Ex Parte Mirajkar et al

Patent Trial and Appeal Board

Dec 8, 2015

14241962 (P.T.A.B. Dec. 8, 2015)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/241,962 02/28/2014
23909 7590 12/10/2015
COLGATE-PALMOLIVE COMPANY
909 RIVER ROAD
PISCATAWAY, NJ 08855
FIRST NAMED INVENTOR
Yelloji-Rao K. Mirajkar
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.
9314-01-US-Ol-HC 7787
EXAMINER
KHAN, AMINA S
ART UNIT PAPER NUMBER
1761
NOTIFICATION DATE DELIVERY MODE
12/10/2015 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_Mail@colpal.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte YELLOJI-RAO K. MIRAJKAR, ANA ACOSTA,
JOSE JAVIER TOVAR PESCADOR, AMJAD F AROOQ,
AMIT SACHDEV, and OSCAR BAUTISTA CID
Appeal2016-000709
Application 14/241,962
Technology Center 1700
Before CHARLES F. WARREN, PETER F. KRATZ, and
N. WHITNEY WILSON, Administrative Patent Judges.
WARREN, Administrative Patent Judge.
DECISION ON APPEAL
Applicants appeal to the Board under 35 U.S.C. § 134(a) from the
decision of the Primary Examiner finally rejecting claims 1, 4--12, and
14--16. Final Act. 1; 1 Br. 3, 5. We have jurisdiction. 35 U.S.C. § 6(b).
We affirm the decision of the Primary Examiner.
Representative claim 1, reproduced below, illustrates Appellants'
invention of a method for increasing blooming of a fragrance, that is,
increasing fragrance release, during ironing a fabric comprising laundering
the fabric with the specified composition and then ironing the fabric. Spec.
iii! 9--11, 19.
1. A method for increasing blooming of a fragrance during ironing a
fabric comprising laundering the fabric with a composition comprising:
1 Final Action entered November 20, 2014. Ans. 2.
Appeal 2016-000709
Application 14/241,962
a) a linear polyether having a weight average molecular weight less
than 2000 that is terminated with-N---(---CHr--CH(OH}-CHy-Cl)2, and
b) fragrance,
and ironing the fabric, and wherein the polyether is present in the
composition in an amount of 0.05 to 0.4 % by weight of the composition.
Br. 7 (Claims App.).
Appellants request review of the following grounds of rejection under
35 U.S.C. § 103(a) advanced on appeal by the Examiner2 (Br. 3, 5):
claims 1, 4--8, 10-12, and 16 over Moorefield (US 2004/0023836 Al) (Ans.
2); and
claims 9, 15, and 16 over Moorefield and Behan (US 5,078,904) (Ans. 3);
and
claims 9, 14, and 16 over Moorefield and Bacon (US 5,500,138) (Ans. 5)
We decide the appeal on claim 1, the remaining claims standing or
falling therewith, because Appellants argue the first ground of rejection
based on this claim and rely on the same arguments with respect to the
remaining grounds of rejection. Br. 4--6. 37 C.F.R. § 41.37(c)(l)(iv)
(2012).
OPINION
We are of the opinion Appellants' arguments do not establish that the
preponderance of the evidence in the totality of the record weighs in favor of
the nonobviousness of the method for increasing blooming of a fragrance
encompassed by claim 1. In this respect, we essentially agree with the
Examiner's analysis of the evidence in Moorefield, findings of fact and
conclusions of law, and response to Appellants' arguments, stated in the
Answer, to which we add the following for emphasis with respect to
Appellants' arguments. Ans. 2-3, 6-7; Br. 3--4.
2 The Examiner withdrew the Obviousness-type Double Patenting rejections
in the Advisory Action, entered February 5, 2015, at 2.
2
Appeal 2016-000709
Application 14/241,962
The dispositive issue in this appeal raised by the positions of the
Examiner and Appellants is whether the Examiner erred in concluding
Moorefield would have suggested to one of ordinary skill in the art linear
polyethers having a weight average molecular weight less than 2000 and two
terminal groups that can be used in laundering compositions as specified in
claim 1. The Examiner finds Moorefield would have disclosed to one of
ordinary skill in the art polyethers which have the same terminal groups as
specified in claim 1, including commercially available POLYMER AM, and
would have taught that the polyethers have degrees of polymerization from
4--50, a molecular weight range of 300-1,000,000, and are effective in
compositions applied during laundering followed by ironing. Ans. 2-3
(citing Moorefield i-fi-134, 42, 56-61 ). The Examiner concludes that
Moorefield would thus have led one of ordinary skill in the art to modify the
molecular weight of the polyether POLYMER AM to obtain polyethers
falling within claim 1 which can be used in a composition comprising a
fragrance that imparts comfort and moisture transport properties to fabrics
after laundering, drying and ironing as disclosed by Moorefield. Ans. 3.
Appellants rely on Parker's disclosure of the structure of POLYMER
AM. Parker3 9. Br. 4. According to Appellants, Parker depicts a branched
polyether having a molecular weight of over 2600, which does not fall
within claim 1. Br. 4. Appellants further contend Moorefield would have
disclosed different polymers for use in the laundering compositions, some of
which are polyethers that can have different molecular weights and different
terminal groups, and thus the reference would not have suggested the
claimed polyethers. Br. 3--4 (citing Moorefield i-fi-1 42-56) (citing In re
3 WO 01/27232 Al, published April 19, 2001, of record.
3
Appeal 2016-000709
Application 14/241,962
Baird, 16 F.3d 380, 382-83 (Fed. Cir. 1994); In re Jones, 958 F.2d 347, 349
(Fed. Cir. 1992)).
The Examiner responds that Moorefield broadly would have disclosed
polyethers having molecular weights within the range 300-1,000,000, linear
or branched alkylene chains in the oxyalkylene repeating units, and "amine
chlorohydrin groups" terminal groups, that is, -N---(---CHy-CH(OH}-CH2-
Cl)2, which polyethers are equivalent to POLYMER AM and effective in
Moorefield's compositions. Ans. 6 (citing Moorefield i-fi-134, 40, 43). The
Examiner concludes that Moorefield would have disclosed amine-
chlorohydrin terminated polyethers which can be linear and have
overlapping molecular weight ranges with the linear polyethers specified by
claim 1 which can be used in Moorefield's compositions for application to
fabric during laundering which is followed by drying and ironing. Ans. 7.
We find Moorefield would have disclosed to one of ordinary skill in
the art that polymers useful in the laundering compositions are capable of
self-cross-linking and/or reacting with cellulose. ivfoorefield i1i117-18.
Moorefield would have disclosed a number of polymers for this purpose.
Moorefield i-fi-122-56. The polymers include cationic polymers which are
amine-epichlorohydrin resins that preferably have a weight average mean
molecular weight of 300 to 1,000,000. Moorefield i134. The cationic
polymers include derivatives of polyoxyalkyleneamines, which can be the
reaction product of a diamine or triamine poly( oxyalkylene) having a
polymerization degree of 4 to 50, with epichlorohydrin. Moorefield i1 42.
The prepolymer is preferably of the formula B(R)n in which n is 1 to 20, B is
a backbone group, and R can be a poly( oxyalkylene) chain that comprises an
amino end group. Moorefield i142. Moorefield would have disclosed that
the number of R moieties is preferably 2 or 3, that is, a diamine or triamine
4
Appeal 2016-000709
Application 14/241,962
poly( oxyalkylene ), wherein the length of the poly( oxyalkylene) chain can
vary from 2 to 100 repeating units, and the alkylene chains can contain alkyl
side chains. Moorefield i-fi-143, 44, 48. Moorefield would have disclosed
that the triamine poly( oxyalkylene) prepolymers can have the branched
poly( oxyalkylene) amine structure of a poly( oxyalkylene) chain bonded to
each of the three carbons of a propylene backbone. Moorefield i-fi-1 51. 4
We find Moorefield would have disclosed that POLYMER Am is a
suitable polymer for use in the disclosed laundering compositions.
Moorefield i156. There is no dispute that Parker discloses the structure of
POLYMER AM. We find POLYMER AM as depicted in Parker is a linear
diamine poly(oxyalkylene) prepolymer having two-N---(---CHr--CH(OH}-
CH2---Cl)2 epichlorohydrin derived terminal groups, wherein the alkylene
chains are propylene chains with ethylene side chains, and the polymer
contains 26 repeating oxyalkylene units.
On this record, we cannot agree with Appellants' contention that
POLYivIER AivI is a branched polyether because the alkylene chains are
propylene chains with ethylene side chains. Indeed, we notice that the term
"branched polyether" is used in the art to denote a backbone group with
three or more poly( oxyalkylene) chains, such as the triamine
poly( oxyalkylene) derivatives depicted in Moorefield' s paragraph 45. Thus,
POLYMER AM is a linear poly( oxyalkylene) polymer, that is, a "linear
polyether," which is a term in claim 1. To the extent the claim term "linear
4 We find the structure of the branched triamine poly( oxyalkylene)
prepolymer having a propylene backbone depicted in Moorefield paragraph
51 is in error because the bond lines should be between the left hand H2C-
groups and not the adjacent -0- atoms, that is, "-O-CHrCH(-0-)-CHrO-".
Compare the branched poly( oxyalkylene) structures depicted in Moorefield
paragraphs 22 and 45.
5
Appeal 2016-000709
Application 14/241,962
polyether" can be interpreted in light of the Specification to exclude
branching on the alkylene chains, we found that Moorefield would have
disclosed that such branching is optional.
With respect to Appellants' contention that Moorefield's POLYMER
AM has a molecular weight of over 2600 which fall outside of the claimed
range, we agree with the Examiner that Moorefield would have disclosed a
molecular wright range which at least overlaps the weight average molecular
weight range of less than 2000 specified in claim 1. We determine claim 1
specifies any linear polyether having the specified two -N-(---CHr--CH(OH}-
CHr--Cl)2 epichlorohydrin derived terminal groups that has a weight average
molecular weight of less than 2000, which range has no specified lower
limit. We find no disclosure in the Specification relative to a lower limit.
We thus determine that a claimed linear polyether must have at least 2
simple poly( oxyalkylene) chains and the two amino-epichlorohydrin
derivative terminal groups, which combine for a weight average molecular
weight of over 300. Thus, we find the claimed range falls within the lower
end of the general molecular weight range of 300 to 1,000,000 for the
cationic polymers which are amine-epichlorohydrin resins disclosed by
Moorefield. Indeed, we found Moorefield would have disclosed that
diamine poly( oxyalkylene) compounds which have two -N---(---CH:r
CH(OH)---CHr--Cl)2 epichlorohydrin derived terminal groups, can have at
least 1 and preferably 2 or 3 poly( oxyalkylene) chains with as few as 2
repeating poly( oxyalkylene) units in each chain, which polyethers fall within
the lower end of Moorefield's molecular weight range. Thus, we find the
linear polyethers specified in claim 1 fall within the lower end of the
molecular weight range of the same kind of diamine poly( oxyalkylene)
compounds having two -N---(---CH2---CH(OH)---CHr--Cl)2 epichlorohydrin
6
Appeal 2016-000709
Application 14/241,962
derived terminal groups exemplified by POLYMER AM as taught by
Moorefield.
We thus agree with the Examiner that, contrary to Appellants'
position, Moorefield would have reasonably disclosed to one of ordinary
skill in the art that linear polyethers which are the same as and similar to the
linear polyethers specified in claim 1 can be effectively used in Moorefield's
laundering compositions which contain a fragrance. Indeed, Moorefield's
specific guidance that would have led one of ordinary skill in the art to
diamine poly(oxyalkylene) compounds having two-N---(---CHr--CH(OH}-
CHr--Cl)2 epichlorohydrin derived terminal groups having a molecular
weight within the claimed range and useful in the compositions disclosed
therein, is not analogous to the disclosure of a very broad genus of
substances in a reference that provides no teachings which would have
directed one of ordinary skill in the art to select particular moieties necessary
to arrive at liner polyethers specified in claim 1, as was the case in In re
Baird, 16 F.3d at 382-83, and clearly establishes such claimed linear
polyethers by a preponderance of the evidence in the record. Cf In re Jones,
95 8 F .2d at 349-51 ("Conspicuously missing from this record is any
evidence, other than the PTO' s speculation (if it be called evidence) that one
of ordinary skill in the herbicidal art would have been motivated to make the
modifications of the prior art salts necessary to arrive at the claimed ...
salt.").
Accordingly, we affirm the grounds of rejection of claims 1, 4--12,
and 14--16 under 35 U.S.C. § 103(a) over Moorefield alone and taken with
other references. Br. 5.
The Primary Examiner's decision is affirmed.
7
Appeal 2016-000709
Application 14/241,962
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
bar
8