Ex Parte Bianchetti et al

Patent Trial and Appeal Board

Jun 15, 2016

13613052 (P.T.A.B. Jun. 15, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/613,052 09/13/2012
27752 7590 06/17/2016
THE PROCTER & GAMBLE COMPANY
Global Patent Services - Legal IP
Central Building, CS
One Procter and Gamble Plaza
CINCINNATI, OH 45202
FIRST NAMED INVENTOR
Giulia Ottavia BIANCHETTI
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.
CM3393C 5049
EXAMINER
DELCOTTO, GREGORYR
ART UNIT PAPER NUMBER
1761
NOTIFICATION DATE DELIVERY MODE
06/17/2016 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 GIULIA OTT A VIA BIANCHETTI,
GLORIA DICAPUA, ANDREA ESPOSITO, SARAH GERMANA,
VINCENZO GUIDA, and LUCA SARCINELLI
Appeal2014-008072
Application 13/613,052
Technology Center 1700
Before KAREN M. HASTINGS, GEORGE C. BEST, and
N. WHITNEY WILSON, Administrative Patent Judges.
WILSON, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's
December 9, 2013 decision finally rejecting claims 1, 4-8, and 10-15. We
have jurisdiction over the appeal under 35 U.S.C. § 6(b ).
We affirm.
1 Appellants identify the real party in interest as The Procter & Gamble
Company of Cincinnati, Ohio (Appeal Br. 1 ).
Appeal2014-008072
Application 13/613,052
CLAHvIED SUBJECT ivIATTER
Appellants' invention is directed to particulate bleaching
compositions comprising oxygen bleach or mixtures thereof, a bleach
activator, and a perfume delivery system (Spec. 1: 10-11 ). Claim 1 is
representative and is reproduced below from the Claims Appendix of the
Appeal Brief (key claim limitations shown in italics):
1. A particulate bleaching composition comprising:
c. [2J a bleaching system comprising oxygen bleach and
bleach activator; and
d. a perfume delivery system comprising Starch
Encapsulated Accord (SEA);
wherein the composition comprises from about 20% to
about 60% by weight of the total composition of oxygen
bleach, wherein the oxygen bleach is a peroxygen source
consisting of an alkali metal salt of percarbonate; wherein
the composition comprises from about 3% to about 30%
of a bleach activator of the formula:
and wherein the composition comprises from about 0. 01
% to about 8% by weight of surfactant.
Appeal Br. 11 (Claims Appendix).
2 The claim elements are identified by c. and d. (not a. and b.).
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Application 13/613,052
REJECTIONS
I. Claims 1, 4--8, 10, and 13-15 are rejected under
35 U.S.C. § 103(a) as unpatentable over Morgan3 in view of
Chung.4
II. Claims 1, 4--8, 10, and 15 are rejected under 35 U.S.C. § 103(a)
as unpatentable over Chung in view of Morgan.
III. Claims 11 and 12 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Morgan in view of Chung, and further in
view of Baillely.5
IV. Claims 11-14 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Chung in view of Morgan, and further in
view of Baillely.
V. Claims 1, 4--8, 10, and 13-15 are rejected under
35 U.S.C. § 103(a) as unpatentable over Meli. 6
VI. Claim 12 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Meli in view of Bettiol.7
DISCUSSION
Rejections I and II
The Examiner finds that Morgan teaches or suggests all the limitations
of independent claim 1, except that Morgan is silent as to "the use of a
bleach activator such as nonanoyloxybenzene sulfonate[, e.g., NOBS,] or a
3 Morgan et al., U.S. 2008/0194454 Al, published Aug. 14, 2008.
4 Chung et al., U.S. Patent No. 4,412,934, issued Nov. 1, 1983.
5 Baillely et al., U.S. Patent No. 5,780,410, issued July 14, 1998.
6 Meli et al., U.S. 2005/0272628 Al, published Dec. 8, 2005.
7 Bettiol et al., U.S. 2003/0211963 Al, published Nov. 13, 2003.
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Application 13/613,052
particulate composition containing a perfume delivery system comprising a
starch encapsulated accord, an oxygen bleach, a bleach activator ... and the
other requisite components of the composition in the specific amounts as
recited by the instant claims" (Ans. 6). The Examiner finds Chung teaches
"suitable bleaching systems, ... bleaching compositions containing a
peroxygen bleaching compound capable of yielding hydrogen peroxide ...
bleach activator," surfactants, and perfumes (id.).
The Examiner finds that Morgan teaches that surfactants may be used
in amounts from 0.1 % to 80% by weight (id. at 15, citing Morgan i-f 107) and
Chung teaches that "surfactants may be used in amounts from 1 % to 30% by
weight ... , wherein such amounts would overlap with 0.1 % to 8% by
weight of surfactant as recited by the instant claims" (Ans. 15, citing Chung
col. 8, 1.1---col. 10, 1. 20). The Examiner further finds Chung "clearly
teach[ es] ... that bleach activators including NOBS may be used in amounts
from 0.5% to 20% by weight ... , which would overlap with the amounts
recited by the instant claims" (Ans. 15, citing Chung col. 40, 1. 5---col. 7, 1.
65). Regarding the range of peroxygen bleaching compounds, the Examiner
finds that Chung teaches that "[ s ]uitable peroxygen bleaching compounds
include alkali metal perborates, percarbonates, etc., which may be used in
amounts from about 1 % to 60% by weight" (Ans. 6, see Chung col. 5, 11. 33-
35).
The Examiner, inter alia, determines that it would have been obvious
to the ordinary skilled artisan:
to use an oxygen bleach such as sodium percarbonate and a
bleach activator such as NOBS in the composition taught by
Morgan[] in the specific amounts as recited by the instant claims,
with a reasonable expectation of success, because Chung[]
teach[ es] the use of sodium percarbonate and a bleach activator
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Application 13/613,052
such as NOBS in the same amounts as recited by the instant
claims in a similar granule and further, Morgan[] teach[ es] the
use of bleaches such as percarbonate and bleach activators,
including mixtures of bleach activators, in general.
(Ans. 16; see also id. at 7). The Examiner further determines that the
ordinary skilled artisan:
clearly would have been motivated to use a perfume delivery
system comprising a starch encapsulated accord in the
composition taught by Chung[], with a reasonable expectation of
success, because Morgan[] teach[ es] the use of a perfume
delivery system comprising a starch encapsulated accord in a
similar composition and further, Chung[] teach[ es] the use of
perfumes in general. Thus, the Examiner asserts that the
teachings of Morgan[] in view of Chung[] or Chung[] in view of
Morgan[] are sufficient to render the claimed invention obvious
under" 35 U.S.C. § 103(a).
(Id. at 16).
Appellants' arguments seeking reversal of Rejections I and II are
directed to limitations recited in independent claim 1 (see generally Appeal
Br. 2---6; Reply Br. 2): (1) the prior art does not suggest the particular
combination of "a perfume delivery system comprising Starch Encapsulated
Accord (SEA), an alkali metal salt of percarbonate, and from about 3% to
about 30% of a bleach activator known as" NOBS (Appeal Br. 3), (2) "even
if a prima facie case has been established, the argument of obviousness is
rebutted by the Applicant[ sic, Applicant's] showing of unexpected results"
in the§ 1.132 declaration of Michael Green, filed on November 18, 2013
(id.), and (3) the Declaration data is reasonably commensurate in scope with
the claimed invention when viewed by a skilled artisan (id. at 5).
With regard to argument ( 1 ), Appellants argue that that a prima facie
case has not been established because the cited references do not suggest the
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Application 13/613,052
particular perfume delivery system, oxygen bleaches or bleach activators
claimed (id. at 3). In particular, Appellants argue that Chung exemplifies:
(i) use of perborate, not percarbonate as presently claimed (id., citing Chung
col. 12-17, Examples I-V) and (ii) use in excess of 8% by weight of
surfactant, not from about 0.01 % to about 8% by weight as presently
claimed (Appeal Br. 3, citing Chung col. 12-17, Examples I-VI).
"A prima facie case of obviousness typically exists when the ranges
of the claimed composition overlap the ranges disclosed in the prior art." In
re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003); see also In re Malagari,
499 F.2d 1297, 1303 (CCPA 1974) (concluding that a claimed invention was
rendered prima facie obvious by a prior art reference whose disclosed range
(0.020--0.035% carbon) overlapped the claimed range (0.030--0.070%
carbon)).
In this instance, the ranges of a percarbonate oxygen bleach recited in
claim 1, about 20% to about 60% by weight of the total composition,
overlaps the range explicitly taught by Chung (see Chung col. 5, 11. 33-35
("The level of peroxygen bleach within compositions of the invention is ...
preferably from about 1 % to about 60%."); see also id. at col. 5, 11. 10-17
("The peroxygen bleaching compounds useful herein ... include .. .
inorganic persalt bleaching compounds, such as ... percarbonates ... . ";see
also id. at claim 3). The ranges, furthermore, of a surfactant recited in claim
1, about 0.01 % to about 8% by weight of the total composition, overlaps the
range explicitly taught by Chung and Morgan. The claimed ranges for a
bleach activator, about 3% to about 30% by weight of the total composition,
overlaps the range explicitly taught by Chung. Moreover, as noted above,
Chung explicitly teaches that percarbonates may be used as the peroxygen
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bleaching compound. Thus, for the reasons stated in the Examiner's Answer
and above, Appellants' arguments have not identified reversible error in the
Examiner's prima facie case of obviousness for these rejections.
With regard to Appellants' argument (2) and (3), that they have
adequately rebutted the prima facie showings of obviousness by virtue of
their demonstration of the unexpected results produced by the claimed
invention (Appeal Br. 3-5; Reply Br. 2), the burden of showing unexpected
results rests on the person who asserts them by establishing that the
difference between the claimed invention and the closest prior art was an
unexpected difference. See In re Klosak, 455 F.2d 1077, 1080 (CCPA
1972). Further, the showing of unexpected results must be commensurate in
scope with the claims. See In re Peterson, 315 F.3d 1325, 1330-31 (Fed.
Cir. 2003).
We do not find Appellants' Rule 132 Declaration convincing as
evidence of unexpected results because the Declaration provides data testing
only one specific embodiment of the claimed invention. This testing of a
single data point is not reasonably commensurate with the scope of the
claims, which recites broad ranges and multiple variables (see claim 1 ).
Therefore, for the reasons set forth in the Examiner's Answer (see Ans. 22-
23) and above, the Rule 132 Declaration relied upon by Appellants is not
persuasive evidence of non-obviousness.
Accordingly, we affirm Rejection I of independent claim 1 under
35 U.S.C. § 103(a). In the absence of arguments specific to their
patentability, dependent claims 4--8, 10, and 13-15 fall with claim 1 under
Rejection I. 37 C.F.R. § 41.37(c)(l)(iv). Likewise, we affirm Rejection II
of claim 1 under 35 U.S.C. § 103(a). In the absence of arguments specific to
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their patentability, dependent claims 4--8, 10, and 15 fall with independent
claim 1 under Rejection II. 37 C.F.R. § 41.37(c)(l)(iv).
Rejections III and IV
In the absence of arguments specific to their patentability:
(i) dependent claims 11 and 12 fall with claim 1 under Rejection III and
(ii) dependent claims 11-14 fall with claim 1 under Rejection IV. 37 C.F.R.
§ 41.37(c)(l)(iv).
Rejection V
The Examiner finds that Meli suggests all the limitations of
independent claim 1. Ans. 12-13. The Examiner determines that it would
have been obvious to the ordinary skilled artisan:
to formulate a particulate composition containing a perfume
delivery system comprising a starch encapsulated accord, an
oxygen bleach, a bleach activator (e.g[.], NOBS), and the other
requisite components of the composition in the specific amounts
as recited by the instant claims, with a reasonable expectation of
success, because the broad teachings of Meli[] suggest a
particulate composition containing a perfume delivery system
comprising a starch encapsulated accord, an oxygen bleach, a
bleach activator (e.g[.], NOBS), and the other requisite
components of the composition in the specific amounts as recited
by the instant claims.
(Id. at 13).
Appellants' arguments seeking reversal of Rejection V are directed to
limitations recited in independent claim 1 (see generally Appeal Br. 8-9;
Reply Br. 2): (1) when taken as a whole, Meli "does not fairly suggest the
claimed composition of the present application and, therefore, a prima
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facie case has not been established" (Appeal Br. 9) and (2) "even if a prima
facie case has been established, the argument of obviousness is rebutted by
the unexpected results shown" in the§ 1.132 declaration of Michael Green,
filed on November 18, 2013 (id.).
With regard to argument ( 1 ), Appellants support it by pointing out that
Meli exemplifies use in excess of 8% by weight of surfactant, not from
about 0.01 % to about 8% by weight as presently claimed (id., citing Meli i-f
66).
Appellants' arguments are not persuasive because the range of a
surfactant recited in claim 1 overlaps the range explicitly taught by Meli.
See In re Peterson, 315 F.3d at 1329. The Examiner finds that Meli teaches
the use of surfactants in amounts from 5% to 40% by weight, which overlaps
with the claimed range of 0.01 to 8% (Ans. 12, citing Meli i-f 41; see also
Ans. 21). For the reasons stated in the Examiner's Answer and above,
Appellants' arguments have not identified reversible error in the Examiner's
prima facie case of obviousness for Rejection V.
Regarding argument (2), Appellants' testing of a single data point is
not reasonably commensurate with the scope of the claims, which recites
broad ranges and multiple variables (see claim 1 ). See also In re Peterson,
315 F.3d 1325 at 1331. For the reasons set forth in the Examiner's Answer
(see Ans. 22-23) and above, the Rule 132 Declaration relied upon by
Appellants is not persuasive evidence of non-obviousness.
Accordingly, we affirm Rejection V of independent claim 1 under 35
U.S.C. § 103(a). In the absence of arguments specific to their patentability,
dependent claims 4--8, 10, and 13-15 fall with claim 1 under Rejection V.
37 C.F.R. § 41.37(c)(l)(iv).
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Rejection VI
In the absence of arguments specific to its patentability, dependent
claim 12 falls with claim 1 under Rejection VI. 37 C.F.R. § 41.37(c)(l)(iv).
The Examiner's decision is affirmed.
CONCLUSION
We AFFIRM the rejection of claims 1, 4--8, 10, and 13-15 under 35
U.S.C. § 103(a) as obvious over Morgan in view of Chung.
We AFFIRM the rejection of the rejection of claims 1, 4--8, 10, and 15
under 35 U.S.C. § 103(a) as obvious over Chung in view of Morgan.
We AFFIRM the rejection of claims 11and12 under 35 U.S.C.
§ 103(a) as obvious over Morgan in view of Chung, and further in view of
Baillely.
We AFFIRM the rejection of claims 11-14 under 35 U.S.C. § 103(a)
as obvious over Chung in view of Morgan, and further in view ofBaillely.
We AFFIRivI the rejection of claims 1, 4--8, 10, and 13-15 under 35
U.S.C. § 103(a) as obvious over Meli.
We AFFIRM the rejection of claim 12 under 35 U.S.C. § 103(a) as
obvious over Meli in view of Bettiol.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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