Jonathan Robert. Cetti et al.

Patent Trials and Appeals Board

Sep 6, 2019

14032868 - (D) (P.T.A.B. Sep. 6, 2019)

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.
14/032,868 09/20/2013 Jonathan Robert CETTI 12603M 4465
27752 7590 09/06/2019
THE PROCTER & GAMBLE COMPANY
Global IP Services
Central Building, C9
One Procter and Gamble Plaza
CINCINNATI, OH 45202
EXAMINER
AL-AWADI, DANAH J
ART UNIT PAPER NUMBER
1615
NOTIFICATION DATE DELIVERY MODE
09/06/2019 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
mayer.jk@pg.com
pair_pg@firsttofile.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JONATHAN ROBERT CETTI, STEVEN EDWARD WITT,
JITEN ODHAVJI DIHORA, and JIANJUN JUSTIN LI
____________

Appeal 2019-003523
Application 14/032,868
Technology Center 1600
____________

Before JEFFREY N. FREDMAN, DEBORAH KATZ, and JOHN G. NEW,
Administrative Patent Judges.

KATZ, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2019-003523
Application 14/032,868

2
Introduction
Appellants1 seek our review, under 35 U.S.C. § 134(a), of the
Examiner’s decision to reject claims 1, 2, 4–19, and 21 (Appeal Brief filed
October 4, 2018 (“App. Br.”) 2–9.)2 We have jurisdiction under 35 U.S.C.
§ 6(b). We AFFIRM.
Appellants’ Specification provides anhydrous compositions having
microcapsules and nonvolatile oils. (Specification dated September 20,
2013 (“Spec.”) 1:5–7.) The Specification discloses that too much non-
volatile oil may degrade the performance of microcapsules in an anhydrous
composition. (Id. at 2:18–20.) Non-volatile oils may make the
microcapsules less likely to rupture and may suppress the release of volatile
components contained in the microcapsules, thereby decreasing the
effectiveness of the microcapsules as a delivery system. (Id. at 2:21–3:8.)
To address this problem, “the percentage of non-volatile oils in the
composition can be limited to certain ranges, which provide enough oil to
still offer product benefits, but not so much that . . . the oil substantially
degrades the performance of the microcapsules.” (Id. at 3:9–12.)
Appellants’ claim 1 recites:
An anhydrous composition, comprising:

a plurality of microcapsules, wherein the microcapsules
comprise a core material and a shell encapsulating the core
material; and

1 Appellants report that the real party in interest is The Procter & Gamble
Company. (App. Br. 1).
2 Claim 20 was withdrawn.
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from 3% to 30%, by total mass of the anhydrous
composition, of non-volatile oils;

wherein the core material comprises a first fragrance;

wherein the shell comprises a polyacrylate material.

(App. Br. 13.)
The Examiner rejects the claims as follows (Final Office Action
mailed May 4, 2018 (“Final Act.”)):
Claims Grounds References Final Office
Action Citation
1, 2, and 4–19 35 U.S.C. § 103 Chan3 and Lee4 3–5
1, 2, and 4–19 35 U.S.C. § 103 Cropper5 and Lee 5–6
1 and 21 35 U.S.C. § 103 Chan, Lee, and
Glenn6
6–7
1 and 21 35 U.S.C. § 103 Cropper, Lee, and
Glenn
7–9
1, 2, 4–19, and
21
Obviousness-
Type Double-
Patenting
Claims 1–18 of
Application No.
14/032,888
9–11

Analysis
Claims 1, 2, and 4–19
The Examiner finds that Chan teaches an anhydrous composition
containing microcapsules having a fragrance core material and an
encapsulating shell. (Final Act. 3, citing Chan ¶¶ 20, 22.) Chan teaches
anhydrous compositions containing from 3% to 30% non-volatile oils, e.g.,

3 Chan et al., US 2012/0076839 A1, published March 29, 2012.
4 Lee et al., US 2007/0078071 A1, published April 5, 2007.
5 Cropper et al., US 2010/0104612 A1, published April 29, 2010.
6 Glenn, Jr. et al., US 2012/0053108 A1, published March 1, 2012.
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dimethicone. (Chan ¶ 161, Table 8, Examples 5, 8.) Chan teaches the
microcapsule shell may be formed of an aminoplast resin. (Id. at Abstract,
¶ 21.) The Examiner acknowledges that Chan does not teach a
microcapsule shell formed of a polyacrylate material. (Final Act. 4.)
Alternatively, the Examiner finds that Cropper teaches an anhydrous
composition containing an encapsulated fragrance and 10 to 20% non-
volatile oils, e.g., dimethicone. (Final Act. 5, citing Cropper ¶¶ 54, 166.)
Cropper teaches the fragrance is encapsulated in a shell formed from a
synthetic polymer, such as a complex coacervate of gelatin. (Cropper ¶
130.) The Examiner acknowledges that Cropper does not teach a
microcapsule shell formed of a polyacrylate material. (See Final Act. 5.)
The Examiner finds that Lee teaches anhydrous compositions
containing spray-dried microcapsules made from encapsulating polymers
that include aminoplasts, gelatin, or polyacrylates (Final Act. 4, citing Lee
¶¶ 44, 136.) The Examiner finds it would have been obvious to one of
ordinary skill in the art to substitute known shell materials, such as a
polyacrylate for other materials, such as aminoplast resins or gelatin. (Final
Act. 4 and 5–6.) The Examiner finds that a person of skill in the art would
have been motivated to modify Chan or Cropper with Lee because the
materials are all taught as preferred shell materials and were known in the art
for encapsulating fragrances. (See id.)
Appellants argue there is no suggestion or motivation to modify Chan
or Cropper with the polyacrylate shell of Lee. (App. Br. 2, 4.) Appellants
argue that Lee does not teach microcapsules compatible “with the nature of
the overall composition set forth in the claims,” i.e., the carrier having a non-
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volatile oil loading from 3% to 30%. (Id.) Appellants argue that therefore,
“there is no motivation to bring in any teaching from Lee, neither is there
any likelihood of success in making any combination involving Lee.” (Id.)
We are not persuaded by Appellants’ argument. Lee teaches
microcapsules containing fragrances for use in anhydrous personal care
products. (Lee ¶ 136.) Lee further teaches that preferred encapsulating
polymers include aminoplasts (as used in Chan), gelatin (as used in
Cropper), and polyacrylates, among other materials. (Id. at ¶ 44.) In other
words, the Examiner substitutes one known encapsulating polymer for
another known in the art. “[W]hen a patent claims a structure already
known in the prior art that is altered by the mere substitution of one element
for another known in the field, the combination must do more than yield a
predictable result.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007).
Appellants do not provide any evidence that the claimed combination does
more than yield a predictable result, or that a person of ordinary skill in the
art would not have a reasonable expectation of success in combining the
references given the express teachings of the prior art. “Attorneys’
argument is no substitute for evidence.” Johnston v. IVAC Corp., 885 F.2d
1574, 1581 (Fed. Cir. 1989).
Appellants further argue that the Examiner has failed to consider the
claimed anhydrous limitation in the combinations of Chan and Lee or
Cropper and Lee. (App. Br. 3, 5.) Appellants argue that the anhydrous
composition “requires the use of dry microcapsules.” (Id.) Appellants argue
that “Lee relates to microcapsules in a spray dried water soluble carrier with
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no mention of the carrier having a non-volatile oil load of between 3 and
30% as required by the claims.” (Id.)
We are not persuaded by Appellants’ argument. All of the references
cited by the Examiner, including Lee, teach anhydrous compositions
containing spray-dried microcapsules. (See Examiner’s Answer mailed
January 11, 2019 (“Ans.”) 4–5.) It is not relevant that Lee does not disclose
3 to 30% of a non-volatile oil, because this limitation is taught by both Chan
and Cropper. “[N]on-obviousness cannot be established by attacking
references individually where the rejection is based upon the teachings of a
combination of references. . . . [The reference] must be read, not in
isolation, but for what it fairly teaches in combination with the prior art as a
whole.” In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
Moreover, as identified by the Examiner, Lee explicitly states that “the high
fragrance and/or benefit agent shelf life stability is made possible when
spray-dried particles are placed in anhydrous bases with minimal leaching.”
(Ans. 5, citing Lee ¶ 138.) Accordingly, the combined prior art teaches the
“anhydrous limitation.”
Appellants also argue that the proposed modification would change
the principle of operation of the prior art invention being modified. (App.
Br. 3–4, 5–6.) Particularly, Appellants argue “[t]he introduction of
insufficiently dried microcapsules will yield the introduction of water into a
previously . . . anhydrous composition defeating the intention of the claimed
invention.” (Id.)
We are not persuaded by Appellants’ argument. Appellants have not
identified any disclosure in the prior art of “insufficiently dried
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microcapsules.” Moreover, Appellants have not provided any evidence that
the prior art spray-dried microcapsules contain water such that the resulting
composition would no longer be anhydrous. “Attorneys’ argument is no
substitute for evidence.” Johnston, 885 F.2d at 1581. Rather, as discussed
above, the prior art as a whole teaches anhydrous compositions containing
spray-dried microcapsules compatible with the compositions. Accordingly,
we are not persuaded that the Examiner erred.
Appellants fail to raise persuasive arguments showing that the
Examiner erred in rejecting claims 1, 2, and 4–19 as being obvious under
35 U.S.C. § 103.

Claim 21
Claim 21 depends from claim 1 and further limits the polyacrylate
material. The Examiner finds that Glenn teaches a polyacrylate
microcapsule shell that is the reaction product of i) an oil soluble amine with
ii) a multifunctional acrylate or methacrylate monomer, an oil soluble acid,
and an initiator; in the presence of a water soluble or dispersible acrylic acid
alkyl acid copolymer emulsifier. (Final Act. 6–8, citing Glenn ¶ 211.) The
Examiner finds a person of ordinary skill in the art would have had a
reasonable expectation of success in combining Chan or Cropper with Glenn
as the references teach microcapsules containing encapsulated fragrance for
deodorant compositions. (Id. at 7, 9.)
Appellants argue that “nothing in Glenn provides an indication of
microcapsules dried sufficiently to perform with success in an anhydrous
composition.” (App. Br. 7–11.)
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We are not persuaded by Appellants’ argument. As discussed above,
the cited references teach anhydrous compositions containing spray-dried
microcapsules having a core fragrance. Appellants have not identified any
teaching in the art or other evidence that the microcapsules would not be
successfully incorporated into an anhydrous composition. After a prima
facie case is made out, the burden shifts to the Appellants 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). In the absence of evidence to the contrary, we are
not persuaded that the Examiner erred.
Appellants fail to raise persuasive arguments showing that the
Examiner erred in rejecting claim 21 as being obvious under 35 U.S.C.
§ 103.

Obviousness-Type Double Patenting
The Examiner determines claims 1, 2, 4–19, and 21 are unpatentable
over claims 1–18 of Application No. 14/032,888. (Final Act. 10.)
Appellants do not address this rejection. In the absence of arguments against
the rejection, we affirm it. See 37 C.F.R. § 41.37(c)(iv) (“[A]ny arguments
or authorities not included in the appeal brief will be refused consideration
by the Board for purposes of the present appeal”).

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Application 14/032,868

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Conclusion
Upon consideration of the record and the reasons given, the rejections
of claims 1, 2, 4–19, and 21 are sustained.
Therefore, we affirm the decision of the Examiner.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136.

AFFIRMED