Henkel AG & Co. KGaA

Patent Trials and Appeals Board

May 11, 2021

2020005531 (P.T.A.B. May. 11, 2021)

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.
15/315,173 11/30/2016 Nina Mussmann PT031831 (083.0297US) 8507
29906 7590 05/11/2021
LKGLOBAL
7010 E. COCHISE ROAD
SCOTTSDALE, AZ 85253
EXAMINER
HOLLAND, PAUL J
ART UNIT PAPER NUMBER
1656
NOTIFICATION DATE DELIVERY MODE
05/11/2021 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):
docketingteam@lkglobal.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte NINA MUSSMANN, THOMAS EITING,
NOELLE WRUBBEL, and THORSTEN BASTIGKEIT
Appeal 2020-005531
Application 15/315,173
Technology Center 1600
Before DEBORAH KATZ, JOHN G. NEW, and
ROBERT A. POLLOCK, Administrative Patent Judges.
KATZ, Administrative Patent Judge.
DECISION ON APPEAL
Appellant1 seeks our review,2 under 35 U.S.C. § 134(a), of the
Examiner’s decision to reject claims 1–11, 13, and 16–22. 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(a). Appellant identifies the real party in interest as Henkel AG & Co.
KGaA. Br. 3.
2 We consider the Final Office Action of August 6, 2019 (“Final Act.”), the
Appeal Brief filed February 18, 2020 (“Br.”), and the Examiner’s Answer
filed April 24, 2020 (“Ans.”).
Appeal 2020-005531
Application 15/315,173

2
Appellant’s Specification is directed to a liquid cleaning agent
containing at least one solid enzyme formulation and at least one liquid
enzyme formulation. (Spec. ¶ 2.) The Specification explains that pre-
portioned cleaning formulations are known in the form of tablets or cold
water-soluble films containing liquid cleaning agent. (Spec. ¶ 6.) However,
pre-portioned liquid formulations require a water content of less than 25%
by weight to prevent premature dissolution of the enveloping water-soluble
film. (Id.) The Specification discloses that “[i]t has now surprisingly been
found that using a combination of liquid enzyme formulations and solid
enzyme granules results in improved performance of liquid dishwasher
detergents compared to using either a liquid enzyme formulation or a solid
enzyme formulation alone.” (Spec. ¶ 12.) For example, combining a solid
enzyme formulation with a liquid enzyme formulation reduces the water
content of the liquid cleaning agent as a whole. (Id.)
Appellant’s claim 1 recites:
A liquid cleaning agent, comprising:

at least one liquid enzyme formulation which comprises at
least one protease having protease activity and/or at least one
amylase having amylase activity; and

at least one solid enzyme formulation which comprises at
least one protease having protease activity and/or at least one
amylase having amylase activity,

wherein the solid enzyme formulation is homogeneously
suspended in the liquid cleaning agent, and

wherein the liquid cleaning agent has a viscosity of from
2000 and 10,000 mPas or from 10,000 to 50,000 mPas, measured
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Application 15/315,173

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via a Brookfield viscometer DV-II+Pro, spindle 25, 5 rpm, at
20°C.
(Br. 16.)
The Examiner rejects claims 1, 2, 5, 8, 10, 11, 13 under 35 U.S.C.
§ 103 as obvious over Sunder3 and Legel.4 (Final Act. 4–7.) The Examiner
rejects claims 3, 4, 6, 7, 9, and 16–22 as obvious over Sunder, Legel, and
Souter.5 (Final Act. 7–11.) Appellant does not raise any separate arguments
against any of the claims or groups of claims in the separate rejections. (See
Br. 15.) Thus, we focus on claim 1. See 37 C.F.R. § 41.37(c)(1)(iv).

Findings of Fact
1. Sunder teaches multi-component detergents with increased
performance achieved by dividing the components into several different
formulations. (Sunder ¶ 1.)
2. Sunder teaches preparing particulate detergents by processing
liquid enzymes with coating substances into melt dispersions, which are then
shaped into particulate detergents. (Id. ¶ 8.)
3. More particularly, Sunder teaches embedding “commercially
available liquid enzyme preparations, optionally with the addition of carrier
materials and further auxiliaries and/or active substances” in a matrix of
shell materials and forming enzyme particles. (Id. ¶ 10.)

3 Sunder et al., DE 19918457 A1, published October 26, 2000. We rely on
the machine translation by the European Patent Office which is of record.
4 Legel et al., U.S. Patent No. 6,342,472 B1, issued January 29, 2002.
5 Souter et al., PCT Publication No. WO 2010/090915 A1, published August
12, 2010.
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Application 15/315,173

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4. Sunder teaches that the “most commonly used enzymes in
detergents and cleaning agents include lipases, cellulases, amylases and
proteases.” (Id. ¶ 23.)
5. Sunder teaches that the melt dispersion enzyme-containing
formulations may be processed into granulates that can be combined with a
powder formulation containing a second enzyme. (Id. ¶¶ 30, 92–93.)
6. Sunder teaches that “enzymes can be adsorbed on carrier
substances or embedded in coating substances in order to protect them
against premature decomposition.” (Id. ¶ 94.)
7. Legel teaches low-concentration highly-viscous liquid
detergents that are “storage- and viscosity-stable under very diverse climatic
conditions, do not undergo phase separation, and have color stability even on
exposure to light.” (Legel 1:4–9.)
8. Legel teaches viscous liquid products are advantageous because
they contain less solvent and can be applied in a targeted manner without
running. (Id. at 1:13–16.)
9. Legel teaches that:
The viscosity of the compositions according to the invention can
be measured using customary standard methods (for example
Brookfield viscometer LVT-11 at 20 rpm and 20° C., spindle 3)
and is preferably in the range from 500 to 5000 mPas. Preferred
compositions have viscosities of from 1000 to 4000 mPas, values
between 1300 and 3000 mPas being particularly preferred.
(Legel 7:54–60.)
10. Legel teaches that the liquid detergents may include ingredients
which improve the detergents’ application or aesthetic properties. (Id. at
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Application 15/315,173

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7:51–64.) For example, the composition may include enzymes. (Id. at
7:64–8:1.)
11. Legel teaches that suitable enzymes include proteases, lipases,
amylases, and cellulases. (Id. at 9:57–60.) Legel further teaches enzyme
mixtures, “for example mixtures of protease and amylase or protease and
lipase or lipolytic enzymes or protease and cellulase or mixtures of cellulase
and lipase or lipolytic enzymes or mixtures of protease, amylase and lipase
or lipolytic enzymes or protease, lipase or lipolytic enzymes and cellulose.”
(Id. at 10:6–14.)
12. Legel teaches that “[t]he enzymes can be adsorbed on carrier
substances or embedded into enveloping substances in order to protect them
from premature decomposition.” (Id. at 10:24–26.)

Analysis
The Examiner determines that it would have been obvious for one of
ordinary skill in the art to combine Sunder’s enzyme containing particulates
with Legel’s liquid cleaning agent to form a highly viscous liquid cleaning
agent. (Ans. 11.) The Examiner reasons that combining the references
would allow for formulations containing less solvent that can be applied in a
targeted manner without running, as taught by Legel. (Id.) The Examiner
finds that because the combination of Sunder and Legal teaches similar
methods of preparing cleaning agents, containing the same enzymes as
claimed, formulations taught by the combination would have the same
properties as the claimed compositions. (Id.)
Appellant argues that Sunder “fails to disclose a solid enzyme
formulation that is homogeneously suspended in a liquid cleaning agent.”
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Application 15/315,173

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(Br. 11.) Appellant contends that the Specification expressly defines
“homogeneously suspended” as “a suspension which contains the solid
enzyme preparation in the form of stably and uniformly dispersed particles.”
(Id. at 9, citing Spec. ¶ 17.) Appellant argues that Sunder teaches liquid
enzyme preparations processed with coating materials into melt dispersions
and then incorporated into particulate dishwashing agents. (Id. at 13.)
Appellant contends that, unlike the claimed liquid cleaning agent, Sunder’s
detergents are particulate detergents that include a basic powder combined
with enzyme particles. (Id. at 13.) Appellant concludes that:
the Examiner’s argument fails to adequately account for the
claimed limitation “wherein the solid enzyme formulation is
homogeneously suspended in the liquid cleaning agent” as
claimed in relation to the teachings of the prior art, and that the
Examiner has therefore failed to account for every element of
the claim.
(Id. at 14.)
We are not persuaded by these arguments because Appellant argues
against Sunder alone, even though the Examiner’s rejection is based on the
combination of Sunder and Legel. See In re Keller, 642 F.2d 413, 426
(CCPA 1981) (“[O]ne cannot show non-obviousness by attacking references
individually where, as here, the rejections are based on combinations of
references.”) Legel teaches a liquid cleaning agent that contains enzyme
mixtures, including enzymes absorbed on carrier substances or embedded
into enveloping substances to protect them from premature decomposition.
(FF 10–12.) Sunder teaches compositions of enzymes adsorbed on carrier
substances or embedded into enveloping substances, in the form of melt
dispersions. (See FF 2–3.) We agree with the Examiner that it would have
been obvious to combine Sunder’s solid enzyme formulation with Legel’s
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liquid enzyme formulation because both references teach the benefits of
enzyme mixtures, and Sunder’s solid formulations prevent enzyme
decomposition as desired by Legel. (See FF 1–6, 10–12.)
Legel further teaches that the highly viscous compositions have stable
viscosity and do not undergo phase separation. (FF 7.) Accordingly, Legel
suggests that the combination of Legel’s liquid cleaning agent and Sunder’s
solid enzyme formulation would result in the solid enzyme formulation
being homogeneously dispersed in the liquid cleaning agent as claimed. We
therefore agree with the Examiner’s finding that the combination of Sunder
and Legel would have the same properties as the claimed compositions.
After a prima facie case is made out, the burden shifts to the applicant to
show a difference between the prior art compounds and the claimed
compound. The PTO lacks the resources to do comparisons. In re Best, 562
F.2d 1252, 1254–1255 (CCPA 1977). Appellant has not provided evidence
to rebut the Examiner’s findings.
Appellant does not persuade us that the Examiner erred in rejecting
claim 1 as being obvious. Appellant fails to present separate arguments for
the rejection of any other of the pending claims. Accordingly, we sustain
each of the rejections under 35 U.S.C. § 103(a).
CONCLUSION
Upon consideration of the record and for the reasons given, we affirm
the Examiner’s rejection.
Appeal 2020-005531
Application 15/315,173

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DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 2, 5, 8,
10, 11, 13
103 Sunder, Legel 1, 2, 5, 8, 10,
11, 13

3, 4, 6, 7, 9,
16–22
103 Sunder, Legel,
Souter
3, 4, 6, 7, 9,
16–22

Overall
Outcome
1–11, 13,
16–22

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED