Nohbo, LLC

Patent Trials and Appeals Board

Sep 24, 2020

16149483 - (D) (P.T.A.B. Sep. 24, 2020)

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.
16/149,483 10/02/2018 Benjamin Gabriel STERN 1927-005DIV1 4799
22208 7590 09/24/2020
THE MARBURY LAW GROUP, PLLC
11800 SUNRISE VALLEY DRIVE
15TH FLOOR
RESTON, VA 20191
EXAMINER
ALLEY, GENEVIEVE S
ART UNIT PAPER NUMBER
1617
NOTIFICATION DATE DELIVERY MODE
09/24/2020 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):
ptonotices@marburylaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte BENJAMIN GABRIEL STERN, ROBERT HUTTON RAY,
JAMES J. RAMIREZ, and MATTHEW GERNSTEIN
__________

Appeal 2020-001091
Application 16/149,483
Technology Center 1600
__________

Before JEFFREY N. FREDMAN, MICHAEL A. VALEK, and
JAMIE T. WISZ, Administrative Patent Judges.

FREDMAN, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal1,2 under 35 U.S.C. § 134(a) involving claims to a
hygiene product comprising about 40 wt% to about 70 wt% of butylene
glycol and surfactant. The Examiner rejected the claims as obvious. We
have jurisdiction under 35 U.S.C. § 6(b). We affirm.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the Real Party in Interest as Nohbo, LLC
(see Appeal Br. 2).
2 We have considered the Specification of October 2, 2018 (“Spec.”); Final
Office Action of Feb. 21, 2019 (“Final Action”); Appeal Brief of July 1,
2019 (“Appeal Br.”); Examiner’s Answer of Sept. 19, 2019 (“Ans.”); and
Reply Brief of Nov. 18, 2019 (“Reply Br.”).
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Statement of the Case
Background
“Hygiene products, such as shampoo, bodywash, shaving cream, and
conditioner are usually . . . provided in small bottles for use in the hospitality
and/or travel industries” (Spec. ¶¶ 3, 4). “However, the small bottles of
shampoo/conditioner/shaving cream generally found in the hospitality
industry have a high packaging to product ratio, which contributes to higher
costs and excessive amounts of waste” (id. ¶ 4). The Specification teaches
“a single-use hygiene product pod having a water-soluble envelope and a
hygiene product sealed in the envelope, in which the hygiene product
includes a carrier comprising butylene glycol in an amount ranging from
about 40 wt% to about 70 wt%” (id. ¶ 7).
The Claims
Claims 1–11 are on appeal. Claim 1 is an independent claim, is
representative and reads as follows:
1. A hygiene product comprising:
a carrier comprising butylene glycol in an amount ranging
from about 40 wt% to about 70 wt%, based on the total weight
of the hygiene product; and
an active agent comprising at least one surfactant.

The Rejections
A. The Examiner rejected claims 1–4 and 9 under U.S.C. § 103(a) as
obvious over Wiesche3 and Jeong4 (Final Act. 3–6).
B. The Examiner rejected claims 5 and 6 under U.S.C. § 103(a) as

3 Schulze Zur Wiesche et al., WO 2012/055584 A2, published May 3, 2012
(“Wiesche”).
4 Jeong, S., US 2016/0143833A1, published May 26, 2016 (“Jeong”).
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obvious over Wiesche, Jeong, and Vainshelboim5 (Final Act. 6–8).
C. The Examiner rejected claim 7 under U.S.C. § 103(a) as obvious over
Wiesche, Jeong, and Hilvert6 (Final Act. 9–11).
D. The Examiner rejected claim 8 under U.S.C. § 103(a) as obvious over
Wiesche, Jeong, and Hohenstein7 (Final Act. 11–13).
E. The Examiner rejected claims 1–4 and 9–11 under U.S.C. § 103(a) as
obvious over Labeque,8 Wiesche, and Jeong (Final Act. 14–17).

A. 35 U.S.C. § 103(a) over Wiesche and Jeong
The Examiner finds Wiesche teaches a “hair treatment composition
containing, based on their weight, (a) 0.01-40 wt% of 3-methyl-1,3-
butanediol (aka isopentyldiol) and (b) 0.1-40 wt% alkylpolyglycoside(s)
(surfactants)” (Final Act. 4). The Examiner finds “3-methyl-1,3-butanediol
has nourishing and moisturizing properties, and in combination with
surfactant(s), leads to improved softness and suppleness of the hair” (id. at
5). The Examiner acknowledges that Wiesche does “not teach wherein the
butylene glycol is specifically 1,3-butanediol” (id.).
The Examiner finds Jeong teaches “a bubble type waterless shampoo
composition. Jeong teaches that butylene glycol have functions of providing
skin stimulus release and scalp moisturizing” (Final Act. 5). The Examiner
finds it obvious “to substitute equivalents, each of which is taught by the

5 Vainshelboim et al., US 2010/0313362 A1, published Dec. 16, 2010
(“Vainshelboim”).
6 Hilvert et al., US 2013/0090279 A1, published Apr. 11, 2013 (“Hilvert”).
7 Hohenstein et al., US 6,566,313 B1, issued May 20, 2003 (“Hohenstein”).
8 Labeque et al., US 2017/0298216 A1, published Oct. 19, 2017
(“Labeque”).
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prior art to be useful for the same purpose (3-methyl-1,3- butanediol and
1,3-butanediol for the purpose of providing moisturization to the hair/scalp)”
(id.).
The issues with respect to this rejection are:
(i) Does a preponderance of the evidence of record support the
Examiner’s conclusion that Wiesche and Jeong render the claims obvious?
(ii) If so, has Appellant provided evidence of unexpected results that
outweighs the evidence supporting the prima facie case of obviousness?
Findings of Fact
1. Wiesche teaches: “Hair cleaning products which have increased
hair care effect and particularly improve softness, suppleness and shine of
the hair contain, based on their weight, 0.01 to 40% of weight of 3-methyl-
1,3-butanediol and 0.1 to 40% by weight of alkyl polyglycoside(s)”
(Wiesche, code [57]).
2. Wiesche teaches “3-methyl-1,3-butanediol . . . which is also
referred to as isopentyldiol, has nourishing and moisturizing properties and,
in combination with surfactant (s), leads to improved softness and
suppleness of the hair” (Wiesche translation 1).
3. Jeong teaches a “bubble type waterless shampoo composition
further includes any one or more of . . . 3 to 5 wt% of butylenes glycol
having functions of providing skin stimulus release and scalp moisturizing”
(Jeong ¶ 18).
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4. The structure of 3-methyl-1,3-butanediol is shown below:
1
2
3
4
HO
OH
3-methyl-1,3 butanediol
5. The structure of 1,3 butanediol (a type of butylene glycol) is
shown below:
OH
HO 4
3
2
1
1,3 butanediol
Principles of Law
The Examiner has the initial burden of establishing a prima facie case
obviousness under 35 U.S.C. § 103. In re Oetiker, 977 F.2d 1443, 1445
(Fed. Cir. 1992). “The combination of familiar elements according to
known methods is likely to be obvious when it does no more than yield
predictable results.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416
(2007).
Prima facie obviousness can be rebutted by presenting evidence of
secondary considerations and when such evidence is submitted, all of the
evidence must be considered anew. In re Piasecki, 745 F.2d 1468, 1472-
1473 (Fed. Cir. 1984). Secondary considerations include: long-felt but
unsolved needs, failure of others, unexpected results, commercial success,
copying, licensing, and praise. In re Rouffet, 149 F.3d 1350, 1355 (Fed. Cir.
1998).
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Analysis
We adopt the Examiner’s findings of fact and conclusion of law (see
Final Act. 3–6, FF 1–5) and agree that Wiesche and Jeong render claim 1
obvious. We address Appellant’s arguments below.
Obviousness
Appellant acknowledges that Wiesche discloses isopentyldiol but
contends in claim 1, “butylene glycol may refer to one of four different
stable butanediol structural isomers, namely: 1,2-butanediol, 1,3- butanediol,
1,4-butanediol, or 2,3-butanediol. In other words, butylene glycol is not a
methylated diol, such as isopentyldiol. Therefore, Wiesche fails to disclose
that the hair composition may include butylene glycol” (Appeal Br. 6).
Appellant contends “Jeong discloses compositions that include, at most, 5
wt% butylene glycol” (id. at 7). Appellant also asserts that “butylene glycol
and isopentyldiol are not homologs, analogs, or isomers of one another”
(Reply Br. 5).
We find these arguments unpersuasive because they fails to combine
the teachings of Wiesche and Jeong. “Non-obviousness cannot be
established by attacking references individually where the rejection is based
upon the teachings of a combination of references. . . . [The reference] must
be read, not in isolation, but for what it fairly teaches in combination with
the prior art as a whole.” In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir.
1986). As Appellant acknowledges, butylene glycol may refer to 1,3-
butanediol (FF 5) disclosed by Jeong as a useful moisturizing agent in
shampoo (FF 3) while Wiesche teaches isopentyldiol (also known as 3-
methyl-1,3-butanediol) as a useful moisturizing agent in shampoo (FF 2, 4).
These compounds differ by a single methyl group and are therefore
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reasonably understood as homologs (see FF 4–5). “A homologous series is a
family of chemically related compounds, the composition of which varies
from member to member by CH2.” In re Henze, 181 F.2d 196, 200 (CCPA
1950). Thus, the Examiner reasonably finds that it would have been obvious
to substitute one known homologous9 moisturizing agent for another, using
the amounts desired by Wiesche. Wrigley found a “strong case of
obviousness” based on a claim that “recites a combination of elements that
were all known in the prior art, and all that was required to obtain that
combination was to substitute one well-known . . . agent for another.” Wm.
Wrigley Jr. Co. v. Cadbury Adams USA LLC, 683 F.3d 1356, 1364 (Fed.
Cir. 2012).
Appellant contends Wiesche “fails to teach or suggest that any other
diols, such as butylene glycol, may be substituted for isopentyldiol in the
disclosed composition and still provide the same ‘special care action’, when
used in conjunction with APG surfactants” (Appeal Br. 7). Appellant asserts
that “Jeong discloses that butylene glycol provides skin stimulus release and
scalp moisturizing, and Labeque discloses that butylene glycol operates as
an organic solvent. Therefore, the cited art teaches that isopentyldiol and
butylene glycol perform different functions, namely treating the skin or
treating the hair and operating as a solvent” (id. at 8).

9 “[I]f an examiner considers that he has found prior art close enough to the
claimed invention to give one skilled in the relevant chemical art the
motivation to make close relatives (homologs, analogs, isomers, etc.) of the
prior art compound(s), then there arises what has been called a presumption
of obviousness or a prima facie case of obviousness.” In re Dillon, 919 F.2d
688, 696 (Fed. Cir. 1990) (en banc).
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We are not persuaded regarding the “special care action” because this
is not a requirement of claim 1 and Wiesche specifically teaches that 3-
methyl-1,3-butanediol “has nourishing and moisturizing properties and, in
combination with surfactant (s), leads to improved softness and suppleness
of the hair” (FF 2). Therefore, the properties necessary for an obvious
equivalent of the 3-methyl-1,3-butanediol in Wiesche would have been
nourishing and moisturizing and Jeong teaches “butylenes glycol having
functions of providing skin stimulus release and scalp moisturizing” (FF 3)
such as 1,3- butanediol.
As to Labeque’s teaching that butylene glycol operates as an organic
solvent, while Labeque is not relied upon in this rejection, Labeque teaches
water soluble pouches that may contain shampoos (see Labeque ¶ 129) and
use 1,3 butanediol as an organic solvent where “solvent ranges are from
about 5% to about 60%” (Labeque ¶ 139). That Labeque teaches an
additional function of 1,3 butanediol does not detract from its use as a
moisturizing agent (FF 3). Indeed, the ordinary artisan informed by Jeong
that 1,3 butanediol is a useful moisturizing agent in shampoo and informed
by Labeque that 1,3 butanediol is also a useful solvent would have
reasonably found it useful to select 1,3 butanediol in order to obtain both
desirable properties. “If a person of ordinary skill can implement a
predictable variation, § 103 likely bars its patentability.” KSR, 550 U.S. at
417. “A person of ordinary skill is also a person of ordinary creativity, not
an automaton.” Id. at 421.
Appellant contends the “Examiner inexplicably concludes that a
skilled artisan would have replaced one of the essential ingredient with a
non-essential additive” (Appeal Br. 9). Appellant contends “the Examiner
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failed to provide any reason a skilled artisan would have disregarded the
teachings of Wiesche by excluding an essential element of the composition
in favor of an additive that is not taught to provide the same benefits as the
essential ingredients” (id.). Appellant further asserts:
Wiesche also fails to teach or suggest that any other diols, such
as butylene glycol, can be substituted for isopentyldiol. To the
contrary, Wiesche discloses that “known active ingredients
cannot cover all needs sufficiently.” See Wiesche translation,
p. 1, ¶(emphasis added). Accordingly, Wiesche teaches
against using other ingredients in place of isopentyldiol.
(Reply Br. 4).
We find this argument unpersuasive because the Examiner’s
reasoning is explicable, based on the structural similarity of 1,3 butanediol
and 3-methyl-1,3-butanediol (FF 4–5) as well as the shared functionality of
serving as a moisturizer in shampoo compositions (FF 2–3). We also are not
persuaded by Appellant’s teaching away argument because Wiesche does
not criticize, discredit, or otherwise discourage the obvious substitution. In
re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). That is, that Wiesche fails
to teach obvious equivalent components does not represent a teaching away
from their use. Indeed, even if there were a teaching in Wiesche that other
known moisturizers were non-preferred (which there is not), disclosed
examples and preferred embodiments do not constitute a teaching away from
a broader disclosure or non-preferred embodiments. In re Susi, 440 F.2d
442, 446 n.3 (CCPA 1971).
Secondary considerations
Appellant asserts that
the present inventors tested a multitude of nonaqueous solvents,
including various diols, in an effort to provide an
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encapsulatable hygiene product having an acceptable
consistency, stability, and envelope compatibility. See
Specification, ¶¶ [0085]-[0099]. For example, Composition 22
of the present disclosure included 40 wt% of propylene glycol
and had an acceptable consistency, and stability, but was found
to rapidly dissolve a PVOH envelope, thereby rendering it
unsuitable. See id., ¶¶ [0094]-[0095].
(Appeal Br. 17). Appellant also asserts the inventors “unexpectedly
discovered that hygiene compositions that included elevated amounts of the
seemingly similar diol, butylene glycol, exhibited not only an acceptable
consistency and stability, but also exhibited unexpectedly high envelope
compatibility” (id.).
We find this argument unpersuasive for several reasons. First, that
one of the tested compositions, composition 22, that used propylene glycol
but did not use 3-methyl-1,3-butanediol failed to work provides no evidence
regarding the efficacy or usefulness of 3-methyl-1,3-butanediol in the
composition. Instead, this is simply attorney argument without evidence
regarding the rejection as presented by the Examiner. See In re De Blauwe,
736 F.2d 699, 705 (Fed. Cir. 1984)
Second, the results disclosed in the Specification arenot
commensurate in scope with the range in claim 1 of 40 to 70% of 1,3
butanediol. Indeed, Table 1 of the Specification shows that values from 60
to 70% of 1,3 butanediol do not function but rather “exhibited phase
separation” or “an overly dense creamy solid” (Spec. ¶ 87). The only
compositions tested below 59% in the range from 40% to 59%,
compositions 23–26, all showed undesirable properties including “poor
performance,” “phase separation,” and “moderate gelation” (see Spec. ¶ 98).
Only compositions 28 and 29, using 59.35% and 59.25% 1,3 butanediol
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respectively, resulted in successful compositions (see Spec. ¶ 99).
Therefore, the unexpected results data for either 59.25% and 59.35% is not
commensurate in scope with claim 1. We note that even these two narrow
experiments also are not commensurate in scope with the surfactant range of
12% to 18% in claim 7.
Third, the asserted unexpected results were not compared to the
closest prior art of Wiesche, who discloses the use of up to 40% 3-methyl-
1,3-butanediol (FF 1). See In re Baxter Travenol Labs., 952 F.2d 388, 392
(Fed. Cir. 1991) (“[W]hen unexpected results are used as evidence of
nonobviousness, the results must be shown to be unexpected compared with
the closest prior art.”).
Fourth, we are not persuaded by Appellant’s argument that amounts
of 1,3-butanediol were not recognized as optimizable variables (see Appeal
Br. 17), because Wiesche teaches that the amount of 3-methyl-1,3-
butanediol is a moisturizing ingredient and provides a range for that
ingredient (FF 1–2) and Jeong also teaches that 1,3-butanediol is a
moisturizing agent (FF 3). Thus, the ordinary artisan would have recognized
that the amount of 1,3-butanediol would impact the moisturizing ability of
the shampoo composition and therefore be an optimizable variable.
“[D]iscovery of an optimum value of a result effective variable . . . is
ordinarily within the skill of the art.” In re Boesch, 617 F.2d 272, 276
(CCPA 1980).
Conclusion of Law
(i) A preponderance of the evidence of record supports the Examiner’s
conclusion that Wiesche and Jeong render the claims obvious.
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(ii) Appellant has not provided evidence of unexpected results that
outweighs the evidence supporting the prima facie case of obviousness.

B.–D. U.S.C. § 103(a) over Wiesche and Jeong and further with
Vainshelboim, Hilvert, or Hohenstein
Appellant does not separately argue these three obviousness rejections
based on Wiesche and Jeong. As set forth above, we found no deficiency in
the Examiner’s rejection. Thus, Appellant fails to establish error in the
Examiner’s prima facie case as it relates to the rejection of the remaining
claims in these further obviousness rejections.

E. U.S.C. § 103(a) over Labeque, Wiesche, and Jeong
The Examiner finds Labeque teaches “a pouch that include a water-
soluble film and a composition at least partially enclosed by the water-
soluble film in at least one compartment, where the water-soluble film
includes a polyvinyl alcohol (PVOH) resin blend” (Final Act. 14). The
Examiner finds Labeque teaches that “the composition within the pouch
comprises a household care composition which includes a shampoo or body
wash” (id.).
The Examiner acknowledges that Labeque does “not teach the
hygiene product comprising 40-70 wt% butylene glycol (i.e., 1,3-butanediol)
and an active agent comprising at least one surfactant (45-50 wt%)” (Final
Act. 14–15). The Examiner finds, as discussed above, that Wiesche teaches
“3-methyl-1,3-butanediol has nourishing and moisturizing properties, and in
combination with surfactant(s), leads to improved softness and suppleness of
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the hair” and Jeong teaches “butylene glycol have functions of providing
skin stimulus release and scalp moisturizing” in a shampoo composition (id.
at 15).
The Examiner finds it obvious to select the homolog of Wiesche’s 3-
methyl-1,3-butanediol in Jeong’s 1,3-butanediol as an obvious equivalent
shampoo component for use in the Labeque pouch composition because of
its known nourishing and moisturizing properties (see Final Act. 16–17).
The issues with respect to this rejection are:
(i) Does a preponderance of the evidence of record support the
Examiner’s conclusion that Labeque, Wiesche, and Jeong render the claims
obvious?
(ii) If so, has Appellant provided evidence of unexpected results that
outweighs the evidence supporting the prima facie case of obviousness?
Findings of Fact
6. Labeque teaches “pouches that include a water-soluble film and
a composition at least partially enclosed by the water-soluble film in at least
one compartment, where the water-soluble film includes a polyvinyl alcohol
(PVOH) resin blend” (Labeque ¶ 1).
7. Labeque teaches pouches may contain “shampoos, body
washes, other personal care compositions” (Labeque ¶ 36).
8. Labeque teaches “detergent compositions can comprise from
about 1 % to 80% by weight of a surfactant. Surfactant is particularly
preferred as a component of the first composition” (Labeque ¶ 132).
9. Labeque teaches that the solvent system can include “mixtures
of organic solvents with water” where the organic solvent includes “1,3
butanediol” (Labeque ¶ 139).
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10. Labeque teaches that the solvent system may be “at least about
1 % to about 50%” by weight of the composition but contain “about 5% to
about 12%, by weight of the composition, of water” (Labeque ¶ 139).
11. Labeque teaches that “glycerol may be present in an amount
less than about 15%, preferably less than about 10%, of the total
composition by weight” (Labeque ¶ 139).
12. Labeque teaches the
choice of solvent type and level is used to control final pouch
quality, including phase stability of the liquid ingredients, the
tightness/floppiness of the pouch, pouch strength and to control
the diffusion of chemistry through the film. Without wishing to
be bound by theory it is believed that preferred solvent systems
(as described above) ensure a good balance of film
plasticization. If the system contains too much water and
glycerol, then the pouches become too floppy, and at too low a
level, the pouches can become too brittle.
(Labeque ¶ 140).
13. Labeque teaches that a pouch “provides for accurate dosing
while eliminating the need for the consumer to measure the composition.
The pouch may also reduce mess that would be associated with dispensing a
similar composition from a vessel” (Labeque ¶ 2).
Analysis
We adopt the Examiner’s findings of fact and conclusion of law (see
Final Act. 14–17, FF 1–13) and agree that Labeque, Wiesche, and Jeong
render the rejected claims obvious. We address Appellant’s arguments
below.
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Obviousness
Appellant contends
contrary to the assertion of the Examiner, Labeque’s teaching
that the composition may include up to about 98% by weight of
the solvent system fails to teach or suggest that the composition
includes an organic solvent (e.g., butylene glycol) concentration
of greater than 15% by weight. In fact, Labeque specifically
limits water and glycol content to less than 20 wt%.
(Appeal Br. 12).
We find this argument unpersuasive as the Examiner also finds that it
would have been obvious to fill the Labeque pouch, taught by Labeque for
use with shampoos (FF 7), with the obvious shampoo composition of
Wiesche and Jeong (FF 1–3; see Ans. 4–5). Consequently, while this
argument may be responsive to some of the Examiner’s reasoning, it does
not address the totality of the art in combination.10 Merck, 800 F.2d at 1097.
Appellant contends
Jeong is directed to a dry shampoo composition that is designed
to be used without water. In contrast, Labeque is directed to a
pouch that is designed to rapidly and completely dissolve in
water. As such, a skilled artisan would not look to apply the
teaching of a dry shampoo composition by Jeong to the wet
shampoo compositions of Labeque, since the two compositions
are taught to be configured to operate in completely different

10 While we agree with Appellant that Labeque prefers glycol concentrations
less than 15% (FF 11) and does not specifically disclose solvent systems
with 40 to 70% butylene glycol, Labeque does teach the use of 1,3
butanediol (FF 9) in a solvent system that may be up to 50% of the weight of
the composition and comprise as little as 5% water by weight (FF 10). That
would result in a shampoo solvent system 45% weight of an organic solvent
like 1,3 butanediol and 5% by weight of water, well within the scope of
claims 1 and 11. We do not, however, rely upon this reasoning because it
was not articulated by the Examiner in the rejection.
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environments and through different methods of application,
namely, via aqueous application vs. non-aqueous application.
(Appeal Br. 13).
We find this argument unpersuasive because it fails to address the
references as combined. The Examiner relies upon Jeong simply to show
that 1,3-butanediol is an obvious equivalent of Wiesche’s 3-methyl-1,3-
butanediol because both are shampoo components used for moisturizing (FF
1–3) and therefore it would have been obvious to include Jeong’s 1,3-
butanediol in Wiesche’s shampoo composition as a substitute for 3-methyl-
1,3-butanediol. Wiesche’s shampoo composition, using 1,3-butanediol, also
includes aqueous components (see, e.g., Wiesche Translation 17 “water ad
100”). Labeque teaches to use pouches for accurate dosing and reducing
mess which minimizes shampoo waste (FF 13).
Appellant contends “Wiesche and Jeong fail to provide any evidence
that butylene glycol and isopentyldiol are functionally equivalent
compounds” (Appeal Br. 13).
We find this argument unpersuasive for the reasons already given,
including based on the structural similarity of 1,3 butanediol and 3-methyl-
1,3-butanediol (FF 4–5) as well as the shared functionality of both
compounds serving as a moisturizer in shampoo compositions (FF 2–3).
Appellant contends “there is no evidence in the record that increasing
the amount of butylene glycol in the composition of Labeque would be
beneficial in providing a desired amount of moisture to the hair” (Appeal Br.
14). Appellant further contends “Labeque teaches away from including
more than 15 wt% organic solvent in the disclosed pouches, since doing so
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may negatively affect pouch strength and diffusion chemistry, as well as the
phase stability of the liquid ingredients” (id. at 15).
We find these arguments unpersuasive. We find the focus on Labeque
unpersuasive because Wiesche specifically suggests that up to 40% of 3-
methyl-1,3-butanediol may be used as a moisturizer in a shampoo
composition (FF 1). Thus, this argument fails to address the references in
combination. As to the teaching away argument, Labeque never teaches that
any specific amount of glycol has any negative effects whatsoever (FF 10–
11). Instead, Labeque teaches that the solvent system may be optimized to
maximize film plasticization but does not provide any specific details on
amounts of glycol that are too much. Consequently, Labeque does not
criticize, discredit, or otherwise teach away from incorporating shampoo
compositions such as the obvious shampoo composition of Wiesche and
Jeong into the pouch of Labeque. See In re Fulton, 391 F.3d 1195, 1201
(Fed. Cir. 2004).
Secondary Considerations
We find the secondary consideration evidence unpersuasive for the
reasons already given above and incorporate them into this analysis.
Conclusion of Law
(i) A preponderance of the evidence of record supports the Examiner’s
conclusion that Labeque, Wiesche, and Jeong render the claims obvious.
(ii) Appellant has not provided evidence of unexpected results that
outweighs the evidence supporting the prima facie case of obviousness.

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CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–4, 9 103 Wiesche, Jeong 1–4, 9
5, 6 103 Wiesche, Jeong,
Vainshelboim
5, 6
7 103 Wiesche, Jeong,
Hilvert
7
8 103 Wiesche, Jeong,
Hohenstein
8
1–4, 9–11 103 Labeque, Wiesche,
Jeong
1–4, 9–11
Overall
Outcome
1–11

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