Ex Parte Sturgis et al

Patent Trial and Appeal Board

Apr 28, 2017

14206067 (P.T.A.B. Apr. 28, 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.
14/206,067 03/12/2014 David Arthur STURGIS 12784M2 3911
27752 7590 05/02/2017
THE PROCTER & GAMBLE COMPANY
Global IP Services
Central Building, C9
One Procter and Gamble Plaza
CINCINNATI, OH 45202
EXAMINER
JUSTICE, GINA CHIEUN YU
ART UNIT PAPER NUMBER
1617
NOTIFICATION DATE DELIVERY MODE
05/02/2017 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 DAVID ARTHUR STURGIS, ERIC SHANE HENLEY,
RANDALL DUDLEY GRIFFITH, PHI VAN CHU, and
STEVEN MICHAEL WUJEK, SR.1
Appeal 2016-008503
Application 14/206,067
Technology Center 1600
Before ULRIKE W. JENKS, JOHN E. SCHNEIDER,
and TIMOTHY G. MAJORS, Administrative Patent Judges.
SCHNEIDER, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to
antiperspirant compositions, which have been rejected as anticipated and
obvious. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 Appellants identify the Real Party in Interest as The Procter & Gamble
Company. Br. 1.
Appeal 2016-008503
Application 14/206,067
STATEMENT OF THE CASE
The Specification describes an antiperspirant composition in the form
of a solid stick which has improved wetness protection. Spec. 1,11. 26—30.
Claims 1—8 and 10-16 are on appeal. Claim 1 is representative of the
rejected claims and reads as follows:
1. A solid stick antiperspirant composition, comprising:
an antiperspirant active comprising a zirconium salt,
wherein the solid stick antiperspirant composition is
substantially or completely free of aluminum zirconium
tetrachlorohydrate glycine having a metal to chloride ratio from
1.2 to 1.3;
a structurant comprising stearyl alcohol;
a surfactant, wherein the surfactant has a melt
temperature that is greater than the crystallization onset
temperature of the solid stick antiperspirant composition; and
wherein the solid stick antiperspirant composition is a
single phase.
The claims have been rejected as follows.
Claims 1^4 and 10-16 have been rejected under 35 U.S.C. § 102
(a)(1) or (a)(2)2 as anticipated by Shen.3
Claims 5—8 have been rejected under 35 U.S.C. § 103 as unpatentable
over Shen in view of Popoff.4
Claims 1—8 and 10-16 have been rejected under 35 U.S.C. § 103 as
unpatentable over Popoff.
2 The present application was filed on or after March 16, 2013 and has been
examined under the provisions of the America Invents Act (“AIA”). All
citations to statutes are to the provisions of the AIA.
3 Shen et al., US 2007/0003499 Al, published Jan. 4, 2007 (“Shen”).
4 Popoff at al., US 2012/0045493 Al, published Feb. 23, 2012 (“Popoff’).
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Appeal 2016-008503
Application 14/206,067
ANTICIPATION
Issue
The issue is whether a preponderance of evidence supports the
Examiner’s finding that claim 1 is anticipated by Shen.
The Examiner finds that Shen “discloses solid stick antiperspirant
compositions comprising 23 wt % aluminum-zirconium pentachlorohydrex-
glycine, stearyl alcohol (structurant), and hydrogenated castor wax (a further
structurant) in an anhydrous medium.” Non-Final Act. 4 (emphasis
omitted). The Examiner finds that the composition disclosed in Shen has a
metal to chloride ratio of from 1.2—1.3. Id. The Examiner finds that the
stearyl alcohol present in Shen also meets the limitation of a surfactant
having a melting point greater than the crystallization onset temperature of
the solid stick composition. Id.
Appellants contend that in the present invention, stearyl alcohol is not
a surfactant. Appeal Br. 2. Appellants argue that the claims call for both
stearyl alcohol and a surfactant and that to use stearyl alcohol to satisfy both
limitations reads one of the limitations out of the claim. Appeal Br. 3.
Analysis
We find Appellants’ arguments persuasive.
“Where a claim lists elements separately, ‘the clear implication of the
claim language’ is that those elements are ‘distinct component[s]’ of the
patented invention.” Becton, Dickenson and Co. v. Tyco Healthcare Group,
LP, 616 F.3d 1249, 1254 (Fed Cir. 2010) (citing Gaus v. Conair Corp., 363
F.3d 1284, 1288 (Fed. Cir. 2004).
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Appeal 2016-008503
Application 14/206,067
Claims must not be construed so broadly as to vitiate an express
limitation. See Texas Instruments, Inc. v. International Trade Comm., 988
F.2d 1165, 1171, 26 USPQ2d 1018, 1023 (Fed. Cir. 1993) (“[T]o construe
the claims in the manner suggested by TI would read an express limitation
out of the claims. This we will not do.”).
We agree with Appellants that the claims differentiate between stearyl
alcohol and the surfactant in that the claims list them as two separate
components. Appeal Br. 2—3. This is consistent with the teachings of the
Specification. Id. To read stearyl alcohol as satisfying both the stearyl
alcohol limitation and the surfactant limitation would improperly disregard
one of the two limitations expressly recited in the claim.
Conclusion of Law
We conclude that a preponderance of the evidence does not support
the Examiner’s conclusion that claim 1 is anticipated by Shen.
OBVIOUSNESS
Appellants have offered no arguments regarding either rejection based
on 35 U.S.C. § 103. We therefore affirm those rejections for the reason
given by the Examiner in the Office Action mailed May 21, 2015 and the
Answer.
SUMMARY
We reverse the rejection under 35 U.S.C. § 102(a).
We affirm the rejections under 35 U.S.C. § 103.
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Appeal 2016-008503
Application 14/206,067
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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