Ex Parte Smerznak et al

Board of Patent Appeals and Interferences

Apr 15, 2010

11433677 (B.P.A.I. Apr. 15, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte MARK ALLEN SMERZNAK and LUC MARIE LIEVENS
____________

Appeal 2010-000082
Application 11/433,677
Technology Center 1700
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Decided: April 15, 2010
____________

Before EDWARD C. KIMLIN, BRADLEY R. GARRIS, and
CHARLES F. WARREN, Administrative Patent Judges.

KIMLIN, Administrative Patent Judge.

DECISION ON APPEAL

This is an appeal from the final rejection of claims 21, 23, 24 and 26-
35. Appellants do not appeal the final rejection of claim 36. Claim 21 is
illustrative:
21. A structuring system suitable for incorporation into
liquid fabric treatment compositions, which structuring system
comprises as added components:
Appeal 2010-000082
Application 11/433,677

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(A) from 1.0% to 10%, by weight of the structuring
system, of a non-polymeric, crystalline, hydroxyl-containing
structuring agent, which can crystallize to form a thread-like
structuring network throughout liquid matrices, wherein the
structuring agent is selected from the group consisting of castor
oils and hydrogenated castor oils;

(B) a nonionic emulsifier;

(C) from 1.0% to 3.5%, by weight of the structuring
system, of an anionic emulsifier, wherein the anionic emulsifier
consists of an acid form or salt form of a C5 to C20
alkylbenzene sulfonate; and

(D) from 25% to 75%, by weight of the structuring
system, of a liquid carrier; wherein the sum of the
concentrations of anionic emulsifier and nonionic emulsifier is
from 10% to 50%, by weight of the structuring system.

The Examiner relies upon the following reference as evidence of
obviousness:

Rust DE 4009534 A1 Sept. 26, 1991
(as translated)

Appellants’ claimed invention is directed to a composition comprising
a crystalline structuring agent of castor oils or hydrogenated castor oils, a
nonionic emulsifier, from 1.0% to 3.5% by weight of an acid form or salt
form of an alkylbenzene sulfonate as an anionic emulsifier, and a liquid
carrier. The composition finds utility as a structuring system that may be
incorporated into a liquid fabric treatment composition.
Appealed claims 21, 23, 24 and 26-35 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Rust.
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Application 11/433,677

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Appellants do not present separate arguments for any particular claim
on appeal. Accordingly, all the appealed claims stand or fall together with
claim 21.
We have thoroughly reviewed each of Appellants’ arguments for
patentability. However, we are in complete agreement with the Examiner’s
reasoned analysis and application of the prior art, as well as has his cogent
and thorough disposition of the arguments raised by Appellants.
Accordingly, we will adopt the Examiner’s reasoning as our own in
sustaining the rejection of record, and we add the following for emphasis
only.
Appellants do not dispute any of the factual findings of the Examiner
regarding Rust’s disclosure of a composition that essentially corresponds to
compositions within the scope of appealed claim 21. Rather, Appellants
point out that their specification clearly indicates that the structuring systems
of the present invention may be incorporated into liquid fabric treatment
compositions preferably at a concentration of from 1.0% to 50%, and since
the appealed claims recite that the anionic emulsifier in the structuring
system is present in an amount of from 1.0% to 3.5%, “the minimum amount
of anionic emulsifier present in a liquid fabric treatment composition
comprising claimed structuring system would be 0.001% (1.0% x 0.1%) and
the maximum amount would be 1.75% (3.5% x 50%)” (App. Br. 3, second
full para.). Hence, Appellants urge that the minimum amount of 5% anionic
surfactant in Rust’s cleaning composition “is over two a half times the
amount of the anionic surfactant that would be present in a liquid fabric
treatment composition comprising claimed structuring system” (id.,
emphasis added).
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Application 11/433,677

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We fully concur with the Examiner that Appellants’ argument is
without merit. The claimed invention before us is directed to a composition,
a so-called structuring system, that may be used in a liquid fabric treatment
composition. As maintained by the Examiner, the ultimate, intended use of
the claimed composition in a liquid fabric treatment composition has no
bearing on its patentability vis-à-vis the composition of Rust. Appellants
have advanced no argument for why the claimed composition is patentably
distinct from the cleaning composition disclosed by Rust. Appellants have
not refuted the Examiner’s rationale that “[t]he structuring system is the
claimed subject matter, and the person of ordinary skill in the surfactant art,
following the teachings of the Rust reference, would be motivated to make
such a composition, albeit for hand cleaning rather than fabric cleaning”
(Ans., sent. bridging 4-5). As for Appellants’ argument that Rust requires a
minimum of 5% of anionic surfactant, Appellants have not addressed the
Examiner’s reasoning that it would have been obvious for one of ordinary
skill in the art to use an anionic surfactant in an amount within the claimed
range of 1.0-3.5% by employing 5% surfactant at a 1:1 mixture of anionic
and nonionic surfactants for an anionic surfactant concentration of 2.5%.
As a final point, we note that Appellants base no argument upon
objective evidence of nonobviousness, such as unexpected results.
In conclusion, based on the foregoing and the reasons well stated by
the Examiner, the Examiner’s decision rejecting the appealed claims is
affirmed.
Appeal 2010-000082
Application 11/433,677

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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. 1.136(a)(i)(v).

AFFIRMED

kmm

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