Ex Parte Troutman

Patent Trial and Appeal Board

Sep 8, 2016

13444554 (P.T.A.B. Sep. 8, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/444,554 04/11/2012
29698 7590 09/08/2016
Leigh P, Gregory
1260 Barn Brook Road
Virginia Beach, VA 23454
FIRST NAMED INVENTOR
Stevan L. Troutman
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.
SLT-1-DIV 8763
EXAMINER
FRAZIER, BARBARA S
ART UNIT PAPER NUMBER
1611
MAILDATE DELIVERY MODE
09/08/2016 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
Exparte STEVAN L. TROUTMAN1
Appeal2014-003948
Application 13/444,554
Technology Center 1600
Before ERIC B. GRIMES, FRANCISCO C. PRATS, and
TIMOTHY G. MAJORS, Administrative Patent Judges.
GRIMES, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to a method
for controlling bed bugs, which have been rejected as obvious. We have
jurisdiction under 35 U.S.C. § 6(b ).
We affirm.
STATEMENT OF THE CASE
Claims 7-12 are on appeal. Claim 7 is illustrative and reads as
follows:
7. A method for controlling and preventing bed bugs in bed linens, the
method comprising employing a laundry additive solution during regular
1 Appellant identifies the Real Party in Interest as the inventor. (Br. 1.)
Appeal2014-003948
Application 13/444,554
laundering of the bed linens, the solution comprising from about 0.5 to about
10 percent by weight of an insecticide.
DISCUSSION
The Examiner has rejected claims 7-11under35 U.S.C. § 103(a) as
obvious based on Smets,2 Hodge,3 and Cross.4 (Ans. 2.) The Examiner
finds that Smets teaches laundry compositions comprising a benefit agent
and a carrier material, where the benefit agent can be an insecticide such as
permethrin. (Id. at 2-3.) The Examiner also finds that Smets teaches that its
composition can be a wash additive suitable for use in the rinse-cycle of the
laundry cycle and can include 0.02 to 10% by weight of the benefit agent.
(Id. at 3.)
The Examiner finds that Hodge teaches fabric care compositions that
can comprise "bed bug repellents/ deterrents; exemplary bed bug deterrents
include permethrin." (Id. at 3.) The Examiner concludes that it would have
been obvious to use the composition taught by Smets to treat and control bed
bugs based on Hodge's teaching that permethrin is a bed bug deterrent
suitable for use in fabric care compositions. (Id.) The Examiner cites Cross
only as evidence that laundered fabrics include bed linens. (Id. at 4.)
We agree with the Examiner's fact-finding, reasoning, and conclusion
that claim 7 would have been obvious based on the cited references.
Appellant argues that "modifying the Smets invention by combining
the teachings of Hodge with it would destroy the operability of the Smets
2 Smets et al., US 2003/0228992 Al, published Dec. 11, 2003.
3 Hodge et al., US 2008/0307586 Al, published Dec. 18, 2008.
4 Cross et al., US 6,877,248 Bl, issued Apr. 12, 2005.
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Appeal2014-003948
Application 13/444,554
invention." (Br. 6.) More specifically, Appellant argues that one of the
carrier materials disclosed by Smets is polyethyleneimine polymers such as
Lupasol polymers. (Id. at 7.) Appellant argues that Lupasol polymers
would fail to function as carrier materials at the temperatures reached in a
clothes dryer. (Id.)
These arguments are not persuasive. The rejection is not based on
combining the products disclosed by Smets and Hodge. Rather, as the
Examiner has pointed out, "the teachings of Hodge are relied upon merely to
demonstrate that the composition of Smets comprising permethrin may be
utilized to treat and control bed bugs." (Ans. 6.) Appellant has pointed to
no persuasive evidence that including permethrin in Smets' composition, as
expressly suggested by Smets (see i-f 24), would not effectively inhibit or
control bed bugs when used in the rinse cycle of a laundry cycle.
Appellant also argues that, if Hodge's teaching would not destroy the
function of Smets, "then Smets clearly adheres more insecticide to the
treated bed linens then is accomplished by the present inventive method.
The key to the present method is the provision of a low, prophylactic dose of
a permetrin [sic] through regular laundering." (Br. 9.)
Claim 7, however, does not include any limitation directed to how
much insecticide adheres to the treated bed linens. It simply requires using a
laundry additive containing 0.5-10% by weight of an insecticide when
laundering bed linens. That method would have been obvious based on the
cited references.
Claims 8-11 have not been argued separately and therefore fall with
claim 7. 37 C.F.R. § 41.37(c)(l)(iv).
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Appeal2014-003948
Application 13/444,554
The Examiner rejected claim 12 under 35 U.S.C. § 103(a) based on
Smets, Hodge, and Bed Bug Facts.5 (Ans. 4.) The Examiner concluded that
it would have been obvious to include an insect growth regulator in Smets'
composition based on the teaching in Bed Bug Facts that insect growth
regulators prevent bed bug development, "causing deformation and death."
(Id. at 5.) We agree with the Examiner's fact-finding and conclusion.
Appellant argues that the rejection should be reversed because claim
12 depends from claim 7, which would not have been obvious based on the
cited references. (Br. 9-10.) This argument is unpersuasive for the reasons
previously discussed.
SUMMARY
We affirm both of the rejections 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
5 "Bed Bug Facts," Colorado Dept. of Public Health and Environment,
www.cdphe.state.co.us/dc/zoonosis/bedbug.pdf, accessed Dec. 17, 2007.
4