Ex Parte Rizk

Patent Trial and Appeal Board

Feb 28, 2017

13309001 (P.T.A.B. Feb. 28, 2017)

United States Patent and Trademark Office
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/309,001 12/01/2011 Kirolos Rizk 14591-00061-US 5309
30678 7590 03/02/2017
POT STNFT T T PC
EXAMINER
(DC OFFICE)
1000 Louisiana Street
DELCOTTO, GREGORY R
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ART UNIT PAPER NUMBER
1761
NOTIFICATION DATE DELIVERY MODE
03/02/2017 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):
DC-IPDocketing@polsinelli.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KIROLOS RIZK
Appeal 2015-007739
Application 13/309,001
Technology Center 1700
Before TERRY J. OWENS, MARKNAGUMO, and
CHRISTOPHER L. OGDEN, Administrative Patent Judges.
OWENS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
The Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1—3, 6, 7, 9, 10, 13—22, 26—29, and 31—34. We have
jurisdiction under 35 U.S.C. § 6(b).
The Invention
The Appellant claims an aqueous hair-cleaning composition. Claim 1
is illustrative:
1. An aqueous hair cleansing composition comprising:
(a) greater than 0 to about 12% by weight of at least one
alkyl poly glucoside;
(b) greater than 0 to about 10% by weight of at least one
betaine compound;
Appeal 2015-007739
Application 13/309,001
(c) about 0.2 to about 5% by weight of at least one acyl
amino acid; and
(d) at least one surfactant selected from the group
consisting of sodium cocoyl isethionate and sodium lauroyl
methyl isethionate;
wherein the composition is clear, has a viscosity of about
1500 cP to about 20000 cP, and is free of sulfates and
ethoxylated fatty esters.
The References
Molenda US 2006/0135382 A1 June 22,2006
Hoffmann WO 2010/069500 A1 June 24, 2010
The Rejection
Claims 1—3, 6, 7, 9, 10, 13—22, 26—29, and 31—34 stand rejected under
35 U.S.C. § 103 over Hoffmann in view of Molenda.
OPINION
We reverse the rejection. We need address only the independent
claims (1 and 31). Those claims require “at least one surfactant selected
from the group consisting of sodium cocoyl isethionate and sodium lauroyl
methyl isethionate”.
Hoffmann discloses a shampoo composition comprising amino acid
anionic surfactants (pp. 2—7). Molenda discloses a shampoo composition
comprising “Cg-C2o-acyl isethionates, alone or in admixture with other
anionic surfactants” (122) and discloses that “[fjurther suitable anionic
surfactants are also Cg-C22-acyl aminocarboxylic acids or the water-soluble
salts thereof’ (125).
The Examiner finds that “Molenda teaches the equivalence of sodium
cocoyl isethionate to N-acyl amino acid surfactants in a similar composition
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Appeal 2015-007739
Application 13/309,001
and further, [Hoffmann] teaches the use of N-acyl amino acid surfactants in
general” (Ans. 4).
The Examiner points out where Molenda discloses the Cg-C2o-acyl
isethionate genus (Ans. 3) but does not point out where Molenda discloses
the sodium cocoyl isethionate species within that genus. Hence, the
Examiner does not establish factual support for the finding that “Molenda
teaches the equivalence of sodium cocoyl isethionate to N-acyl amino acid
surfactants” (Ans. 4). Nor does the Examiner establish that Molenda’s
disclosure of the Cg-C2o-acyl isethionate genus would have fairly suggested
sodium cocoyl isethionate to one of ordinary skill in the art.
“A rejection based on section 103 clearly must rest on a factual basis,
and these facts must be interpreted without hindsight reconstruction of the
invention from the prior art.” In re Warner, 379 F.2d 1011, 1017 (CCPA
1967). The Examiner does not set forth the required factual basis.
Accordingly, we reverse the rejection.
DECISION/ORDER
The rejection of claims 1—3, 6, 7, 9, 10, 13—22, 26—29, and 31—34
under 35 U.S.C. § 103 over Hoffmann in view of Molenda is reversed.
It is ordered that the Examiner’s decision is reversed.
REVERSED
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