Ex Parte SI et al

Patent Trial and Appeal Board

Nov 6, 2018

14669013 (P.T.A.B. Nov. 6, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/669,013 03/26/2015
27752 7590 11/08/2018
THE PROCTER & GAMBLE COMPANY
Global IP Services
Central Building, C9
One Procter and Gamble Plaza
CINCINNATI, OH 45202
FIRST NAMED INVENTOR
Gang SI
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.
AA918MQL 2535
EXAMINER
MRUK,BRIANP
ART UNIT PAPER NUMBER
1761
NOTIFICATION DATE DELIVERY MODE
11/08/2018 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 GANG SI, KOUSHIK MUKHERJEE, QI ZHANG,
PENG QIN, MARK ROBERT SIVIK,
AARON FLORES-FIGUEROA, and SUSANNE BIRKEL
Appeal2017-007632 1
Application 14/669,013
Technology Center 1700
Before BEYERL YA. FRANKLIN, BRIAND. RANGE, and
JENNIFER R. GUPTA, Administrative Patent Judges.
RANGE, Administrative Patent Judge.
DECISION ON APPEAL
SUMMARY
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 1--4 and 8-21. We have jurisdiction. 35 U.S.C.
§ 6(b ).
We AFFIRM.
1 The Appeal Brief states the applicant, The Proctor & Gamble Company, is
the real party in interest. App. Br. 1.
Appeal2017-007632
Application 14/669,013
STATEMENT OF THE CASE2
Appellant describes the invention as relating to a laundry detergent
composition with cationic polymer in an effective amount for optimizing
sudsing profile while also minimizing fabric whiteness loss. Spec. 1 :5-8.
Claim 1, reproduced below, is illustrative of the claimed subject matter:
1. A laundry detergent composition comprising an effective
amount of a cationic polymer for sudsing profile optimization,
said cationic polymer comprising:
(i) from about 60 mol% to about 90 mol% of a first
structural unit derived from (meth)acrylamide (AAm);
(ii) from about 5 mol% to about 40 mol% of a second
structural unit derived from a diallyl dimethyl ammonium salt
(DADMAS); and
(iii) from O mol% to about 25 mol% of a third structural
unit derived from vinylpyrrolidone (VP),
wherein said cationic polymer is characterized by a
molecular weight of from about 20,000 to about 350,000 Daltons
and is substantially free of any silicone-derived structural
component.
Appeal Br. 7 (Claims App.).
REFERENCES
The Examiner relies upon the prior art below in rejecting the claims
on appeal:
Panandiker et al. US 2012/0309663 Al Dec. 6, 2012
2 In this Decision, we refer to the Final Office Action dated August 25, 2016
("Final Act."), the Appeal Brief filed October 25, 2016 ("Appeal Br."), the
Examiner's Answer dated February 24, 2017 ("Ans."), and the Reply Brief
filed April 24, 201 7 ("Reply Br.").
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Application 14/669,013
REJECTIONS
The Examiner maintains the following rejections on appeal:
Rejection 1. Claims 1--4 and 8-19 under 35 U.S.C. § 103 as
unpatentable over Panandiker et al., US 2012/0309663 Al, Dec. 6, 2012
("Panandiker"). 3 Ans. 3.
Rejection 2. Provisionally, claims 1--4 and 8-21 on the ground of
nonstatutory double patenting as being unpatentable over claims 1-21 of
copending Application No. 14/669,014. Final Act. 3.
Rejection 3. Provisionally, claims 1--4 and 8-21 on the ground of
nonstatutory double patenting as being unpatentable over claims 1-23 of
copending Application No. 14/937,910. Id.
Rejection 4. Provisionally, claims 1--4 and 8-21 on the ground of
nonstatutory double patenting as being unpatentable over claims 1-20 of
copending Application No. 14/848,596. Id.
Rejection 5. Provisionally, claims 1--4 and 8-21 on the ground of
nonstatutory double patenting as being unpatentable over claims 1-20 of
copending Application No. 14/848,610. Id.
ANALYSIS
We review the appealed rejections for error based upon the issues
identified by Appellant and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential),
cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) ("[I]t
has long been the Board's practice to require an applicant to identify the
3 The Examiner has withdrawn the prior rejection based on 35 U.S.C. §
I02(a)(l). Ans. 4.
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Application 14/669,013
alleged error in the examiner's rejections."). After considering the evidence
presented in this Appeal and each of Appellant's arguments, we are not
persuaded that Appellant identifies reversible error. Thus, we affirm the
Examiner's rejections for the reasons expressed in the Final Office Action
and the Answer. We add the following primarily for emphasis.
Rejection 1. The Appeal Brief does not make any substantively
distinct arguments for any claims aside from claims 1 and 2. See Appeal Br.
passim. 4 Therefore, consistent with the provisions of 3 7 C.F .R.
§ 4I.37(c)(l)(iv) (2013), we limit our discussion to claims 1 and 2, and all
other claims on appeal stand or fall together with claim 1.
Claim 2 recites, "[ t ]he laundry detergent composition of claim 1,
wherein the second structural unit is derived from diallyl dimethyl
ammonium chloride (DADMAC)." Appeal Br. 7 (Claims App.).
The Examiner rejects claims 1--4 and 8-19 under 35 U.S.C. § 103 as
unpatentable over Panandiker. Ans. 2-3. The Examiner finds that
Panandiker teaches a cationic polymer formed from 60-95 mole percent of
acrylamide, 1--40 mole percent of dially dialkyl ammonium chloride
("DADMAC"), and 1-80% by weight anionic surfactants. Ans. 2-5 (citing
Panandiker). The Examiner finds that Panandiker teaches a molecular
weight for the cationic polymer of 10,000 to 1,500,000 daltons and
preferably 200,000 daltons. Id. at 2.
Appellant argues that a person of skill in the art would not have
reason to modify Panandiker's broad disclosure to arrive at the recitations of
4 Appellant presents cursory argument as to other claims in the Reply Brief.
Reply Br. 3--4. We decline to consider this argument because it is raised in
the Reply Brief, was not raised in the Appeal Brief, and is not responsive to
an argument raised in the Answer. 37 C.F.R. 41.41(a)(2).
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Application 14/669,013
claim 1 or claim 2 without hindsight. Appeal Br. 4--5. Appellant argues that
Panandiker does not identify specific monomers, monomeric ratios or
molecular profile as impacting sudsing profile or whiteness. Id.
Appellant's argument does not persuade us of reversible error.
Rather, the preponderance of the evidence supports the Examiner's findings.
See, e.g., Panandiker ,r,r 68---69 (teaching use of DAD MAC and acrylamides
to form cationic polymers), 76 (teaching an acrylamide to DADMAC ratio
of 70:30), 77 (teaching molecular weight between 10,000 and 5,000,000
daltons and preferably from 200,00 and 1,500,000 daltons ); see also, e.g., id.
at Table 2 (indicating that Panandiker refers to molecular weight in daltons ).
Appellant does not persuasively dispute the Examiner's findings. The
ranges taught by Panandiker overlap with the ranges of claim 1, and
Panandiker teaches DADMAC as recited by claim 2. Even the ratio taught
by Panandiker falls within the range of ratios taught by claims 1 and 2. 5
Because the recited ranges are entirely encompassed by ranges taught by
Panandiker, prima facie obviousness of the ranges is established. In re
Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003) ("[a] primafacie case of
obviousness typically exists when the ranges of a claimed composition
overlap the ranges disclosed in the prior art"); In re Geisler, 116 F.3d 1465,
1469 (Fed. Cir. 1997) (acknowledging that claimed invention was
rendered prima facie obvious by prior art reference whose disclosed range
( 5 0-100 Angstroms) overlapped the claimed range (100---600 Angstroms)).
5 Claim 1 encompasses a ratio of component (i) to component (ii) between
1.5 (60 mol% divided by 40 mol%) and 18 (90 mol% divided by 5 mol%).
Panandiker expressly teaches, for example, a ratio of 2.5 (70 mol% divided
by 30 mol%). See, e.g., Panandiker ,r 76.
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Application 14/669,013
Appellant also argues "surprising" (i.e., unexpected) results. Appeal
Br. 4---6. In the Appeal Brief, Appellant refers to Examples IV and V of the
Specification. Id.; see also Reply Br. 2-3.
A party asserting unexpected results as evidence of nonobviousness
has the burden of proving that the results are unexpected. In re Geisler, 116
F.3d 1465, 1469-70 (Fed. Cir. 1997). The evidence of unexpected results
also must also be reasonably commensurate with the scope of the claims. In
re Peterson, 315 F.3d at 1330-31 (Fed. Cir. 2003) (explaining that applicant
may overcome a prima facie case of obviousness by showing unexpected
results but the showing of unexpected results "must be commensurate in
scope with the claims which the evidence is offered to support") (internal
quotation marks and citation omitted). "If an applicant demonstrates that an
embodiment has an unexpected result and provides an adequate basis to
support the conclusion that other embodiments falling within the claim will
behave in the same manner, this will generally establish that the evidence is
commensurate with scope of the claims." In re Huai-Hung Kao, 639 F.3d
1057, 1068 (Fed. Cir. 2011). We have carefully considered Appellant's
evidence and arguments, but the proferred evidence is ultimately
unpersuasive.
Here, we agree with the Examiner that Appellant's evidence is not
reasonably6 commensurate in scope with claim 1 or claim 2. Ans. 5.
Claim 1, for example, permits inclusion of any structural unit derived from
6 Appellant argues that the Examiner erred by stating that the results are not
commensurate in scope rather than stating the results are not reasonably
commensurate in scope. Reply Br. 2. Because Appellant does not meet the
burden of establishing unexpected results for the reasons explained herein,
this argument does not identify harmful or reversible error.
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Application 14/669,013
(meth)acrylamide for component (i), permits any second structural unit
derived from a diallyl dimethyl ammonium salt (DADMAS) for component
(ii), permits any third structural unit derived from vinylpyrrolidone for
component (iii), and permits a wide range of mole percent composition for
each of these components. Claim 2 permits any structural unit derived from
DADMAC for component 2. Appellant fails to explain how the data
provided would adequately support a conclusion that other embodiments
within the scope of the claim would exhibit the same results.
Appellant also fails to present evidence that the proffered results are
unexpected. Establishing that results are unexpected requires, for example,
Appellant to proffer factual evidence that shows unexpected results relative
to the closest prior art. See In re Baxter Travenol Labs., 952 F.2d 388, 392
(Fed. Cir. 1991). Appellant does not explain why Examples IV or V provide
better or unexpected results as compared to any Panandiker examples.
Reply Br. 2-3.
Because Appellant's arguments do not demonstrate reversible error,
we sustain the Examiner's rejection.
Rejections 2-5. Appellant does not dispute the Examiner's
obviousness type double patenting rejections. Appeal Br. 2. We summarily
affirm these rejections.
DECISION
For the above reasons, we affirm the Examiner's rejections of
claims 1--4 and 8-21.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
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Application 14/669,013
AFFIRMED
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