35, but instead of measuring the amount of
fragrance deposited in the capsule, the data there show relative fragrance
intensity for a capsule with and without the recited "additional polymer."
See Pluyter Deel. ,i,i 5, 6, and 8. Appellants have not shown that this
increased intensity would be unexpected. Instead, it stands to reason that
applying a second polymer to increase the amount of fragrance deposited in
the capsule as taught in Popplewell would also increase the intensity of that
10 This citation refers to Appellants' Specification as filed on June 1 7, 2011.
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fragrance. Moreover, the data in the Pluyter Declaration varies amongst the
examples there, with some showing a relatively small percentage increase as
compared to a capsule lacking the additional polymer. 11 Id. at ,-i 8 (showing
a 38% increase relative to comparative 1 for compositions 3 and 4). Our
reviewing court has explained that such "[r]esults which differ by
percentages are differences in degree rather than kind, where the
modification of the percentage is within the capabilities of one skilled in the
art at the time." Galderma, 737 F.3d at 739. Appellants here present no
evidence, nor do they argue, that the incremental increases observed in the
Pluyter Declaration were somehow beyond the capability of a skilled artisan
such that they should not be considered mere differences in degree.
Finally, even if the results in Specification Examples 32-35 and the
Pluyter Declaration were differences in kind, we determine that evidence is
insufficient to overcome Examiner's strong prima facie showing of
obviousness. See Final Act. 20; Ans. 34. As explained above, Popplewell
and Becher clearly teach all of the elements of claim 67 and each reference
provides an express motivation to combine those teachings as articulated in
Examiner's rejection. Weighing that evidence together with Appellants'
evidence of purportedly unexpected results, which on balance is weak, we
determine that the preponderance of the evidence supports Examiner's
11 Appellants contend that the Pluyter Declaration shows intensity increases
as high as 817% "compared to conventional polyurea microcapsules." App.
Br. 19. The 817% figure apparently refers to the data in Table 2 of the
Pluyter Declaration. Unlike the other tables in the declaration, Table 2 does
not include a comparative control and therefore does not show (nor does it
purport to show) a percent increase as compared to a polyurea capsule
lacking the claimed "additional polymer." Cf Pluyter Deel. Table 2 to
Tables 1 and 3.
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obviousness rejection. See, e.g., Bayer Pharma AG v. Watson Labs., Inc.,
874 F.3d 1316, 1329 (Fed. Cir. 2017) (weighing evidence of unexpected
results and copying together with other evidence, including "strong evidence
of a motivation to make the claimed combination" in the cited prior art, to
conclude that combination was obvious); Bayer Healthcare, 713 F.3d at
1377 (finding that secondary indicia evidence did not "overcome[] the plain
disclosures and express motivation to combine those disclosures in the prior
art").
For all these reasons, Appellants' arguments fail to persuade us that
Examiner erred in rejecting claims 67, 68, 75-78, 81, 82, 86-88, 94-99 and
102-106 as obvious over Popplewell and Becher and therefore we affirm
that rejection. Because Appellants advance no additional arguments for the
other obviousness rejections, we affirm those rejections for the same reasons
stated above.
SUMMARY
We affirm the rejection of claims 67, 68, 75-78, 81, 82, 86-88, 94-99
and 102-106 under 35 U.S.C. § 103 as unpatentable over Popplewell and
Becher, as evidenced by PAPI 135.
We affirm the rejection of claims 80 and 101 under 35 U.S.C. § 103 as
unpatentable over Popplewell, Becher, and Schocker.
We affirm the rejection of claim 83 under 35 U.S.C. § 103 as
unpatentable over Popplewell, Becher, and Ouali.
We affirm the rejection of claims 89-91 under 35 U.S.C. § 103 as
unpatentable over Popplewell, Becher, and Kleban.
We affirm the rejection of claim 93 under 35 U.S.C. § 103 as
unpatentable over Popplewell, Becher, and Markus.
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TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 3 7 C.F .R. § 1.13 6( a).
AFFIRMED
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