Ex Parte Komure et al

Patent Trial and Appeal Board

Apr 14, 2017

11825795 (P.T.A.B. Apr. 14, 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.
11/825,795 07/09/2007 Natsumi Komure AA734C 7960
27752 7590 04/18/2017
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
04/18/2017 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 NATSUMI KOMURE and GOLAM FARUQUE KHAN1
Appeal 2016-003955
Application 11/825,795
Technology Center 1600
Before RICHARD M. LEBOVITZ, JEFFREY N. FREDMAN, and
RYAN H. FLAX, Administrative Patent Judges.
FLAX, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) involving
claims directed to a hair conditioning composition. Claim 1 is on appeal as
rejected under 35 U.S.C. § 103(a).2 We have jurisdiction under 35 U.S.C.
§ 6(b).
We affirm.
1 We understand the Real Party in Interest to be The Procter & Gamble
Company. Br. 1.
2 Claims 9 and 10 are indicated to be withdrawn from consideration. Final
Action Summary.
Appeal 2016-003955
Application 11/825,795
STATEMENT OF THE CASE
The appealed claim can be found in the Claims Appendix of the
Appeal Brief and reads as follows:
1. A hair conditioning composition comprising by weight:
(a) from about 0.05% to about 10% of a nonionic polysaccharide
polymer having a molecular weight of about 1,500,000 to about
5,000,000, wherein the polysaccharide polymer is selected from
a nonionic guar gum modified by those selected from the group
consisting of hydroxymethyl, hydroxyethyl, hydroxypropyl and
hydroxybutyl groups;
(b) from about 0.1 % to about 10% of an aminosilicone having a
formula:
(R1)aG3.a-Si-(-0SiG2)n-0-SiG3.a(R1)a
wherein G is hydrogen, phenyl, hydroxy, or Ci-Cg alkyl; a is 1;
n is a number from 300 to 1800; Ri is a monovalent radical
conforming to the general formula CqH2qL, wherein q is an
integer having a value from 2 to 8 and L is -N(CH3)2 or -NH2
(c) from about 0.1 % to about 10% by weight of the composition
of a cationic surfactant;
(d) from about 0.1 % to about 20% by weight of the composition
of a high melting point fatty compound; and
(e) an aqueous carrier,
wherein the composition is free of anionic surfactants and
anionic polymers.
Br. 10 (Claims App’x.).
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Appeal 2016-003955
Application 11/825,795
The following rejection is on appeal:
Claim 1 stands rejected under 35 U.S.C. § 103(a) over Baker,3
Coppola,4 and Altrafme Gums.5 Final Action 3.
DISCUSSION
The Examiner has established that the claims would have been
obvious over Baker, Coppola, and Altrafme Gums. We adopt the
Examiner’s findings of fact, reasoning on scope and content of the prior art,
and conclusions set out in the Final Action and Answer. We summarize the
Examiner’s determination below.
Baker provides the foundation for the claimed composition. Baker
discloses aminosilicone (0.1%—20%) (corresponding to component b of
claim 1), cationic surfactant (0.1%—10%) (corresponding to component c of
claim 1), high melting point fatty compound (0.1%-20%) (corresponding to
component d of claim 1), and aqueous carrier formulated as a conditioning
composition as recited by claim 1 (corresponding to component e of claim
1). Baker 2-4; see also Final Action 4—7 (discussing Baker). Baker
discloses that this composition includes cationic guar gum, a cationic
polymer, having a molecular weight of 10,000 to 10,000,000 (relevant to
3 International Patent Application Pub. No. WO 2005/030153 A1 (published
Apr. 7, 2005) (“Baker”).
4 U.S. Patent No. US 6,306,377 B1 (issued to Linda S. Coppola et al. on Oct.
23, 2001) (“Coppola”).
5 Altrafme Gums, Guar Gum, available at
http://www.guargum.biz/guargum_chemical_structure.html (visited Mar. 8,
2010) (“Altrafme Gums”).
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Appeal 2016-003955
Application 11/825,795
component a of claim 1). Baker 15—16; see also Final Action 4—7
(discussing Baker).
Baker also discloses a list of optional components (“Additional
Components” at 0.001 %—10%) that its disclosed hair conditioner “may
include” and “can be formulated into the present compositions,” which
include, inter alia, “cationic fixative polymers, anionic fixative polymers,
[and] nonionic fixative polymers.” Baker 16—17; see also Final Action 4—7
(discussing Baker). The Examiner identified, and Appellants do not dispute,
that Baker discloses examples of hair conditioner that are “free of anionic
surfactants and anionic polymers,” as recited in claim 1. Baker 18—21; see
also Final Action 6 (discussing Baker).
The Examiner found that Baker does not expressly disclose that its
nonionic fixative polymer is nonionic guar gum modified by, e.g.,
hydroxypropyl, as required by component a of claim 1. To meet this
limitation, the Examiner looked to Coppola, which is directed to hair
smoothing (i.e., conditioning and temporary straightening) compositions,
which include cationic guar gums and nonionic guar gums, and identified
that Coppola disclosed that “the preferred nonionic guar gum comprises
hydroxypropyl guar” (at, e.g., 0.25%-0.75%). Coppola Abstract, Table I,
3:10-16; see also Final Action 6—8 (discussing Coppola). The Examiner
found that it would have been obvious to combine the nonionic guar gums of
Coppola with the cationic guar gum as disclosed by Baker to provide hair
straightening/smoothing properties. Coppola 2:14—32, 3:10-16; see also
Final Action 7 (discussing Coppola).
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Appeal 2016-003955
Application 11/825,795
We note, Coppola also expressly suggests combining its guar gums
with “an amino functional silicone,” like that of Baker and the appealed
claim. Coppola 3:50—55; 4:63—67. Further, it is undisputed that Altrafme
Gums evidences that “it would have been obvious to adjust the molecular
weight of the nonionic guar gum [to] between 1,000,000 and 2,000,000 to
arrive at the desired viscosity of the hair care composition.” Final Action 7;
Altrafme Gums 1 (indicating “[t]he molecular weight of Guar [polymer] has
[been] reported as 1-2 x 10 6.”).
Appellants have not produced evidence showing, or persuasively
argued, that the Examiner’s determination of obviousness is incorrect. Only
those arguments made by Appellants in the Brief have been considered in
this Decision. Arguments not presented in the Brief are waived. See 37
C.F.R. § 41.37(c)(l)(iv) (2015). We address Appellants’ arguments below.
Appellants argue the prior art combination fails to teach each claim
element because Baker is directed to a composition containing anionic
polymers, while the claim recites, “the composition is free of anionic
surfactants and anionic polymers.” Br. 5. Appellants identify that Baker
discloses, regarding “Additional Components” for its hair conditioner
composition, that “[t]he composition of the present invention may include
other additional components, which may be selected by the artisan according
to the desired characteristics of the final product and which are suitable for
rendering the composition more cosmetically or aesthetically acceptable or
to provide them with additional usage benefits,” and “[a] wide variety of
other additional components can be formulated into the present
compositions. These include: . . . cationic fixative polymers, anionic
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Application 11/825,795
fixative polymers, nonionic fixative polymers . . . Id. at 6—7 (quoting
Baker 16). Appellants argue this disclosure “neither uses the term
‘alternative’ nor teaches to one of skill in the art that Baker teaches that
nonionic polymers can be present in the alternative to anionic polymers.”
Id. at 7. Appellants seem to argue that the above passage from Baker
requires every “additional component” listed be included if any are. See id.
It is apparent that Baker’s list of “Additional Components” is a list of
ingredients that “may” or “can be” added to hair conditioner, individually or
in combination, “according to the desired characteristics of the final
product.” Baker 16. This means that Baker’s conditioner may include a
cationic fixative polymer or may not, may include an anionic fixative
polymer or may not, and may include a nonionic fixative polymer or may
not. Id. at 17. Thus, Appellants’ argument contending Baker’s composition
must have anionic components is not persuasive.
Appellants argue that combining Coppola with the Baker formulation
is not proper because “Coppola is directed to gel formulations which are
dynamically different in that the gel has no cationic surfactant present,” and,
so, the skilled artisan “would not be motivated to selectively choose
ingredients from a non-cationic surfactant base system to place in a cationic
surfactant basis system, as in the present invention.” Br. 8. Appellants
follow this contention by, essentially, restating their argument that Baker’s
compositions necessarily contain anionic polymers and reason they would
cause an undesirable interaction with cationic surfactants in view of gel
matrix stability. Id. 8—9. These arguments are also not persuasive.
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Application 11/825,795
As explained by the Examiner and discussed above, Coppola is cited
for disclosing that nonionic guar gum, modified by hydroxypropyl, is
suitable for hair conditioning compositions to impart hair smoothing and
straightening properties when combined with a cationic guar gum as
disclosed by Baker. Whether Coppola includes, or would not include, a
cationic surfactant is immaterial because it is Baker’s, not Coppola’s,
foundational hair conditioner formulation the Examiner cites to meet
components b through e of the claim. Further, as we find, supra, Baker does
not require including anionic components, thus, Appellants’ contention that
the presence of such would foreclose combining Baker and Coppola is not
persuasive. Moreover, as noted above, Coppola expressly suggests its
combination with aminosilicone for hair conditioning, thus, suggesting
Coppola’s combination with Baker.
SUMMARY
The rejection of claim 1 under 35 U.S.C. § 103(a) is affirmed.
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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