Ex Parte GeDownload PDFPatent Trial and Appeal BoardSep 16, 201612857232 (P.T.A.B. Sep. 16, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 12/857,232 08/16/2010 Haiyan Ge 49641 7590 09/20/2016 THE DIAL CORPORATION 7201 E. Henkel Way SCOTTSDALE, AZ 85255 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. 7466 3625 EXAMINER WEBB, WALTERE ART UNIT PAPER NUMBER 1612 NOTIFICATION DATE DELIVERY MODE 09/20/2016 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): US-STZ-P A TENTS-UK-UW@us.henkel.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte HAIY AN GE 1 Appeal2014-004038 Application 12/857,232 Technology Center 1600 Before ERIC B. GRIMES, JACQUELINE T. HARLOW, and JOHN E. SCHNEIDER, Administrative Patent Judges. GRIMES, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134 involving claims to an antiperspirant composition, which have been rejected as obvious. We have jurisdiction under 35 U.S.C. § 6(b ). We reverse. STATEMENT OF THE CASE The Specification discloses that surface treating an active antiperspirant compound with a hydrophobizing agent "delays hydrolyzation of the particles, thus permitting the particles to diffuse deeper into the sweat 1 Appellant identifies the Real Party in Interest as The Dial Corporation. (Br. 3.) Appeal2014-004038 Application 12/857,232 glands before forming plugs, and more effectively preventing perspiration." (Spec. i-f 8.) "In a preferred embodiment, the hydrophobizing agent comprises isopropyl titanium triisostearate (ITT)." (Id.) Claims 1-10 and 1 7-20 are on appeal. Claims 1 and 17 are the only independent claims and read as follows: 1. An antiperspirant product comprising: an active antiperspirant compound with a coating of a hydrophobizing agent comprising isopropyl titanium triisostearate; and a hydrophobic carrier. 17. An antiperspirant product comprising: an active antiperspirant compound surface treated with a hydrophobizing agent comprising isopropyl titanium triisostearate; a hydrophobic carrier; stearyl alcohol; hydrogenated castor oil; and a suspending agent. DISCUSSION The Examiner has rejected claims 1-10 and 17-20 under 35 U.S.C. § 103(a) as obvious based on Katsoulis2 and Comte. 3 (Ans. 2.) The Examiner finds that Katsoulis teaches an antiperspirant composition comprising an encapsulated antiperspirant active and an anhydrous carrier liquid. (Id.) The Examiner finds that Katsoulis also teaches "encapsulating agents include oct[ a ]methylcyclotetrasiloxane (hydrophobizing agent; methicone)." (Id.) 2 Katsoulis et al., US 5,232,689, issued Aug. 3, 1993. 3 Comte et al., US 2005/0196360 Al, published Sept. 8, 2005. 2 Appeal2014-004038 Application 12/857,232 The Examiner finds that Comte teaches "ingredients suitable for use in antiperspirants, including particles having hydrophobic surface property provided by isopropyl titanium triisostearate." (Id. at 3.) The Examiner states that ITT "is included in a list of suitable hydrophobic agents, which includes hydrophobic agents taught in Katsoulis, such as polysiloxanes, stearyl alcohol and methicone." (Id.) The Examiner concludes that, because "it is obvious to replace one component for another equivalent component if it is recognized in the art that two components are equivalent ... it would have been obvious to use isopropyl titanium triisosterate [sic] in the compositions of Katsoulis, based on it suitability for its intended use." (Id.) Appellant argues that, although Comte discloses compositions that can include antiperspirant (AP) actives and ITT (Br. 4), "ITT is in no way mentioned with regard to AP actives, treatment of AP actives, or reducing or impeding reactivity of AP actives." (Id. at 5.) Rather, Appellant argues, "Comte only discloses ITT as a compound that may be used as a dispersing agent for titanium dioxide ... but makes no mention that AP actives might suffer from poor dispersion in such formulations, or that surface treating them with anything at all would be beneficial." (Id.) Appellant concludes that "nothing in the prior art discloses any reason or relevance that would lead such a person to replace silicone compounds of Katsioulis [sic] with ITT to encapsulate an AP active." (Id. at 5---6.) We agree with Appellant that the Examiner has not shown that a skilled worker would have found in the cited references a reason to include ITT in Katsoulis' composition. Katsoulis discloses translucent 3 Appeal2014-004038 Application 12/857,232 antiperspirant compositions comprising an encapsulated antiperspirant active. (Katsoulis 2:50-53.) The antiperspirant active is encapsulated to prevent it from converting the metal stearate gellant to stearic acid, which causes the gel to break down. (See id. at 1 : 13-18.) The composition also comprises "an anhydrous carrier liquid selected from volatile silicones, low viscosity silicones, anhydrous monoalcohols, polyalcohols, fatty alcohols, and alcohol soluble emollients and mixtures thereof." (Id. at 3:4--8.) Katsoulis provides examples of each of these types of carrier liquids. (Id. at 3:9 to 4:60.) Katsoulis states that "[t]he encapsulated antiperspirant actives useful in the instant invention are produced by (A) combining together, with agitation, an aqueous aluminum salt or an aqueous aluminum-zirconium salt, a non-water miscible hydrophobic liquid ... , and a carboxylate ... and (B) heating the mixture ... to remove substantially all of the free water." (Id. at 5: 19-30.) "Non-water miscible hydrophobic liquids useful in producing the encapsulated antiperspirant active may be selected from low viscosity silicone fluids, paraffin oils such as mineral oil, and mixtures thereof." (Id. at 6:37--40.) Specific low viscosity silicones disclosed by Katsoulis include octamethylcyclotetrasiloxane. (Id. at 6 :49-51.) Comte discloses "use of mixtures of micronised inorganic and organic UV filters in protecting human and animal skin and hair against the damaging effect of UV radiation and ... their use in cosmetic and pharmaceutical formulations." (Comte i-f 1.) Comte's mixture includes "water dispersible and/or oil-dispersible coated titanium dioxide." (Id. i-f 8.) 4 Appeal2014-004038 Application 12/857,232 Comte states that "organic treatments (surface coating) are frequently used to improve the dispersibility of the micro-fine particles of Ti02[.] Examples for organic substances are fatty acids and its derivatives (metal soaps) or silicones like methicone, dimethicone or triethoxy caprylyl silane." (Id. i-f 12.) Oil-dispersible Ti02 particles are coated with, e.g., a metal soaps like isopropyl titanium triisostearate (ITT) to give them a hydrophobic surface. (Id. i-f 14.) Comte's compositions can also include antiperspirant active agents. (Id. i-f 83.) We do not agree with the Examiner's conclusion that Katsoulis and Comte support a prima facie case of obviousness. Katsoulis relates to encapsulating an antiperspirant active using hydrophobic liquids such as a low viscosity silicone fluid like octamethylcyclotetrasiloxane. Comte discloses that ITT can be used to coat micro-fine particles of Ti02 in order to improve their dispersion in oil. The Examiner has not adequately supported his position that, based on the disclosures of Katsoulis and Comte, a person of ordinary skill in the art would recognize ITT as a functional equivalent of the octamethylcyclotetrasiloxane disclosed as an encapsulating agent in Katsoulis. The Examiner reasons that ITT is disclosed in Comte "in a list of suitable hydrophobic agents, which includes hydrophobic agents taught in Katsoulis, such as polysiloxanes, stearyl alcohol and methicone." (Ans. 3.) "For example, the low viscosity silicones include polysiloxanes (see col. 4, lines 12-15)." (Id. at 5.) The cited passage, however, relates to suitable "anhydrous carrier liquid[s]" (Katsoulis 3:4--5), which is a different component from the "non-water miscible hydrophobic liquid" used to 5 Appeal2014-004038 Application 12/857,232 encapsulate the antiperspirant active agent. (See id. at 2:50-55 (listing the carrier liquid and encapsulated active as separate components of the final composition); 5 :23-25 (encapsulation mixture includes non-water miscible hydrophobic liquid).) Katsoulis lists stearyl alcohol in the same discussion of carrier liquids. (Id. at 4:34.) Katsoulis also mentions cyclomethicone, but again it was used in preparing the gel base for the final composition, not to encapsulate the active agent. (Id. at 12:7, 20-27 (gel base mixed with encapsulated antiperspirant active to form antiperspirant stick).) In short, the Examiner has not shown that Comte's disclosure of ITT as an agent for coating Ti02 particles would have made obvious its use as an encapsulating agent in Katsoulis' antiperspirant compositions. The evidence therefore does not support a prima facie case of obviousness. SUMMARY We reverse the rejection of claims 1-10 and 17-20 under 35 U.S.C. § 103(a). REVERSED 6 Copy with citationCopy as parenthetical citation