Ex Parte Fetissova et al

Patent Trial and Appeal Board

Mar 28, 2013

11611701 (P.T.A.B. Mar. 28, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte NATALY FETISSOVA, CLAUDE BLANVALET
and PIERRE LAMBERT
__________

Appeal 2012-000018
Application 11/611,701
Technology Center 1600
__________

Before TONI R. SCHEINER, DEMETRA J. MILLS, and STEPHEN WALSH,
Administrative Patent Judges.

SCHEINER, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 from the final rejection of a
claim directed to an oral care composition. The claim has been rejected as
obvious. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
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STATEMENT OF THE CASE
Claim 1 is the sole claim on appeal, claims 2-4 and 7-33 having been
withdrawn from consideration (App. Br. 4), and claims 5 and 6 having been
canceled (Claims Appendix).
Claim 1 is as follows:
1. An oral care composition comprising:
a propolis extract;
a halogenated diphenyl ether non-ionic antibacterial agent;
an oral care active compound chosen from:
a cationic antibacterial agent, an anti-attachment agent, a
biofilm disruption agent or
an anti-inflammatory agent;
an anionic polymeric copolymer of methyl vinyl ether and maleic
anhydride; and
a source of fluoride ions.
Claim 1 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
Yamane et al. (US 6,149,894, November 21, 2000) in view of Burke et al.
(US 5,292,502, March 8, 1994).
In addition, claim 1 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Friedman et al. (US 6,197,305 B1, issued March 6, 2001),
in view of Yamane et al. and Burke et al.
FINDINGS OF FACT
1. Yamane discloses toothpaste compositions containing “a
mixture of two or more” ingredients, including water-insoluble noncationic
antibacterial agents such as triclosan, cationic antibacterial agents such as
chlorhexidine hydrochloride and cetylpyridinium chloride, tea tree oil,
propolis, and fluorides such as sodium fluoride and stannous fluoride
(Yamane, col. 4, ll. 8-26, 36-39).
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2. Yamane teaches that “toothpaste invariably also includes a
thickener or binder” “[i]n order to hold the solid and liquid ingredients in the
form of a stable paste with desirable rheological properties” (Yamane, col. 1,
ll. 26-29). Yamane teaches that suitable thickeners include natural and
synthetic organic thickeners, as well as natural and synthetic inorganic
thickeners (id. at col. 2, l. 54 - col. 3, l. 10).
3. Burke teaches that “[t]oothpastes, creams and gels typically
contain a natural or synthetic thickener or gelling agent” (Burke, col. 5, ll.
19), and “[s]uitable thickeners include . . . poly(methyl vinyl ether/maleic
anhydride) available for example as Gantrez AN 139” (id. at col. 5, l. 26-
28).
4. The present Specification teaches that Gantrez AN 139 is a
methylvinylether/maleic anhydride copolymer suitable for use in the claimed
oral care composition (Spec. ¶ 51).
DISCUSSION
The Examiner finds that Yamane discloses that “triclosan (a
halogenated diphenyl ether nonionic antibacterial agent), propolis, stannous
fluoride (a source of fluoride ions) and a cationic antibacterial agent can be
used together in a toothpaste” (Ans. 8). The Examiner acknowledges that
Yamane “does not teach using an anionic polymeric copolymer of methyl
vinyl ether and maleic anhydride” in its toothpastes (id.).
However, the Examiner finds that Burke “teaches that toothpastes
typically contain a natural or synthetic thickener or gelling agent such as
Gantrez AN 139” (id.), which the Examiner finds is a specific type of
anionic polymeric copolymer of methyl vinyl ether and maleic anhydride
listed in the instant Specification (id.).
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The Examiner concludes that:
[I]t would have been obvious for one of ordinary skill in the art
. . . to use triclosan . . . , propolis, stannous fluoride . . . ,
Gantrez AN 139 . . . and a cationic antibacterial agent together
in the same composition since Yamane and Burke both use
their compositions in toothpastes which establishes that the
claimed components were known individually in the art for the
same purpose.
(Id. at 9.)
Appellants do not dispute the Examiner’s findings with respect to the
disclosures of the prior art, but contend that “Yamane and Burke each
disclose hundreds of ingredients, but provide no teaching or suggestion that
would have guided [one of ordinary skill in the art] to the claimed invention”
(App. Br. 10). Appellants argue, “[i]f anything, these broad disclosures
underscore the nonobviousness of the claimed invention” (id.), and “[t]he
Office has failed to provide any explicit rationale or set forth any objective
evidence to indicate why one skilled in the art would have selected the
particular ingredients in the particular combination claimed” (id. at 10-11).
Appellants’ argument is unpersuasive. Yamane discloses that
triclosan (a halogenated diphenyl ether nonionic bacterial agent), propolis,
stannous fluoride (a source of fluoride ions) and a cationic antibacterial
agent are all suitable components of toothpastes, and also teaches that
thickeners are typically used in toothpastes. While Yamane doesn’t disclose
a thickener comprising an anionic polymeric copolymer of methyl vinyl
ether and maleic anhydride, Burke discloses that Gantrez AN 139, an
anionic polymeric copolymer of methyl vinyl ether and maleic anhydride, is
a suitable thickener for toothpastes. Thus, the evidence of record establishes
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that all of the components required by the claims are typical, conventional
ingredients in the same types of compositions - toothpastes.
The fact that the instant claims are limited to one particular
combination of the obvious choices does not make that combination any less
obvious. See Merck & Co. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed.
Cir. 1989) (The disclosure in the prior art of “a multitude of effective
combinations does not render any particular formulation less obvious. This
is especially true because the claimed composition is used for the identical
purpose taught by the prior art.”). Moreover, “[t]he combination of familiar
elements according to known methods is likely to be obvious when it does
no more than yield predictable results.” KSR Int’l Co. v. Teleflex Inc., 550
U.S. 398, 416 (2007). “What matters is the objective reach of the claim. If
the claim extends to what is obvious, it is invalid under § 103.” Id. at 419.
Therefore, we agree with the Examiner that the claimed oral care
composition would have been obvious over the combined teachings of
Yamane and Burke.
SUMMARY
We affirm the rejection of claim 1 under 35 U.S.C. § 103(a) as
unpatentable over Yamane and Burke for the reasons discussed above.
We also affirm the rejection of claim 1 under 35 U.S.C. § 103(a) as
unpatentable over Friedman, Yamane, and Burke as this rejection is
cumulative to the rejection of claim 1 over Yamane and Burke.
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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).

AFFIRMED

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