Ex Parte Yarlagadda et alDownload PDFPatent Trial and Appeal BoardDec 6, 201612956189 (P.T.A.B. Dec. 6, 2016) Copy Citation 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. 12/956,189 11/30/2010 Travis T. Yarlagadda 7495 8922 49641 7590 12/08/2016 THE DIAL CORPORATION 7201 E. Henkel Way SCOTTSDALE, AZ 85255 EXAMINER MATTISON, LORI K ART UNIT PAPER NUMBER 1619 NOTIFICATION DATE DELIVERY MODE 12/08/2016 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): US-STZ-PATENTS-UK-UW@us.henkel.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte TRAVIS T. YARLAGADDA and THOMAS DOERING Appeal 2015-004210 Application 12/956,189 Technology Center 1600 Before MELANIE L. McCOLLUM, JEFFREY N. FREDMAN, and TIMOTHY G. MAJORS, Administrative Patent Judges. FREDMAN, Administrative Patent Judge. DECISION ON APPEAL This is an appeal1 under 35U.S.C. § 134 involving a personal care product. The Examiner rejected the claims as obvious. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. Statement of the Case Background “There are various types of stick antiperspirant compositions that are desirable by [a] large majority of the population because of their ease of application and the presence of active antiperspirant compounds” (Spec. 13). “One problem for antiperspirant and deodorant manufacturers is that 1 Appellant identifies the Real Party in Interest as The Dial Corporation (see App. Br. 3). Appeal 2015-004210 Application 12/956,189 the ingredients and/or additives used in the product for antiperspirant efficacy and refreshing effects may have limited shelf life and become less effective and/or less refreshing over time.” (Spec. 1 5). The Claims Claims 1—9 and 11—14 are on appeal. Claim 1 is representative and reads as follows: 1. A personal care product comprising: a container; and an antiperspirant product housed within the container, the antiperspirant product comprising: a first portion comprising a dispersed cooling sensation agent and a first plurality of silica particles; and a second portion that is in non-mutual spatial relationship with the first portion and has a composition different from the first portion, the second portion comprising a second plurality of silica particles and a solubilizer effective to solubilize the dispersed cooling sensation agent within body generated moisture and thereby impart to a user a cooling sensation effect, wherein the solubilizer is adsorbed to surfaces of the second plurality of silica particles that are dispersed throughout the second portion. The Issue The Examiner rejected claims 1—9 and 11—14 under 35 U.S.C. § 103(a) as obvious over Galante,2 Kitahata,3 and Patel4 (Ans. 3—8). The Examiner finds Galante teaches “an antiperspirant. . . which has two portions; each portion has a different composition . . . the first and 2 Galante et al., US 2002/0155077 Al, published Oct. 24, 2002 (“Galante”). 3 Kitahata et al., US 2007/0003492 Al, published Jan. 4, 2007 (“Kitahata”). 4 Patel et al., US 2005/0100565 A9, published May 12, 2005 (“Patel”). 2 Appeal 2015-004210 Application 12/956,189 second portions are ‘in non-mutual spatial relationship’” (Ans. 3). The Examiner finds Galante teaches “inclusion of silica in both the first and second portions of the antiperspirant product” (Ans. 5). The Examiner finds Galante teaches “an inner portion (i.e. second portion) which is clear comprising the solubilizer, propylene glycol” (Ans. 4). The Examiner acknowledges that Galante “does not teach a cooling agent within their antiperspirant, a cooling agent that is adsorbed onto or absorbed into hydrophilic porous silica” (Ans. 5). The Examiner finds Kitahata “teaches porous silica which has menthol adsorbed onto it” and that “menthol is included in . . . toiletry articles for its refreshing feel and ‘cool’ feel” (Ans. 5—7). The Examiner finds Kitahata teaches menthol “has a known problem with sublimation and volatility which reduces its content in these articles” so Kitahata uses “porous silica to ‘adsorb’ menthol or other substances and then use a chemical or physical stimulus to desorb or release the menthol or other substances in a controlled manner” (Ans. 6). The Examiner finds Patel teaches “porous silica particles are adsorbed with humectant” (id.). The Examiner finds Patel teaches “his invention solves the problem of oil absorbing porous silica leaving the skin tight and uncomfortable through the delivery of moisturization” (Ans. 7). The Examiner finds it obvious to modify the antiperspirant taught by GALANTE, with a reasonable expectation of success, in order to solve the known problems with menthol sublimation and volatilization (which reduces the amount of menthol in toiletry articles), and excess skin tightness resulting from excess oil absorption by silica 3 Appeal 2015-004210 Application 12/956,189 without corresponding moisturization as taught by KITAHATA et al. and PATEL et al. (Ans. 8). The issue with respect to this rejection is: Does the evidence of record support the Examiner’s conclusion that Galante, Kitahata, and Patel render claim 1 obvious? Findings of Fact 1. Figure 10 of Galante is reproduced below: “Referring to FIG. 10, antiperspirant product 44 includes first portion 46 surrounding generally centrally located second portion 48” (Galante 140). 2. Galante teaches “[ujseful polyhydric alcohols include propylene glycol. . . Fatty alcohols include stearyl alcohol” (Galante 1 56) and further explains that “[o]ne or both of the portions in the antiperspirant products discussed previously may include the antiperspirant salt dissolved in a FIG. 10 48 44 4 Appeal 2015-004210 Application 12/956,189 polyhydric alcohol liquid carrier like propylene glycol and gelled with a gelling agent such as dibenzylidene sorbitol” (Galante 161). 3. Example 3 of Galante discloses an antiperspirant stick product illustrated with a clear inner stripe and a white outer portion can include the following ingredients: Ingredient Weight. % Outer portion: Volatile sil.ieone(D4) 38,49 A7CH“ 2 4, GO1 Silica (R972) 0.72 Silica (300) 0.18 Stearyl alcohol 20.. 00 MP70 castor wax 2,84 Myristyl myristate 1,92 PPG-14 Butyl ether 11.00 Fragrance-15 71 0.85 Inner portion: Propylene glycol 86,85 A/rir " 8.602 Dibenzylidene sorbitol 1.30 Diisopropyl stearate 100 Hydroxy propyl cel kil o se 0.30 Dim e thicon e c opot yoi 0.25 Tetra sodium EDTA 0.20 Fragrance 1.50 ;LUSP wt. % = 18.3%. 2USP wt, % = 8.6%. (Galante 178). 4. Galante teaches that the product may be produced by combining “molten stearyl alcohol, MP70 castor wax, myristyl myristate, 5 Appeal 2015-004210 Application 12/956,189 and PPG-14 butyl ether” with “the homogenized premix of the volatile silicone, the AZCH", and the two silicas” (Galante 1 85). 5. Example 4 of Galante discloses an antiperspirant compositions with the following ingredients: Ingredient■w- Weight % Outer portion: Volatile silicone (D4) 79.34 AZCH" powder (high peak 5 content) 24. GO1 Silica (Aerosii 1*972) 0.72 Silica (Aerosii 300) 0.18 Stearvl alcohol 20.00 MP70 Castor wax 2.84 M yrts tv 1 m yris late 1.92 PPG-14 Butyl ether 11. DO Inner portion: Volatile silicone (D4) 37,39 AZOF!’ powder 19.00 Silica (Aerosii R972) 0.72 Silica (Aerosii 300) 0.18 Stearvl alcohol 20.00 MP70 Caster wax 2.84 M y r i s t y 1 m y r is ta t e 1.92 PPG-1 4 Butyl ether .11.00 Fragrance (free oil) 0.85 F ra gra n ce (e n ca p su 1 a fce d) 6.00 Colorona Dark Blue Piement 0.10 HJSPwl. % = 17.5%. :’USP WL % - 14.5%. (Galante 1 82). 6. Kitahata teaches “[mjenthol has refreshing feel or cool feel, so that the menthol has been used for various foodstuff, pharmaceuticals, cosmetics, luxury items, toiletry articles and the like” (Kitahata 12). 6 Appeal 2015-004210 Application 12/956,189 7. Kitahata teaches “since the menthol has sublimation property and volatility, the menthol may undergo sublimation due to a temperature change or the like during storage of the manufactured articles, thereby resulting in reduction of its content” (Kitahata 12). 8. Kitahata teaches “a substance-supporting porous silica which has excellent adsorbability of the substance and mild desorbability or controlled release property by a physical or chemical stimulus from external, and a composition comprising the porous silica” (Kitahata 133). 9. Kitahata teaches “a menthol-supporting porous silica having enhanced refreshing feel and cool feel, and excellent sustainability of the feels, and a composition containing the porous silica are provided” (Kitahata 165). 10. Kitahata teaches the “cosmetics include . . . antiperspirants” (Kitahata 1110). 11. Patel teaches: an aqueous composition for skin, wherein the composition contains porous silica particles having an oil absorption capacity of at least four times by weight their own weight and at least one humectant, and at least 20% water, and wherein the porous silica particles and the at least one humectant are present in the composition in a combined amount effective to both moisturize and absorb excess oil from the skin. (Patel 11). 12. Patel teaches “the porous silica particles are adsorbed with at least one humectant” (Patel 125). 13. Patel teaches the “humectant may be chosen from glycerin, glycols” (Patel 130). 7 Appeal 2015-004210 Application 12/956,189 14. The Specification teaches a process where the “solubilizer blend is . . . mixed with the silica particles (e.g. porous hydrophilic silica particles) preferably using a low shear mixing process until the liquids have been absorbed homogeneously (e.g. adsorbed onto and into the pores) into the silica particles” (Spec. 1 54). 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.” KSRInt’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). “If a person of ordinary skill can implement a predictable variation, § 103 likely bars its patentability.” Mat417. Analysis We adopt the Examiner’s findings of fact and reasoning regarding the scope and content of the prior art (Ans. 3—8; FF 1—13) and agree that the claims are obvious over Galante, Kitahata, and Patel. We address Appellants’ arguments below. Appellants contend when Galante chooses propylene glycol as an ingredient, it is because of propylene glycol’s utility as a hydrophilic vehicle or carrier . . . The polyhydric alcohol, such as propylene glycol, is used because the antiperspirant salt readily dissolves in it. . . Accordingly, Galante only discloses polyhydric alcohols like propylene glycol as gelled carriers or part of aqueous phases of antiperspirant formulations. (App. Br. 6). Appellants contend “[t]his object would be destroyed by, instead of using the propylene glycol as a carrier, adding the silica and absorbing the humectant to the silica” (Id.). 8 Appeal 2015-004210 Application 12/956,189 We do not find this argument persuasive because the evidence does not support Appellants’ position. The Examiner identifies propylene glycol as a solubilizer (Ans. 4). The Specification evidences that adsorption of solubilizers to silica simply requires mixing these components together (FF 14). As noted by the Examiner, “not all the propylene glycol (i.e. a solubilizer and humectant) would [necessarily] be absorbed onto silica, and therefore, it can still also act as a carrier” (Ans. 9). Appellants provide no persuasive rebuttal evidence, as opposed to attorney argument, demonstrating that a composition containing solubilizers would not be capable of dissolving antiperspirant when solubilizers are adsorbed to silica. Appellants contend Galante provides no purpose for adding propylene glycol as anything other than a clarity-imparting vehicle or carrier. However, it must again be recognized that this object would be destroyed by adding the silica and absorbing the humectant to the silica. The propylene glycol would not be in liquid or gel form if tied up with silica, and would lose its sole and fundamental purposes disclosed by Galante. (App. Br. 7). We find this argument unpersuasive because neither Galante nor claim 1 requires clarity for the antiperspirant compositions. Galante teaches “[o]ne portion can be clear and the other portion opaque” (Galante 17). Therefore, Galante expressly encompasses embodiments where the second portion is opaque, rendering the use of propylene glycol as a humectant in an opaque composition as an obvious alternative as evidenced by Patel (FF 12— 13). Disclosed examples, and even preferred embodiments do not constitute 9 Appeal 2015-004210 Application 12/956,189 a teaching away from a broader disclosure or non-preferred embodiments. In re Susi, 440 F.2d 442, 446 n.3 (CCPA 1971). We also find this argument unpersuasive because claim 1 includes no clarity requirements. See In re Self, 671 F.2d 1344, 1348 (CCPA 1982) (“Appellant’s arguments fail from the outset because . . . they are not based on limitations appearing in the claims.”). Conclusion of Law The evidence of record supports the Examiner’s conclusion that Galante, Kitahata, and Patel render claim 1 obvious. SUMMARY In summary, we affirm the rejection of claim 1 under 35 U.S.C. § 103(a) as obvious over Galante, Kitahata, and Patel. Claims 2—9 and 11— 14 fall with claim 1. 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 10 Copy with citationCopy as parenthetical citation