Ex Parte Schwartz

Patent Trial and Appeal Board

Mar 18, 2016

13028873 (P.T.A.B. Mar. 18, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/028,873 02/16/2011
27752 7590 03/22/2016
THE PROCTER & GAMBLE COMPANY
Global Patent Services - Legal IP
Central Building, CS
One Procter and Gamble Plaza
CINCINNATI, OH 45202
FIRST NAMED INVENTOR
James Robert Schwartz
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.
11619 9604
EXAMINER
GOLIGHTLY, ERIC WAYNE
ART UNIT PAPER NUMBER
1714
NOTIFICATION DATE DELIVERY MODE
03/22/2016 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):
centraldocket.im @pg.com
pair_pg@firsttofile.com
mayer.jk@pg.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JAMES ROBERT SCHWARTZ
Appeal2014-008630
Application 13/028,873
Technology Center 1700
Before TERRY J. OWENS, BEYERL YA. FRANKLIN, and
AVEL YN M. ROSS, Administrative Patent Judges.
ROSS, Administrative Patent Judge.
DECISION ON APPEAL 1
Appellant2 appeals under 35 U.S.C. § 134 from the Examiner's final
rejection of claims 1-3, 7-9, and 13-15 as unpatentable under 35 U.S.C. §
103(a). We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 In our opinion below, we refer to the Final Office Action appealed from,
filed November 21, 2013 (Final), the Appeal Brief filed March 21, 2014
(Appeal Br.), and the Examiner's Answer filed May 29, 2014 (Ans.).
2 Appellant identifies The Procter & Gamble Company as the real party in
interest. Appeal Br. 1.
Appeal2014-008630
Application 13/028,873
STATEMENT OF CASE
The claims are directed to method for providing maximum malodor
and perspiration control. Claim 1, reproduced below, is illustrative of the
claimed subject matter:
1. A method for treating malodor on an intimate area
compnsmg
applying an intimate cleansing product to the intimate
area, wherein the intimate cleansing product comprises a
malodor active;
rinsing the intimate cleansing product from the intimate
area; and
applying an antiperspirant to the intimate area.
Claims Appendix at Appeal Br. 4.
Claims 1-3, 7-9, and 13-15 stand rejected under 35 U.S.C §103(a) as
being unpatentable over WO 2008149089 Al to Gottardello et al. 3 Final 3.
Appellant does not separately argue any claim apart from the others. The
issue arising is the same for all claims, and accordingly, we limit our
discussion to claim l to resolve the issues on appeal.
OPINION
The Examiner rejects claims 1-3, 7-9, and 13-15, under 35 U.S.C. §
103(a), as being unpatentable over Gottardello. The Examiner finds that
Gottardello teaches
a method for treating malodor on an intimate area (abstract, page
10, lines 11-15, and page 20, lines 17-20) comprising applying
an intimate cleansing product to the intimate area, wherein the
intimate cleansing product comprises a malodor active (page 3,
lines 5-12, page 4, lines 19-20, page 7, lines 18-22, and page 14,
3 Gottardello et al., WO 2008149089 Al, published December 11, 2008
(hereinafter "Gottardello").
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Appeal2014-008630
Application 13/028,873
lines 21-27); and applying an antiperspirant to the intimate area
(page 12, lines 25-27).
Final 3. But, according to the Examiner, "Gottardello does not explicitly
teach rinsing the intimate cleansing product from the intimate area." Id.
However, the Examiner finds this rinsing step to be obvious to one skilled in
the art at the time of the invention. Id.
Appellant counters that the Examiner has failed to state a prima facie
case because Gottardello fails to teach all of the steps of the claimed method.
Appeal Br. 2. Specifically, Appellant argues that there is no teaching in
Gottardello of "applying an intimate cleansing product for malodor and
applying an antiperspirant to the intimate area." Id. Appellant continues
that Gottardello's disclosure simply recites the "product types into which the
Gottardello invention may be formulated and does not amount to a teaching
of applying an intimate cleansing product and applying an antiperspirant
product (claims 1 and 7) or a deodorant product (claim 13) to the same
intimate area." Id.
In response, the Examiner finds that the person of skill in the art at the
time of the invention would "underst[ and] that it was (and is) common to use
soap (as in a bath or shower) and then to apply an antiperspirant" and so,
from Gottardello, such a person "would have appreciated ... using the
formulation as a soap and as an antiperspirant, the suggestion to use the
Gottardello formulation in both soap and antiperspirant combinations." Ans.
7. The Appellant did not file a reply brief.
Therefore, the issue on appeal becomes: Has the Appellant identified
a reversible error in the Examiner's findings that "applying an intimate
cleansing product to the intimate area" and then "applying an antiperspirant
(or deodorant) to the intimate area" are obvious in light of the teachings of
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Appeal2014-008630
Application 13/028,873
Gottardello? For the reasons articulated by the Examiner, we are not
persuaded of such an error.
The test for obviousness is not whether the claimed invention is
expressly suggested in any one or all of the references, but whether the
claimed subject matter would have been obvious to those of ordinary skill in
the art in light of the combined teachings of those references. See In re
Keller, 642 F.2d 413, 425 (CCPA 1981). One of ordinary skill can use his
or her ordinary skill, creativity, and common sense to make the necessary
adjustments and further modifications to result in a properly functioning
device. See KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) ("a
court can take account of the inferences and creative steps that a person of
ordinary skill in the art would employ"). Furthermore, "if a technique has
been used to improve one device, and a person of ordinary skill in the art
would recognize that it would improve similar devices in the same way,
using the technique is obvious unless its actual application is beyond his or
her skill." See id. at 41 7.
As the Examiner correctly finds, Gottardello teaches formulations and
methods for treating malodor. See e.g., Gottardello, p. 7, 11. 18-24, p. 12, 11.
17-20 and 11. 25-27. Gottardello also teaches incorporating the Gottardello
formulation in soaps and shampoos as well as in deodorants and
antiperspirants. Id. at p. 12, 1. 25-p. 13, 1. 2 and p. 14, 1. 21-p. 15, 1. 2. The
Examiner also aptly finds that "[u]sing a soap and then a deodorant was, and
is, commonplace. Moreover, when the Gottardello composition is used in a
deodorizing soap, it would encompass both steps of: a) applying an intimate
cleansing product and b) applying a deodorant (as in claim 13)." Ans. 7.
Given these teachings, we concur with the Examiner that one of
ordinary skill in the art at the time would have been led to the claimed
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Appeal2014-008630
Application 13/028,873
method in light of the teachings of Gottardello. Accordingly, Appellant has
not identified reversible error in the Examiner's findings regarding
Gottardello, or obviousness conclusions based thereon. We therefore,
sustain the Examiner's rejection of claims 1-3, 7-9, and 13-15.
CONCLUSIONS
The Examiner did not err in rejecting claims 1-3, 7-9, and 13-15,
under 35 U.S.C. § 103(a), as being unpatentable over Gottardello.
DECISION
For the above reasons, the Examiner's rejection of claims 1-3, 7-9,
and 13-15 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv) (2009).
AFFIRMED
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