Ex Parte Wiedemann et al

Patent Trial and Appeal Board

Sep 24, 2012

10505565 (P.T.A.B. Sep. 24, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
10/505,565 08/24/2004 Ralf Wiedemann 102792-333 3643
27389 7590 09/25/2012
PARFOMAK, ANDREW N.
NORRIS MCLAUGHLIN & MARCUS PA
875 THIRD AVE, 8TH FLOOR
NEW YORK, NY 10022
EXAMINER
DOUYON, LORNA M
ART UNIT PAPER NUMBER
1761
MAIL DATE DELIVERY MODE
09/25/2012 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 RALF WIEDEMANN, ROGER KAISER, and MARCUS
GUZMANN
____________

Appeal 2011-008141
Application 10/505,565
Technology Center 1700
____________

Before CHUNG K. PAK, HUBERT C. LORIN, and ROMULO H.
DELMENDO, Administrative Patent Judges.

DELMENDO, Administrative Patent Judge

DECISION ON APPEAL

Ralf Wiedemann, et al., the Appellants,1 seek our review under 35
U.S.C. § 134(a) of a rejection of claims 1, 5-9, and 15. We have jurisdiction
under 35 U.S.C. § 6(b). We affirm.

1 The Appellants identify the real party in interest as “Reckitt Benckiser
N.V.” Appeal Brief filed September 30, 2010 (“Br.”) at 2.
Appeal 2011-008141
Application 10/505,565

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STATEMENT OF THE CASE

The invention relates to a packaged detergent composition comprising
a container that at least partially disintegrates in an aqueous environment.
Specification (“Spec.”) at 1, ll. 6-10. Representative claim 1 is reproduced
below (with the disputed limitation shown in italics):
1. A packaged detergent composition comprising a
container that at least partly disintegrates in an aqueous
environment, the detergent composition consisting of at least
one liquid having an outer surface and one solid substantially
insoluble in the liquid and having a size sufficient to be retained
by a 2.5 mm meshing characterized in that the one solid is
selected from the group consisting of enzymes, bleach, bleach
activators and non-ionic surfactants, and has a density lower
than the density of the liquid wherein the one solid is floating
on the outer surface of at least one liquid, wherein the liquid has
a dispersion/dissolution time of more than 30 s and a viscosity
of at least 100 mPa/s.
Br. 9 (Claims App’x).
The Examiner rejected the claims as follows:
I. Claims 1, 5-9, and 15 under 35 U.S.C. § 103(a) as unpatentable
over Becks;2
II. Claims 1 and 5-8 under 35 U.S.C. § 103(a) as unpatentable over
Pfeiffer;3

2 PCT International Publication WO 02/057402 A1 published July 25, 2002.
3 U.S. Patent 6,492,312 B1 issued December 10, 2002.
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Application 10/505,565

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III. Claim 9 under 35 U.S.C. § 103(a) as unpatentable over Pfeiffer
in view of Dasque;4 and
IV. Claims 1, 5-9, and 15 under the judicially created doctrine of
obviousness-type double patenting as unpatentable over claims
1, 6, and 7 of United States Patent 7,407,923 B2 (Wiedemann).
Examiner’s Answer mailed January 5, 2011 (“Ans.”) at 4-12.

DISCUSSION

IV.

We start with Rejection IV. As pointed out by the Examiner, Ans. 12,
the Appellants failed to offer any argument against Rejection IV.
Accordingly, we summarily affirm the Examiner’s rejection of claims 1, 5-9,
and 15 under the judicially created doctrine of obviousness-type double
patenting as unpatentable over claims 1, 6, and 7 of United States Patent
7,407,923 B2.
I.
With respect to Rejection I, the Appellants have argued the claims
together. Br. 4-5. Therefore, pursuant to 37 C.F.R. § 41.37(c)(1)(vii), we
select claim 1 as representative of the claims subject to this rejection and

4 PCT International Publication WO 01/60966 A1 published August 23,
2001.
Appeal 2011-008141
Application 10/505,565

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confine our discussion to this selected claim. Claims 5-9 and 15 stand or fall
with claim 1.
The Examiner concluded, based on specific factual findings, that a
person of ordinary skill in the art would have found the subject matter of
claim 1 obvious in view of Becks. Ans. 4-5.
The Appellants contend that “there is nothing in Becks that would
suggest to a skilled artisan to formulate a composition having the claimed
viscosity.” Br. 4-5. The Appellants further argue that they “surprisingly
discovered that the solid component’s release time is more pronounced when
the liquid phase has a viscosity of at least 100 MPa.s.” Id. at 5.
The Appellants have failed to demonstrate reversible error on the part
of the Examiner. In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011).
As found by the Examiner, Ans. 4 and 8-9, Becks explicitly discloses
that the “liquid composition . . . can have any viscosity, typically depending
on its ingredients” and that “[t]he viscosity may be controlled, if desired, by
using various viscosity modifiers.” Becks 7. The Appellants admit as much.
Br. 4. Therefore, we share the Examiner’s conclusion that a person of
ordinary skill in the art would have found it obvious to arrive at optimum or
workable viscosities, including 100 MPa·s, by routine experimentation. In
re Aller, 220 F.2d 454, 456 (CCPA 1955) (“[W]here 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.”).
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Application 10/505,565

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The Appellants’ argument regarding surprising or unexpected results
also lacks merit because the Appellants failed to identify any evidence, let
alone sufficient evidence, to establish such unexpected results. Cf. In re
Borkowski, 505 F.2d 713, 718 (CCPA 1974) (“The original and
supplemental affidavits together with the accompanying comments do not
adequately explain what facts or data appellants are relying upon.”). See
also Br. 11 (Evid. App’x).
For these reasons, we uphold Rejection I.

II–III.
We affirm Rejection II for the reasons given by the Examiner. With
respect to Rejection III, the Appellants rely on the same arguments made in
support of claim 1 against Rejection II. Therefore, we uphold Rejection III
as well.

SUMMARY

The Examiner’s rejection of claims 1, 5-9, and 15 under 35 U.S.C. §
103(a) as unpatentable over Becks is affirmed.
The Examiner’s rejection of claims 1 and 5-8 under 35 U.S.C. §
103(a) as unpatentable over Pfeiffer is affirmed.
The Examiner’s rejection of claim 9 under 35 U.S.C. § 103(a) as
unpatentable over Pfeiffer in view of Dasque is affirmed.
The Examiner’s rejection of claims 1, 5-9, and 15 under the judicially
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Application 10/505,565

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created doctrine of obviousness-type double patenting as unpatentable over
claims 1, 6, and 7 of United States Patent 7,407,923 B2 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136.
AFFIRMED

cam