Ex Parte CAPUTI et alDownload PDFPatent Trial and Appeal BoardAug 21, 201813717820 (P.T.A.B. Aug. 21, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/717,820 12/18/2012 27752 7590 08/23/2018 THE PROCTER & GAMBLE COMPANY Global IP Services Central Building, C9 One Procter and Gamble Plaza CINCINNATI, OH 45202 FIRST NAMED INVENTOR Mariangela CAPUTI 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. CM3718 3724 EXAMINER CRAIG,PAULAL ART UNIT PAPER NUMBER 3778 NOTIFICATION DATE DELIVERY MODE 08/23/2018 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): centraldocket.im @pg.com pair_pg@firsttofile.com mayer.jk@pg.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MARIANGELA CAPUTI, REMO BELLUCII, and ADELIA ALESSANDRA TORDONE Appeal 2017-011032 Application 13/717,820 1 Technology Center 3700 Before BIBHU R. MOHANTY, MICHAEL W. KIM, and PHILIP J. HOFFMANN, Administrative Patent Judges. HOFFMANN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellants appeal from the Examiner's rejection of claims 1---6 and 8-11. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. According to Appellants, the "invention relates to an absorbent article comprising a fastening adhesive and an effective liquid fragrance or odor 1 According to Appellants, "[t]he real party in interest is The Procter & Gamble Company." Br. 1. Appeal 2017-011032 Application 13/717,820 control composition [that] does not alter the properties of the adhesive." Spec. 1, 11. 5-7. Claims 1, 8, and 11 are the independent claims on appeal. Below, we reproduce claim 11 as illustrative of the appealed claims. 11. An absorbent article having a body-facing surface and a garment-facing surface, said absorbent article further compnsmg: a topsheet; a backsheet; an absorbent core disposed between the topsheet and the backsheet; a fastening adhesive applied on said garment-facing surface; a liquid fragrance or liquid odor control composition comprising one or more esters selected from the group consisting of: menthyl acetate, menthyl lactate, menthyl propionate, menthyl butyrrate, cis-3-hexenyl acetate, methyl- dihydrojasmonate, methyl jasmonate, hexyl iso-butyrate, linalyl acetate, benzyl acetate, phenyl ethyl acetate and combinations thereof, and less than 5% of other esters. REJECTIONS AND PRIOR ART The Examiner rejects claims 1-5 and 8-11 under 35 U.S.C. § I03(a) as unpatentable over Caputi et al. (US 2010/0324512 Al, pub. Dec. 23, 2010) ("Caputi"). The Examiner rejects claim 6 under 35 U.S.C. § I03(a) as unpatentable over Caputi and Noel et al. (US 5,304,161, iss. Apr. 19, 1994) ("Noel"). 2 Appeal 2017-011032 Application 13/717,820 ANALYSIS Obviousness reiection based on Caputi We begin by considering Appellants' arguments under heading I of the Appeal Brief' s Arguments section. Br. 3-7. Appellants' first argument, under this heading, is that the rejection is in error based on the following: First, . . . each of [independent] claims 1, 8, and 11 recite[ s ], in part, wherein said liquid fragrance or liquid odor control composition comprises "one or more esters selected from: menthyl acetate, menthyl lactate, menthyl propionate, menthyl butyrrate, cis-3-hexenyl acetate, methyl- dihydrojasmonate, methyl jasmonate, hexyl iso-butyrate, linalyl acetate, benzyl acetate, phenyl ethyl acetate; wherein the composition also comprises less than 5%wt of other esters." The Office acknowledges that Caputi does not teach "the composition having less than 5%wt of other esters." . . . The Office [incorrectly] asserts [that it would have been obvious to use less than 5wt% of another ester]. Br. 3 ( citation omitted). Initially, we note that Appellants argue independent claims 1, 8, and 11 as a group. Br. 3-7. We select claim 11 for our analysis, and independent claims 1 and 8 (as well as claims 2-5, 9, and 10 that depend from independent claims 1 and 8, and which Appellants do not argue separately) stand or fall with claim 11. See 37 C.F.R. § 4I.37(c)(l)(iv) ("When multiple claims subject to the same ground of rejection are argued as a group or subgroup by appellant, the Board may select a single claim from the group or subgroup and may decide the appeal as to the ground of rejection with respect to the group or subgroup on the basis of the selected claim alone."). As set forth above, claim 11 recites, in relevant part, 3 Appeal 2017-011032 Application 13/717,820 a liquid fragrance or liquid odor control compos1t10n comprising one or more esters selected from the group consisting of: menthyl acetate, menthyl lactate, menthyl propionate, menthyl butyrrate, cis-3-hexenyl acetate, methyl- dihydrojasmonate, methyl jasmonate, hexyl iso-butyrate, linalyl acetate, benzyl acetate, phenyl ethyl acetate and combinations thereof [ (hereinafter referred to as "the selected ester")], and less than 5% of other esters [(hereinafter referred to as "another ester")]. Br., Claims App. Appellants' argument is based on an understanding that claim 11, in fact, requires that the composition includes another ester in addition to the selected ester, and that the amount of the another ester must be less than 5%. See Br. 3-7. We do not read claim 11 as requiring another ester, however. Instead, based on the language of the claim, including the omission of an express statement in the claim that one or more other esters are required, we read claim 11 to recite that, to the extent that the composition includes an ester, other than the "selected ester" (i.e., to the extent that the composition does include "another ester"), the composition comprises less than 5% of the "another ester." Thus, we agree with the Examiner's statement that, if in Caputi, "other esters are omitted entirely from the composition, the composition would have less than 5% of other esters [(i.e., the "another ester")]." Answer 4. With respect to the rejection, the Examiner adequately supports the finding that "Caputi teaches a working example in which menthyl acetate is included and no other esters are present (paragraphs 32, 57)." Answer 3. Appellants do not demonstrate that the Examiner misinterprets the identified portions of Caputi. Thus, this argument is not persuasive of Examiner error. Appellants' second argument, under heading I of the Appeal Brief' s Arguments section, is that Caputi does not teach the claimed liquid fragrance 4 Appeal 2017-011032 Application 13/717,820 or liquid odor control composition. Br. 5-7. More specifically, Appellants argue that the odo[]r control material mentioned in Caputi is complexed in cyclodextrine. The cyclodextrine inclusion complex is then included in polysiloxane oil. The cyclodextrine complex is a solid dispersed in the liquid polysiloxane oil. The polysiloxane oil in and of itself is not a fragrance or odor control material. Br. 7. Appellants do not persuade us, however, that "a solid [ odor-control material] dispersed in [a] liquid polysiloxane oil" fails to disclose the claimed liquid odor control composition. In particular, Appellants do not provide any evidence, or point to anything in the Specification or claims, establishing that a liquid odor control composition cannot include a solid odor-control material, or that a liquid odor control composition must otherwise include no solid material. In the absence of such evidence, we find that it is sufficient that Caputi discloses an odor-control material that is, at least in part, liquid. See Answer 7 ("Caputi teaches cyclodextrin molecules dispersed in polysiloxane oil (paragraphs 14, 40, 42, 57-58). Caputi calls this dispersion a low viscosity liquid (paragraph 42)."). Thus, this argument is not persuasive of Examiner error. We now consider Appellants' argument under headings II, III, and IV of the Appeal Briefs Arguments section. Br. 7-9. Here, Appellants' arguments are based on assertions that modifying Caputi' s to disclose the claimed liquid fragrance or liquid odor control composition would impermissibly change Caputi' s principle of operation, or render Caputi unsatisfactory for its intended purpose, and an assertion that Caputi teaches away from using a liquid fragrance or liquid odor control composition. Id. Inasmuch as we agree with the Examiner that Caputi discloses a liquid odor 5 Appeal 2017-011032 Application 13/717,820 control composition (supra), these arguments are not persuasive of Examiner error. In section V (Br. 9-10) of the Appeal Briefs Arguments section, Appellants summarize the above-discussed arguments. Br. 10. We are not persuade of error for the reasons detailed supra. Thus, based on the foregoing, we sustain the rejection of claim 11. As stated above, inasmuch as Appellants do not argue separately against the rejection of independent claims 1 and 8, or the rejection of dependent claims 2-5, 9, and 10, we also sustain the rejection of these claims. Rejection based on Caputi and Noel Appellants' argument against the Examiner's rejection of dependent claim 6 is based on an assertion that Noel does not remedy deficiencies in claim 1 's rejection. Br. 10. Inasmuch as Appellants do not persuade us that claim 1 's rejection is deficient, we consequently sustain claim 6's rejection. DECISION We AFFIRM the Examiner's obviousness rejections of claims 1---6 and 8-11. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.I36(a)(l). AFFIRMED 6 Copy with citationCopy as parenthetical citation