Ex Parte Sharma et alDownload PDFPatent Trial and Appeal BoardJun 26, 201311020016 (P.T.A.B. Jun. 26, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE __________ BEFORE THE PATENT TRIAL AND APPEAL BOARD __________ Ex parte NINA SHARMA and RAMESH NAIR __________ Appeal 2012-0015741 Application 11/020,016 Technology Center 1600 __________ Before MELANIE L. McCOLLUM, ERICA A. FRANKLIN, and ULRIKE W. JENKS, Administrative Patent Judges. McCOLLUM, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134 involving claims to a toothpowder. The Examiner has rejected the claims as obvious. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. 1 Appellants identify the Real Party in Interest as Colgate-Palmolive Company (App. Br. 2). Appeal 2012-001574 Application 11/020,016 2 STATEMENT OF THE CASE Claims 1-7 are on appeal (App. Br. 7).2 We will focus on claim 1, the only independent claim on appeal, which reads as follows: 1. Toothpowder, comprising: (a) from about 85 to about 100 weight percent particulated natural calcium carbonate wherein said particulated natural calcium carbonate comprises natural calcium carbonate particles having calcium carbonate surfaces; and (b) flavor oil coating on a majority of calcium carbonate surfaces on said natural calcium carbonate surfaces. Claims 1 and 6 stand rejected under 35 U.S.C. § 103(a) as obvious over Lynch3 in view of Wernett4 and KVaromatics5 (Ans. 5). Claims 2-5 and 7 stand rejected under 35 U.S.C. § 103(a) as obvious over Lynch in view of Wernett, KVaromatics, and White6 (Ans. 8). The Examiner finds that Lynch teaches “plaque-inhibitory agents useful in aqueous/alcohol based tooth powders” (id. at 5). The Examiner also finds that Lynch “contemplates the inclusion of those sweeteners well known in the art” (id.). In addition, the Examiner finds that Lynch teaches that “[s]uitable flavorings include both natural and artificial flavors and mints” (id.). The Examiner also finds that “[o]ral compositions in the form of toothpowders will also contain polishing materials, such as calcium carbonate in amounts from about 70 to about 82%, i.e. about 85%” (id. at 5- 6). In addition, the Examiner finds that Lynch teaches: 2 Claims 8-17 are also pending but have been withdrawn from consideration (App. Br. 4). 3 Lynch et al., US 4,855,128, Aug. 8, 1989. 4 Wernett et al., US 2004/0120902 A1, Jun. 24, 2004. 5 KVaromatics, Peppermint Oil, www.kvaromatics/mint-products.html, page 1. 6 White, Jr. et al., US 6,740,311 B2, May 25, 2004. Appeal 2012-001574 Application 11/020,016 3 In general the compositions are prepared by first mixing the sweetener with water to form a solution, then adding the antiplaque agent, i.e. polysaccharides, followed by sufficient water/alcohol mixture until the final volume is reached. When similar additives are included in the composition, they are added a[t] the same time as the sweetener is added. (Id. at 6.) The Examiner relies on Winston7 for teaching that “[p]eppermint flavoring oils are art recognized mint flavoring agents for toothpowder compositions” (id. at 5). The Examiner relies on Wernett for teaching that “[n]atural calcium carbonate is an art recognized calcium carbonate polishing material in toothpowders” (id. at 6-7). The Examiner concludes: Since Lynch et al. teach that the process to produce the composition of the invention, i.e. toothpowder, comprises mixing the sweetener with water or water/alcohol mixture to form a solution, as the first step, and that additives such as flavorings are added at the same time as the sweetener; addition of actives such as anti-plaque polysaccharide as a second step; followed by addition of a water/alcohol mixture; and since peppermint oil is soluble in alcohol [as taught by KVaromatics], a flavoring oil solution is prepared. Since Lynch does not mention addition of polishing materials it would have been reasonable to add the calcium carbonate to the solution once it is made. The active step of mixing would assure that the components were well dispersed in the solution including the calcium carbonate, which would result in a majority of surfaces of the calcium carbonate being in contact with the flavoring oil solution. And the final step of the process would obviously be a drying process, i.e. evaporation of both 7 Winston et al., US 4,663,153, May 5, 1987. Appeal 2012-001574 Application 11/020,016 4 water and alcohol solvent, to produce the dried toothpowder with a majority of surfaces of the calcium carbonate being coated with the peppermint flavoring oil. (Id. at 7 (footnote omitted).) In rejecting claims 2-5 and 7, the Examiner additionally relies on White for teaching or suggesting various features of these dependent claims (id. at 8-9). Appellants argue that “Lynch does not disclose flavorants specifically in the form of flavoring oil, let alone how a flavoring oil could be best applied in making a toothpowder” (App. Br. 9). In particular, Appellants argue: [T]he method generically described at column 5, lines 9-19, of Lynch . . . is clearly directed to the preparation of a mouthwash, spray, or rinse; i.e., there is no mention of the addition of any non-soluble materials. Appellants point out that, in fact, Lynch neither teaches nor suggests any method for preparation of a toothpowder, much less one that could produce Appellants’ claimed toothpowder comprising flavor oil coated natural calcium carbonate particles. (Reply Br. 4-5.) ISSUE With regard to both grounds of rejection, the issue is whether the Examiner has set forth a prima facie case that it would have been obvious to coat a majority of the calcium carbonate surfaces with flavor oil? FINDINGS OF FACT 1. Lynch “is concerned with a method of inhibiting the formation of dental plaque which employs certain saccharides and oral compositions containing such saccharides” (Lynch, col. 1, ll. 5-9). Appeal 2012-001574 Application 11/020,016 5 2. Lynch discloses that the “anti-plaque agents of the invention can be readily incorporated into aqueous or aqueous/alcohol-based oral compositions such as a mouthwash, spray, rinse, toothpaste, dental cream, gel or toothpowder” (id. at col. 3, ll. 18-21). 3. Lynch also discloses: “In one form of the invention, the oral composition may be a liquid such as a mouthwash, spray or rinse. In such a composition the vehicle is typically a water/alcohol mixture.” (Id. at col. 3, ll. 28-31.) 4. In addition, Lynch discloses that the oral composition may also contain flavorants and that “[s]uitable flavorings include . . . mints such as peppermint” (id. at col. 3, ll. 65-66, & col. 4, ll. 30-31). 5. Lynch also discloses: The oral compositions may also be substantially solid or pasty in character such as a dental cream, toothpaste or a toothpowder. Solid or pasty oral preparations contain polishing materials. Typical polishing materials are abrasive particulate materials. . . . Nonlimiting illustrative examples include . . . calcium carbonate. . . . Polishing materials are generally present in an amount from about 20% to about 82% by weight of the oral preparation. Preferably, they are present in amounts . . . from about 70% to about 82% in toothpowder. (Id. at col. 4, l. 54, to col. 5, l. 2.) 6. In addition, Lynch discloses: In general, the anti-plaque oral compositions of the present invention are prepared as follows. The sweetener is dissolved in water to form a solution. The anti-plaque agent is added to the solution and mixed until dissolved. Then sufficient water alcohol or mixtures thereof are added with mixing until the final solution volume is reached. When colorants, additional sweeteners and similar additives are included in the App App (Id. a pow bicar exhib with col. inclu flavo pepp incor flavo 1.2% ll. 48 initia burd argu Cir. be su eal 2012-0 lication 11 composi added. ingredie t col. 5, ll 7. W der[, m]ore bonate pa it improv prior tooth 1, ll. 11-17 8. W des at leas ring agent ermint” (i 9. In porated 9 ring agent of a sacc -51; see a “In rejec l burden o en is met, ment shift 1993) (cita stained by 01574 /020,016 tion, they The anti-p nt. . 9-19.) inston “re particula rticles of p ed flavor, powders ). inston dis t a suitabl s include d. at col. 4 particular 7.32% of t (as a spra harin swee lso, id. at c ting claim f presentin does the b to the app tion omitt mere con are added laque age lates to a s rly, . . . to articular s flow and a containing closes that e flavoring the flavori , ll. 18-22) , Winston he sodium y dried po tener, and ol. 8, l. 45 PRINCIP s under 35 g a prima urden of c licant.” In ed). “[R]e clusory st 6 at the sam nt may al odium bic a tooth po izes, whic brasivity c commerc the tooth agent” an ng oils, for . discloses: bicarbona wder cont 0.22% sod , to col. 1 LES OF L U.S.C. § facie case oming forw re Rijcka jections o atements; i e time th so be add arbonate-c wder conta h powder h haracteris ial baking powder de d that “[e example, “The toot te, 0.8% o aining 20% ium fluor 0, l. 8.) AW 103, the ex of obviou ard with ert, 9 F.3d n obviousn nstead, th e sweeten ed as the ontaining ining sod as been fo tics as com powder” sirably “a ]xamples o oils of . . h powder f a pepper of the fla ide.” (Id. aminer be sness. On evidence o 1531, 153 ess groun ere must b er is final tooth ium und to pared (Winston, lso f suitable . mint vor oil), at col. 6, ars the ly if that r 2 (Fed. ds cannot e some App App artic conc tooth Lync the p as ac how with calci the p wate of su flavo prov ordin flavo comp abra Win pow discl eal 2012-0 lication 11 ulated reas lusion of o Lynch d powders c h also dis resent inv knowledg the abrasi the other The Exa um carbon rocess wo r and alco rfaces of t ring oil” ( ided adequ ary skill i The Exa ring oils a ositions” sive, sodiu ston disclo der contain ose the us 01574 /020,016 oning wit bviousnes iscloses a ontaining closes that ention are ed by the E ve particle componen miner find ate to the uld obviou hol solven he calcium Ans. 7 (em ate basis t n the art w miner relie re art reco (Ans. 5). m bicarbo ses incorp ing 20% o e of flavor h some rat s.” In re K AN variety of abrasive p , “[i]n gen prepared” xaminer ( s, such as ts. s that “it w solution o sly be a dr t, to produ carbonat phasis ad o support ould have s on Wins gnized mi However, nate (FF 7 orating the f the flavo oils in too 7 ional unde ahn, 441 ALYSIS anti-plaqu articles (F eral, the an by the rec Ans. 7), L calcium ca ould have nce it is m ying proc ce the drie e being co ded)). Ho the conclu made a to ton for tea nt flavorin Winston d ), with the flavor oil r oil” (FF thpowder, rpinning t F.3d 977, e oral com indings of ti-plaque ited metho ynch’s me rbonate, w been reas ade” and t ess, i.e. ev d toothpow ated with t wever, the sion that t othpowder ching that g agents f oes not te flavor oil as a separ 9). Thus, it does no o support 988 (Fed. positions, Fact (FF) oral comp d (FF 6). thod does ould be in onable to hat “the fi aporation der with he pepper Examiner his is how . “[p]epper or toothpo ach coatin . On the c ate “spray while Win t support t the legal Cir. 2006) including 2 & 5). ositions of However, not recite cluded add the nal step of of both a majority mint has not one of mint wder g its ontrary, dried ston may he . Appeal 2012-001574 Application 11/020,016 8 Examiner’s position that it would have been obvious to coat the abrasive particles with flavor oil. CONCLUSION The Examiner has not set forth a prima facie case that it would have been obvious to coat a majority of the calcium carbonate surfaces with flavor oil. We therefore reverse the rejections of record. REVERSED lp Copy with citationCopy as parenthetical citation