The Procter & Gamble Company

Patent Trials and Appeals Board

Oct 14, 2020

15198248 - (D) (P.T.A.B. Oct. 14, 2020)

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.
15/198,248 06/30/2016 Jiten Odhavji Dihora 13942 3541
27752 7590 10/14/2020
THE PROCTER & GAMBLE COMPANY
GLOBAL IP SERVICES
CENTRAL BUILDING, C9
ONE PROCTER AND GAMBLE PLAZA
CINCINNATI, OH 45202
EXAMINER
RONEY, CELESTE A
ART UNIT PAPER NUMBER
1612
NOTIFICATION DATE DELIVERY MODE
10/14/2020 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 JITEN ODHAVJI DIHORA, MARC ADAM FLICKINGER
JIANJUN JUSTIN LI, and JOHAN SMETS1
Appeal 2020-000167
Application 15/198,248
Technology Center 1600
Before ERIC B. GRIMES, LINDA M. GAUDETTE, and
FRANCISCO C. PRATS, Administrative Patent Judges.

GRIMES, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) involving claims to a
method of making a consumer product, which have been rejected as obvious.
We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

1 Appellant identifies the real party in interest as The Procter & Gamble
Company. Appeal Br. 1. We use the word “Appellant” to refer to “applicant”
as defined in 37 C.F.R. § 1.42.
Appeal 2020-000167
Application 15/198,248

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STATEMENT OF THE CASE
“The use of multiple distinct populations of microcapsules, each with
a distinct bloom pattern, may be used to overcome the habituation
experienced by some consumers to a fragrance present in an article and/or
composition.” Spec. 3:23–25. The Specification states that “including
populations of microcapsules with different fracture strength profiles may
deliver multiple blooms.” Id. at 3:20–22.
The Specification discloses that “the amount of the partitioning
modifier relative to the perfume oil may . . . influence the fracture strength
of the microcapsule.” Id. at 5:3–5. A “partitioning modifier promotes shell
formation.” Id. at 4:18–19.
“[T]he size of the microcapsule may also impact the fracture strength
of the microcapsule.” Id. at 5:10–11. “The microcapsules may have a
median volume-weighted particle size of from 2 microns to 80 microns,
from 10 microns to 30 microns, or from 10 microns to 20 microns.” Id. at
10:13–14.
Claims 1–5, 7–16, and 18–24 are on appeal. Claim 1, reproduced
below, is illustrative (emphasis added):
1. A method of making a consumer product that provides
multiple blooms of fragrance, the method comprising:
combining a first adjunct material, a first
population of microcapsules, and a second population of
microcapsules to form the consumer product;
wherein the first population has a first median
volume weighted particle size and comprises
microcapsules comprising a partitioning modifier and a
first perfume oil at a first weight ratio; and
Appeal 2020-000167
Application 15/198,248

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wherein the second population of microcapsules
has a second median volume weighted particle size and
comprises microcapsules comprising the partitioning
modifier and a second perfume oil at a second weight
ratio;
wherein the first median volume weighted particle
size and the second median volume weighted particle size
are different.

The claims stand rejected as follows:
Claims 1–5, 7–16, and 18–23 under 35 U.S.C. § 103 as obvious based
on Reymar2 (Ans. 3) and
Claim 24 under 35 U.S.C. § 103 as obvious based on Reymar and
Clauss3 (Ans. 6).
OPINION
Claims 1–5, 7–16, and 18–23 stand rejected as obvious based on
Reymar. The Examiner finds that Reymar teaches “multi-capsule
compositions comprising a first and a second capsule (particle), . . . particle
sizes from 1 to 15 microns . . . partitioning modifiers including mineral oil
and IPM [isopropyl myristate] . . . , perfume oils and percentages thereof.”
Ans. 4. The Examiner finds that Reymar “do[es] not explicitly disclose an
example wherein the claimed components, at the claimed percentages are
combined into a single composition.” Id. The Examiner concludes, however,
that it would have been obvious “to select each component and combine

2 US 2015/0132377 A1, published May 14, 2015.
3 US 4,898,680, issued February 6, 1990.
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Application 15/198,248

4
them as instantly claimed, because Reymar et al. suggest that the instant
components can be combined or mixed together.” Id. at 5.
Appellant argues that
Reymar et al. does not disclose or suggest compositions
comprising two populations of microcapsules wherein the
median volume weighted particle sizes of the two populations
of microcapsules are different. Indeed, Reymar et al. does not
disclose or suggest anything about the median volume weighted
particle size of its microcapsules.
Appeal Br. 3.
In response, the Examiner points out that “Reymar taught, at [0049],
that the diameter of any of the disclosed microcapsules or particles varied
from about 10 nanometers to about 1,000 microns. As per Reymar, the
microcapsule distribution was narrow, broad or multi-modal.” Ans. 8. The
Examiner reasons that, “[a]lthough Reymar did not disclose the word
‘median,’ Reymar’s disclosure (e.g., narrow, broad or multi-modal
distributions of particles/capsules having diameters of 10 nanometers to
1,000 microns) guides an ordinarily skilled artisan to determine a median
particle size.” Id.
The Examiner also “responds that Reymar is not required to disclose a
median volume weighted particle size. . . . It is reasonable to conclude that
an ordinarily skilled artisan would be able to determine median particle
sizes, and different median particle sizes, where size ranges of 10
nanometers to about 1,000 microns were disclosed.” Id. at 8–9.
“In rejecting claims under 35 U.S.C. § 103, the examiner bears the
initial burden of presenting a prima facie case of obviousness. Only if that
burden is met, does the burden of coming forward with evidence or
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Application 15/198,248

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argument shift to the applicant.” In re Rijckaert, 9 F.3d 1531, 1532 (Fed.
Cir. 1993). A proper § 103 analysis requires “a searching comparison of the
claimed invention—including all its limitations—with the teaching of the
prior art.” In re Ochiai, 71 F.3d 1565, 1572 (Fed. Cir. 1995).
In this case, we conclude that the Examiner has not shown that a
method meeting all of the limitations of claim 1 would have been obvious
based on Reymar, which teaches a “capsule delivery system” that comprises
first and second capsules containing first and second active materials,
respectively. Reymar ¶ 6. “The first and second capsules differ in their wall
materials, amounts of wall materials, ratios of wall materials, core modifiers,
scavengers, active materials, curing temperatures, heating rates, curing
times, or a combination thereof.” Id.
Reymar states that “[t]he diameter of any of the microcapsules or
particles described above can vary from about 10 nanometers to about 1000
microns.” Id. ¶ 49. “The microcapsule distribution can be narrow, broad, or
multi-modal. Each modal of the multi-modal distributions may be composed
of different types of microcapsule chemistries.” Id.
Thus, Reymar at best suggests a “multi-modal” size distribution for
the microcapsules in its composition. The Examiner has not provided
evidence or sound technical reasoning to show that a multi-modal size
distribution of microcapsules necessarily includes two populations that have
different median volume weighted particle sizes.
The Examiner also has not persuasively shown that a person of
ordinary skill in the art would have had a reason, based on the description of
a multi-modal size distribution of microcapsules, to make a composition
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comprising two populations of microcapsules, where each population has a
different median volume weighted particle size. “[R]ejections on
obviousness grounds cannot be sustained by mere conclusory statements;
instead, there must be some articulated reasoning with some rational
underpinning to support the legal conclusion of obviousness.” In re Kahn,
441 F.3d 977, 988 (Fed. Cir. 2006).
We conclude that the Examiner has not met the initial burden of
showing prima facie obviousness. We therefore reverse the rejection of
claims 1–5, 7–16, and 18–23 under 35 U.S.C. § 103 based on Reymar. For
the same reason, we reverse the rejection of claim 24 based on Reymar and
Clauss.
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–5, 7–16,
18–23
103 Reymar 1–5, 7–16,
18–23
24 103 Reymar, Clauss 24
Overall
Outcome
1–5, 7–16,
18–24

REVERSED