Stephanie Von Der Fecht et al.

Patent Trials and Appeals Board

May 18, 2020

14376981 - (R) (P.T.A.B. May. 18, 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.
14/376,981 08/06/2014 Stephanie Von Der Fecht 3321-P50151 7415
13897 7590 05/18/2020
Abel Schillinger, LLP
5929 Balcones Drive
Suite 300
Austin, TX 78731
EXAMINER
BABSON, NICOLE PLOURDE
ART UNIT PAPER NUMBER
1619
NOTIFICATION DATE DELIVERY MODE
05/18/2020 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):
hmuensterer@abel-ip.com
mail@Abel-IP.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
________________

Ex parte STEPHANIE VON DER FECHT,
SVENJA LENA MOELLGAARD,
ISABEL BALCKE, and PETRA KOCH1
________________

Appeal 2018-009084
Application 14/376,981
Technology Center 1600
________________

Before ULRIKE W. JENKS, JOHN G. NEW, and
ELIZABETH A. LAVIER, Administrative Patent Judges.

NEW, Administrative Patent Judge.

DECISION ON REQUEST FOR REHEARING

1 We use the word “Appellant” to refer to the “applicant” as defined in
37 C.F.R. § 1.142. Appellant identifies Beiersdorf AG as the real party-in-
interest. App. Br. 3.
Appeal 2019–009084
Application 14/376,981

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SUMMARY
Appellant has filed a Request for Rehearing (hereinafter the
“Request”) under 37 C.F.R. § 41.52(a)(1) for reconsideration of our
Decision of February 3, 2020 (the “Decision”). The Decision affirmed the
Examiner’s rejection of claims 58–75, 78, and 79 as unpatentable under
35 U.S.C. § 103 and under the nonstatutory doctrine of obviousness-type
double patenting. Decision 17.
Specifically, Appellant seeks reconsideration of our Decision
affirming the Examiner’s rejection of claims 65–67 and 75 as unpatentable
under 35 U.S.C. § 103 as being obvious over the combination of Giuliani et
al. (US 2012/0020902 Al, January 26, 2012) (“Giuliani”), Degussa, Isolan®
GPS, Emulsifier for Low Viscous W/O Lotions (of record) (“Degussa”), and
J. Meyer et al., A Novel-PEG Free Emulsifier Designed for Formulating
W/O Lotions with a Light Skin Feel, 131(11) J. SEIFEN, OELE, FETTE,
WACHSE 20–28 (2005) (“Meyer”). Request 1.
Specifically, Appellant contends that the Board misapprehended the
record in that the Examiner provided no evidence whatsoever that any of the
C10–18 triglycerides, C12–15 alkyl benzoate, butylenes glycol
dicaprate/dicaprylate, diisopropyl sebacate, behenyl alcohol and squalene
listed in Example 2 qualify as skin moisturizers. Request 2.

Analysis
Appellant points to the Decision, which states:
The Examiner has made a finding of fact that “C10–18
triglycerides, C12–15 alkyl benzoate, butylenes glycol
dicaprate/dicaprylate, diisopropyl sebacate, behenyl alcohol,
glycerin and squalene” listed in Example 2 are agents acting as
Appeal 2019–009084
Application 14/376,981

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skin moisturizers. Appellant adduces no evidence to rebut the
Examiner’s finding, or to establish that a skilled artisan would
not have considered these compounds as being capable of acting
as skin moisturizers. Instead, Appellant merely gainsays the
Examiner’s finding of fact. Nor does Appellant offer any proof
why the “constituents of the oil phase” of Example 2 could not
act as skin moisturizers. Such assertions, unsupported by factual
evidence or testimony are inadequate to overcome the
Examiner’s findings.

Request 2 (quoting Decision 12–13). Appellant contends that the Examiner
provided no evidence whatsoever that any of the C10–18 triglycerides, C12–
15 alkyl benzoate, butylenes glycol dicaprate/dicaprylate, diisopropyl
sebacate, behenyl alcohol and squalene listed in Example 2 qualify as skin
moisturizers. Id. Appellant notes that the only document relied upon by the
Examiner in this regard is EWG2, according to which these ingredients are
emollients and/or skin conditioning agents. Id. Nor, argues Appellant, has
the Examiner provided any evidence that emollients and/or skin conditioning
agents necessarily are (also) skin moisturizers. Id.
Appellant argues further that Appellant is under no obligation to
provide evidence that the ingredients listed in Example 2 are not
moisturizers. Request 2. Appellant contends that the Board overlooked the
fact that MPEP § 2144.03 states inter alia that “[o]fficial notice unsupported
by documentary evidence should only be taken by the examiner where the

2 The “EWG” references constitute entries for “Behenyl Alcohol,”
“Butylene Glycol Dicaprylate/Dicaprate,” “C10–C18 Triglycerides,”
“C12–C15 Alkyl Benzoate,” “Diisoproply Sebacate,” “Squalane,” and
“Mineral Oil” from EWG, EWG’s Skin Deep® Cosmetics Database,
https://www.ewg.org/skindeep/ (of record, filed October 22, 2015, October
13, 2017).
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Application 14/376,981

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facts asserted to be well-known, or to be common knowledge in the art are
capable of instant and unquestionable demonstration as being well-known.”
Id. at 2–3. Appellant asserts that there is no evidence of record that any of
C10–18 triglycerides, C12–15 alkyl benzoate, butylenes, glycol
dicaprate/dicaprylate, diisopropyl sebacate, behenyl alcohol, and squalene
qualify as skin moisturizers, nor is the Examiner’s corresponding assertion
capable of instant and unquestionable demonstration as being well-known.
Id.
We do not find Appellant’s arguments persuasive. As we noted in the
Decision:
As defined by the instant Specification, glycerin is a moisturizer.
Further, as evidenced by EWG, all other ingredients recited in
the rejection as being moisturizers are defined by EWG as
emollients and/or skin conditioning agents (see references
provided). Further as Giuliani et al. exemplify several other
moisturizers and it would have been obvious to remove or
replace them with glycerin through routine experimentation.

Decision 13 (quoting Final Act. 10). The Examiner thus made a finding of
fact, based upon the teachings of EWG, that a person of ordinary skill in the
art would have understood that emollients, including C10–18 triglycerides,
C12–15 alkyl benzoate, butylenes, glycol dicaprate/ dicaprylate, diisopropyl
sebacate, behenyl alcohol, and squalene, can act as moisturizers. We agreed
with the Examiner’s reasoning.
We continue to agree. Appellant’s Specification does not expressly
define the claim term “moisturizer” and does not disclose emollients at all.
We therefore adopt the broadest reasonable definition of the claim terms.
See Phillips v. AWH Corp., 415 F.3d 1303, 1316 (Fed. Cir. 2005) (en banc).
The dictionary definition of “emollient” is: “making soft or supple: soothing
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Application 14/376,981

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especially to the skin or mucous membrane [e.g.,] an emollient hand lotion.
Available at https://www.merriam-webster.com/dictionary/emollient (last
visited May 12, 2020). The dictionary definition of “moisturizer” is: “a
preparation (such as a lotion or cream) applied to the skin or hair to prevent
or relieve dryness.” Available at https://www.merriam
webster.com/dictionary/ moisturizer (last visited May 12, 2020). We again
conclude that it would have been obvious to a skilled artisan that a
composition applied to the skin to prevent or relieve dryness would also
have emollient properties, i.e., making the skin soft or supple.
More importantly, and as we expressly stated in the Decision,
Appellant has adduced no evidence of record to show that moisturizers and
emollients are physically or technically distinct, or that a person of ordinary
skill in the art would have recognized such a distinction, if one indeed exists.
As we stated in the Decision, Appellant relies upon merely gainsaying the
Examiner’s findings. Such attorney argument, unsupported by evidence, is
not persuasive. See In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984).
We consequently decline to reverse our prior conclusion.

DECISION
We deny the requested relief with respect to making any changes to
the Decision.
DENIED

Claims Rejected Basis Granted Denied
65–67, 75 Request for
Rehearing
65–67, 75