Ex Parte Tomita et al

Patent Trial and Appeal Board

Dec 22, 2017

14119903 (P.T.A.B. Dec. 22, 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.
IWI-37452 9718
EXAMINER
BERRIOS, JENNIFER A
ART UNIT PAPER NUMBER
1613
MAIL DATE DELIVERY MODE
14/119,903 11/25/2013
7609 7590 12/22/2017
RANKIN, HILL & CLARK LLP
23755 Lorain Road - Suite 200
North Olmsted, OH 44070-2224
Noriko Tomita
12/22/2017 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte NORIKO TOMITA, KAORI SASADA, TOMOKO IKED A,
MIKA KATAYAMA, and TOMOKO WATANABE1
(Applicant: SHISEIDO COMPANY, LTD)
Appeal 2017-001862
Application 14/119,903
Technology Center 1600
Before JEFFREY N. FREDMAN, RICHARD J. SMITH, and
JOHN E. SCHNEIDER, Administrative Patent Judges.
SMITH, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35U.S.C. § 134 involving claims to a solid
cosmetic for lips.
We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 According to Appellants, the real party in interest is Shiseido Company,
Ltd. (Appeal Br. 3.)
Appeal 2017-001862
Application 14/119,903
STATEMENT OF THE CASE
Background
“Conventional lip cosmetics have presented the problem of secondary
adhesion, namely a lipstick is transferred onto a site contacted by a lip (for
example, a cup) after the lipstick is applied to the lip.” (Spec. 13.)
“[T]he present inventors have found that a solid cosmetic for lips
having an excellent secondary adhesion resistance effect, without losing a
gloss, from immediately after application can be obtained by using a
combination of specific oils component and by blending wax.” {Id. at 16.)
Claims on Appeal
Claims 1—4, 6—8, 10, 11, 15—17, 19, 20, 22, and 23 are on appeal.2
(Claims Appendix, Appeal Br. 22—25.) Claims 1, 2, and 3 are illustrative
and read as follows (with elected species identified):
Claim 1: A solid cosmetic for lips comprising the following (a) to (d):
(a) 5 to 25 mass % of hydrogenated polyisobutene,
(b) 40 to 70 mass % of [trimethyl pentaphenyl trisiloxane] that
separate^] from (a) when mixed therewith at 25 °C,
(c) 0.5 to 15 mass % of oil that separates from both (a) and (b) when
mixed therewith at 25 °C, the oil being [] dipentaerythrityl
hexahydroxystearate, [] and
(d) 4 to 12 mass % of wax.
2 Appellants elected trimethyl pentaphenyl trisiloxane for component (b),
dipentaerythrityl hexahydroxystearate for component (c), and olefin
oligomers for component (f) (see claims 7, 19, and 20) pursuant to an
election of species requirement. (See Response to Election/Restriction
Requirement dated Aug. 11, 2014.) We limit discussion and consideration
to the elected species, and take no position respecting the patentability of the
broader generic claims, including the remaining, non-elected species. See
Ex parte Ohsaka, 2 USPQ2d 1461 (Bd. Pat. App. Int. 1987).
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Claim 2: The solid cosmetic for lips according to claim 1, further comprising
(e) a coloring material in the cosmetic.
Claim 3: The solid cosmetic for lips according to claim 2, wherein
component (e) is virtually dispersed in component (c).
Examiner’s Rejections3
1. Claims 1—4, 6, 8, 10, 11, 15—17, 22, and 23 stand rejected under pre-
AIA 35 U.S.C. § 103(a) as unpatentable over Ikeda,4 Dayan,5 and Tamura,6
as evidenced by Merriam Webster.7 (Ans. 3—7.)
2. Claims 1—4, 6, T, 8, 10, 11, 15—17,19, 20, 22, and 23 stand rejected
under pre-AIA 35 U.S.C. § 103(a) as unpatentable over Ikeda, Dayan,
Tamura, and Oi.8 (Id. at 7—8.)
FINDINGS OF FACT
The following findings are provided for emphasis and reference
purposes. Additional findings may be found in this Decision or the
Examiner’s Answer.
3 The nonstatutory double patenting rejections were withdrawn in the
Examiner’s Answer. (Ans. 8—9.)
4 Ikeda et al., Japanese WO 2010/113,956 Al, pub. Oct. 7, 2010; the
Examiner relies on an equivalent English language translation, US
2012/0014895 Al, pub. Jan. 19, 2012 (“Ikeda”). References to Ikeda herein
are to the English translation (US 2012/0014895 Al).
5 N. Dayan et al., Skin moisturization by hydrogenated polyisobutene—
Quantitative and visual evaluation, 60 J. Cosmet. Sci., 15—24 (2009)
(“Dayan”).
6 Tamura et al., WO 2010/035893 A2, pub. April 1, 2010 (“Tamura”).
7 Lipstick definition at http://www.merriam-webster.com/dictionary/lipstick,
retrieved Sept. 11, 2014 (“Merriam Webster”).
8 Oi, US 2009/0123402 Al, pub. May 14, 2009.
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FF 1. The Specification states that “[t]he solid cosmetic for lips of the
present invention can be applied to lipsticks, lip glosses, lip bases, overcoats
for lipsticks, lip creams, and the like. In particular, a solid lipstick is
preferable.” (Spec. 140.)
FF 2. The Specification states that “[cjomponent (c) is oil that. . . has a
higher affinity to the lip than component (b) and easily adheres to the lip. . . .
Examples of (c) oils include dipentaerythrityl hexahydroxystearate [and]
glyceryl monoisostearate.” {Id. H 23, 25.)
FF 3. The Examiner finds that:
Ikeda teaches a lip cosmetic that has good gloss and good
stability while maintaining post-application secondary adhesion
resistance []. The lip composition comprises:
(a) 4.5-35 mass % of glyceryl monoisostearate;
(b) 20-80 mass % of one or more kinds of methyl phenyl
silicone oils that separate out with (a) when mixed at 25°C —
reading on methyl phenyl silicone of instant claims 1(b); and
(c) 5 mass % or more of water and/or glycerin; and
(d) 4-10 mass % of wax - reading on wax of instant claim
1(d).
(Ans. 3, citing Ikeda Abstract.)
FF 4. The Examiner finds that Ikeda teaches that the methyl phenyl silicone
can be trimethyl pentaphenyl trisiloxane (elected species) for component (b).
(Ans. 4, citing Ikeda 143.)
FF 5. The Examiner finds that Ikeda teaches that oil components other than
component (b) can be added to the composition. (Ans. 4, citing Ikeda 1 65.)
FF 6. The Examiner finds that Ikeda teaches that the lip cosmetic can be
applied to lipsticks, and that solidification is difficult if too little wax is used.
(Ans. 4, citing Ikeda 154.)
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FF 7. The Examiner finds that Merriam Webster evidences that lipsticks are
“a waxy solid usually color[ed] cosmetic in stick form for the lips,” and that
the lipstick of Ikeda is expected to be solid. (Ans. 4, quoting Merriam
Webster.)
FF 8. The Examiner finds that Dayan teaches that “hydrogenated
polyisobutene is used in topically applied cosmetic/personal care
formulations as an emollient that leaves a pleasing skin feel,” and that
“compositions comprising 8% hydrogenated polyisobutene showed an
increase in skin moisture and reduced transepidermal water loss” and
“showed a unique capability for long-lasting effect in retaining moisture and
improving skin texture.” (Ans. 5, citing Dayan 15 (Synopsis).)
FF 9. Dayan teaches that hydrogenated polyisobutene is used “as a
constituent in varied proportions in commercial formulations such as
moisturizers [] and lip gloss treatments,” and that “this is the first attempt to
study its isolated functions on skin hydration.” (Dayan 16; see also Ans. 5.)
FF 10. The Examiner finds that Tamura teaches an oil-based cosmetic,
particularly a lipstick composition, comprising hydrogenated polyisobutene
in an amount ranging from 5 to 60% [by weight], (Ans. 5; see Tamura
Abstract and ^fl[ 29-31.)
FF 11. The Examiner finds that Tamura teaches that the cosmetic can
comprise one or more paste oil solutions (D), such as hexahydroxy stearate
dipentaerythrityl. (Ans. 6; see Tamura ]ff[ 34, 40.) Tamura teaches that the
amount of component (D) (e.g. hexahydroxy stearate dipentaerythrityl) “is
preferably 0.5 to 50% by weight and more preferably 3 to 30% by weight in
terms of imparting luster and sense upon use.” (Tamura 142.)
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DISCUSSION
We adopt the Examiner’s findings, analysis, and conclusions as our
own, including with regard to the scope and content of, and motivation to
combine, the prior art, as set forth in the Answer (Ans. 2—15). We discern
no error in the rejection of the claims as obvious.
Rejection No. 1
Issue
Whether a preponderance of evidence of record supports the
Examiner’s rejection under pre-AIA 35 U.S.C. § 103(a).
Analysis
Claims 1 and 8 were argued as a subgroup (Appeal Br. 13—16), from
which we select claim 1 for discussion. Dependent claim 3 was also argued.
{Id. at 17—18.) Accordingly, we limit our consideration to claims 1 and 3
because the remaining claims were not agued separately from claims 1 and
3.9 See 37 C.F.R. § 41.37(c)(l)(iv).
Claim 1
Prima facie obviousness
Based on the findings set forth in the Answer, the Examiner concludes
that it would have been prima facie obvious to one of ordinary skill in the art
at the time the invention was made to modify the teachings of Ikeda, with
those of Dayan and Tamura, by adding 5 to 60 % mass of hydrogenated
9 Appellants argue that the rejection of claims 2-4, 6, 10, 11, 15—17, 22, and
23 “should be reversed for at least the same reasons as stated herein
regarding claims 1 and 8” (Appeal Br. 16), and claims 11, 16, and 20 “are
allowable for at least these additional reasons regarding claim 3” {id. at 18).
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polyisobutene and 3 to 30 % mass dipentaerythrityl hexahydroxystearate to
the lip composition of Ikeda. (Ans. 5—6.) The Examiner further provides an
articulated reason or motivation to make such modifications, and a finding
of a reasonable expectation of success in doing so. (Id.)
We adopt the Examiner’s findings, analysis, and conclusions as to the
obviousness of claim 1, and address Appellants’ arguments below.
Solid Cosmetic
Appellants contest the Examiner’s finding that the lip cosmetic of
Ikeda is expected to be a solid. (Appeal Br. 13.) Appellants argue that
“Ikeda discloses that the lip cosmetic can also be applied to lip glosses,
which are ordinarily liquid compositions,” and that “Ikeda repeatedly
discloses that the lip cosmetic is one in which liquid crystals form . . . [and]
[i]t is well known that liquid crystals are not considered to be a solid.” (Id.)
We are not persuaded. As the Examiner explains, Ikeda exemplifies
the lip cosmetic as being a lipstick (with “lipstick” evidenced by Merriam
Webster to be a solid), and Ikeda further teaches that “solidification is
difficult” if the wax component is less than Appellants’ claimed lower limit
(4 mass %) for wax. (Ans. 10—11; FF 6, 7.) The concern for solidification
would not be relevant to a cosmetic in non-solid form. (FF 6.) Moreover,
Appellants’ Specification states that its “solid cosmetic” may also be applied
to lip glosses. (FF 1; compare Spec. 140 to Ikeda 167.)
As to Appellants’ “liquid crystals” argument, the Examiner explains
that “a teaching of liquid crystals does not imply that the lipstick of Ikeda is
not a solid,” citing El-Nokaly10 as evidence. (Ans. 11.) The Examiner relies
10 El-Nokaly et al., US 6,325,995 Bl, issued Dec. 4, 2001 (“El-Nokaly”).
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on El-Nokaly to show lipstick compositions comprising liquid crystals, and
“lipsticks which comprise wax which acts as a solidifying agent and assists
in the formation of the solid structure of the lipstick.” {Id., citing El-Nokaly
Abstract and col. 12,11. 15—20.)
Dayan and Tamura
Appellants contest the Examiner’s reliance on Dayan and Tamura.
(Appeal Br. 14—15; Reply Br. 2-4.) We are not persuaded.
Appellants contend that Dayan’s teachings are limited to the use of
hydrogenated polyisobutene in oil-in-water (O/W) emulsions, and that such
emulsions are used in formulations such as lip gloss treatments which are
not solid. (Appeal Br. 14.) However, as addressed above, Appellants
acknowledge in the Specification that the claimed “solid cosmetic” can be
applied to lip glosses. (FF 1.) Furthermore, as the Examiner explains, the
teachings of hydrogenated polyisobutene are based on the combination of
Dayan and Tamura, and that “Dayan is cited to demonstrate that the use of
this component, for example, in an amount[] of 8%, provides the benefit of
long-lasting effect in retaining moisture and improving skin texture.” (Ans.
12; FF 8.) See In re Keller, 642 F.2d413, 425 (CCPA 1981) (“[T]he test
[for obviousness] is what the combined teachings of the references would
have suggested to those of ordinary skill in the art” and not “that the claimed
invention must be expressly suggested in any one or all of the references.”).
Appellants argue that “Tamura teaches that these benefits [a unique
smoothness and enhanced application feeling] are not a result of using
hydrogenated polyisobutene in isolation, but are a result of using a mixture.”
(Appeal Br. 15.) However, claim 1 does not limit the use of hydrogenated
polyisobutene in isolation, and its use of the open-ended term “comprising”
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permits additional ingredients in combination with hydrogenated
polyisobutene and the other recited ingredients (b)-(d). See Genentech, Inc.
v. Chiron Corp., 112 F.3d 495, 501 (Fed. Cir. 1997). Furthermore, as
explained by the Examiner, the rejection is based on the combination of
Tamura with Dayan, and “Dayan teaches that hydrogenated polyisobutene
itself provides the benefit of long-lasting effect in retaining moisture and
improving skin texture.” (Ans. 12—13; FF 9.) See Keller, 642 F.2d at 425.
Combination of Tamura and Ikeda
Appellants contend that “one skilled in the art would not combine
components from the oil-based cosmetic preparation of Tamura [] with the
lip cosmetic of Ikeda because the lip cosmetic of Ikeda includes (c) water
and/or glycerin.” (Appeal Br. 15; Reply Br. 4—5.) According to Appellants,
Tamura’s oil-based cosmetic would be expected to me immiscible in the
water and/or glycerin of Ikeda. (Appeal Br. 15.) As such, Appellants
contend that “such a proposed modification would render the modified
composition of Ikeda unsatisfactory for its intended purposes.” {Id. at 15-
lb.)
We are not persuaded. As an initial matter, the use of water is
optional in the teachings of Ikeda (“water and/or glycerin”). (FF 1.)
Moreover, Ikeda already teaches that “an oil component other than
component (b) can also be blended in the present invention.” (Ikeda 1 65;
FF 5.) As such, Ikeda would not be rendered unsatisfactory for its intended
purpose because it already teaches providing a lip cosmetic that includes one
or more oil components in addition to water and/or glycerin. This
contention by Appellants thus amounts to attorney argument without
evidentiary support. See In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997)
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(“[Attorney argument [is] not the kind of factual evidence that is required to
rebut a prima facie case of obviousness”).
Additional Reply Brief Arguments11
Appellants argue that “Ikeda is premised on blending glyceryl
monoisostearate as an essential component” and that “it would be expected
that the secondary adhesion resistance effect cannot be attained when
glyceryl monoisostearate is completely replaced by a different oil (i.e.
hydrogenated polyisobutene.” (Reply Br. 6.) However, the open-ended
term “comprising” in claim 1 does not exclude the inclusion of glyceryl
monoisostearate. See Genentech, 112 F.3d at 501; see also Ans. 14—15.
Appellants also argue that “the claimed (a) hydrogenated polyisobutene
separates from the oils of component (c). Since a skilled artisan would
normally desire that components be uniformly blended in a composition, it
would therefore not be obvious to blend hydrogenated polyisobutene with an
oil of component (c) as suggested.” (Reply Br. 6.) However, this contention
regarding what “a skilled artisan would normally desire” amounts to
attorney argument without any evidentiary support. See Geisler, 116 F.3d at
1470. Accordingly, we are not persuaded by Appellants’ additional Reply
Brief arguments.
Unexpected Results
Appellants argue that the claimed solid cosmetic for lips “can provide
unexpected results” and, in particular, “can have excellent secondary
11 Appellants do not explain why these arguments were not addressed in the
Appeal Brief, but we nevertheless address them. See 37 C.F.R.
§ 41.37(c)(l)(iv).
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adhesion resistance effect without losing a gloss from immediately after
application.” (Appeal Br. 16; see also Reply Br. 5.)
Appellants argue in the Appeal Brief that secondary adhesion effect is
not attained if hydrogenated polyisobutene exceeds 30 mass %, or methyl
phenyl silicone (trimethyl pentaphenyl trisiloxane) is less than 30 mass % or
exceeds 70 mass %. (Appeal Br. 16.) Appellants further argue that when
the claimed (c) oil (dipentaerythrityl hexahydroxystearate) exceeds 15 mass
%, color unevenness takes place. (Id. ) In the Reply Brief, Appellants
respond to the Examiner’s contention of a lack of factual evidence by
pointing to “the evaluations reported in the specification with respect to the
secondary adhesion resistance effect.” (Reply Br. 5.) Specifically,
Appellants point to Evaluations (1) and (2) as showing that the claimed (c)
oil component (dipentaerythrityl hexahydroxystearate) showed affinity to the
coloring material and produced excellent secondary adhesion resistance, and
Evaluations (3) and (4) as showing that the claimed (c) oil component
(dipentaerythrityl hexahydroxystearate) separates from component (a) and
(b). (Id.) In addition, Appellants point to Evaluation (7) as “showing the
blending quantity of component (c) should be between 0.5-15 mass % for
good secondary adhesion resistance, color evenness, and gloss.” (Id.)
Unexpected results must be shown to be unexpected compared with
the closest prior art, and the mere recognition of latent properties in the prior
art does not render nonobvious an otherwise known invention. In re Baxter
TravenolLabs, 952 F.2d 388, 392 (Fed. Cir. 1991) (citing cases). Here, the
closest prior art is Ikeda, which also purports to maintain “post-application
secondary adhesion resistance.” (FF 3.) Moreover, the claimed range of 40
to 70 mass % of trimethyl pentaphenyl trisiloxane falls within Ikeda’s range
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of 20-80 mass % for “one or more kinds of methyl phenyl silicone oils.”
{Id.; see also FF 4.) Appellants also acknowledge that the glyceryl
monoisostearate (taught by Ikeda) is an equivalent component (c) oil to
presently claimed dipentaerythrityl hexahydroxystearate (FF 2), and the
claimed range of dipentaerythrityl hexahydroxystearate (0.5 to 15 mass %)
overlaps the range of glyceryl monoisostearate (4.5 to 35 mass %) taught by
Ikeda (FF 3). Notwithstanding such similarities, Appellants do not point us
to any comparison of Ikeda’s lip cosmetic to the lip cosmetic of claim l.12
We also note that the claimed range of 5 to 25 mass % of
hydrogenated polyisobutene lies within the range of 5 to 60% by weight
hydrogenated polyisobutene taught by Tamura, and the claimed range of 0.5
to 15 mass % of dipentaerythrityl hexahydroxystearate lies within the range
of 0.5 to 50% by weight dipentaerythrityl hexahydroxystearate taught by
Tamara. (FF 11.) Moreover, as to the adhesion resistance property that
Appellants contend is provided by dipentaerythrityl hexahydroxystearate, it
appears that Appellants have (at most) merely recognized a latent property
of dipentaerythrityl hexahydroxystearate. See Baxter Travenol, 952 F.2d at
392.
In weighing the proffered evidence and arguments of unexpected
results with the evidence of obviousness, we find that the balance favors the
Examiner’s conclusion of obviousness as to claim 1. That is, we find that
Appellants’ evidence and arguments of unexpected results do not outweigh
the Examiner’s findings and conclusion of obviousness of claim 1.
12 Showing that a particular range is critical also generally requires a
showing that the claimed range achieves unexpected results relative to the
prior art range. In re Woodruff, 919 F.2d 1575, 1578 (Fed. Cir. 1990).
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Claim 3
The Examiner finds that Ikeda teaches that it is preferable to blend a
coloring material into the lip cosmetic, and that the coloring materials of
Ikeda are the same as those disclosed in Appellants’ Specification. (Ans. 4.)
The Examiner further finds that, absence evidence to the contrary, the
coloring materials of Ikeda would inherently become dispersed in
component (c) (dipentaerythrityl hexahydroxystearate). (Id.)
Appellants dispute the Examiner’s inherency finding by pointing to
Ikeda’s statement that ‘Tflhe coloring material has a higher affinity to (a)
glyceryl monoisostearate than to oil (especially (b) methyl phenyl
silicones).” (Appeal Br. 17, citing Ikeda 158.) Thus, according to
Appellants, one of ordinary skill in the art would expect the coloring
material to be held in (a) glyceryl monoisostearate rather than the claimed
oil of component (c). (Id.) Appellants also contend that even if the coloring
material of Ikeda “would necessarily become dispersed in the claimed oil of
component (c),” the principle of operation of Ikeda would be changed “to
one in which the coloring material is dispersed elsewhere, e.g. the paste oil
solutions from Tamura.” (Id. at 18.)
We find that the Examiner has the better position. As the Examiner
explains, the Specification defines glycerol monoisostearate and
dipentaerythrityl hexahydroxystearate (claimed component (c)) to be in the
same class of oils, and that the Specification further teaches that “the
coloring material is held in [the] dispersed-phase oil component [component
(c)].” (See Ans. 14—15; Spec. 134.) Thus, given that the coloring agents are
the same in the Specification and Ikeda, “the coloring agents would be
expected to become dispersed in both dipentaerythrityl
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[hexahydroxystearate] (component (c)) and glyceryl monoisostearate.”
(Ans. 14—15.) Moreover, the Examiner further explains that the principal of
operation of Ikeda would not be affected because “the coloring agent will be
inherently found in both dipentaerythrityl [hexahydroxystearate] (component
(c)) and glyceryl monoisostearate.” (Id. at 15.)
Accordingly, for the reasons of record and as set forth above, we
affirm the rejection of claims 1 and 3 for obviousness. Claims 2, 4, 6, 8, 10,
11, 15—17, 22, and 23 were not argued separately and fall with claims 1 and
3.
Rejection No. 2
Appellants argue that “[t]he obviousness rejections should be
withdrawn because Oi fails to cure the deficiencies of Ikeda, Dayan and
Tamura.” (Appeal Br. 20.) Appellants further argue that claims 17 [sic, 7],
19, and 20 “are allowable over the combination of Ikeda, Dayan, Tamura,
and Oi for at least the same reasons” as stated with respect to claim 1. (Id.)
Accordingly, because Appellants advance no additional arguments, we
affirm the rejection of claims 1—4, 6,8, 10, 11, 15—17,19, 20, 22, and 23
for the reasons of record and as set forth above in connection with Rejection
No. I.13 See In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011).
Conclusions of Law
A preponderance of evidence of record supports the Examiner’s
rejections of claims 1—4, 6—8, 10, 11, 15—17, 19, 20, 22, and 23 under pre-
13 The Examiner included numbers 7, 19, and 20 in bold (and underlined),
presumably because those claims were not subject to Rejection No. 1.
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AIA 35 U.S.C. § 103(a).
SUMMARY
We affirm the rejections of all claims on appeal.
TIME PERIOD FOR RESPONSE
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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