Ex Parte Glenn et al

Patent Trial and Appeal Board

Oct 10, 2017

13173639 (P.T.A.B. Oct. 10, 2017)

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.
13/173,639 06/30/2011 Robert Wayne GLENN JR. 11787M 9470
27752 7590 10/12/2017
THE PROCTER & GAMBLE COMPANY
Global IP Services
Central Building, C9
One Procter and Gamble Plaza
CINCINNATI, OH 45202
EXAMINER
ALAWADI, SARAH
ART UNIT PAPER NUMBER
1619
NOTIFICATION DATE DELIVERY MODE
10/12/2017 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 ROBERT WAYNE GLENN JR., RAJEEV CHHABRA,
WILLIAM MAXWELL ALLEN JR., and JONATHAN PAUL BRENNAN
Appeal 2017-003968
Application 13/173,6391
Technology Center 1600
Before DONALD E. ADAMS, ELIZABETH A. LaVIER, and
JOHN E. SCHNEIDER, Administrative Patent Judges.
LaVIER, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellants seek review of the
Examiner’s rejections of claims 1—3, 6—11, and 16—26. We have jurisdiction
under 35 U.S.C. § 6(b). For the reasons of record and those set forth below,
we AFFIRM.
BACKGROUND
The Specification relates to dissolvable fibrous consumer products.
Spec. 2:8—9. Claim 1 is illustrative:
1 Appellants state the real party in interest is The Procter & Gamble Company.
Br. 1.
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Application 13/173,639
1. An article comprising a dissolvable fibrous web structure
comprising fibers formed from a processing mixture comprising
a surfactant, a water soluble polymeric structurant and a
plasticizer present in the fibers at levels of:
a. from about 10% to about 75% by weight of the article
of a surfactant, wherein the surfactant comprises a
sodium laureth sulfate; and
b. from about 10% to about 70% by weight of the article
of a water soluble polymeric structurant; and
c. from about 1% to about 25% by weight of the article of
a plasticizer;
wherein the weight ratio of the water soluble water soluble
polymeric structurant to the active agent in the fibers is 3.5 or
less.
Br. 8 (Claims Appendix).
REJECTIONS MAINTAINED ON APPEAL
1. Claims 1,3, 6—9, 16, 17, 19—22, 24, and 26 stand rejected under
35 U.S.C. § 103(a) as unpatentable over Glenn2 and Aubrun-
Sonneville.3 Ans. 3.
2. Claims 1—3, 6—11, and 16—26 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Eccard,4 Bailey,5 Aubrun-Sonneville,
Ignatious,6 and Hasenoehrl.7 Ans. 3.
2 Glenn, Jr. et al., US 2009/0232873 Al, published Sept. 17, 2009.
3 Aubrun-Sonneville et al., US 2008/0035174 Al, published Feb. 14, 2008.
4 Eccard et al., US 2003/0180242 Al, published Sept. 25, 2003.
5 Bailey et al., US 2009/0061225 Al, published Mar. 5, 2009.
6 Ignatious et al., US 2006/0013869 Al, published Jan. 19, 2006.
7 Hasenoehrl et al., US 2004/0242097 Al, published Dec. 2, 2004.
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Application 13/173,639
DISCUSSION
A. Rejection 1
As to claim 1, the Examiner finds that Glenn “teaches a personal care
dissolvable article comprising from about 23 to 75% surfactant (active
agent), 10 to 50% water soluble polymer, 1 to 15% plasticizer, see claim 1.
The polymers include polyvinyl alcohol (structurant), see claim 16 and
paragraph 0004” (Final Action 5), and that Glenn further discloses weight
ratios that overlap with the claimed range {id. at 6). Glenn does not teach a
composition forming a fibrous web structure, however, so for this element
the Examiner turns to Aubrun-Sonneville. Id. The Examiner finds that
Aubrun-Sonneville teaches shampoos and other articles made of water-
soluble polymer fibers of varying thickness and density. Id. at 6—7 (citing
Aubrun-Sonneville Abstract, || 12, 22, 26—28, 112). The Examiner
concludes it would have been obvious to one of ordinary skill in the art “to
form the dissolvable compositions of Glenn Jr. into fibrous dissolvable web
articles to permit greater diversity in the choice of shape and the appearance
of the article as taught by Aubrun-Sonneville.” Id. at 7.
Appellants first argue that the ordinarily skilled artisan would not
have replaced the films taught in Glenn with Aubrun-Sonneville’s fibers
because Glenn teaches that “films are generally of too low a basis weight to
deliver sufficient dosage” of active ingredients. Br. 3. We fail to see how
such shortcomings in films would not further motivate their replacement
with a more robust article type, such as fibers. In any case, however, as the
Examiner notes, the passage from Glenn quoted by Appellants regarding low
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basis weight films8 is part of the background information provided in Glenn;
Glenn goes on to teach films with “basis weights in much higher ranges
which are identical to the ranges of the instant invention, see paragraphs
[0045], [0047], and claim 6.” Ans. 4.
Next, Appellants assert that there would have been no motivation to
modify and combine the references because the methods disclosed in the two
references are different from each other and different from the claimed
invention—Aubrun-Sonneville discloses a spinning method, while Glenn
uses casting. See Br. 3; see also Br. 5. We agree with the Examiner (see
Ans. 6) that this argument is unpersuasive, as obviousness does not require
bodily incorporation of one reference into the other. See In re Keller, 642
F.2d 413, 425 (CCPA 1981). Instead, “if a technique has been used to
improve one device, and a person of ordinary skill in the art would recognize
that it would improve similar devices in the same way, using the technique is
obvious unless its actual application is beyond his or her skill.” KSR Int’l
Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007). That is the case here,
particularly as claim 1 is directed to an article and does not limit the process
by which the article is made. As the Examiner explains:
Here, Glenn Jr. already teaches forming processing mixtures
which contain the structurant, sodium laureth sulfate surfactant,
and plasticizer, with the difference is that Glenn Jr. forms films
from the processing mixture and is silent to fiber formation.
However, Auburn Sonneville provides notice that it is well
known in the art to provide for fibrous articles as water soluble
fibrous sheets are advantageous over films since they allow for
incorporation of incompatible constituents and allow for a
8 On page 2 of the Appeal Brief (paragraph spanning into page 3), Appellants
quote from Glenn but do not provide a paragraph citation. The quoted material
appears in paragraph 4 of Glenn.
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Application 13/173,639
greater diversity in the choice of shape and appearance of the
article since fibers can vary in thickness and density.
Ans. 6. Appellants’ further argument that Auburn-Sonneville fails to teach
adding sodium laureth sulfate to a structurant before spinning it (see Br. 3) is
unpersuasive for the same reason. Appellants’ reliance on the Hutton
Declaration9 as showing that the articles made in accordance with the
application “have significant dissolution and lather advantages” (Br. 3) over
mixtures made according to Aubrun-Sonneville (see Br. 3—5) is likewise
unpersuasive as it misses the thrust of the obviousness rejection, which is
rooted in a modification of the process described in Glenn:
the Examiner reminds Appellants that Glenn Jr. already teaches
formation of a processing mixture which blends the surfactant,
structurant and plasticizer together, the only difference being
that the processing mixture is placed into a mold instead of
formed into the shape of a fibrous article. Appellants have
provided no evidence that Glenn Jr.’s processing mixture could
not be formed into the shape of fibers.
Ans. 7—8.
We discern no improper hindsight reconstruction (contra Br. 5) in the
Examiner’s analysis. As Appellants have not demonstrated any reversible
error by the Examiner in rejecting claim 1 over Glenn and Aubrun-
Sonneville, we affirm the rejection. Claims 3, 6—9, 16, 17, 19-22, 24, and
26 are not argued separately, and fall with claim 1. See 37 C.F.R.
§ 41.37(c)(l)(iv).
9 Declaration of Howard Hutton under 37 C.F.R. § 1.132, dated Aug. 11,
2015.
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B. Rejection 2
The Examiner finds that Eccard teaches the limitations of claim 1 (see
Final Action 8—10), except that Eccard “does not expressly teach wherein
the article is a dissolvable fibrous web structure” (id. at 10).10 The Examiner
cites Bailey as teaching spinnable starch compositions into which a
surfactant can be incorporated, and which can be processed into fibers. Id.
at 10 (citing Bailey Abstract, || 48, 75). The Examiner further finds that it
would have been obvious “to form the polymer, surfactant and plasticizer
composition of Eccard et al. into fibrous materials having diameters of less
than 10 microns” as taught in Bailey. Id. Ignatious, teaching that fibers with
diameters in the nanometer range yield articles with increased surface area,
and thus increased dissolution rates, and Aubrun-Sonneville, teaching the
advantageousness of fibers for more choice in shape and appearance,
provide the motivation to combine. Id. at 10—11.
Appellants argue that the combined references fail to teach or suggest
“spinning fibers from a processing mixture comprising the surfactant, and
10 The Examiner also notes that “[t]he modified Eccard does not teach wherein
each layer of the web can comprise a different composition with average
diameters between 0.1 micron to 150 microns (per claims 1—2 and 21—26).”
Final Action 11. These features are not present in claim 1, but either or both
are recited, directly or indirectly, in claims 2 and 21—26. See Br. 8, 12—13
(Claims Appendix). The Examiner relies on Hasenoehrl to teach these
missing limitations. See Final Action 11—13. Appellants do not separately
argue claims 2 or 21—26, but argue generally that the fiber spinning process
taught in Hasenoehrl is different from the process in Eccard, and that
combining the two requires improper hindsight reconstruction. See Br. 6.
This process-mismatch argument is as unpersuasive as to Rejection 2 as it is
to Rejection 1, as it presumes bodily incorporation of one reference into the
other. See Keller, 642 F.2d at 425.
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polymeric structurant” rather than by other methods (Br. 5), noting that
spinning (as in Bailey) is a different process from casting (as in Eccard) (id.
at 6). As such, Appellants maintain that the rejection is the product of
impermissible hindsight. Id. These arguments are similar to those made by
Appellants with respect to Rejection 1, and are similarly not persuasive. We
agree with the Examiner’s conclusion that:
although it is acknowledged that Eccard is silent to fiber
formation, the teachings of Bailey and Aubum-Sonne[]ville
make it known that such articles can be converted as a fiber
shape (per Bailey) with the advantages of doing so disclosed in
Aubum-Sonne[]ville in order to have more control over
diversity in the shape and appearance of the article as fibers
allow for greater control.
Ans. 12; see generally Ans. 10—13.
Accordingly, Appellants have not persuaded us of any reversible error
by the Examiner. We affirm the rejection of claim 1. Claims 2, 3, 6—11, and
16—26 are not argued separately, and fall with claim 1. See 37 C.F.R.
§ 41.37(c)(l)(iv).
CONCLUSION
The rejections of claims 1—3, 6—11, and 16—26 are affirmed, for the
reasons of record and as explained herein.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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