Ex Parte SWAILE et al

Patent Trials and Appeals Board

May 13, 2019

14090175 - (D) (P.T.A.B. May. 13, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/090,175 11/26/2013
27752 7590 05/15/2019
THE PROCTER & GAMBLE COMPANY
Global IP Services
Central Building, C9
One Procter and Gamble Plaza
CINCINNATI, OH 45202
FIRST NAMED INVENTOR
David Frederick SW AILE
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.
12675M 6287
EXAMINER
AHMED, HASAN SYED
ART UNIT PAPER NUMBER
1615
NOTIFICATION DATE DELIVERY MODE
05/15/2019 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 DAVID FREDERICK SW AILE, BARBARA MARIE
MOD AF ARI, ELTON LUIS MENON, JODY LYNN HOYING, ROLAND
STARK, and SHEENA MARIE MAHRLE
Appeal 2018-001183
Application 14/090,175
Technology Center 1600
Before RICHARD M. LEBOVITZ, JEFFREY N. FRED MAN, and
JOHN E. SCHNEIDER, Administrative Patent Judges.
FREDMAN, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal 1,2 under 35 U.S.C. § 134 involving claims to a
packaged antiperspirant product. The Examiner rejected the claims as
obvious. We have jurisdiction under 35 U.S.C. § 6(b). We affirm.
1 Appellants identify the Real Party in Interest as The Procter & Gamble
Company (see App. Br. 1 ).
2 We have considered the Specification ofNov. 26, 2013 ("Spec."); Final
Office Action of Nov. 17, 2016 ("Final Act."); Appeal Brief of May 15,
2017 ("App. Br."); and Examiner's Answer of Sept. 8, 2017 ("Ans.").
Appeal 2018-001183
Application 14/090, 17 5
Statement of the Case
Background
"[ A ]ntiperspirant soft solids have become increasingly more popular
as an effective alternative to antiperspirant sprays and solid sticks.
Perspiration and odor control provided by these products can be excellent"
(Spec. 1: 16-18). "Many of these soft solid products, however, may be
cosmetically unacceptable to a large number of antiperspirant users because
application of these soft solids can be messy, difficult to spread and wash
off, and the applied areas often feel wet or sticky ... for several minutes after
application" (Spec. 1: 18-21 ).
"The present inventors have discovered at least some of these
drawbacks can be overcome by balancing the solids level and type,
viscosity, wax type and level, and/or hydrophilic water insoluble oil levels"
(Spec. 5:4---6).
The Claims
Claims 1-10, 12-15, and 21 are on appeal. Independent claim 1 is
representative and reads as follows:
1. A packaged antiperspirant product, comprising:
an anhydrous antiperspirant composition, comprising:
40% to 60%, by weight of the anhydrous antiperspirant
composition, of solids comprising:
a) an antiperspirant active,
b) from about 2% to about 5% of one or more
waxes, and
c) one or more fillers having a total concentration
from about 15% to about 35% by weight of the
anhydrous antiperspirant composition; and
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Appeal 2018-001183
Application 14/090, 17 5
from about 35% to about 60% by weight of the
composition, of one or more carriers, wherein the one or more
carriers comprises a non-volatile silicone liquid;
and
a package comprising a container body having an interior
chamber with the anhydrous antiperspirant composition stored
therein, a dome closing one end of the container body and
comprising a plurality of apertures extending through the
thickness of the dome, an elevator disposed within the container
body for pushing the anhydrous antiperspirant composition
toward the dome and a feed screw threadably engaging the
elevator for advancing the elevator toward the dome.
The Issue
The Examiner rejected claims 1-10, 12-15, and 21 under 35 U.S.C.
§ 103(a) as obvious over Bush3 (Final Act. 4--8).
The issue with respect to this rejection is: Does a preponderance of
the evidence of record support the Examiner's conclusion that Bush renders
the claims obvious?
Findings of Fact
1. Bush teaches "packaged antiperspirant cream compositions
which provide improved spreading and product stability" (Bush 1 :5-7).
2. Bush teaches
The term "anhydrous" as used herein means that the
antiperspirant cream composition of the present invention, and
the essential or optional components thereof, are preferably
substantially free of added or free water. From a formulation
standpoint, this means that the antiperspirant cream
compositions of the present invention preferably contain less
than about 2%, preferably less than about 1 %, more preferably
3 Bush et al., US 6,143,284, issued Nov. 7, 2000.
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Application 14/090, 17 5
less than about 0.5%, most preferably zero percent, by weight
of free or added water.
(Bush 4:25-33).
3. Bush teaches the "antiperspirant cream compositions preferably
comprise the antiperspirant active at concentrations of from about 0.5% to
about 35%" (Bush 13:9-11).
4. Bush teaches the "antiperspirant cream compositions of the
present invention preferably comprise one or more gellants" where the
gellant "concentrations will generally range from about 0.1 % to about 40%"
(Bush 14:16-27).
5. Bush teaches "[s]uitable fatty acid esters for use as gellants
include ester waxes" (Bush 15:66-67).
6. Bush teaches "[p ]referred concentrations of the liquid carrier
ranges from about 10% to about 80% ... These liquid carriers may be
organic or silicone-containing, volatile or nonvolatile" (Bush 18 :7-15).
7. Bush teaches the
dispensing package of the compositions of the present invention
comprises 1) a container body having an interior chamber of
generally uniform or symmetrical cross section which contains
the antiperspirant cream composition and has a lengthwise
extending axis, 2) an elevator having a cross section congruent
to and mounted for axial movement within the interior
chamber, 3) a perforated dome fixed or attached to a dispensing
end of the container body and having a plurality of openings
extending through the thickness of the convex dome, 4) a
means for axially advancing the elevator toward the perforated
dome.
(Bush 5:47-57).
8. Bush teaches "[p ]referred crystalline gellants for use in the
antiperspirant composition include coconut monoethanolamide, glyceryl
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Application 14/090, 17 5
tribehenate, C18-36 triglyceride, hydrogenated rapeseed oil, C20 to C40
alcohols, C20 to C40 pareth-3 and combinations thereof. Concentration of
coconut monoethanolamide in the composition preferably ranges from about
5% to about 20%" (Bush 16:53-58).
9. Bush teaches the composition is "'substantially free of
polymeric or inorganic thickening agents"' including "finely divided or
colloidal silicas, fumed silicas, and silicates, which includes montmorillonite
clays and hydrophobically treated montmorillonites, e.g., bentonites,
hectorites and colloidal magnesium silicates" (Bush 4:56-5:7).
10. Bush teaches:
In selecting a combination of gellant and liquid carrier for use
in the antiperspirant cream compositions, the selected
combination preferably allows for the development of a gellant
matrix within the composition that will help deliver the
preferred delta stress and static yield stress values described
herein. The liquid carrier and gellant combination are also
preferably selected so as to formulate a composition having the
preferred product hardness, with minimal or no destruction of
the gellant matrix as it develops within the antiperspirant cream
composition during the making process. Maintaining the
gellant matrix as it develops in the composition is important to
obtaining the desired rheology profile.
(Bush 14:55---67).
11. The Examiner finds that "the fact that cellulose powders are not
disclosed or suggested by Bush implies that the composition disclosed by
Bush is free of cellulose powders" (Ans. 4).
12. The Examiner finds that "Bush teaches 'non-active' optional
components at col. 19, lines 59---61 (as explained on page 4 of the Final
rejection) and incorporates by reference U.S. 5,429,816, which teaches
modified starches (see col. 12, line 21 )" (Ans. 5). US 5,429,816 teaches
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Application 14/090, 17 5
"Antiperspirant gel stick compositions of the present invention may contain
optional components ... filler materials may also be included ... suitable
filler materials include ... modified com starches" (US 5,429,816 11 :36 to
12:15).
Principles of Law
"The combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield predictable results."
KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398,416 (2007).
Where the general conditions of a claim are disclosed in the prior art,
it is not inventive to discover the optimum or workable ranges by routine
experimentation." In re Aller, 220 F.2d 454, 456 (CCPA 1955).
Analysis
We agree with the Examiner that Bush renders the claims obvious
(Final Act. 4--8, FF 1-12) and we adopt the Examiner's position as our own.
We consider Appellants' arguments below.
Claim 1
Appellants contend
Bush teaches 0.5-35% antiperspirant active and 0.1-40% gellant
( the Office Action, page 4 ), but there is no teaching or
suggestion in Bush of what the total solids content of the
composition should be. It is reasonable to assume that the
skilled artisan would look to the examples of Bush for guidance
on total solids content. However, all the examples of Bush
appear to contain less than 40% solids.
(App. Br. 3). Appellants contend that "[b ]ecause Bush does not describe a
composition comprising a total solids amount of 40% to 60% or recognize
the criticality of this range, it is the Applicants' position that the Office has
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Application 14/090, 17 5
not made a prima facie case of obviousness with regard to Claim 1" (App.
Br. 3).
We find this argument unpersuasive because we agree with the
Examiner that the ordinary artisan would have found it obvious to optimize
the amounts of these components to obtain pleasant to use and stable
antiperspirant compositions because the ranges of the solids concentrations
overlap, including the ranges of the active antiperspirant, the waxes, and the
fillers (FF 1, 3---6). "A prima facie case of obviousness typically exists when
the ranges of a claimed composition overlap the ranges disclosed in the prior
art." In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003).
In particular, we find the disclosure of preferred ranges for each of the
two separate components directly suggests that the relationship of the
amounts of these components are optimizable. Indeed, Bush recognizes that
the combination of components is important in obtained preferred delta
stress, hardness, and rheology (FF 10). We note that Appellants provide no
evidence of any secondary consideration such as unexpected results and
therefore do not show any criticality themselves for the specific amounts
recited in claim 1.
Claim 7
Appellants contend "it is not readily apparent to the Applicants where
in the cited portion of Bush there is any disclosure of a composition that is
substantially free of cellulose powders" (App. Br. 4).
We find this argument unpersuasive and agree with the Examiner that
"[t]he fact that cellulose powders are not disclosed or suggested by Bush
implies that the composition disclosed by Bush is free of cellulose powders"
(Ans. 4). Indeed, when a claim excludes a particular component by negative
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Application 14/090, 17 5
limitation as in claim 7, it is reasonable to conclude that the component is
absent from a reference that never mentions that component. Otherwise, an
otherwise obvious combination would be rendered unobvious by random
exclusionary limitations such as "does not contain elephants" where the
antiperspirant composition is silent as to the presence or absence of
elephants in the container.
Claims 8 and 9
Appellants contend "Bush does not disclose starches" in the
antiperspirant composition (App. Br. 4). Appellants similarly contend the
Examiner has not shown where "Bush teaches or suggests a filler material
selected from the group consisting of tapioca starch, com starch, oat starch,
potato starch, wheat starch, talc, and combinations thereof' as recited in
Claim 9 (App. Br. 5).
While we agree4 with Appellants that the presence of starch is a
required element of claims 8 and 9, we note that the Examiner has
established that Bush incorporates by reference teachings of non-active
"optional materials" from US 5,429,816 including com starches (FF 12).
This teaching renders obvious the composition of claims 8 and 9. 5
Claim 21
Appellants contend that "Bush does not teach or suggest a filler that is
not a wax" (App. Br. 5).
4 We note that the Examiner appears to misunderstand MPEP 1205 (see Ans.
7). When, as here, Appellants argue dependent claims separately, neither the
Examiner nor the Board may limit their review solely to the independent
claim, but rather must address all separately argued claims.
5 We note that the Examiner cited this section of Bush in response to
Appellants' argument in the Appeal Brief and Appellant had the choice of
opportunity to respond in a Reply Brief.
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Application 14/090, 17 5
We find this argument unpersuasive for the same reason as claims 8
and 9, because Bush incorporates filler materials including com starch (FF
12), which are not waxes, and therefore reasonably satisfies the requirement
of claim 21.
Conclusions of Law
A preponderance of the evidence of record support the Examiner's
conclusion that Bush renders the claims obvious.
SUMMARY
We affirm the rejection of claims 1-10, 12-15, and 21 under 35
U.S.C. § 103(a) as obvious over Bush.
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
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