11353661 (B.P.A.I. Sep. 30, 2010)

Ex Parte Gambogi et al

Board of Patent Appeals and InterferencesSep 30, 2010

11353661 (B.P.A.I. Sep. 30, 2010)

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. 11/353,661 02/14/2006 Joan E. Gambogi 7815-00-HC 6515 23909 7590 09/30/2010 COLGATE-PALMOLIVE COMPANY 909 RIVER ROAD PISCATAWAY, NJ 08855 EXAMINER SULLIVAN, DANIELLE D ART UNIT PAPER NUMBER 1617 MAIL DATE DELIVERY MODE 09/30/2010 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE __________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES __________ Ex parte JOAN E. GAMBOGI, MARY C. BRAUCHLI, GARY J. MARR, and ROBERT C. VERMEER __________ Appeal 2010-007860 Application 11/353,661 Technology Center 1600 __________ Before ERIC GRIMES, TONI R. SCHEINER, and MELANIE L. McCOLLUM, Administrative Patent Judges. SCHEINER, Administrative Patent Judge. DECISION ON APPEAL1 This is an appeal under 35 U.S.C. § 134 from the final rejection of claims 18-22. The claims have been rejected as obvious. We have jurisdiction under 35 U.S.C. § 6(b). 1 The two-month time period for filing an appeal or commencing a civil action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing, as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE” (paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery mode) shown on the PTOL-90A cover letter attached to this decision. Appeal 2010-007860 Application 11/353,661 2 STATEMENT OF THE CASE Claims 18-22 are pending and on appeal.2 Appellants have not presented separate arguments for individual claims, therefore, we select claim 18 as representative, and claims 19-22 will stand or fall accordingly. 37 C.F.R. § 41.37(c)(1)(vii). 18. A method of reducing food malodor in a dishwashing implement comprising applying to the implement a malodor-reducing amount of a dish washing liquid comprising at least four components selected from decyl aldehydes, allyl amyl glycolate, cis-3-hexenyl acetate, rose oxide, terpinolene, and 2,4-dimethyl-3-cyclohexene-1-carbaldehyde. Claims 18-22 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Trinh.3 We affirm. ISSUE ON APPEAL The sole issue raised by this appeal is whether the Examiner has established that it would have been obvious for one of ordinary skill in the art to combine at least four components selected from decyl aldehydes, allyl amyl glycolate, cis-3-hexenyl acetate, rose oxide, terpinolene, and 2,4- dimethyl-3-cyclohexene-1-carbaldehyde in a fragrant composition for washing surfaces in contact with food, given the teachings of Trinh. 2 Claims 1-17 and 23 are also pending, but have been withdrawn from consideration (App. Br. 2). 3 U.S. Patent 6,455,086 B1, issued September 24, 2002 to Toan Trinh et al. Appeal 2010-007860 Application 11/353,661 3 LEGAL PRINCIPLES “The 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). When there is a design need or market pressure to solve a problem and there are a finite number of identified, predictable solutions, a person of ordinary skill has good reason to pursue the known options within his or her technical grasp. If this leads to the anticipated success, it is likely the product not of innovation but of ordinary skill and common sense. In that instance the fact that a combination was obvious to try might show that is was obvious under § 103. Id. at 421. It is proper to “take account of the inferences and creative steps that a person of ordinary skill in the art would employ.” Id. at 418. See also id. at 421 (“A person of ordinary skill is also a person of ordinary creativity, not an automaton.”). FINDINGS OF FACT 1. Trinh discloses fragrant compositions for cleaning “food- contacting surfaces . . . e.g., cutting boards, counter tops, utensils, dishes, colanders, sinks, sponges, towels, dish cloths . . . and other surfaces that come in contact with food” (Trinh, col. 29, ll. 61-65). 2. Trinh’s compositions have a “pleasant scent signal [which] is provided by a perfume composition which is preferably ‘non-substantive’” in that it does not have a tendency to adhere to a surface (Trinh, col. 2, ll. 4-8). 3. Trinh teaches that “the nonsubstantive perfume is composed predominantly of ingredients selected from two groups of perfume ingredients, namely, (a) hydrophilic perfume ingredients . . . and (b) volatile perfume ingredients” (Trinh, col. 17, ll. 44-57). Appeal 2010-007860 Application 11/353,661 4 4. Trinh lists allyl amyl glycolate and cis-3-hexenyl acetate as “examples of the more preferred hydrophilic perfume ingredients” (Trinh, col. 18, ll. 33-34, 41-42); and decyl aldehydes, 2,4-dimethyl-3-cyclohexene- 1-carbaldehyde, and rose oxide as “examples of the preferred volatile perfume ingredients” (id. at col. 19, ll. 48, 54; col. 20, ll. 22-23, 36); some, like rose oxide, are listed as both (id. at col. 19, l. 8; col. 20, l. 36). 5. According to Trinh, “preferred perfume compositions . . . contain more than one, e.g., at least 4 different nonsubstantive perfume ingredients, preferably at least 5 . . . even more preferably at least 7” (Trinh, col. 20, ll. 40-45). DISCUSSION The Examiner acknowledges that Trinh “do[es] not teach a specific composition containing every one of the claimed perfumes” (Ans. 4), but concludes that “[i]t would have been obvious to one of ordinary skill in the art . . . to combine the teachings of Trinh et al. to utilize the specific fragrances” required by the claims because Trinh teaches that “the preferred perfume composition contains at least 4 [fragrance] ingredients” (id. at 5). Appellants concede that “each of these fragrance materials can be found in the long laundry list of about 308 fragrance materials” (App. Br. 3), but contend that “there is no disclosure or suggestion of selecting the combinations of at least four of these specific materials” (id.) from what Appellants calculate to be the 367,704,645 possible combinations (id. at 4). Appellants contend that “no prima facie case can be established” because “[t]here is too much need for picking and choosing” without “the required guidance” (id.). Appeal 2010-007860 Application 11/353,661 5 Nevertheless, we agree with the Examiner that no explicit teaching or guidance would have been necessary to lead the skilled worker to the particular components recited in claim 18 because each was known in the prior art to be effective and beneficial in washing compositions comprising combinations of hydrophilic and volatile fragrance ingredients. There is nothing of record to suggest that the combination of these well known hydrophilic and volatile perfume ingredients is anything more than a combination of familiar elements that yields an entirely predictable result. CONCLUSION The Examiner has established that it would have been obvious for one of ordinary skill in the art to combine at least four components selected from decyl aldehydes, allyl amyl glycolate, cis-3-hexenyl acetate, rose oxide, terpinolene, and 2,4-dimethyl-3-cyclohexene-1-carbaldehyde in a fragrant composition for washing surfaces in contact with food. Appeal 2010-007860 Application 11/353,661 6 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)(1)(iv)(2006). AFFIRMED alw COLGATE-PALMOLIVE COMPANY 909 RIVER ROAD PISCATAWAY, NJ 08855