Ex Parte Truong et al

Patent Trial and Appeal Board

Feb 9, 2017

13883640 (P.T.A.B. Feb. 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.
13/883,640 05/06/2013 Katie Truong 9024-00-US-01-HC 9183
23909 7590 02/13/2017
COLGATE-PALMOLIVE COMPANY
909 RIVER ROAD
PISCATAWAY, NJ 08855
EXAMINER
HARDEE, JOHN R
ART UNIT PAPER NUMBER
1761
NOTIFICATION DATE DELIVERY MODE
02/13/2017 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):
Paten t_Mail @ colpal. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KATIE TRUONG and
CHARLES JOHN SCHRAMM JR.
Appeal 2016-000705
Application 13/883,640
Technology Center 1700
Before CATHERINE Q. TIMM, MONTE T. SQUIRE, and
DEBRA L. DENNETT, Administrative Patent Judges.
DENNETT, Administrative Patent Judge.
DECISION ON APPEAL1
1 In our Opinion below, we refer to the Specification filed May 6, 2013
(“Spec.”); the Non-Final Action mailed September 25, 2014 (“Non-Final
Act.”); the Final Action mailed January 5, 2015 (“Final Act.”); the Appeal
Brief filed May 26, 2015 (“App. Br.”); and the Examiner’s Answer mailed
July 31, 2015 (“Ans.”). A Reply Brief was not filed.
Appeal 2016-000705
Application 13/883,640
STATEMENT OF THE CASE
Appellants2 appeal under 35 U.S.C. § 134(a) from a rejection of
claims 1 and 6—26. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
The claims are directed to a fabric softening composition comprising a
fabric softener and a poly(vinyl alcohol) and polyethylene glycol) graft
copolymer. Claim 1. The sole independent claim, Claim 1, reproduced
below, is illustrative of the claimed subject matter:
1. A fabric softening composition, comprising
a) a fabric softener, optionally a cationic fabric softener;
and
b) a poly(vinyl alcohol) and poly(ethylene glycol) graft
copolymer;
wherein the poly(vinyl alcohol) and poly(ethylene
glycol) graft copolymer has the formula:
CHON
wherein, x and y are each independently a positive
integer and the ratio of x to y is from 1 to 2, from 1 to 3, or
from 1 to 4.
App. Br. 6 (Claims App’x).
2 Appellants identify Colgate-Palmolive as the real party in interest. App.
Br. 1.
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Appeal 2016-000705
Application 13/883,640
REFERENCES
The Examiner relies on the following prior art in rejecting the claims
on appeal:
Ingram et al. US 2003/0119696 A1 June 26, 2003
(“Ingram”)
Wiedemann et al. US 2004/0072709 Al Apr. 15, 2004
(“Wiedemann”)
Salesses et al. US 6,949,500 B2 Sept. 27, 2005
(“Salesses”)
REJECTIONS
The claims stand rejected under 35 U.S.C. § 103(a) over Wiedemann
in view of Ingram and further in view of Salesses. Final Act. 2.
OPINION
The Examiner finds that Wiedemann discloses cleaning compositions
packaged in ethoxylated polyvinyl alcohol materials. Non-Final Act. 3. In
the Answer, the Examiner identifies the chief point of contention with
Appellants as the definition of a “composition.” Ans. 4. The Examiner
“construes the combination of fabric softener and the pouch as a
composition, or more specifically as a composition of matter.” Id.
Appellants argue that the copolymer disclosed in Wiedemann is in a
package enclosing a composition. App. Br. 3. Appellants contend that the
packaging disclosure of Wiedemann is not relevant or comparable to a
composition. Id. Throughout the Specification, Appellants speak of the
“composition” of the claims as the combination of a fabric softener and a
soil-releasing polymer, specifically a poly(vinyl alcohol)-poly(ethylene
glycol) graft copolymer in mixture. See, e.g., Spec. 1, 4, 10, 15, 34.
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Appeal 2016-000705
Application 13/883,640
“The term ‘composition’ in chemistry is well-established. It generally
refers to mixtures of substances.” PIN/NIP Inc. v. Platte Chemical Co., 304
F.3d 1235, 1244 (Fed. Cir. 2002). In Exxon Chemical Patents, Inc. v.
Luhrizol Corp., the Federal Circuit equated a “composition” with a
“mixture”:
[A] chemical composition exists at the moment the ingredients
are mixed together. Before creation of the mixture, the
ingredients exist independently. . . . Consequently, as properly
interpreted, Exxon’s claims are to a composition that contains the
specified ingredients at any time from the moment at which the
ingredients are mixed together. This interpretation of Exxon’s
claims preserves their identity as product claims, and recognizes
as a matter of chemistry that the composition exists from the
moment created.
64 F.3d 1553, 1558 (Fed. Cir. 1995) (emphases added).
Because Wiedemann does not teach a composition comprising a
fabric softener and the claimed polymer in mixture, and the additional
references do not remedy the deficiency, the Examiner has not established a
prima facie case of obviousness. We do not sustain the Examiner’s rejection
of claim 1. For the same reasons, we also do not sustain the Examiner’s
rejection of claims 6—26.
DECISION
For the above reasons, the Examiner’s rejection of claims 1 and 6—26
is reversed.
REVERSED
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