Ex Parte Ayats et al

Patent Trial and Appeal Board

Mar 30, 2016

12422745 (P.T.A.B. Mar. 30, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/422,745 04/13/2009 Francese AYATS
6980 7590 04/01/2016
TROUTMANSANDERSLLP
600 Peachtree Street
Suite 5200
Atlanta, GA 30308
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.
RB211DIV 7285
EXAMINER
PATTERSON, MARC A
ART UNIT PAPER NUMBER
1782
NOTIFICATION DATE DELIVERY MODE
04/01/2016 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):
j im. schutz@troutmansanders.com
ryan. schneider@troutmansanders.com
patents@troutmansanders.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte FRANCESC A Y ATS,
JO RD I SALVADOR, and FREDERIC MOREUX
Appeal2014-004991
Application 12/422,745
Technology Center 1700
Before BRADLEY R. GARRIS, GEORGE C. BEST, and
N. WHITNEY WILSON, Administrative Patent Judges.
BEST, Administrative Patent Judge.
DECISION ON APPEAL
The Examiner finally rejected claims 16, 18, 24, 25, and 28-32 of
Application 12/422,745 under 35 U.S.C. § 102(b) as anticipated and rejected
claims 23 and 33 under 35 U.S.C. § 103(a) as obvious. Final Act. (October
23, 2012). Appellants 1 seek reversal of these rejections pursuant to
35 U.S.C. § 134(a). We have jurisdiction under 35 U.S.C. § 6.
For the reasons set forth below, we AFFIRM.
1 Reckitt Benckiser N.V. is identified as the real party in interest. Br. 2.
Appeal2014-004991
Application 12/422,745
BACKGROUND
Claim 16 is the only independent claim on appeal and is reproduced
below from the Claims Appendix of Appellants' Brief:
16. A water-soluble article comprising a water-soluble
primary component which is a thermoformed container
containing granular and/or particulate solid primary
composition, and a water-soluble secondary component arranged
on the inside of the thermoformed container in a recess thereof,
the fixing of the secondary component in position in the primary
component being ensured by the tight packing of said primary
composition into said primary component.
Br. 8 (Claims App.).
REJECTIONS
On appeal, the Examiner maintains the following rejections:
1. Claims 16, 18, 24, 25, and 28-32 are rejected under 35 U.S.C.
§ 102(b) as anticipated by Gouge. 2 Final Act. 2.
2. Claim 33 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Gouge. Final Act. 3.
3. Claim 23 is rejected under 35 U.S.C. § 103(a) as unpatentable over
the combination of Gouge and Chang. 3 Final Act. 4.
DISCUSSION
Rejection 1. The Examiner rejected claims 16, 18, 24, 25, and 28-32
as anticipated by Gouge. Final Act. 2.
2 US 5,224,601, issued July 6, 1993.
3 US 4,608, 187, issued August 26, 1986.
2
Appeal2014-004991
Application 12/422,745
Appellants argue for the reversal of this rejection on the basis of the
limitations of claim 16. Accordingly, we select claim 16 as representative of
the group of claims subject to this rejection. The remaining claims will
stand or fall with claim 16.
Appellants argue that the anticipation rejection of claim 16 should be
reversed because "Gouge does not teach each and every limitation of the
present invention." Br. 4. In particular, Appellants argue that the Examiner
erred by finding that Gouge describes a container having a second
component that is fixed by a particulate composition. Id. at 4--5. Appellants
argue that, in the embodiment relied upon by the Examiner, the portion of
Gouge' s container that the Examiner found corresponds to the claimed
secondary component "is fixed by the coversheet, not the particulate
composition." Id. at 5. We are not persuaded by this argument.
We begin, as we must, by considering the interpretation of claim 16. In
re Paulsen, 30 F.3d 1475, 1479 (Fed. Cir. 1997) ("[T]o properly compare [the
prior art] with the claims at issue, we must construe the term [in dispute] to
ascertain its scope and meaning."). In particular, we must interpret the claim
term "fixing."
In general, a proposed claim's terms are given their broadest reasonable
meaning as they would be understood by one of ordinary skill in the art, taking
into account whatever enlightenment by way of definitions or otherwise that
may be provided by the applicant's specification. In re Morris, 127 F.3d
1048, 1054--55 (Fed. Cir. 1997).
In normal use, the pertinent definition of the verb "to fix" is "to make
firm, stable, or stationary." Webster's Ninth New Collegiate Dictionary 467
( 1985). Thus, the broadest reasonable interpretation of claim 16 is that it
3
Appeal2014-004991
Application 12/422,745
requires that the particulate primary composition stabilize the secondary
component's position.
This interpretation is consistent with Appellants' Specification. The
Specification describes the tight packing of the primary component as
providing reliable positioning of the secondary component. Spec. 3. The
Specification states that the reliable positioning provided by the tight
packing provides several advantages. Id. at 3--4. Furthermore, the
Specification describes a single embodiment, which is illustrated in Figs. 1-
4. In this embodiment, the granulated detergent formulation is described as
being tightly packed within the primary component to hinder the movement
of the secondary component within the article. Id. at 29. The Specification
teaches that the spatial relationship between the primary and secondary
components can be more permanently established using an adhesive. See id.
In view of this interpretation, we agree with the Examiner's finding
that Gouge does describe a container in which a secondary component is
fixed in place by a particulate primary compos1t10n. As the Examiner
explains, referring to Gouge' s Figure 1, tight packing of the primary
composition creates a surface which supports the secondary component and
constrains its motion in a downward direction. Answer 5.
We, therefore, affirm the rejection of claim 16 as anticipated by
Gouge.
Rejection 2. The Examiner rejected claim 33 as unpatentable over
Gouge. Final Act. 3. Claim 33 requires that the secondary component be in
the form of a ball.
The Examiner found that claim 33 would have been obvious over
Gouge because the shape of the secondary component is a matter of design
choice. Final Act. 3. Because a modification involving a mere change in
4
Appeal2014-004991
Application 12/422,745
shape is generally recognized as being within the level of ordinary skill in
the art, the Examiner concluded that claim 33 is unpatentable. Id. (citing In
re Dailey, 357 F.2d 669 (CCPA 1966)).
Appellants argue that the rejection of claim 33 should be reversed
because Gouge does not teach every limitation of independent claim 16. See
Br. 5---6. As discussed above, we are not persuaded by these arguments.
Appellants further argue that the rejection of claim 33 should be
reversed because the Examiner's proposed modification would change
Gouge's principle of operation. Id. In particular, Appellants argue that
changing the shape of the secondary component to be ball-shaped would
require rearrangement and restructuring of Gouge' s container and its
contents. Id. at 5.
We are unpersuaded by this argument. Gouge describes its container
as having two sealed compartments that separate two components for
storage. See Gouge col. 2, line 60-col. 3, line 25. Gouge further describes
mixmg of the two components when the container is dissolved in water. Id.
In view of this disclosure, we agree with the Examiner that it would
have been obvious to a person of ordinary skill in the art that the shape of
the compartments in Gouge' s container could be varied as long as the
components are kept separate until the container is dissolved as part of the
activation process. We, therefore, affirm the rejection of claim 33.
Rejection 3. The Examiner rejected claim 23 as unpatentable over
the combination of Gouge and Chang. 4 Final Act. 4. Claim 23 requires that
4 We note that, as written, claim 23 depends from claim 21. Claim 21,
however, has been canceled. Amendment 3 (August 17, 2011). We assume
that Appellants inadvertently failed to amend claim 23 to depend from claim
5
Appeal2014-004991
Application 12/422,745
the secondary component comprises a dishwashing, water-softening,
laundry, or detergent composition or a rinse-aid.
In rejecting claim 23, the Examiner found that Gouge does not
disclose a container comprising a detergent. Final Act. 4. The Examiner
further found that Chang teaches a detergent contained in a water-soluble
article and describes dispersion of the detergent in water. Id. The Examiner
concluded that it would have been obvious to a person of ordinary skill in
the art to provide for a container comprising detergent so that the detergent
could be disbursed as the package dissolves. Id.
Appellants argue that the rejection of claim 23 should be reversed
because Chang does not remedy the alleged deficiencies of Gouge. Br. 6.
As discussed above, however, we have not been persuaded that the
Examiner erred in finding that Gouge anticipates claim 16. Thus, we are not
persuaded to reverse the rejection of claim 23 on this basis.
Appellants further argue that the rejection of claim 23 should be
reversed because "Gouge is directed to a water-soluble container for
containing herbicides or pesticides, and never suggest using a dishwashing
detergent. A skilled artisan would not think to look to Gouge when
preparing a water-soluble container for containing detergent compositions."
Id.
We are not persuaded to reverse the rejection of claim 23 by this
argument. As the Examiner points out, see Answer 6, Chang states that
"polyvinyl alcohol films are used in packaging materials, such as granulated
16. For the purpose of this opinion, we have interpreted claim 23 as if it
directly depended from claim 16. If prosecution of the '7 45 Application
continues, claim 23 should be amended to fix this apparent oversight.
6
Appeal2014-004991
Application 12/422,745
laundry detergent and pulverulent pesticides and insecticides." Chang col. 1,
11. 15-18. We also note that Gouge describes its pesticide or herbicidal
compositions as optionally comprising a surfactant. See, e.g., Gouge col. 3,
11. 26-28.
In view of the foregoing, we agree with the Examiner that Gouge and
Chang are analogous art and that a person having ordinary skill in the art at
the time of the invention would have been motivated to use Gouge's
container with detergent compositions. We, therefore, affirm the rejection of
claim 23.
CONCLUSION
For the reasons set forth above we affirm the rejection of claims 16,
18, 23-25, and 28-33.
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
7