Ex Parte Ruggles

Board of Patent Appeals and Interferences

May 11, 2009

10962070 (B.P.A.I. May. 11, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte N. GARISON RUGGLES1
____________________

Appeal 2009-1440
Application 10/962,070
Technology Center 1600
____________________

Decided:2 May 11, 2009
____________________

Before JAMES T. MOORE, Vice Chief Administrative Patent Judge, and
SALLY G. LANE and MICHAEL P. TIERNEY, Administrative Patent
Judges.

MOORE, Vice Chief Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE 1
The Appellant appeals under 35 U.S.C. § 134 (2002) from a final 2
rejection of claims 41-45, 47 and 50-55.3 We have jurisdiction under 35 3
U.S.C. § 6(b) (2002). 4

1 The real party in interest is Grain Processing Corporation of Muscatine,
Iowa. (App. Br. 1 ).
2 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 CFR § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from
Mail Date (paper delivery) or Notification Date (electronic delivery).

3 Claims 1-40, 46, and 48-49 have been canceled. (App. Br. 1).
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2
The Appellant’s claims are directed to oral aqueous composition, e.g., 1
mouthwash, to reduce plaque. 2
Claims 41 and 53 are the only independent claims in the application. 3
The Appellants do not argue any claims or rejections separately. Therefore, 4
we select independent claim 41 to decide the appeal. See 37 C.F.R. § 5
41.37(c)(1)(vii)(2006). Accordingly, the remaining claims stand or fall with 6
claim 41. 7
Claim 41 reads as follows: 8
41. An aqueous composition for oral use comprising: 9
a) an anti-odor and anti-plaque water-insoluble 10
extract of Glycyrrhiza glabra; and 11
b) a cationic surfactant, further comprising an 12
oligosaccharide. 13
14
(App. Br. 8, Claims Appendix). 15
16
THE EVIDENCE 17
The Examiner relies upon the following as evidence in support of the 18
rejections: 19
20
Tsuyama 3,894,142 Jul. 08, 1975 21
Gaffar 5,002,759 Mar. 26, 1991 22
Ebine 5,178,869 Jan. 12, 1993 23
Kayane 5,244,651 Sep. 14, 1993 24
Barabolak 6,436,369 Aug. 20, 2002 25
Iyer WO 98/44901 Oct. 15, 1998 26
27
THE REJECTIONS 28
The following rejections are before us for review: 29
1. Claims 41-45 and 50-52 stand rejected under 35 U.S.C. § 103(a) over 30
the combination of Iyer and Gaffar. 31
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2. Claims 41-45 and 50-52 stand rejected under 35 U.S.C. § 103(a) over 1
the combination of Ebine and Gaffar. 2
3. Claims 41-44, 47 and 50-55 stand rejected under 35 U.S.C. § 103(a) 3
over the combination of Ebine and Tsuyama. 4
4. Claims 41-45, 47 and 50-55 stand rejected under 35 U.S.C. § 103(a) 5
over the combination of Iyer, Barabolak and Kayane. 6
We AFFIRM. 7
ISSUE 8
Has the Appellant established that the Examiner erred in determining 9
that it would have been obvious to one of ordinary skill in the art at the time 10
the invention was made to prepare an anti-plaque composition comprising 11
components known in the art to be useful in dental hygiene compositions? 12
FINDINGS OF FACT 13
The record supports the following findings of fact by a preponderance 14
of the evidence. 15
1. Iyer describes oral hygiene compositions comprising the 16
antimicrobial agent Glycrrhiza glabra extract, also known as licorice root 17
extract, for use in reducing or preventing the growth of bacteria associated 18
with dental plaque, dental caries and/or periodontal diseases. (Iyer p. 4, ll. 19
1-7; p. 5, l. 1). 20
2. Iyer describes that Glycrrhiza glabra extract contains glycyrrhizie 21
acid and glycyrrhetinic acid. (Id. p. 5, ll. 3-4). 22
3. Iyer describes that the antimicrobial agent can be combined with 23
components typically found in oral hygiene products, including surfactants. 24
(Id. p. 4, ll. 13-15). 25
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4
4. Iyer describes that its oral hygiene compositions may be prepared 1
as an oral rinse, mouthwash, or dentifrices. (Id. p. 7, ll. 10-13). 2
5. Gaffar describes an oral composition comprising an 3
oligosaccharide useful for inhibiting Streptococcus pyogenes adhesion to 4
pharyngeal and oral mucosa cells. (Gaffar Abstract). 5
6. Gaffar describes that the oligosaccharides specifically inhibit S. 6
pyogenes without disturbing the normal microbial ecology of the mouth. 7
(Id. 1:28-30). 8
7. Gaffar also describes that the claimed preparations containing 9
oligosaccharides may be in any convenient form, including mouthrinse, 10
tablet, chewing gum, etc. (Id. 3:13-17). 11
8. Gaffar describes that a mouthrinse or mouthwash may optionally 12
include “antibacterial antiplaque agent, for example, cetyl pyridinium 13
chloride....” (Id. 3:24-27). 14
9. The Examiner’s finding that cetyl pyridinium chloride is a cationic 15
surfactant is undisputed. (See Specification p. 3). 16
10. Ebine describes liquid dentifrice compositions having an abrasive 17
dispersed in a low viscous aqueous medium to maintain flow and stability 18
over time and that is easily applicable to a toothbrush. (Ebine Abstract, 19
1:63-66, and 6:6-12). 20
11. Ebine describes that the compositions may also comprise 21
sweeteners including glycyrrhizin. (Id. 5:26-28). 22
12. Ebine also describes that the compositions may comprise 23
pharmaceutical agents including glycyrrhetinic acid and cetylpyridinium 24
chloride. (Id. 5:33-43). 25
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13. Ebine describes that the compositions may also comprise 1
surfactants, including ampholytic surfactants. (Id. 5:6). 2
14. The Examiner’s finding that ampholytic surfactants may be 3
anionic or cationic is undisputed. 4
15. Tsuyama describes preventing dental caries by using oral 5
compositions comprising “a starch syrup containing oligosaccharide as the 6
main components on which molecular end fructose is bonded, namely 7
oligoglucosyl fructose” as a sweetener for dentifrices, gargle, foods and 8
drinks, etc. (Tsuyama Abstract and 1:61-66)(emphasis added). 9
16. Tsuyama describes that dental caries are caused by 10
polysaccharides and organic acids formed in the oral cavity resulting from 11
sugar ingestion. (1:16-20). 12
17. Specifically, Tsuyama states, “Since polysaccharides such as 13
dextran, levan, etc. are generally produced from sucrose, it is evident that a 14
habitual employment of sucrose causes dental caries.” (Id. 1:26-29). 15
18. Tsuyama describes that its sweetener, oligoglucosyl fructose, is a 16
coupling sugar that is “produced by treating with glycosyltransferase a 17
mixed solution of sucrose and oligosaccharide, which avoids the formation 18
of dextran, levan, etc. which could be produced by microbes in the mouth 19
causing dental caries.” (Id. Abstract; 1:6-7). 20
19. Tsuyama describes that the sweetened composition of the 21
invention may be liquid, powder or solid. (Id. 1:61-64). 22
20. Barabolak describes anti-plaque emulsions comprising a 23
surfactant, an emulsifier and the antimicrobial agent triclosan. (Barabolak 24
1:50-58). 25
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21. Barabolak describes that in one embodiment the surfactant is 1
cetylpyridinium chloride. (Id. 1:62-63). 2
22. Barabolak describes that the emulsions of the invention may 3
optionally contain sweeteners. (Id. 3:45-46). 4
23. Barabolak describes that the antimicrobial emulsions of the 5
invention may be used in a variety of different vehicles, including chewing 6
gum, a mouthwash, and an oral paste, gel or powder. (Id. 2:29-39). 7
24. Kayane describes a method of desensitizing hypersensitive dentin 8
by using an oral composition comprising a salt of a polyvalent metal and a 9
phosphate of monosaccharide, oligosaccharide, polysaccharide or polyol. 10
(Kayane 1:58-65; 2:43-45). 11
25. Kayane provides examples of phosphates, including those having 12
fructose moieties. (Id. 2:43-57). 13
26. Kayane describes that the oral compositions may be in various 14
forms, including a dentifrice, tooth-coating agent, mouthwash, and chewing 15
gum. (Id. 3:54-57). 16
PRINCIPLES OF LAW 17
“Section 103 forbids issuance of a patent when ‘the differences 18
between the subject matter sought to be patented and the prior art are such 19
that the subject matter as a whole would have been obvious at the time the 20
invention was made to a person having ordinary skill in the art to which said 21
subject matter pertains.’” KSR Int’l Co. v. Teleflex Inc., 127 S. Ct. 1727, 22
1734 (2007). 23
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ANALYSIS 1
I. The Rejections of Claims 41-45 and 50-52 under 35 U.S.C. § 103(a) over 2
the combination of Iyer and Gaffar and over the combination of Ebine and 3
Gaffar. 4
Claims 41-45 and 50-52 stand rejected under 35 U.S.C. § 103(a) over 5
the combination of Iyer and Gaffar and over the combination of Ebine and 6
Gaffar. (Non-Final Rejection, Nov. 16, 2006, p. 2-5, incorporated by 7
reference in Final Rejection, May 3, 2007, p. 2). 8
A. Iyer and Gaffar. 9
The Examiner found that Iyer describes aqueous oral care 10
compositions containing a water-insoluble extract of Glycyrrhiza glabra, an 11
antimicrobial agent that contains glycyrrhizie acid and glycyrrhetinic acid. 12
(Non-Final Rejection, p. 2). Additionally, the Examiner found that Iyer 13
teaches that the composition reduces the growth of bacteria associated with 14
dental plaque and treats breath malodor. (Id.). The Examiner further found 15
that Iyer describes that its oral care compositions may be combined with 16
components typically found in oral hygiene products, including surfactants. 17
(Id.)(citing Iyer p. 4, l. 15). According to the Examiner, Iyer does not 18
specifically disclose using an oligosaccharide. (Non-Final Rejection, p. 2). 19
However, the Examiner found that Gaffar discloses oral 20
“compositions comprising oligosaccharides that inhibit the adherence of a 21
bacterium such as Streptococcus pyogenes to the surface of the oral cavity.” 22
(Id. p. 3). The Examiner also found that Gaffar describes that its 23
compositions may be in the form of a mouthwash and may comprise 24
antibacterial anti-plaque agents, such as cetyl pyridinium chloride. (Id.). 25
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The Examiner determined that it would have been obvious to a person 1
of ordinary skill in the art at the time of the invention to add Gaffar’s 2
oligosaccharide and cetyl pyridinium chloride to Iyer’s Glycyrrhiza glabra 3
oral composition motivated by the desire to enhance the anti-plaque activity 4
of Iyer’s oral care composition with a second oral care composition capable 5
of reducing bacterial growth, as well as inhibiting the bacteria from adhering 6
to the surface of the oral cavity. (Id.). 7
The Appellant challenges the Examiner’s rejection by asserting that a 8
skilled artisan would not have been motivated to combine the teachings of 9
Iyer “which are general and which pertain to prevention of caries,” with the 10
teachings of Gaffar, which describe the beneficial activity of certain 11
oligosaccharides in inhibiting the binding of a specific pathogen, to arrive at 12
the claimed invention. (Id. 4). The Appellant further asserts that one skilled 13
in the art would have lacked motivation to combine the references because 14
Tsuyama describes that “oligosaccharides are generally thought to promote 15
caries.” (Id.)(citing Tsuyama 1:126-17). Moreover, the Appellant asserts 16
that the present application describes that oligosaccharides are “useful in 17
promoting growth of colonic microflora.” (Id. 5)(citing Specification p. 4, 18
ll. 18-20). Thus, according to the Appellant, “[o]nly in hindsight could this 19
combination be made.” (Id.). 20
These arguments are not persuasive. Iyer and Gaffar each describe 21
compositions that benefit oral health. Gaffar expressly suggests adding 22
antibacterial anti-plaque agents to its composition. Iyer describes a 23
composition comprising an antibacterial anti-plaque agent. On balance, the 24
evidence of record supports a conclusion that a skilled artisan at the time of 25
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the invention would have found it obvious to combine the known 1
compositions of Iyer and Gaffar to provide an enhanced oral health care 2
composition based upon the express description found in each of the 3
references. We do not agree with the Appellant that the combination was 4
based upon impermissible hindsight. See In re McLaughlin, 443 F.2d 1392, 5
1395 (CCPA 1971). 6
Further, to the extent that a skilled artisan understood Gaffar’s 7
oligosaccharides to potentially cause caries, the Appellant has pointed to no 8
persuasive evidence that one of ordinary skill in the art would not have 9
found it obvious to combine Gaffar’s known oral oligosaccharide 10
composition with Iyer’s known oral composition to reduce or inhibit such 11
dental plaque and dental caries. (Answer 9-10; See also App. Br. 10, 12
Evidence Appendix (listing “None.”)). 13
Finally, insofar as the Appellant asserts error because the present 14
application recites that oligosaccharides are “useful in promoting growth of 15
colonic microflora,” (App. Br. 5) this alleged function is not a claimed 16
limitation, nor raised with persuasive credible evidence as an asserted 17
unexpected result. Thus, this argument is unpersuasive of error. 18
Consequently, we do not find that the Appellant has established error 19
on the part of the Examiner as to this rejection. 20
B. Ebine and Gaffar. 21
The Examiner further found that Ebine describes liquid dentifrice 22
compositions that may be easily applied to a toothbrush, comprising an 23
abrasive (for cleaning power), and a binder, such as xanthan gum. (Non-24
Final Rejection, p. 4). The Examiner also found that Ebine describes that 25
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the compositions of the invention may contain additional ingredients, 1
including sweeteners such as glycyrrhizin, a component of Glycyrrhiza 2
glabra, and pharmaceutical agents, such as cetypyridinium chloride, which 3
can also act as a cationic surfactant, and glycyrrhetinic acid, a second 4
component of Glycyrrhiza glabra. (Id.). Additionally, the Examiner found 5
that Ebine describes that the dentifrice compositions may also comprise 6
surfactants, including ampholytic agents “which can also encompass 7
cationic” agents. (Id.). 8
The Examiner again determined that it would have been obvious to 9
one of ordinary skill in the art at the time of the invention to combine the 10
references motivated by the desire to enhance anti-plaque activity with a 11
composition capable of reducing the bacterial growth and inhibiting the 12
bacteria from adhering to the surface of the oral cavity. (Id. 5.). 13
The Appellant challenges the Examiner’s obviousness rejection over 14
the combination of Ebine and Gaffar by again asserting that a skilled artisan 15
would not have been motivated to combine the references because “the 16
purposes of Gaffar and Ebine are quite different, and the combination of 17
references can be made only in hindsight.” (App. Br. 5). 18
Specifically, the Appellant asserts that Ebine is directed towards 19
abrasives and xanthan gum and lists Glycyrrhizin, a sweetener, as one of 20
many ingredients that may be added to the composition. (Id.). Additionally, 21
the Appellant again asserts that Gaffar relates to inhibiting a specific 22
bacterium using certain oligosaccharides. (Id.). 23
This argument is also unpersuasive. Gaffar expressly describes that 24
its oral health preparations containing oligosaccharides may be in any 25
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convenient form and may contain additional ingredients. This teaching 1
includes a liquid dentifrice that contains cleaning abrasives and binding 2
xanthan gum. 3
The Appellant has provided no persuasive evidence to the contrary. 4
We see no error in the Examiner’s conclusion that a skilled artisan at the 5
time of the invention would have combined the compositions of Ebine and 6
Gaffar based upon the express suggestion from the references, and not upon 7
impermissible hindsight. 8
The Appellant asserts that Ebine’s glycyrrhizin sweetener is an 9
“ancillary” ingredient and “of secondary importance.” This argument is not 10
persuasive, as Ebine additionally discloses glycyrrhetic acid, an extract of 11
Glycyrrhiza glabra, as an active agent. (Ebine 5:40-45). 12
Consequently, we conclude that the Appellant has not established that 13
the Examiner erred in rejecting the claims over the combined references. 14
Accordingly, we affirm the Examiner’s rejection. 15
II. The Rejection of Claims 41-44, 47 and 50-55 under 35 U.S.C. § 103(a) 16
over the combination of Ebine and Tsuyama. 17
Claims 41-44, 47 and 50-55 stand rejected under 35 U.S.C. § 103(a) 18
over the combination of Ebine and Tsuyama. (Non-Final Rejection, Nov. 19
16, 2006, p. 5, incorporated by reference in Final Rejection, May 3, 2007, p. 20
2). 21
The Examiner found that Tsuyama describes oral compositions, 22
including liquids, powders, solids, sweetened dentifrices, gargles, etc. and 23
methods for preventing the occurrence of dental caries. (Id.). Specifically, 24
the Examiner found that Tsuyama describes that the oral compositions 25
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comprise an oligoglucosyl fructose mixture, i.e., a “coupling sugar,” as a 1
sweetener. (Id.). The Examiner also found that Tsuyama describes that the 2
coupling sugar is not broken down by saliva and therefore does not produce 3
polysaccharides such as dextran, levan, etc. which lead to dental caries. 4
(Id.). 5
The Examiner concluded that it would have been obvious to one of 6
ordinary skill in the art to add Tsuyama’s fructo-oligosaccharide to the 7
composition of Ebine motivated by a desire to add a sweetener that does not 8
lead to dental caries. (Id. 6). 9
The Appellant challenges the rejection by asserting that “[a]gain, 10
Ebine discloses glycyrrhizin as an optional sweetener in a xanthan gum 11
composition.” (App. Br. 5). The Appellant also asserts that the Examiner 12
misread Tsuyama. (Id.). According to the Appellant, “Tsuyama teaches 13
that oligosaccharides promote dental caries and should be avoided.” 14
(Id.)(emphasis in original). The Appellant further asserts that “Tsuyama 15
recognizes that [its] ‘coupling sugar’ is not an oligosaccharide,” and, 16
therefore, teaches away from the claimed invention. (Id.). 17
This argument is also unpersuasive. Tsuyama states, “it is believed 18
that dental caries are caused by polysaccharides and organic acids formed in 19
the oral cavity, both of which are both result of sugar ingestion.” (Tsuyama 20
1:16-19). To avoid this result, Tsuyama describes forming an alternative 21
sweetener that is “a starch syrup containing oligosaccharide as the main 22
component on which molecular end fructose is bonded, namely 23
oligoglucosyl fructose....” (Tsuyama Abstract)(emphasis added). Tsuyama 24
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further describes this sweetener as a “coupling sugar” which “is a sugar....” 1
(Tsuyama 1:38). 2
Thus, Tsuyama describes a sweetener that is an oligosaccharide and a 3
sugar, but that does not cause dental cavities. Consequently, the evidence of 4
record, considered in context, does not support the Appellant’s statement 5
that Tsuyama teaches away from the claimed invention. 6
Accordingly, we affirm the Examiner’s rejection. 7
III. The Rejection of Claims 41-45, 47 and 50-55 under 35 U.S.C. § 103(a) 8
over the combination of Iyer, Barabolak and Kayane. 9
Claims 41-45, 47 and 50-55 stand rejected under 35 U.S.C. § 103(a) 10
over the combination of Iyer, Barabolak and Kayane. (Non-Final Rejection, 11
Nov. 16, 2006, p. 6, incorporated by reference in Final Rejection, May 3, 12
2007, p. 2). The Examiner found that Barabolak describes that 13
cetylpyridinium chloride is a surfactant “typically found in oral hygiene 14
products.” (Id.)(quoting Barabolak 1:62-63). 15
The Examiner also found that Kayane describes oral compositions for 16
use in desensitizing hypersensitive teeth comprising an oligosaccharide that 17
may comprise a fructose moiety, which encompasses fructo-oligosaccharide. 18
(Id. 6-7). Additionally, the Examiner found that Kayane describes that its 19
compositions also comprise a salt of a polyvalent metal. (Id. 6). According 20
to the Examiner, Kayane teaches that the compositions may be in the form 21
of a mouthwash or dentifrice. (Id. 7). 22
The Examiner concluded that it would have been obvious to one of 23
ordinary skill in the art to add Kayane’s oligosaccharide composition to 24
Iyer’s anti-plaque composition motivated by the desire to provide a 25
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composition that inhibits plaque and desensitizes sensitive teeth. (Id.). 1
Additionally, the Examiner found that a skilled artisan would have found it 2
obvious to add Barabolak’s cetylpyridinium chloride to the combination 3
because Iyer expressly describes that a surfactant may be added to the 4
composition and Barabolak describes that its surfactant is “typically found in 5
oral hygiene products.” (Id.). 6
The Appellant challenges the Examiner’s rejection by asserting that 7
the combination of Iyer and Barabolak “can be made only in hindsight.” 8
(App. Br. 6). Specifically, the Appellant asserts that the purpose of the 9
surfactant in Barabolak’s emulsion for chewing gums “is to assist in the 10
formation of the emulsion, which, in essence, is purported to be a carrier for 11
the other active ingredients.” (Id.). 12
The Appellant also asserts that “[t]his technology has nothing to do 13
with the technology described by the other reference, thus rendering 14
Barabolak incompatible.” (Id.). Further, the Appellant asserts that a skilled 15
artisan would not have been motivated to select this particular ingredient in a 16
chewing gum coating, then to select another ingredient from the toothpaste 17
of Iyer, to arrive at the claimed invention.” (Id.). 18
Finally, the Appellant contends that Iyer and Barabolak “have nothing 19
to do with Kayane,” a reference describing compositions for desensitizing 20
hypersensitive teeth. (Id.). 21
These arguments are without merit, and unsupported by the evidence 22
of record. Barabolak uses its surfactant as a carrier for active ingredients. 23
Consequently, the evidence supports the Examiner’s conclusion that “it 24
would have been obvious to one of ordinary skill in the art to have used the 25
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surfactants of Barabolak to deliver [i.e., function as a “carrier” for] the active 1
ingredients of Iyer.” (Answer p. 12). 2
Barabolak describes that the claimed surfactant is “typically found in 3
oral hygiene products,” and that the emulsions of the invention may be used 4
in a variety of different vehicles, including a mouthwash or dentifrice, as 5
described by Iyer. (Barabolak 2:29-39). Therefore, the Appellant’s position 6
that the technologies of the references are “incompatible” is unsupported 7
argument 8
Additionally, Kayane describes an oral health composition that may 9
be prepared as a mouthwash or dentifrice, which includes an oligosaccharide 10
which beneficially desensitizes hypersensitive teeth. Therefore, the 11
Examiner determined that it would have been obvious to a skilled artisan to 12
improve Iyer’s anti-plaque composition with a composition known to 13
desensitize hypersensitive teeth. The Appellant has provided no persuasive 14
evidence to support its conclusory statements otherwise. 15
Accordingly, we affirm the Examiner’s rejections. 16
CONCLUSION OF LAW 17
On the record before us, the Appellant has not shown error on the part 18
of the Examiner. It would have been obvious to one of ordinary skill in the 19
art at the time the invention was made to prepare an anti-plaque composition 20
comprising the claimed components known in the art to be useful in dental 21
hygiene compositions. 22
DECISION 23
The Rejection of claims 41-45 and 50-52 under 35 U.S.C. §103(a) as 24
being unpatentable over the combination of Iyer and Gaffar is AFFIRMED. 25
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The Rejection of claims 41-45 and 50-52 under 35 U.S.C. §103(a) as 1
being unpatentable over the combination of Ebine and Gaffar is 2
AFFIRMED. 3
The Rejection of claims 41-44, 47 and 50-55 under 35 U.S.C. §103(a) 4
as being unpatentable over the combination of Ebine and Tsuyama is 5
AFFIRMED. 6
The Rejection of claims 41-45, 47 and 50-55 under 35 U.S.C. §103(a) 7
as being unpatentable over the combination of Iyer, Barabolak and Kayane 8
is AFFIRMED. 9
No time period for taking any subsequent action in connection with 10
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv) (2006). 11
12
AFFIRMED 13
ack 14
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