Ex Parte Mundschau et al

Patent Trial and Appeal Board

Aug 25, 2017

13925316 (P.T.A.B. Aug. 25, 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.
13/925,316 06/24/2013 Stacy Averic Mundschau 64803219US02 4183
23556 7590 08/25/2017
KIMBERLY-CLARK WORLDWIDE, INC.
Patent Docketing
2300 Winchester Rd.
NEENAH, WI54956
EXAMINER
BRANSON, DANIEL L
ART UNIT PAPER NUMBER
1616
MAIL DATE DELIVERY MODE
08/25/2017 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 PATENT TRIAL AND APPEAL BOARD
Ex parte STACY AVERIC MUNDSCHAU, PHILIP EUGENE KIEFFER,
and COREY THOMAS CUNNINGHAM1
Appeal 2016-006574
Application 13/925,316
Technology Center 1600
Before ERIC B. GRIMES, RICHARD J. SMITH, and
DEVON ZASTROW NEWMAN, Administrative Patent Judges.
GRIMES, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35U.S.C. § 134 involving claims to an
emulsion composition and a wet wipe, which have been rejected as obvious.
We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.
STATEMENT OF THE CASE
The Specification states that its “disclosure relates generally to a
formulation in the form of an emulsion which includes a combination gum
1 Appellants identify the Real Party in Interest as Kimberly-Clark
Worldwide, Inc. (Appeal Br. 1.)
Appeal 2016-006574
Application 13/925,316
blend and a salt tolerant emulsifier, and items using same.” (Spec. 1:7—8.)
The formulation is disclosed to be “useful for rash prevention and may be
applied to the skin with a wipe wetted therewith or by other various means.”
(Id. at 1:10-11.)
Claims 1—5, 10-18, and 20 are on appeal. Claim 1 is illustrative and
reads as follows (emphasis added):
1. An emulsion for the prevention of skin irritation, the emulsion
comprising:
a salt-tolerant emulsifier;
a gum blend comprising a gum and propylene glycol alginate, wherein the
gum blend is 0.01% to 0.5% by weight of the emulsion;
1% to 10% by weight silicone oil;
90% to 98% by weight water;
0.20% to 10% by weight water-soluble zinc salt,
a pH adjusting agent in an amount to bring the emulsion to a pH of 4 to 7,
and
a preservative selected from the group consisting of phenoxyethanol,
benzethonium chloride, benzisothiazolinone, benzyl alcohol, 2-Bromo-2-
nitropropane-l,3-diol, butylparaben, caprylyl glycol, chlorhexidine
digluconate, DMDM hydantoin, diazolidinyl urea, dehydroacetic acid,
ethylparaben, iodopropynyl butylcarbamate, methylchloroisothiazolinone,
methylisothiazolinone, methyldibromo glutaronitrile, methylparaben,
pentylene glycol, phenethyl alcohol, phenoxyethanol, propylparaben,
polyaminopropyl biguanide, quatemium-15, salicylic acid, sodium
methylparaben, sodium dehydroacetate, thymol, triclosan and mixtures
thereof.
2
Appeal 2016-006574
Application 13/925,316
DISCUSSION
The Examiner has rejected all of the claims on appeal under 35 U.S.C.
§ 103(a) as obvious based on Deckner,2 Bunger,3 Modak,4 Dunn,5 and
Kamath.6 (Final Action7 3.) The Examiner finds that Deckner discloses wet
wipes impregnated with an emulsion that includes all of the components of
claim 1 except for the gum mixture and the water-soluble zinc salt. (Id. at
4.8)
The Examiner finds that Bunger teaches a thickener system that is a
blend of propylene glycol alginate, xanthan gum, and guar gum “to stabilize
oil-in-water emulsions in beverages and provide[] full bodied beverage
texture even [] at acidic pH.” (Id. at 4—5.) The Examiner finds that Modak
teaches including water-soluble zinc salts in compositions “to prevent
irritation of skin and mucous membranes that may be caused by various
physical, chemical, mechanical or biological irritants.” (Id. at 5.9)
2 Deckner et al. US 2005/0008680 A1 Jan. 13,2005
3 Bunger et al. US 5,385,748 Jan. 31, 1995
4 Modak et al. US 2007/0020342 Al Jan. 25, 2007
5 Dunn US 6,696,070 B2 Feb. 24, 2004
6 Kamath et al., Spunlace (hydroenglement),
www.engr.utk.edu/mse/Textiles/Spunlace.htm, downloaded Sept. 2, 2014.
7 Office Action mailed April 13, 2015.
8 The Examiner actually states that Deckner does not teach the preservative
or pH required by claim 1, but previously identified a disclosure in Deckner
of diazolidinyl urea, one of the recited preservatives. (Final Action 4.) In
addition, as Appellants have pointed out (Appeal Br. 4), Deckner teaches an
acidic pH for its emulsion.
9 The Examiner relies on Kamath for making a non-woven material by a
spunlace process, as recited in dependent claim 20. (Final Action 4.) The
Examiner relies on Dunn for teaching an emulsion with a pH of 4—5.5 and
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Application 13/925,316
The Examiner concludes that it would have been obvious “to include
the water soluble zinc salts of Modak et al. within the composition and
wipes of Deckner et al. in order to prevent irritation caused by various
physical, chemical, mechanical or biological irritants.” (Id.) The Examiner
also concludes that it would have been obvious “to add the thickening
composition of Bunger et al. in place of the xanthan gum of Deckner et al. in
order to provide an emulsion wherein the oil is sufficiently stable within the
emulsion, even at acidic pH . . . [and] to achieve a stabilized emulsion
without a significant increase in viscosity.” (Id. at 6.) The Examiner
reasons that
as Bunger et al. presents a solution to a problem which the
Applicant would reasonably have been concerned, which is that
of achieving a stable emulsion without excessive viscosity, it
would have been obvious for one of ordinary skill in the art to
have looked to Bunger et al. for solutions to this problem, and to
incorporate these solutions into the emulsion of Deckner et al.
(Id.)
Appellants argue that “Deckner describes a wet wipe impregnated
with a lotion that includes a preservative system and ingredients to minimize
stinging,” whereas “Bunger describes a beverage thickener/emulsifier
system. . . . The primary uses of propylene glycol alginate in Bunger is as a
thickener and to promote flavor intensity of the beverage in question over
the flavor issues inherent with gums.” (Appeal Br. 4)
comprising one of the preservatives recited in claim 1. (Id. at 5.) As
discussed in the preceding footnote, however, Deckner teaches that its
emulsion meets these limitations.
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Application 13/925,316
Appellants argue that “there is no motivation to turn to a beverage
thickener/flavor enhancer for a wipe formulation for which lower viscosity
is better and flavor is irrelevant, and no reasonable expectation of success
that doing so will not have an effect opposite of that desired.” (Id. at 6.)
Appellants argue, more specifically, that “one would not be motivated to
turn to Bunger to add propylene glycol alginate because Bunger teaches that
this substance promotes thickening and flavor, neither of which is necessary
or desired in Deckner’s wipe.” (Id. at 5.) Appellants also reason that
“Bunger’s teachings with respect to propylene glycol alginate are for its use
in beverages” and would not provide a reasonable expectation of
successfully using it in Deckner’s wet wipe composition because “[t]he wet
wipe formulation of Deckner and the beverages of Bunger are completely
different.” (Id. at 5.)
We agree with Appellants that the Examiner has not shown that a
person of ordinary skill in the art would have considered it obvious to
combine Bunger’s thickener composition with Deckner’s emulsion. Bunger
discloses that its “invention relates to a beverage thickener/emulsifier system
which is a blend of three materials: propylene glycol alginate, xanthan and
guar gums.” (Bunger 1:8—10.) Bunger states that its “system provides very
stable oil-in-water emulsions in beverages and provides a full bodied
beverage texture even at acid pH.” (Id. at 1:10—13.)
Bunger states that “[a]cid beverages, for example soft drinks, fruit
punches, fruit juices, and like refreshments contain flavor oils.” (Id. at 1:16—
18.) “Gums and other thickeners are added to provide texture and
mouthfeel.” (Id. at 1:20-21.) However, “at acid pHs, particularly in the
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Application 13/925,316
range of 3—4, the gums can be unstable and ineffective.” (Id. at 1:26—27.)
Bunger states that the combination of thickeners in its system “provides a
beverage in which the oil system is stable without providing an unacceptably
thick texture.” (Id. at 1:47—49.)
Deckner states that its “invention relates to a composition for a
cleansing body wipe delivering an improved body cleansing performance
while providing a gentle and smooth feeling to the user.” (Deckner 12.)
Deckner states that the “composition impregnating the wipe is commonly
and interchangeably called lotion, soothing lotion, soothing composition, oil-
in-water emulsion composition, emulsion composition, emulsion, cleaning
or cleansing lotion or composition.” (Id. 1 50.)
Deckner’s composition comprises an emollient, a surfactant and/or
emulsifier, a soothing agent, optionally a rheology modifier, a preservative,
and water. (Id. Tflf 51—57.) Deckner states that “[rjheology modifiers are
compounds that increase the viscosity of the composition. . . . Rheology
modifiers or suspending agents or stabilizers also provide ‘structure’ to the
compositions to prevent settling out (separation) of insoluble and partially
soluble components.” (Id. 1 80.) “In addition . . . , the rheology modifiers
of the invention also help to stabilize the composition on the wipe and
enhance the transfer of lotion to the skin.” (Id. 1 82.)
Thus, Bunger describes its thickener system as having the beneficial
effect, in beverages, of providing a full-bodied beverage texture without
making the beverage unacceptably thick. Deckner describes a cleansing
wipe impregnated with a lotion composition comprising rheology modifiers
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Application 13/925,316
to increase the viscosity of the composition, prevent separation of insoluble
components, and enhance transfer of the lotion to skin.
In view of the very different uses and different effects disclosed by
Bunger and Deckner for their respective thickeners, we agree with
Appellants that the Examiner has not persuasively shown that a person of
ordinary skill in the art would have considered it obvious to use Bunger’s
beverage thickener system in Deckner’s lotion composition.
The Examiner reasons that a skilled artisan would have made the
composition “in order to achieve a stabilized emulsion without a significant
increase in viscosity.” (Final Action 6.) See also Ans. 3: “Bunger et al.
provides a solution to a problem with which Applicant would reasonably
have been concerned, which is that of achieving a stable emulsion without
excessive viscosity in a composition that has acidic pH.”
However, the stability relevant to Bunger’s thickener system is that of
oils (e.g., flavor oils) in the aqueous beverage composition. (See Bunger
1:10—11: “This system provides very stable oil-in-water emulsions in
beverages.”) By contrast, Deckner’s rheology modifiers are intended to
prevent separation of insoluble components from the lotion composition.
(See Deckner | 80: “Rheology modifiers or suspending agents or stabilizers
. . . prevent settling out (separation) of insoluble and partially soluble
components.”) The Examiner has not pointed to evidence showing that the
type of stability described by Bunger would have led a skilled artisan to
reasonably expect that the same thickener system would also provide the
type of stability sought by Deckner.
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In summary, we conclude that the Examiner has not carried the
burden of presenting a prima facie case of obviousness based on the cited
references. We therefore reverse the rejection on appeal.
REVERSED
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