Ex Parte Spadini et al

Board of Patent Appeals and Interferences

Jul 22, 2010

10730709 (B.P.A.I. Jul. 22, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte ALESSANDRO LUIGI SPADINI, MELISSA IVA KATZ,
DAVID ROBERT WILLIAMS, MARCINA SICILIANO,
EVAN HILLMAN, ANDRE PULEO,
and MEGAN KATHLEEN HURLEY
__________

Appeal 2010-004813
Application 10/730,709
Technology Center 1600
__________

Before DONALD E. ADAMS, MELANIE L. McCOLLUM, and
STEPHEN WALSH, Administrative Patent Judges.

WALSH, Administrative Patent Judge.

DECISION ON APPEAL1
This is an appeal under 35 U.S.C. § 134(a) involving claims to a skin
care packaged product. The Patent Examiner rejected the claims on the

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.
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ground of obviousness. We have jurisdiction under 35 U.S.C. § 6(b). We
affirm.

STATEMENT OF THE CASE
Claims 1-6, 8-12, 14, 15 and 18, which are all the pending claims, are
on appeal. Claim 1 is representative and reads as follows:
1. A skin care or cleansing packaged product, comprising:
a. a container having a first chamber and a second chamber, each
chamber having an outlet;
b. a composition contained in the first chamber having a
dispersed phase including a first and a second component, the
first component being capable of chemically reacting with the
second component that is different from the first;
c. a continuous phase present in the composition composed of a
substantially anhydrous carrier contained in the first chamber;
d. an organophilic particle stabilizer contained in the dispersed
phase;
e. water contained in the second chamber;
f. wherein the first component is substantially unsolvated in the
carrier; and
g. wherein the first and second components do not substantially
react with water or each other until dispersed or dissolved in
water during cleansing and skin treatment by a consumer.

The Examiner rejected the claims as follows:
• claims 1-4, 12, 14, 15 and 18 under 35 U.S.C. § 103(a) as
unpatentable over Lentini,2 Farrell3 and Guilbeaux4;

2 US Patent No. 6,177,092 B1, issued to Peter J. Lentini et al., Jan. 23,
2001.
3 US Patent No. 6,063,390, issued to Linda Farrell et al., May 16, 2000.
4 US Patent No. 4,929,644, issued to Ronald D. Guilbeaux, May 29, 1990.
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• claims 10 and 11 under 35 U.S.C. § 103(a) as unpatentable over
Lentini, Farrell, Guilbeaux and Gentile5;
• claims 5, 6 and 8 under 35 U.S.C. § 103(a) as unpatentable over
Lentini, Farrell, Guilbeaux and Hall6; and
• claim 9 under 35 U.S.C. § 103(a) as unpatentable over Lentini,
Farrell, Guilbeaux and Pettengill7.
Appellants’ arguments are directed to the patentability of only claim
1, and Appellants contest the rejections relying on Gentile, Hall, and
Pettengill by relying on those arguments. We select claim 1 as
representative for deciding this appeal. 37 C.F.R. § 41.37(c)(1)(vii).

OBVIOUSNESS
The Issue
The Examiner’s position is that Lentini described a self-foaming skin
cleansing system with anhydrous bicarbonate and acid compositions
dispensed from separate packages or chambers, and added to water to
produce an effervescent composition. (Ans. 4.) Farrell described an
effervescent skin cleansing mixture of bicarbonate and acid in intimate
contact. (Id.) The Examiner reasoned that it would have been obvious to
combine Lentini’s anhydrous bicarbonate and acid in the same chamber
because Farrell disclosed that the two components do not react in a dry, i.e.
anhydrous, state. (Id. at 6.) The Examiner also reasoned that it would have

5 US Patent No. 6,161,729, issued to James Louis Gentile et al., Dec. 19,
2000.
6 US Patent No. 5,316,054, issued to William G. Hall, May 31, 1994.
7 US Patent No. 5,020,694, issued to Edwin R. Pettengill, Jun. 4, 1991.
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been obvious to add Guilbeaux’s organophilic clays to provide thickening,
i.e. superior rheological properties, and biocidal activities that could be
“tailored to the desired level for a given organic composition.” (Ans. 5.)
Appellants contend that a proper prima facie case was not made
because the combined teachings of Lentini, Farrell and Guilbeaux “fail[] to
disclose a first component in a dispersed phase capable of chemically
reacting with a second component and wherein both the first and second
components are contained in the first chamber, (i.e., a single chamber).”
(App. Br. 7.) As Appellants interpret Lentini, Lentini’s components are
“maintained in separate containers or separate compartments in the same
container” (id. at 7), and Lentini’s “sachet” should be understood to have
physically separate packages or chambers (id. at 8). Appellants find that
Farrell teaches that the blend of bicarbonate and acid “must be an anhydrous
dry powder ostensibly to avoid any premature reaction prior to the user
applying the later wetted wiping article to the skin (col. 1, lines 40-41)” (id.
at 8), and “teaches away from reducing the degree of intimate contact of the
dry reactive materials by suspending them in the anhydrous carrier required
in instant claim 1(c)” for “the production of ‘copious’ lather” (id.)
Appellants contend that “the skilled person would not combine Farrell, et
al.’s teaching of an intimate quick reacting mixture with Guilbeaux’s organic
clays for the reasons stated above regarding quick reaction to produce
copious lather.” (Id.)
The issues with respect to this appeal are:
does the combination of Lentini, Farrell, and Guilbeaux disclose or
suggest a first component in a dispersed phase capable of chemically
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reacting with a second component, with both the first and second
components contained in a first chamber;
did Farrell “teach away” from using Lentini’s carrier; and
did Farrell “teach away” from adding Guilbeaux’s organic clays?

Findings of Fact
We adopt the Examiner’s findings.

Principles of Law
A rejection for obviousness must include “articulated reasoning with
some rational underpinning to support the legal conclusion.” KSR Int’l Co.
v. Teleflex Inc., 550 U.S. 398, 418 (2007), quoting In re Kahn, 441 F.3d 977,
988 (Fed. Cir. 2006). The proper question to ask is whether a person of
ordinary skill in the art, facing the wide range of needs created by
developments in the field of endeavor, would have seen a benefit to
combining the prior art teachings. KSR, 550 U.S. at 424; see also In re
Fulton, 391 F.3d 1195, 1200 (Fed. Cir. 2004) (the desirability of the
combination may arise from nature of the problem, teachings of references,
or the ordinary knowledge of those skilled in the art). “The combination of
familiar elements according to known methods is likely to be obvious when
it does no more than yield predictable results.” KSR, 550 U.S. at 416.
“The prior art’s mere disclosure of more than one alternative does not
constitute a teaching away from any of these alternatives because such
disclosure does not criticize, discredit, or otherwise discourage the solution
claimed.” In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004).

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Analysis
First, we agree with the Examiner that Lentini taught dispersing the
bicarbonate and the acid component in non-aqueous solutions for use in
anhydrous products, see Ans. 5, citing col. 3, ll. 38-53, and we agree the
evidence supports that finding. Those cited lines include Lentini’s
disclosure that “the present invention may be in the form of a sachet
containing the components of the system that is added to a bath of water.”
Appellants argue that a person of ordinary skill would have understood
sachet to be a unitary package with chambers separately containing each of
the acid and bicarbonate, not one chamber containing both reactants. Even
if the skilled person reading only Lentini would have had that understanding,
we agree with the Examiner that Farrell’s disclosure of a single pouch
containing both reactants in anhydrous form suggested combining both
anhydrous formulations in one chamber.
Next, we do not agree that Farrell taught away from using Lentini’s
anhydrous carrier. Appellants argue that “the skilled person would not have
been motivated to reduce the intimate contact of the dry powder in Farrell . .
. by suspending such powder in an inert medium.” (App. Br. 8.) Appellants
provide no evidence to support the argument, and we see none in our review
of Farrell. In fact, all of Farrrell’s working examples include multiple
components likely to “reduce the intimate contact” of the reactive
bicarbonate and acid. See Farrell, cols. 7-9. We find that Farrell did not
discourage a person of ordinary skill in the art from mixing the reactive
components and dispersing them in an anhydrous continuous phase. For the
same reasons, we find that Farrell did not “teach away” from adding
Guilbeaux’s organic clays, and we agree with the Examiner that the
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thickening and biocidal activity could have been adjusted by a person of
ordinary skill in the art. See Fulton, 391 F.3d at 1201.

CONCLUSIONS
The combination of Lentini, Farrell, and Guilbeaux suggested a first
component in a dispersed phase capable of chemically reacting with a
second component, with both the first and second components contained in a
first chamber.
Farrrell did not teach away from using Lentini’s anhydrous carrier.
Farrell did not teach away from adding Guilbeaux’s organic clays.

SUMMARY
We affirm the rejection of claims 1-4, 12, 14, 15 and 18 under
35 U.S.C. § 103(a) as unpatentable over Lentini, Farrell and Guilbeaux.
We affirm the rejection of claims 10 and 11 under 35 U.S.C. § 103(a)
as unpatentable over Lentini, Farrell, Guilbeaux and Gentile.
We affirm the rejection of claims 5, 6 and 8 under 35 U.S.C. § 103(a)
as unpatentable over Lentini, Farrell, Guilbeaux and Hall.
We affirm the rejection of claim 9 under 35 U.S.C. § 103(a) as
unpatentable over Lentini, Farrell, Guilbeaux and Pettengill.

Appeal 2010-004813
Application 10/730,709

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TIME PERIOD
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED

alw

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