Ex Parte DELANEY et al

Patent Trials and Appeals Board

Apr 30, 2019

14284419 - (D) (P.T.A.B. Apr. 30, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/284,419 05/22/2014
27752 7590 05/02/2019
THE PROCTER & GAMBLE COMPANY
Global IP Services
Central Building, C9
One Procter and Gamble Plaza
CINCINNATI, OH 45202
FIRST NAMED INVENTOR
Sarah Ann DELANEY
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.
12917M 8375
EXAMINER
OGDEN JR, NECHOLUS
ART UNIT PAPER NUMBER
1761
NOTIFICATION DATE DELIVERY MODE
05/02/2019 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
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 SARAH ANN DELANEY and JAMES WILLIAM HOLDER 1
Appeal2017-008821
Application 14/284,419
Technology Center 1700
Before ROMULO H. DELMENDO, CHRISTOPHER L. OGDEN, and
CHRISTOPHER C. KENNEDY, Administrative Patent Judges.
KENNEDY, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 1-21. We have jurisdiction under 35 U.S.C.
§ 6(b ). We REVERSE.
BACKGROUND
The Specification of the application on appeal discloses that detergent
compositions "[t]raditionally" have "a composition pH of greater than about
7." Spec. 1:9-12. According to the Specification, "[a] basic pH helps to
ensure that the surfactant systems, enzymes, or other organic solvents
1 The Appellant is the Applicant, The Procter and Gamble Company, which
is also identified as the real party in interest. See Br. 1.
Appeal2017-008821
Application 14/284,419
remain solubilized in the wash water," and "that greasy or oily stains
removed from solid clothing are dispersed in the wash water." Id.
The Specification states: "However, it has been found that certain
acidic detergents ... may provide benefits, such as improved removal of
residues from fabrics and associated improvement in whiteness, improved
bleachable stain removal, and self-preservation benefits." Id. at 1: 13-15.
The Specification explains that certain desirable detergent ingredients, such
as sulfated surfactants, "have generally been avoided in low pH detergents"
due to stability issues, and that "[t]here exists a need" for sulfated surfactant
compositions with improved stability at acidic pHs. Id. at 1:21-23.
According to the Specification, "[i]t has surprisingly been discovered that
certain polyamine compounds, in addition to providing cleaning and/or
whitening benefits, are capable of stabilizing sulfated surfactants in low pH
detergents." Id. at 1 :28-30.
Consistent with those disclosures, the subject matter on appeal relates
to "low pH detergent compositions comprising sulfated surfactant." E.g.,
Spec. 1:4--5; Claim 1. Claim 1 is reproduced below from page 6 (Claims
Appendix) of the Appeal Brief:
1. A detergent composition comprising:
from about 1 % to about 50% of a sulfated surfactant;
an organic acid; and
an alkoxylated polyamine compound; and
from about 0.25% to about 10% of an alkalizing agent;
wherein the composition has a pH of from about 2 to 6 when
measured neat; and
wherein the composition is substantially free of peroxide bleach.
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Appeal2017-008821
Application 14/284,419
ANALYSIS
Claims 1-21 stand rejected under 35 U.S.C. § 103 as unpatentable
over Ghosh (US 5,858,948, issued Jan. 12, 1999).
The Examiner finds, and the Appellant does not dispute, that Ghosh
teaches or suggests detergent compositions comprising each ingredient of
claim 1. Final Act. 2. As to the pH requirement of claim 1, the Examiner
finds that "the pH of the compositions, disclosed in Ghosh et al., is measured
between 6.5-9." Id. (citing Ghosh at 39:55---60). The Examiner does not
expressly find that pH is a known result-effective variable, but the Examiner
finds, in view of Ghosh' s teaching of a pH range, that
the skilled artisan would have been able to optimize or modify
the pH to encompass[] a pH of 6 since the terminology of 'about'
[as recited in claim 1] easily reference[s] 6.0 or close enough to
suggest the data point of applicant's higher end pH. It has long
been settled that matters of pH can be optimized and it is further
suggested in Ghosh, when he suggest that techniques for
controlling pH can be performed by acids and buffers (col. 39,
line 60-62). Therefore, it would have been obvious to the skilled
artisan to comprise a pH of 6, either ne[a]t or within the wash
liquor because optimization is within the level of ordinary skill
in the art.
Id. at 3.
The Appellant argues that, contrary to the Examiner's findings, Ghosh
does not teach or suggest a laundry composition pH range of 6.5-9 as
identified by the Examiner. Br. 2-3.
The Appellant's argument is persuasive. The portion of Ghosh cited
by the Examiner is reproduced below:
The detergent compositions herein will preferably be formulated
such that, during use in aqueous cleaning operations, the wash
water will have a pH of between about 6.5 and about 11,
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Appeal2017-008821
Application 14/284,419
preferably between about 7.5 and 10.5. Laundry products are
typically at pH 9-11.
Ghosh at 39:55-59. It is clear from that disclosure that Ghosh teaches a
"wash water" pH of 6.5-11 and a "[l]aundry product" pH of "typically" 9-
11. Id.
The Appellant indicates that the pH of wash water (i.e., a combination
of water + detergent composition) is not the same as the pH of the laundry
product itself, and that Ghosh's disclosure of "[l]aundry product" pH of 9-
11 is more analogous to the claimed "composition ... when measured neat"
recitation of claim 1 than is Ghosh' s disclosure of wash water pH. Br. 3.
The Examiner does not persuasively dispute that in the Answer. See Ans. 3-
4 (acknowledging that the pH range of 6.5-9 identified by the Examiner is
"during was[h] operations" rather than "neat").
Ghosh's disclosure ofpHs of "about 7.2 to about 8.9 when measured
as a 10% solution in water," e.g., Ghosh at 5:41--43 (emphasis added), does
not help the Examiner's position. Although the Examiner finds that a
composition having an alkaline pH "when measured neat would fall below
7.2 wherein a decrease of 10% of water solution would place the pH at 6.5 a
suggested," Ans. 4, that finding is not commensurate with the claim
language. As set forth above, Ghosh does not suggest a laundry composition
with a neat pH of 7 .2, or that the neat pH can be further optimized to 6.5.
Ghosh teaches that "[l]aundry product[s]" "typically" have a pH of 9-11,
and Ghosh indicates that the combination of the detergent composition with
water lowers the pH. See Ghosh at 39:55---62 (indicating "wash water" pHs
of about 6.5 to 11 and "[l]aundry product" pHs of "typically" 9-11 ).
Ghosh's disclosure ofpHs of "about 7.2 to about 8.9 when measured as a
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Application 14/284,419
10% solution in water," id. at 5:41--43, is fully consistent with Ghosh's
disclosures in column 39 which, contrary to the Examiner's findings, do not
suggest neat pHs of 6.5.
Thus, consistent with the Appellant's argument, we find that the
portion of Ghosh relied on by the Examiner discloses detergent composition
pHs when measured neat (as opposed, e.g., to when measured as part of a
wash water solution) in the basic range, "typically" 9-11. Ghosh at 39:55-
59.
In view of that, we agree with the Appellant that the Examiner has not
adequately established that a person of ordinary skill in the art would have
been motivated by Ghosh to achieve a detergent composition having an
acidic pH of "about 2 to 6" when measured neat. Even assuming that pH
was a known result-effective variable (which the Examiner did not expressly
find), it appears that Ghosh would have motivated optimization of pH
measured neat within the range of basic pHs (i.e., 7+), and more specifically
in the basic range of 9-11, rather than in the claimed acidic range of "about
2 to 6." See id.
The Examiner has not persuasively shown otherwise. The Examiner
cites no disclosure in Ghosh that would have motivated a person of ordinary
skill in the art to produce a detergent composition having a pH measured
neat of less than 9, much less an acidic pH of "about 2 to 6," in which pH is
a logarithmic scale. As the Federal Circuit's predecessor court explained:
Where, as here, the prior art disclosure suggests the outer limits
of the range of suitable values, and that the optimum resides
within that range, and where there are indications elsewhere that
in fact the optimum should be sought within that range, the
determination of optimum values outside that range may not be
obvious.
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Appeal2017-008821
Application 14/284,419
In re Sebek, 465 F.2d 904, 907 (CCPA 1972); cf also In re Stepan Co., 868
F.3d 1342, 1346 (Fed. Cir. 2017) (reversing the Board's affirmance of a
rejection involving "routine optimization" and explaining that "the Board
must provide some rational underpinning explaining why a person of
ordinary skill in the art would have arrived at the claimed invention through
routine optimization").
On this record, the Examiner has not adequately established that
routine optimization of pH in view of Ghosh would have led to a detergent
composition having an acidic pH of "about 2 to 6" when measured neat, as
required by claim 1. Accordingly, we reverse the Examiner's rejection of
claim 1.
The remaining claims on appeal depend, directly or indirectly, from
claim 1, and the Examiner's rejection of those claims does not remedy the
error identified above. Accordingly, we likewise reverse the Examiner's
rejection of claims 2-21.
CONCLUSION
We REVERSE the Examiner's rejections of claims 1-21.
REVERSED
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