Ex Parte Zheng et al

Patent Trial and Appeal Board

Jan 31, 2018

13543004 (P.T.A.B. Jan. 31, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO.
13/543,004
60723 7590
Avon Products, Inc.
1 Avon Place
Suffern, NY 10901
FILING DATE FIRST NAMED INVENTOR
07/06/2012 Tao Zheng
02/02/2018
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.
CR94Ul-US 5280
EXAMINER
FISHER, MELISSA L
ART UNIT PAPER NUMBER
1611
NOTIFICATION DATE DELIVERY MODE
02/02/2018 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):
PATENT.DEPARTMENT@AVON.COM
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte TAO ZHENG, LEONA G. FLEISSMAN,
MAHA RAOUF, and SONAL PATEL1
Appeal2016-006820
Application 13/543,004
Technology Center 1600
Before TA WEN CHANG, RYAN H. FLAX, and
DEVON ZASTROW NEWMAN, Administrative Patent Judges.
CHANG, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) involving claims to a
cosmetic composition, which have been rejected as obvious. We have
jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
1 Appellants identify the Real Party in Interest as Avon Products, Inc.
(Appeal Br. 2.)
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STATEMENT OF THE CASE
"Cosmetic compositions applied to the skin providing transfer
resistance are ... in great demand." (Drechsler2 1 :21-22.) The
Specification states:
Many cosmetics and personal care products employ various
film forming agents to aid in spreading and adhering a formulation to
a surface such as skin. The class of polymers known as
organosiloxanes, including polydimethylsiloxane (PDMS or
Dimethicone ), have recently received considerable attention as film-
formers in cosmetic products due to their excellent spreading
properties and biological inertness. . . . Recent advances have
included the use of polyorganosiloxane polyurethane polymers.
(Spec. ,-i 2.) According to the Specification, however, "there remains a need
in the art for improved transfer resistance and long wear properties for
cosmetic compositions for the skin and hair." (Id. ,-i 7.) Further according to
the Specification, the present invention "relates to cosmetic compositions
containing at least one silicone polyurethane polymer in combination with at
least one elastomer," which are "resistant to transfer, durable, and
comfortable to wear." (Id. ,-i 9.)
Claims 28-33, 35, and 36 are on appeal. Claim 28, the only
independent claim, is illustrative and reproduced below:
28. A cosmetic composition comprising a combination of:
(i) a silicone polyurethane polymer; and
(ii) a polyorganosiloxane gum having a viscosity of from about
1,000,000 centistokes to about 3,500,000 centistokes when measured
at 25°C·
'
wherein the combination comprises a weight ratio of the
silicone polyurethane polymer to the polyorganosiloxane gum from
about 50: 1 to about 1 :50; and
2 Drechsler et al., US 6,406,683 B 1, issued Jun. 18, 2002 ("Drechsler").
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wherein the combination provides an improvement in water
transfer resistance or oil transfer resistance.
(Appeal Br. 8 (Claims App.).)
The Examiner rejects claims 28-33, 35, and 36 under pre-AIA
35 U.S.C. § 103(a) as being unpatentable over Rando3 and Drechsler. (Non-
Final Office Act. 4 4.)
DISCUSSION
Issue
The Examiner finds that Rando teaches cosmetic compositions that
use silicone-containing polyurethanes. (Non-Final Office Act. 4.) The
Examiner finds that Rando teaches an example wherein silicone
polyurethane and dimethicone are used in a 1: 1 ratio. (Id.) The Examiner
finds that Rando teaches that its compositions have improved film-forming
properties and are transfer-resistant. (Id.)
The Examiner finds that Rando does not teach a polyorganosiloxane
gum having a viscosity of from about 1,000,000 centistokes (cSt) to about
3,500,000 centistokes when measured at 25 °C. (Id.) However, the
Examiner finds that Drechsler teaches transfer-resistant cosmetic
compositions that include organosiloxane resins and fluid diorganosiloxane
resins with a carrier. (Id.) The Examiner finds that Drechsler specifically
teaches the use of diorganosiloxane polymers with viscosities from 1,000 to
about 10,000,000 centistokes, including dimethicone gum having a viscosity
of 2,500,000 centistokes. (Id. at 4-5.)
3 Rando et al., US 2005/0238611 Al, published Oct. 27, 2005 ("Rando").
4 July 20, 2015 Office Action.
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The Examiner concludes that a skilled artisan would have had reason
to use the high viscosity diorganosiloxane such as Drechsler' s dimethicone
gum in Rando's composition, with a reasonable expectation of success, in
order to achieve better transfer resistance as taught by Drechsler. (Non-
Final Office Act. 5.) The Examiner further notes that both Rando and
Drechsler are drawn to cosmetic compositions with improved transfer
resistance. Quoting In re Kerkhoven, 626 F.2d 846, 850 (CCPA 1980), the
Examiner concludes that "[i]t is primafacie obvious to combine two
compositions each of which is taught by the prior art to be useful for the
same purpose, in order to form a third composition to be used for the very
same purpose," because the idea of combining such compositions "flows
logically from their having been individually taught in the prior art." (Non-
Final Office Act. 5 (internal quotation marks omitted).)
With regard to the dependent claims, which further require the
composition of claim 28 to comprise polyisobutylene and/or a particular,
narrower range of weight ratio of the silicone polyurethane polymer to the
polyorganosiloxane gum, the Examiner finds that Rando teaches the use of a
hydrogenated polyisobutylene in its composition (Non-Final Office Act. 4)
and also concludes that it would have been obvious to use the claimed ratios
because "[i]n the case where the claimed ranges 'overlap or lie inside ranges
disclosed by the prior art' a prima facie case of obviousness exists." (Id. at 6
(citation and internal quotation marks omitted).)
Appellants contend that the Examiner relied on impermissible
hindsight in combining Rando and Drechsler, because Rando teaches
dimethicone only as a solvent and "in no way suggest the inclusion of a
polyorganosiloxane gum" such as the dimethicone gum taught by Drechsler,
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"let alone one having a viscosity from about 1,000,000 to about 3,500,000
cSt, as called for by the claims." (Appeal Br. 3.) Appellants thus contend
that the Examiner "has not articulated an adequate rationale for modifying
Rando to include Drechsler's polyorganosiloxane gum." (Id.) Appellants
further contend that the subject matter of the invention exhibits unexpected
results. (Id. at 5-7; Reply Br. 2-6.) Finally, Appellants contend that the
Examiner fails to address dependent claims 29-33. (Appeal Br. 7; Reply Br.
6.)
The issue with respect to this rejection is whether a preponderance of
evidence supports the Examiner's finding that a skilled artisan would have
reason to combine Rando and Drechsler and, if so, whether the subject
matter of the claims exhibits unexpected results that, when considered
together with evidence of obviousness, show the claims to be nonobvious.
Findings of Fact
1. Rando teaches "a cosmetic composition particularly for the
make-up of the facial skin, the lips and the eyelashes" comprising a
particular silicone-containing polyurethane. (Rando Abstract; see also id.
iii! 13-17 (describing the silicone-containing polyurethane, including a
preferred polyurethane), claim 1.)
2. Rando teaches that "[t]he amount of the silicone-containing
polyurethane used in the cosmetic compositions range[ s] from 0.25 to 40%
by weight of the composition, preferably from 0.5 to 30% and particularly
preferably from 1 to 20%." (Id. iJ 18; see also id. at claim 1.)
3. Rando teaches that "[b ]y the use of the particular silicone-
containing polyurethane, improved film-forming properties of the
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composition are obtained, and the composition is transfer-resistant and easy
to apply and skin friendly and comfortable in use." (Id. at Abstract.)
4. Rando teaches that "[t]he composition of the invention may
furthermore comprise clays, waxes, solvents, silicones, cosmetic excipients,
colourants, preservatives, (co )polymers (other than the polyurethanes of the
invention) e.g., polyisoprene, fragrances, flavours, vitamins, antioxidants,
vegetable or mineral oils and fats, pearlescent agents, surface-active agents
etc." (Id. ii 45.)
5. Rando teaches that "the composition may also preferably
contain a silicone, such as ( cyclo) polysiloxanes e.g. cyclomethicone and/or
dimethicone, in an amount of between 0.5-20% by weight of the
composition. (Id. iJ 51.)
6. Rando teaches examples of a lip colouring fluid and a powder
eye shadow comprising, respectively by weight, 10.00% silicone
polyurethane, 10.00% dimethicone, 0.80% silicone polyurethane, and 1.30%
dimethicone. (Id. iii! 82, 87 (Examples 5 & 10).)
7. Drechsler teaches cosmetic compositions comprising a
combination of organosiloxane resins and fluid diorganosiloxane resins with
a volatile carrier. (Drechsler Abstract; see also id. at 1:13-15, 2:17-30,
2:48-52.)
8. Drechsler teaches that the fluid diorganopolysiloxane polymers
useful in its invention have a range of viscosities from about 1,000 to about
10,000,000 centistokes at 25° C. (Id. at 8:7-12.)
9. Drechsler teaches that a particularly preferred
diorganopolysiloxane polymer is poly( dimethylsiloxane) ("PDMS"), which
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is also known as dimethicone. (Id. at 8:34-36; see also Spec. iJ 52 (stating
that polydimethylsiloxane is also known as dimethicone ).)
10. Drechsler teaches examples of cosmetic compositions such as
liquid foundation, mascara, lip tint composition, and lip compositions that
include silicone gum having a viscosity of 2,500,000 cSt ( dimethicone gum
available as SE 63 from General Electric) at weight percentages of 2.52,
5.40, 11.88, 10.80, 16.20, 10.91, 12.88, 10.47, 16.66, 8.30, 15.32, 8.20, 5.00,
and 12.60. (Drechsler 16:11, 21-22 (Example l); 16:51, 60-61 (Example
2); 17:16, 25-26 (Example 3); 19:41, 49-50 (Example 7); 20:50, 60-61
(Example 9); 21 :59, 22:8-9 (Example 11 ); 22:65, 23: 13-14 (Example 13);
23:35, 43-44 (Example 14); 23:65, 24:12-13 (Example 15); 24:42, 51-52
(Example 16); 29:65, 30: 11-12 (Example 23); 30:46, 53-54 (Example 24);
31:23, 30-31(Example25); 32:6, 14-15 (Example 26); 33:25, 33-34
(Example 28); 33 :61, 34: 10-11 (Example 29); see also 34:42-43 (claim 1)
(claiming cosmetic composition comprising dimethicone gum having a
viscosity of 2,500,000 cSt at 25° C).) Drechsler further teaches an example
of a lip composition comprising 10.91 weight% silicone gum having a
viscosity of 1,000,000 cSt (dimethicone gum available as SE 30 from
General Electric). (Id. at 18:61, 19:9-10 (Example 6).)
11. Drechsler teaches that compositions of its invention "form[] a
thin[] but[] durable film resistant to transfer upon contact with objects such
as clothing, towels, han[ d]kerchiefs and tissues." (Id. at 1: 15-18; see also
id. at Abstract, 34: 55 (claim 2) (claiming a cosmetic composition that upon
application forms a transfer-resistant film as measured by dry blot and rub
test and oil blot and rub test).) Drechsler teaches that "[ c ]osmetic
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compositions applied to the skin providing transfer resistance are ... in great
demand." (Id. at 1:21-22.)
12. Drechsler teaches that "[t]here are a number of other
ingredients approved for use in the cosmetic art that may be used in
compositions of [its] invention," provided "their inclusion does not
significantly disrupt the composition once it has been applied wherein a film
has been formed." (Id. at 9:43-52.)
13. The Specification states that "[t]he present invention is founded
on the discovery that combinations of certain silicone polyurethane polymers
and elastomers provide a synergistic result in their long wearing, transfer[ -]
resistant properties for cosmetic compositions when applied to biological
surfaces." (Spec. ii 21.) The Specification states that, "[i]n one
embodiment, the elastomeric material will comprise a siloxane gum, in
particular a polyorganosiloxane gum." (Id. ii 46.) The Specification states
that, "[i]n a preferred embodiment ... the silicone gum is a
polydimethylsiloxane ( dimethcone ). " (Id. ii 52.)
Analysis
We conclude the balance of evidence supports the Examiner's
determination that claim 28 is obvious over the combination of Rando and
Dreschler. Rando teaches using a silicone polyurethane polymer in a
cosmetic composition to improve form-filming properties of the composition
and render the composition transfer-resistant. (FFl, FF3.) Rando further
teaches that the composition may contain silicones such as dimethicone.
(FF4, FF5.) Rando does not explicitly teach using dimethicone gum having
the claimed viscosity. However, Drechsler teaches cosmetic compositions
comprising diorganopolysiloxane polymers having viscosities ranging from
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about 1,000 to about 10,000,000 cSt at 25° C, and further teaches that the
compositions of its invention forms thin, durable films that are transfer-
resistant. (FF7, FF8, FFl 1.) Drechsler teaches that a particularly preferred
diorganopolysiloxane polymer is dimethicone-which Appellants'
Specification identifies as the polyorganosiloxane gum in a preferred
embodiment of the instant invention-and further teaches examples of
cosmetic compositions comprising dimethicone gum having a viscosity of
2,500,000 cSt. (FF9, FFlO, FF13.)
We agree with the Examiner's determination that a skilled artisan
would have had reason to include Drechsler' s diorganopolysiloxame
polymers, such as dimethicone gum having a viscosity of 2,500,000 cSt, in
Rando' s composition to arrive at the claimed invention, because Drechsler
discloses that its cosmetic composition comprising dimethicone gum
improves transfer resistance. (FF7-FF11; Non-Final Office Act. 5.) This is
particularly the case because Rando is also directed to cosmetic
compositions having improved transfer resistance, and "[i]t is primafacie
obvious to combine two compositions each of which is taught by the prior
art to be useful for the same purpose, in order to form a third composition to
be used for the very same purpose."5 In re Kerkhoven, 626 F.2d at 850. We
5 As discussed above, both Rando and Drechsler teach that their cosmetic
compositions have improved transfer resistance. (FF3, FFl 1.) Moreover,
with respect to the claim limitation "wherein the combination [of silicone
polyurethane polymer and polyorganosiloxane gum] provides an
improvement in water transfer resistance or oil transfer resistance," we also
find that the Examiner has sufficiently established that the claimed product
and the product rendered obvious by the prior art are "substantially
identical" such that the burden is properly shifted to Appellants to show that
the prior art product would not "necessarily or inherently possess the
characteristics of [the] claimed product," i.e., improvement in water or oil
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also find that a skilled artisan would have a reasonable expectation of
success in combining Rando and Drechsler to arrive at the claimed
invention: both Rando and Drechsler teach that their compositions may
contain other ingredients approved for use in the cosmetic art (FF4, FF12),
and Rando teaches that its composition may include silicones such as
dimethicone, even if Rando does not explicitly discuss dimethicone having
the claimed viscosity (FF4-FF6).
Finally, with respect to the claimed weight ratio range of silicone
polyurethane polymer to polyorganosiloxane gum (50: 1 to 1 :50 in claim 28),
we note that "where 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." In re Aller, 220 F.2d 454, 456 (CCPA 1955).
Here, Rando and Drechsler render obvious the general combination of
silicone polyurethane polymer and polyorganosiloxane gum, and further
suggests that the weight percentages of ingredients in a cosmetic
composition are result effective variables. (FF2 (amount of silicone-
containing polyurethane in composition ranges from 0.25 to 40%), FF6
(examples comprising 0.8% and 10.00% silicone polyurethane), FFlO
(examples comprising 2.52% to 12.60% dimethicone gum).) Thus, we find
that the weight ratio claim limitation does not render claim 28 non-obvious.
We have considered Appellants' arguments, but do not find them
persuasive. Appellants first contend that the Examiner relied on
impermissible hindsight and that a skilled artisan would have had no reason
to combine Rando and Drechsler because Rando mentions dimethicone only
transfer resistance. In re Best, 562 F.2d 1252, 1255 (CCPA 1977) (citation
omitted).
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as a solvent and "in no way suggests the inclusion of a polyorganosiloxane
gum." (Appeal Br. 3--4.)
As the Examiner points out, however, "one cannot show
nonobviousness by attacking references individually where the rejections are
based on combinations of references." (Ans. 3 (citing In re Keller, 642 F.2d
413 (CCPA 1981) andin re Merck& Co., 800F.2d1091 (Fed. Cir. 1986)).)
As the Examiner reasoned and as explained above, a skilled artisan would
have had reason to include polyorganosiloxane gum with the claimed
viscosity in Rando's transfer-resistant cosmetic composition, because
Drechsler teaches that such gum also contributes to transfer resistance (e.g.,
when used in combination with organosiloxane resins and a volatile carrier)
in cosmetic compositions and that increased transfer resistance is
advantageous in (or sought-after by wearers of) cosmetics. (Ans. 2-3; FF7-
FF1 l.)
Appellants next argue that the claimed subject matter exhibits
unexpected results. (Appeal Br. 5-7; Reply Br. 2-6.) In particular,
Appellants contend that the combination of silicone polyurethane polymer
and polyorganosiloxane gum "demonstrates unexpectedly superior transfer
resistance as compared to either component alone." (Appeal Br. 5.)
We are not persuaded. Appellants essentially argue that the claimed
combination of silicone polyurethane polymer and polyorganosiloxane gum
is non-obvious because the combination achieves synergistic results. (Id.)
As an initial matter, we are not convinced that Appellants have persuasively
shown that the claimed combination demonstrates synergy. As the
Examiner points out, the increase in water and/or oil transfer resistance in a
composition containing both silicone polyurethane polymer and
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polyorganosiloxane gum may be merely additive and, therefore, not
unexpected. (Ans. 3--4.)
In response, Appellants contend in their Reply Brief that
[ o ]ne of ordinary skill in the art reading Appellant[ s '] specification
would understand that the [transfer resistance] score based on the Star
Grading System is a qualitative and relative measurement of transfer
resistance and thus, is not simply additive. . . . Two samples both
having a score of 4 when combined, are likely to remain 4.
(Reply Br. 3.) However, unexpected results must be established by factual
evidence rather than mere attorney argument. In re Geisler, 116 F.3d 1465,
1470 (Fed. Cir. 1997). Appellants contend that the data set forth in Example
IV and Figure 1 of the Specification supports their argument because,
"contrary to the Examiner's position that the more transfer-resistant
compound is present, the stronger transfer resistance is, water transfer
resistance stays constant between 4% and 18 % of silicone polyurethane in
the absence of polyorganosiloxane gum." (Reply Br. 4.) Thus, Appellants
argue that the increase in water resistance observed when silicone gum is
added to the silicone polyurethane composition shows that there is a
synergistic effect in the combination. (Id. at 4-5.)
We are not persuaded. The fact that increasing the concentration of
one compound (silicone polyurethane) over a particular range does not result
in increased transfer resistance does not necessarily suggest that no additive
effect should be expected when a different compound (polyorganosiloxane
gum), also known to increase transfer-resistance, is added to the
composition.
More importantly, as the Examiner also points out, "[ s ]ynergism, in
and of itself, is not conclusive of unobviousness in that synergism might be
expected." In re Kollman, 595 F.2d 48, 55 n.6 (CCPA 1979); see also In re
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Huellmantel, 324 F.2d 998, 1003 (CCPA 1963) ("[W]e attribute no magic
status to synergism per se since it may be expected or unexpected.").
Appellants contend in their briefs that the alleged synergism in the claimed
combination is unexpected (see, e.g., Reply Br. 6); however, as already
discussed, unexpected results must be established by factual evidence rather
than mere attorney argument. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir.
1997).
We further note that "[i]t is well established that the objective
evidence of nonobviousness must be commensurate in scope with the
claims." In re Lindner, 457 F.2d 506, 508 (CCPA 1972). In this case, the
claims are not limited to particular silicone polyurethane polymers or
polyorganosiloxane gums having the claimed viscosity. However,
Appellants provide data for only a single silicone polyurethane/silicone gum
combination (i.e., Silicone Polyurethane MR-20-41 (Siltech Corp.) and
Silicone Gum SE 63 (GE Silicones). (Spec. ,-i,-i 79, 88, 99, 116.) Likewise,
claim 28 encompasses weight ratios of silicone polyurethane polymer to
polyorganosiloxane gum from about 50: 1 to about 1 :50. However,
Appellants provide data for only compositions wherein the weight ratios of
silicone polyurethane polymer to polyorganosiloxane gum ranges from 4: 1
to 1 :2. (Id.) Thus, we find that, even if the evidence Appellants provided
was persuasive of nonobviousness as to certain claimed formulations, such
evidence is not commensurate with the scope of the claims.
Finally, we note that "when unexpected results are used as evidence of
nonobviousness, the results must be shown to be unexpected compared with
the closest prior art." In re Baxter Travenol Labs., 952 F.2d 388, 392 (Fed.
Cir. 1991 ). In this case, the closest prior art of record is found in the
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compositions taught in Rando, which contain both silicone polyurethane
polymer as well as dimethicone, albeit not necessarily dimethicone having
the claimed viscosity. (FF6.) Appellants have not provided comparisons of
the claimed invention with the compositions disclosed in Rando, and we find
Appellants' unexpected results argument to be unpersuasive for this reason
as well. Accordingly, we affirm the Examiner's rejection of claim 28.
Appellants made no specific argument with respect to dependent
claims 29-33, 35, and 36, except for the following statement:
[T]he Examiner fails to separately address dependent claims 29-33
which variably limit the ratio of the silicone polyurethane to the
polyorganosiloxane gum from 25: 1 to 1 :25 (claim 29), 10: 1 to 1: 10
(claim 30), 5:1to1:5 (claim 31), 3:1to1:3 (claim 32), and 2:1to1:2
(claim 33). If the Examiner contends that the unexpected results are
not commensurate with these claims, she was required to provide an
explanation as to why the data do not reasonably represent their full
scope.
(Appeal Br. 7; Reply Br. 6.) We do not find Appellants' conclusory
statement to constitute separate argument regarding the patentability of
claims 29-33. Merely stating the different limitations of dependent claims
does not constitute separate argument. In re Dance, 160 F.3d 1339, 1340
n.2 (Fed. Cir. 1998) ("Although Dance mentions the content of the
dependent claims, he does not argue their merits separately from those of
independent claim 33, or attempt to distinguish them from the prior art. Nor
were the dependent claims argued separately before the Board. Therefore,
all claims stand or fall together with claim 33."). Moreover, we find that the
Examiner's response with respect to Appellants' unexpected results
argument-that Appellants have not persuasively shown why the results
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were unexpected-applies to the dependent claims as well as claim 28. 6
Accordingly, claims 29-33, 35, and 36 fall with claim 28.
SUMMARY
For the reasons above, we affirm the Examiner's decision rejecting
claims 28-33, 35, and 36 as obvious over Rando and Drechsler.
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. § l .136(a).
AFFIRMED
6 To the extent Appellants argue that the data cited in the Specification or the
briefs shows unexpected results commensurate with the narrower scope of
the dependent claims, we disagree. As discussed above, Appellants
provided transfer resistance data only for a single combination of silicone
polyurethane polymer and polyorganosiloxane gum. None of the dependent
claims, however, are limited to that single combination. Likewise, many of
the dependent claims encompass weight ratios of silicone polyurethane
polymer to polyorganosiloxane gum outside of the range for which
Appellants have provided data. Appellants have not provided an adequate
basis to support the conclusion that other embodiments falling within the
claims will behave in the same manner as the limited number of
embodiments for which transfer resistance data has been provided.
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