Ex Parte Song et al

Patent Trial and Appeal Board

May 9, 2017

12410603 (P.T.A.B. May. 9, 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.
12/410,603 03/25/2009 Brian Xiaoqing Song 11031 3553
27752 7590 05/11/2017
THE PROCTER & GAMBLE COMPANY
Global IP Services
Central Building, C9
One Procter and Gamble Plaza
CINCINNATI, OH 45202
EXAMINER
KHAN, AMINA S
ART UNIT PAPER NUMBER
1761
NOTIFICATION DATE DELIVERY MODE
05/11/2017 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):
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 BRIAN XIAOQING SONG,
RAMONA QUINTANILLA FAHLBUSCH,
ROY JEROME HARRINGTON, BRIAN LEE KEITH, and
RICHARD EUGENE OLIVER1
Appeal 2016-006107
Application 12/410,603
Technology Center 1700
Before: BEVERLY A. FRANKLIN, AVELYN M. ROSS, and
DEBRA L. DENNETT, Administrative Patent Judges.
ROSS, Administrative Patent Judge.
DECISION ON APPEAL2
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1—9. We have jurisdiction under 35 U.S.C. § 6(b).
1 Appellants identify the real party in interest as The Procter & Gamble
Company. Appeal Br. 1.
2 In our Decision below we refer to the Specification originally filed March
25, 2009 (“Spec.”), the Final Office Action appealed from dated July 31,
2015 (“Final Act.”), the Appeal Brief filed October 30, 2015 (Appeal Br.),
the Examiner’s Answer dated May 9, 2016 (“Ans.”) and the Reply Brief
filed June 1, 2016 (“Reply Br.”).
Appeal 2016-006107
Application 12/410,603
We AFFIRM.
STATEMENT OF THE CASE
The claims are directed to gel automatic dishwashing detergent
compositions. Claim 1, reproduced below, is illustrative of the claimed
subject matter:
1. A detergent composition comprising:
(a) a thickener system comprising:
(i) from about 0.1 wt% to about 10 wt%, xanthan
gum; and
(ii) from about 0.4 wt% to about 4.0 wt% of a co­
thickener comprising water soluble silicate;
(b) a cleaning-effective amount one or more enzymes;
(c) from about 0.001 wt% to about 10 wt% of an
enzyme stabilizer excluding boric acid, sodium tetraborate
decahydrate and alkali metal borates;
(d) water; and
(e) from about 0.5 wt% to about 20 wt% of a dispersant
polymer, wherein the polymer comprises a carboxylate
monomer and a sulphonate monomer, and wherein the
polymer comprises a molecular weight from about 500 to
about 15,000;
wherein the composition has a rheology comprising:
viscosity is at 1 sec-1 of from about 9,000 to about
26,000 centipoise;
viscosity at 150 sec-1 from about 100 to about 1,300
centipoise;
K of from about 9.0 to about 26.00 Pascal Sec;
n less than 1.0; and
yield stress greater than 2.0 Pascal; and
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Application 12/410,603
wherein the detergent composition has a neat pH of less
than 9.5,
wherein the detergent composition is free of phosphate
builders.
Appeal Br. 8 (Claims App’x).
REJECTIONS
The Examiner maintains the following rejections:
A. Claims 1, 2, 4, and 6—9 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Patel3 in view of
Ward.4 Final Act. 3.
B. Claim 3 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Patel in view of Ward and further in
view of Kacher.5 Id. at 4.
C. Claim 5 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Patel in view of Ward and further in
view of Nielsen.6 Id. at 5.
Appellants seek our review of rejections A—C, but focus their
discussion solely on independent claim 1. Appeal Br. 3—7. Appellants do
not present any argument for claims 2—9 separate from what is argued for
independent claim 1. Id. at 6—7. We therefore focus our discussion below
on claim 1 to resolve the issues on appeal.
3 Rashesh Naresh Patel, US 6,602,837 Bl, issued August 5, 2003 (“Patel”).
4 Glenn Steven Ward, US 2003/0045437 Al, issued March 6, 2003
(“Ward”).
5 Kacher et al., WO 99/00470, published January 7, 1999 (“Kacher”).
6 Nielsen et al., US 5,972,873, issued October 26, 1999 (“Nielsen”).
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Application 12/410,603
OPINION
The Examiner rejects claim 1 (among others) as obvious over Patel in
view of Ward. Final Act. 3. The Examiner finds that Patel teaches the
dishwashing detergent as claimed except that “Patel does not teach the
claimed dispersant polymer comprising a sulphonate monomer and the K,n
or yield stress value.” Id. 3^4. But, the Examiner finds that Ward teaches
Alcosperse 240 as a preferred dispersant polymer. Id. at 4. The Examiner
reasons that the person of ordinary skill in the art would have reason to
modify the composition of Patel to include the dispersant of Ward because
Ward prefers use of “this polymer as a dispersing polymer in dishwashing
detergent applications and Patel invites the inclusion of dispersing polymers
into the dishwashing compositions.” Id. The Examiner further concludes
that because the composition of Patel and Ward teach similar ingredients, in
similar percentages, and form similar compositions with overlapping
viscosities the K, n, and yield stress properties would be inherently present.
Id.
Appellants argue that “there is no apparent reason to combine and
further modify the asserted references in the fashion claimed.” Appeal Br. 4.
Specifically, Appellants allege that “Patel teaches a composition that has a
neat pH of about 7 to about 13, but does not specifically refer to a water
soluble silicate in this paragraph.” Id. at 5. And, according to Dr. Song, a
person skilled in the art would have understood that “in liquid detergents, the
neat pH of the detergent needs to be above about 10.5 to prevent the silicate
from forming silica particles” which would result in a detergent that “can no
longer serve its intended use for detergency.” Id. (citing Declaration by Dr.
Brian Song dated November 7, 2013 (“Song Decl.”)). Dr. Song further
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Application 12/410,603
explains “that Patel and Ward did not recognize the presently claimed
thickener system in which silicate is converted to silica at a neat pH of less
than 9.5.” Id.', see also Song Deck 1 5. Therefore, Appellants urge that the
Examiner has failed to identify a reason for the skilled artisan to adjust the
neat pH to 9.5 or less where a silicate would no longer be present. Id.
Appellants’ arguments are not persuasive of reversible error by the
Examiner. “A reference must be considered for everything that it teaches,
not simply the described invention or a preferred embodiment.” In re
Applied Materials, Inc., 692 F.3d 1289, 1298 (Fed. Cir. 2012); see also In re
Lamberti, 545 F.2d 747, 750 (CCPA 1976) (“all disclosure of the prior art,
including unpreferred embodiments, must be considered”). As the Examiner
aptly points out, “Patel clearly recognizes the advantages of using alkali
silicates (which are water soluble) at a neat pH of 7—13” and that this alkali
metal silicate is useful as a pH adjuster and glasscare enhancer. Ans. 5.
Patel explains that
[t]he compositions of the type described herein optionally, but
preferably comprise alkali metal silicates. The alkali metal
silicates hereinafter described provide pH adjusting capability,
protection against corrosion of metals and against attack on
dishware, inhibition of corrosion to glasswares and chinawares.
The SiCE level selected is such that the neat pH of the product
stays within the pH range of 7—13, more preferably 9—11.5.
Patel, col. 17,11. 28—35. Patel teaches that the alkali metal silicate may be
hydrous or anhydrous and that hydrous alkali metal silicates are preferred
because they are more soluble. Id., col. 17,11. 54—60 (“Anhydrous forms of
the alkali metal silicates ... are less preferred because they tend to be
significantly less soluble than the hydrous alkali metal silicates having the
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Application 12/410,603
same ratio.”). Therefore no modification of Patel is needed to achieve a
composition having a water soluble silicate and a neat pH of less than 9.5.
That Patel does not expressly recognize a thickener system where the silicate
converts to silica at a neat pH below 9.5, does not displace the express
teachings of Patel. In re Mouttet, 686 F.3d 1322, 1332—33 (Fed. Cir. 2012)
(explaining that the question to be asked is what the combined teachings of
the references would have suggested to a person of ordinary skill in the art).
Moreover, the modification proposed by the Examiner is to substitute
the specific dispersant polymer of Ward for the dispersant polymer in the
composition of Patel. Final Act. 4. The Examiner reasons that the skilled
artisan would have reason to make the proposed substitution “because Ward
teaches the preference of this polymer as a dispersing polymer in
dishwashing applications.” Id. We discern no error in the Examiner’s
findings and conclusions.
Appellants also argue that the proposed modification would change
the principle of operation of Patel. Appeal Br. 5. Appellants contend that by
modifying Patel to a neat pH lower than 9.5 changes the principle of
operation of Patel because a silicate—which is taught by Patel as useful for
pH adjustments and corrosion protection—would no longer be present. Id.
Appellants do not persuade us of error by the Examiner.
Combinations of prior art that change the “basic principles under which the
[prior art] was designed to operate” may not support a conclusion of
obviousness. In re Ratti, 270 F.2d 810, 813 (CCPA 1959); see also In re
Gordon, 733 F.2d 900, 902 (Fed. Cir. 1984) (same). Here however, Patel
expressly teaches adjusting the pH of the composition with an alkali metal
silicate to achieve a neat pH of 7—13; thus, no modification of Patel is
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Application 12/410,603
necessary to arrive at a neat pH of less than 9.5 as claimed. Rather, the
modification proposed by the Examiner is to include the dispersant polymer
of Ward which does not disrupt the manner in which Patel operates because
Patel expressly contemplates the inclusion of a polymer dispersant having a
molecular weight in the ranges claimed. Patel, col. 21,1. 54—col. 22,1. 14.
Moreover, Appellants do not identify what principle of operation
purportedly has been changed, nor do Appellants provide any explanation or
evidence of how the operation is different. See In re Pearson, 494 F.2d
1399, 1405 (CCPA 1974) (“Attorney’s argument in a brief cannot take the
place of evidence.”).
Lastly, Appellants suggest the results achieved by the instant
invention are unexpected. Appeal Br. 3. Appellants offer the testimony of
Dr. Song who explains that typically “when silicate polymerizes or
decomposes into silica, it can no longer serve its intended use for
detergency.” Song Dec. 1 6. However, Dr. Song explains that in the
invention, the silicate is converted to silica and “the silica is combined with
xanthum gum to unexpectedly form a detergent composition that has a
desirable rheology.” Id. 1 5.
Appellants’ arguments are not convincing of error. The burden rests
with Appellants to establish (1) that the alleged unexpected results presented
as being associated with the claimed invention are, in fact, unexpected, (2)
that the comparisons are to the disclosure of closest prior art, and (3) that the
supplied evidentiary showing is commensurate in scope with the claimed
subject matter. See In re Klosak, 455 F.2d 1077, 1080 (CCPA 1972) (“the
burden of showing unexpected results rests on he who asserts them”); In re
Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997). As the Examiner explains,
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Application 12/410,603
Appellants’ evidence is not commensurate in scope with the claims. Ans. 5.
Instead, the evidence presented merely shows the transition of a water
soluble silicate to silica over a range of pH values. Id.', see also Song. Decl.
1H6-7.
Therefore, on this record, the preponderance of the evidence supports
the Examiner and we sustain the Examiner’s rejections.
CONCLUSIONS OF LAW
The Examiner did not reversibly err in rejecting claims 1, 2, 4, and 6—
9 under 35 U.S.C. § 103(a) as being unpatentable over Patel in view of
Ward.
The Examiner did not reversibly err in rejecting claim 3 under 35
U.S.C. § 103(a) as being unpatentable over Patel in view of Ward and
further in view of Kacher.
The Examiner did not reversibly err in rejecting claim 5 under 35
U.S.C. § 103(a) as being unpatentable over Patel in view of Ward and
further in view of Nielsen.
DECISION
For the above reasons, the Examiner’s rejection of claims 1—9 and 11
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)(1).
AFFIRMED
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