Ex Parte Qiu et al

Board of Patent Appeals and Interferences

Jun 11, 2009

10744749 (B.P.A.I. Jun. 11, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte QIANG QIU, FRANK MEYER, and RAJENDRA M. DAVE
__________

Appeal 2009-001968
Application 10/744,749
Technology Center 1600
__________

Decided:1 June 11, 2009
__________

Before LORA M. GREEN, RICHARD M. LEBOVITZ, and
MELANIE L. McCOLLUM, Administrative Patent Judges.

GREEN, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134 from the
Examiner’s final rejection of claims 1-7. 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, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).

Appeal 2009-001968
Application 10/744,749

STATEMENT OF THE CASE
The claims are directed to a cleansing composition. Claim 1 is
representative of the claims on appeal, and reads as follows:
1. An ordered liquid crystalline phase cleansing composition
comprising:
a. at least about 3 % by wt. of an anionic surfactant other than a C16
to C24 normal monoalkylsulfosuccinate;
b. a structuring base including at least one compound selected from
C16 to C24 normal monoalkylsulfosuccinates and at least one compound
selected from C16 to C24 normal alkyl fatty acids;
c. wherein the at least one monoalkylsulfocuccinate has an alkyl
group with a carbon number n and the at least one normal fatty acid has an
alkyl group with a carbon number m and the absolute value of n - m is 4 or
less; and
d. wherein the mole ratio of said at least one monoalkylsulfosuccinate
to said at least one fatty acid is in the range of about 3 to 0.2.

The Examiner relies on the following evidence:
Fujimura US 5,939,078 Aug. 17, 1999
Puvvada US 6,077,816 Jun. 20, 2000
Mitra US 6,426,326 B1 Jul. 30, 2002

We affirm.

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Application 10/744,749

ISSUE
The Examiner concludes that claims 1-3 and 5-7 are rendered obvious
by either Puvvada or Mitra, and that claim 4 is rendered obvious by the
combination of Puvvada or Mitra with Fujimura.
Appellants contend that neither Puvvada or Mitra teach or suggest a
cleansing composition comprising fatty acids and monoalkylsulfosuccinates
“wherein the at least one monoalkylsulfocuccinate has an alkyl group with a
carbon number n and the at least one normal fatty acid has an alkyl group
with a carbon number m and the absolute value of n - m is 4 or less,” and
further, that even if the Examiner has established a prima facie case of
obviousness, that Appellants have demonstrated unexpected results
sufficient to overcome the prima facie case.
Thus, the issues on appeal are: Have Appellants demonstrated that the
Examiner erred in concluding that Puvvada or Mitra teach or suggest a
cleansing composition comprising fatty acids and monoalkylsulfosuccinates
“wherein the at least one monoalkylsulfocuccinate has an alkyl group with a
carbon number n and the at least one normal fatty acid has an alkyl group
with a carbon number m and the absolute value of n - m is 4 or less,” and
that, even if there is a prima facie case of obviousness, have Appellants
demonstrated unexpected results sufficient to overcome the prima facie
case?

FINDINGS OF FACT
FF1 According to the Specification, the “present invention relates to
detergent compositions suitable for topical application for cleansing the
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Application 10/744,749

human body, such as the skin and hair,” and more specifically, “it relates to
ordered liquid crystalline phase compositions containing long chain normal
monoalkylsulfosuccinates.” (Spec. 1.)
FF2 The Specification teaches:
The majority of prior art liquid cleansing products
contain polymers, long-chain unneutralized fatty acids (e.g.
C16-C18) or oils as thickeners to increase product viscosity.
Although these materials might produce the desired viscosity,
they structure the product such that its kinetics of dispersion is
slow where the lather is slow to build or slow to rinse off. As a
consequence, such products suffer from poor lather or slimy
rinse or lack of clean/fresh feel (i.e. a lack of a squeaky clean
feel) after towel-drying. In extreme cases where high amounts
of structurants are desired, the product usually becomes very
difficult to disperse in water and very slow to rinse off.
Surprisingly it has been found that the use of an ordered liquid
crystalline phase cleansing composition preferably containing
swollen lamellar gels formed by C16-24 normal
monoalkylsulfosuccinates in combination with normal alkyl
fatty acids having an alkyl carbon number in the same range,
and advantageously within 4 carbons, has the advantage of fast
dispersion kinetics (with the same product viscosity), while
ensuring high product viscosity. Such systems are
unexpectedly found to be fast in releasing active ingredients
(i.e. lather-forming surfactants) and improving the rinse and
clean/fresh feeling accompanying product use.

(Id. at 1-2.)
FF3 Example 4 of the Specification presents the dispersion kinetics or
lathering rate of formulations comprising the claimed inventive
sulfosuccinates/fatty acids (Sample J) and comparative formulations (M and
N) (id. at 26-27). Sample J contained C16SS (sulfosuccinate), C18 SS,
C16FA (fatty acid), and C18 FA, whereas comparative sample M did not,
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Application 10/744,749

and comparative example N contained C16FA and C18 FA but not C16 SS
and C18 SS (id. at 27).
FF4 Example 5 of the Specification compares the rinsing speed of a
sample containing both fatty acids and C16 and C18 sulfosuccinates
(inventive formula O) to a sample containing only fatty acids (comparative
sample P) (id. at 28-29).
FF5 The Examiner rejects claims 1-3 and 5-7 under 35 U.S.C. § 103(a) as
being rendered obvious by Puvvada (Ans. 3). As Appellants do not argue
the claims separately, we focus our analysis on claim 1, and claims 2, 3 and
5-7 stand or fall with that claim. 37 C.F.R. § 41.37(c)(1)(vii).
FF6 The Examiner finds that Puvvada teaches “a liquid cleansing
composition comprising a soluble, lamellar phase inducing structurant . . .;
and thus teaches an ordered crystalline phase cleaning composition, as
recited in claim 1.” (Ans. 3.) The Examiner also finds that Puvvada
“teaches that the compositions comprise defined surfactant systems and a
structurant, where the structurant can be a liquid fatty acid.” (Id.)
FF7 The Examiner further finds that Puvvada teaches the composition
comprises a defined surfactant system and a structurant, wherein the
surfactant system can comprise one or more anionic surfactants (id. (citing
Puvvada, col. 4, ll. 5-32)).
FF8 The Examiner finds that Puvvada teaches an anionic surfactant that is
other than a C16 to C24 normal monoalkylsulfosuccinate, such as an alkyl
sulfate. (Id. (citing Puvvada, col. 4, ll. 15-32).) The Examiner notes that
Puvvada teaches that the anionic component can comprise 5 to 12% of the
composition, which meets and/or overlaps that recited by the claim, and also
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Application 10/744,749

notes that it would have been routine to optimize the concentration (Ans. 4).
Thus, the Examiner finds that Puvvada teaches limitation (a) of claim 1. (Id.)
FF9 The Examiner finds further that Puvvada teaches “that the one or
more anionic surfactants can also comprise a monoalkylsulfosuccinate
having the formula R4O2CCH2CH(SO3M)CO2M, where M is a solubilizing
cation and R4 is a C8 to C22 alkyl group.” (Id. (citing Puvvada, col. 4, ll.
33-50).) The Examiner thus finds that Puvvada teaches “the
monoalkylsulfosuccinates having a number of carbon atoms that meets
and/or overlaps with the range recited in part (b) of claim 1.” (Ans. 4.)
FF10 As to the limitation at issue, i.e., limitation (c) of claim 1, of “wherein
the at least one monoalkylsulfocuccinate has an alkyl group with a carbon
number n and the at least one normal fatty acid has an alkyl group with a
carbon number m and the absolute value of n - m is 4 or less,” the Examiner
notes that Puvvada “does not specifically teach that an absolute value of n-m
. . . is 4.” (Id. at 5.)
FF11 The Examiner concludes, however, that Puvvada
teaches that the alkyl moiety of the monoalkylsulfosuccinate
can be from C8 to C22, and the alkyl moiety of the fatty acid
from C8 to C24, as discussed above, and thus Puvvada et al.
teaches that the alkyl groups can have a number of carbon
atoms that may be the same or very close to each other (4 or
less.) Accordingly, it is considered that one of ordinary skill in
the art would have been motivated to provide
monoalkylsulfosuccinate and fatty acid compounds having
alkyl moieties with the same or very close numbers of carbon
atoms, with the expectation of providing an anionic surfactant
and structurant combination suitable for forming the cleansing
composition.

(Id.)
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FF12 The Examiner rejects claims 1-3 and 5-7 under 35 U.S.C. § 103(a) as
being obvious over Mitra (Ans. 7). As Appellants do not argue the claims
separately, we focus our analysis on claim 1, and claims 2, 3 and 5-7 stand
or fall with that claim. 37 C.F.R. § 41.37(c)(1)(vii).
FF13 The Examiner finds that Mitra “teaches a liquid cleansing
composition comprising a lamellar phase including structurant . . ., and thus
teaches an ordered crystalline phase cleaning composition, as recited in
claim 1.” (Id. at 8.) The Examiner also finds that Puvvada “teaches that the
compositions comprise defined surfactant systems and a structurant, where
the structurant can be a liquid fatty acid.” (Id.)
FF14 The Examiner further finds that Mitra teaches the composition
comprises a defined surfactant system and a lamellar structurant, wherein the
surfactant system can comprise one or more anionic surfactants (id. (citing
Mitra, claim 13, and col. 4, ll. 59-65)).
FF15 The Examiner finds that Mitra teaches an anionic surfactant that is
other than a C16 to C24 normal monoalkylsulfosuccinate, such as an alkyl
sulfate (Ans. 8 (citing Mitra, col. 4, ll. 15-32)). The Examiner notes that
Mitra teaches that the anionic component can comprise 2 to 40% of the
composition, which meets and/or overlaps that recited by the claim, and also
notes that it would have been routine to optimize the concentration. (Ans. 8.)
Thus, the Examiner finds that Mitra teaches limitation (a) of claim 1 (Ans.
8).
FF16 The Examiner finds further that Mitra teaches “that the one or more
anionic surfactants can also comprise a monoalkylsulfosuccinate having the
formula R4O2CCH2CH(SO3M)CO2M, where M is a solubilizing cation and
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Application 10/744,749

R4 is a C8 to C22 alkyl group.” (Id. at 9 (citing Mitra, col. 5, ll. 20-45).)
The Examiner thus finds that Mitra teaches “the monoalkylsulfosuccinates
having a number of carbon atoms that meets and/or overlaps with the range
recited in part (b) of claim 1.” (Ans. 9.)
FF17 As to the limitation at issue, i.e., limitation (c) of claim 1, of “wherein
the at least one monoalkylsulfocuccinate has an alkyl group with a carbon
number n and the at least one normal fatty acid has an alkyl group with a
carbon number m and the absolute value of n - m is 4 or less,” the Examiner
notes that Mitra “does not specifically teach that an absolute value of n-m
. . . is 4.” (Id. at 9.)
FF18 The Examiner concludes, however, that Mitra
teaches that the alkyl moiety of the monoalkylsulfosuccinate
can be from C8 to C22, and the alkyl moiety of the fatty acid
from C10 to C22, as discussed above, and thus Mitra et al.
teaches that the alkyl groups can have a number of carbon
atoms that may be the same or very close to each other (4 or
less.) Accordingly, it is considered that one of ordinary skill in
the art would have been motivated to provide
monoalkylsulfosuccinate and fatty acid compounds having
alkyl moieties with the same or very close numbers of carbon
atoms, with the expectation of providing an anionic surfactant
and structurant combination suitable for forming the cleansing
composition.

(Id. at 9-10.)
FF19 The Examiner cites In re Aller, 220 F.2d 454, 456 (CCPA
1955) for the proposition that “where the general conditions of a claim
are disclosed in the prior art, it is not inventive to discover the
optimum or workable ranges by routine experimentation.” (Ans. 6
and 10.)
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Application 10/744,749

FF20 The Examiner rejects claim 4 under 35 U.S.C. § 103(a) as being
obvious over the combination of Puvvada or Mitra as combined with
Fujimura (id. at 12).
FF21 The Examiner relies on Fujimura to teach that the pH of a skin
cosmetic is preferably between 3 to 8 (id.).

PRINCIPLES OF LAW
The question of obviousness is resolved on the basis of underlying
factual determinations including: (1) the scope and content of the prior art;
(2) the level of ordinary skill in the art; (3) the differences between the
claimed invention and the prior art; and (4) secondary considerations of
nonobviousness, if any. Graham v. John Deere Co., 383 U.S. 1, 17 (1966).
In KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 414-415 (2007), the
Supreme Court rejected a rigid application of a teaching-suggestion-
motivation test in the obviousness determination. The Court emphasized
that “the [obviousness] analysis need not seek out precise teachings directed
to the specific subject matter of the challenged claim, for a court can take
account of the inferences and creative steps that a person of ordinary skill in
the art would employ.” Id. at 418. In addition, “[t]he combination of
familiar elements according to known methods is likely to be obvious when
it does no more than yield predictable results.” KSR, 550 U.S. at 416. Thus,
“[i]f a person of ordinary skill can implement a predictable variation, § 103
likely bars its patentability.” Id. at 417.
The burden of demonstrating unexpected results rests on the party
asserting them, and “it is not enough to show that results are obtained which
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Application 10/744,749

differ from those obtained in the prior art; that difference must be shown to
be an unexpected difference.” In re Klosak, 455 F.2d 1077, 1080 (CCPA
1972). “Mere improvement in properties does not always suffice to show
unexpected results.” In re Soni, 54 F.3d 746, 751 (Fed. Cir. 1995). “[W]hen
unexpected results are used as evidence of nonobviousness, the results must
be shown to be unexpected compared with the closest prior art.” In re
Baxter Travenol Labs., 952 F.2d 388, 392 (Fed. Cir. 1991).
Moreover, it has been long held that
even though applicant’s modification results in great
improvement and utility over the prior art, it may still not be
patentable if the modification was within the capabilities of one
skilled in the art, unless the claimed ranges “produce a new and
unexpected result which is different in kind and not merely in
degree from the results of the prior art.”

In re Huang, 100 F.3d 135, 139 (Fed. Cir. 1996) (quoting In re Aller, 220
F.2d 454, 456 (1955), and citing In re Woodruff, 919 F.2d 1575, 1578 (Fed.
Cir. 1990)). Finally, it is well settled that results must be established by
factual evidence. Mere argument or conclusory statements in the
specification does not suffice. In re De Blauwe, 736 F.2d 699, 705 (Fed.
Cir. 1984).

ANALYSIS
Appellants argue that Puvvada “does not teach or suggest to one
skilled in the art the specific concentration ranges and ratios of specific C18
to C24 normal alkyl fatty acids and C16 to C24 normal monoalkyl
sulfosuccinates nor the relationship between the carbon number difference of
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Application 10/744,749

such compounds being 4 or less as defined in the instant specification.”
(App. Br. 6.) According to Appellants, they have
discovered that the use of an ordered liquid crystalline phase
cleansing composition, preferably containing swollen lamellar
gels formed by C16-24 normal monoalkyl sulfosuccinates in
combination with normal alkyl fatty acids having an alkyl
carbon number in the same range, and advantageously within 4
carbons, has the advantage of fast dispersion kinetics (with the
same product viscosity), while ensuring high product viscosity.
Such inventive systems were unexpectedly found to be fast in
releasing active ingredients (i.e., lather forming surfactants) and
improving the rinse and clean/fresh feeling accompanying
product use, as amply demonstrated by the instant examples,
especially examples 4-5 as compared to comparative
formulations.

(Id.)
As to the rejection over Mitra, Appellants contend that Mitra does not
remedy the deficiencies of Puvvada, and specifically, that Mitra “fails to
disclose or suggest the specific mole ratio range of certain monoalkyl
sulfosuccinates to certain fatty acids.” (App. Br. 7.)
Appellants assert that while Puvvada and Mitra “may disclose
generically similar compounds and pH values described in the instant
claims, those references alone or in combination do not disclose a specific
composition that is identical with the combination of the specific
limitations.” (Reply Br. 2.) Appellants argue further that Aller is not
applicable as the criticality “has been amply demonstrated according to the
evidence and arguments of record.” (Id.)
All of Appellants’ arguments have been carefully considered but are
not found to be convincing. Both Puvvada and Mitra teach the use of
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surfactant systems that contain an anionic surfactant, wherein the anionic
surfactant may be a mixture of a fatty acid having an alkyl moiety of C8 to
C24 and a monoalkylsulfosuccinate can be from C8 to C22 (Puvvada), or a
mixture of a fatty acid having an alkyl moiety of C10 to C22 and a
monoalkylsulfosuccinate can be from C8 to C22 (Mitra), wherein the
concentration of the anionic surfactant other than a C16 to C24 normal
monoalkylsulfosuccinate encompasses the “at least 3%” required by part (a)
of claim 1. Thus the compositions of Puvvada and Mitra encompass the
composition of claim 1, and, in the absence of unexpected results, the
selection of a cleansing composition within those of Puvvada and Mitra that
meet the limitations of claim 1 would have been well within the level of skill
of the ordinary artisan. In addition, although neither reference teaches the
difference in carbon number between the monoalkylsulfosuccinate and fatty
acid to have an absolute value of n-m as recited in claim, given the overlap
in carbon number as found by the Examiner, we agree with the Examiner
that the choice of the particular carbon number difference would have been
routine optimization (F18).
In response, Appellants appear to be arguing that the cleansing
compositions encompassed by claim 1 exhibited unexpected properties,
specifically relying on Examples 4 and 5 of the Specification. Examples 4
and 5 compare formulations containing both fatty acids and
monoalkylsulfosuccinates to formulations containing fatty acids, and thus do
not establish the criticality of the limitation of claim 1 of “wherein the at
least one monoalkylsulfocuccinate has an alkyl group with a carbon number
n and the at least one normal fatty acid has an alkyl group with a carbon
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number m and the absolute value of n - m is 4 or less.” Examples 4 and 5 of
the Specification also both use C16 and C18 fatty acids and
monoalkylsulfocuccinates in both the inventive formulations and the
comparative formulations, and thus do not establish the criticality of the
limitation of “a structuring base including at least one compound selected
from C16 to C24 normal monoalkylsulfosuccinates and at least one
compound selected from C16 to C24 normal alkyl fatty acids.” In addition,
the burden of establishing unexpected results is on Appellants, and
Appellants do not explain how the comparative formulations containing only
the fatty acids is the closest prior art, as both Puvvada and Mitra teach
formulations containing both fatty acids and monoalkylsulfosuccinates.
As to the rejection of claim 4, Appellants argue that Fujimura does not
remedy the deficiencies of Puvvada or Mitra (App. Br. 7). Appellants’
arguments are not convincing for the reasons set forth above.

CONCLUSION(S) OF LAW
Appellants have not demonstrated that the Examiner erred in
concluding that Puvvada or Mitra teach or suggest a cleansing composition
comprising fatty acids and monoalkylsulfosuccinates “wherein the at least
one monoalkylsulfocuccinate has an alkyl group with a carbon number n and
the at least one normal fatty acid has an alkyl group with a carbon number m
and the absolute value of n - m is 4 or less.” Moreover, Appellants have not
demonstrated unexpected results, and thus have not overcome the prima
facie case.
We thus affirm:
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The rejection of claims 1-3 and 5-7 under 35 U.S.C. § 103(a) as being
rendered obvious by Puvvada;
The rejection of claims 1-3 and 5-7 under 35 U.S.C. § 103(a) as being
rendered obvious by Mitra;
The rejection of claim 4 under 35 U.S.C. § 103(a) as being rendered
obvious by Puvvada or Mitra as combined with Fujimura.

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

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