Jeffrey Miller et al.

Patent Trials and Appeals Board

Feb 8, 2022

2021002738 (P.T.A.B. Feb. 8, 2022)

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. 13/518,971 06/25/2012 Jeffrey M. Miller 8632-00-US-01-OC 6882 23909 7590 02/08/2022 COLGATE-PALMOLIVE COMPANY 909 RIVER ROAD PISCATAWAY, NJ 08855 EXAMINER WEBB, WALTER E ART UNIT PAPER NUMBER 1612 NOTIFICATION DATE DELIVERY MODE 02/08/2022 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): Patent_Mail@colpal.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ________________ Ex parte JEFFREY M. MILLER, LYNETTE ZAIDEL, BERNIE BLACKWELL, BARBARA HEPLER, and PRAKASARAO MANDADI1 ________________ Appeal 2021-002738 Application 13/518,971 Technology Center 1600 ________________ Before DONALD E. ADAMS, JEFFREY N. FREDMAN, and JOHN G. NEW, Administrative Patent Judges. NEW, Administrative Patent Judge. DECISION ON APPEAL 1 We use the term “Appellant” to refer to the “applicant” as defined in 37 C.F.R. § 1.142. Appellant identifies Colgate-Palmolive Company as the real party-in-interest. App. Br. 2. Appeal 2021-002738 Application 13/518,971 2 SUMMARY Appellant files this appeal under 35 U.S.C. § 134(a) from the Examiner’s Final Rejection of claims 1, 6, 8, 10, 13, 14, 16-19, and 24-28 as unpatentable under 35 U.S.C. § 112(a) as failing to comply with the written description requirement. Claims 1, 6, 8, 10, 13, 14, 16-19, and 24-28 also stand rejected as unpatentable under 35 U.S.C. § 103 as being obvious over Zaidel et al., (US 2008/0145321 A1, June 19, 2008) (“Zaidel”). Claims 1, 6, 8, 10, 13, 14, 16-19, and 24-28 also stand rejected as unpatentable under 35 U.S.C. § 103 as being obvious over the combination of Zaidel and Lokken et al., (US 2006/0062744 A1, March 23, 2006) (“Lokken”). Claims 1, 6, 8, 10, 13, 14, 16-19, and 24-28 also stand rejected as unpatentable under 35 U.S.C. § 103 as being obvious over the combination of Zaidel and Chopra et al. (US 2007/0071695 A1, March 29, 2007) (“Chopra”). We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. NATURE OF THE CLAIMED INVENTION Appellant’s claimed invention is directed to an oral care composition for whitening teeth. Spec., Abstr. REPRESENTATIVE CLAIM Claim 1 is the sole independent claim and is representative of the claims on appeal and recites: Appeal 2021-002738 Application 13/518,971 3 1. An oral care composition comprising: a whitening agent, wherein the whitening agent is bound to a cross-linked polymer; an anionic surfactant present in an amount of 2.0% w/w; and an orally acceptable carrier having a total concentration of water of 0% to 4% w/w and wherein the water content of the oral care composition is less than 4% w/w; wherein the anionic surfactant is sodium lauryl sulfate; and the whitening agent is a bound peroxide in an amount from 1% to 2% w/w, wherein the peroxide is hydrogen peroxide, and said peroxide is bound to a cross-linked polymer; and wherein the orally acceptable carrier comprises a mixture of polyethylene glycol and one or more ethylene oxide/propylene oxide copolymers in a net amount of 2 to 35% w/w; and wherein the composition further comprises 2% w/w tetrasodium pyrophosphate; and wherein the composition further comprises about 0.20% phosphoric acid, and further comprises calcium pyrophosphate abrasive, wherein the composition provides improved flavor when compared with a similar composition having 1.75% or 1.2% w/w sodium lauryl sulfate when rated in an organoleptic evaluation by an experienced flavorist. App. Br. 13. Appeal 2021-002738 Application 13/518,971 4 ISSUE AND ANALYSIS We agree with and adopt the Examiner’s findings, reasoning, and conclusion that the claims are obvious over the cited prior art. We decline, however, to adopt the Examiner’s conclusion that the claims lack written descriptive support. We address below the arguments raised by Appellant. A. Written Description The Examiner’s Findings and Conclusions The Examiner notes that amended claim 1 recites “wherein the composition provides improved flavor when compared with a similar composition having 1.75% or 1.2% sodium lauryl sulfate when rated in an organoleptic evaluation by an experienced flavorist.” Final Act. 3. The Examiner finds that this constitutes new matter insofar as it was not supported by the disclosure, as originally filed. Id. The Examiner finds that the amended limitation is derived from a taste test involving a single “experienced flavorist.” Final Act. 3 (citing Spec. ¶ 53). The Examiner finds, however, the limitation does not meet the description requirement because the phrase has no limit and reads on a generalized objective experience as opposed to an opinion of a single person. Id. The Examiner likens the limitation in question to that at issue in In re Wertheim, 541 F.2d 257 (C.C.P.A. 1976). Final Act. 3. The Examiner notes that, in Wertheim, the ranges described in the original specification included a range of “25%-60%” and specific examples of “36%” and “50%.” Id. (see Wertheim, 541 F.2d at 262). The Examiner finds that the relevant Wertheim claim was amended to recite “at least 35%” did not meet the description Appeal 2021-002738 Application 13/518,971 5 requirement because the phrase “at least” had no upper limit and caused the claim to read literally on embodiments outside the “25% to 60%” range. Id. (citing MPEP § 2163.05; see Wertheim, 541 F.2d at 263-64). The Examiner further finds that there does not appear to be any written description support for the claim term “improved flavor,” even from the experienced flavorist. Final Act. 3. The Examiner finds that a preference was made for one composition over another by the flavorist, but no indication was given as to the basis for the preference. Id. The Examiner reasons that nothing shows that the ratings at Table 2 were based on “improved flavor.” Id. Analysis Appellant argues that the Examiner’s finding that an organoleptic evaluation, as recited in the claim, is the subjective opinion of a single person is not supported by evidence. Ans. 3. Appellant notes that flavorists are technical professionals in the flavor industry who are highly trained to evaluate and design flavors using individual flavor components, extracts, oils, and synthetic compounds. Id. Appellant contends that courts have long recognized the expertise of flavorists, pointing by way of example to In re Kratz, 592 F.2d 1169 (C.C.P.A. 1979), in which the court reversed a PTO rejection of claims to a process for imparting a strawberry flavor, in part based on a declaration by a flavorist as to the unexpected superiority in a taste evaluation of a specific flavoring in a specific range. Id. (see Kratz, 592 F.2d 1172, n.2). Appellant therefore contends that the claim limitation requiring “improved flavor . . . when rated in an organoleptic evaluation by Appeal 2021-002738 Application 13/518,971 6 an experienced flavorist” is not indefinite,2 but is an ascertainable physical property that must be given patentable weight. Id. Appellant also points to paragraph [0053] and Table 2 of the Specification which, Appellant argues, provides sufficient written descriptive support. Table 2 is reproduced below: Appellant’s Table 2 depicts the experienced flavorist’s rating of examples of the claimed composition with varying amounts of sodium lauryl sulfate (“SLS”). See Spec. ¶ 53. The flavorist rated these compositions on a scale of 0-6, with a rating of 6 being most preferred. Id. Appellant contends that Flavor is an organoleptic property, and that the organoleptic evaluation was performed by one who is an expert at evaluating flavor. App. Br 5. Appellant asserts that the Examiner’s contention that this evaluation failed to assess flavor, but was rather directed instead exclusively at other unspecified properties, is not supported by the plain language of the Specification. Id. We are not persuaded that the Examiner has established a prima facie case of lack of written descriptive support. As an initial matter, the 2 We note that the issue is not an indefiniteness rejection but rather a written description rejection. Thus, the issue is not whether the language informs those skilled in the art about the scope of the invention with reasonable certainty (cf. Datamize, LLC. v. Plumtree Software, Inc., 417 F.3d 1342, 1354 (Fed. Cir. 2005), but rather whether the language has descriptive support in the Specification. Appeal 2021-002738 Application 13/518,971 7 Examiner’s reliance on Wertheim is inapposite. In Wertheim, the predecessor to our reviewing court found that the amended claim term “at least 35%” did not meet the written description requirement because the phrase “at least” had no upper limit and caused the claim to read literally on embodiments outside the “25% to 60%” range disclosed by the Specification. Wertheim, 541 F.2d at 263-64. Such is not the case here. Claim 1 recites “an anionic surfactant [sodium lauryl sulfate] present in an amount of 2.0% w/w,” i.e., a single value. There is no “at least” term recited in this limitation, nor is there any need to define an upper limit to the concentration of the sodium lauryl sulfate, because the limitation recites a single value, not a range of values. Furthermore, Appellant’s Specification discloses that “[i]n some embodiments, the anionic surfactant comprises sodium lauryl sulfate” and that “[s]till further embodiments provide oral care compositions in which the anionic surfactant is present in the amount of 2.0% w/w.” See Spec. ¶ 10. The Specification thus expressly discloses the identity and amount of surfactant recited in the claim. Furthermore, we agree with Appellant that the flavorist’s findings related in Table 2 of Appellant’s Specification demonstrate that “the composition provides improved flavor when compared with a similar composition having 1.75% or 1.2% w/w sodium lauryl sulfate when rated in an organoleptic evaluation by an experienced flavorist.” In the study of Table 2: [T]he sodium lauryl sulfate (“SLS”) content was varied, while the flavoring agent content remained constant (2.25% w/w). The experienced flavorist rated these compositions on a scale of 0-6, with a rating of 6 being most preferred. As shown in Table 2, the Appeal 2021-002738 Application 13/518,971 8 compositions possessing an SLS content equal to or greater than 1.75% w/w, demonstrated dramatic improvement in rating compared to compositions containing 1.2% w/w SLS. Spec. ¶ 53. Inspection of Table 2 reveals that compositions comprising 2.0% SLS received a rating of 5.5 by the flavorist, whereas otherwise identical compositions containing 1.75% and 1.2% SLS received ratings of 4.5 and 2.5, respectively. Since 6.0 is the most preferred score possible in this study, it is evident that the flavorist’s rating of 5.5 for the composition containing 2.0% SLS is preferable to those containing lower SLS concentrations. Because the 2.0% SLS composition is “more preferred” than the lower concentrations, we agree with Appellant that a person of ordinary skill in the art would understand that the composition containing 2.0% SLS “provides improved flavor when compared with a similar composition having 1.75% or 1.2% w/w sodium lauryl sulfate when rated in an organoleptic evaluation by an experienced flavorist,” as recited in claim 1. We consequently reverse the Examiner’s rejection upon this ground. B. Rejection of the claims under § 103 over Zaidel The Examiner’s findings and conclusions The Examiner finds that Zaidel teaches oral care compositions comprising a cross-linked polymer peroxide, i.e., a complex of peroxide and N-vinyl heterocyclic polymer, and an orally acceptable carrier that is preferably non-aqueous. Final Act. 5 (citing Zaidel, Abstr. ¶ 49). The Examiner finds that Zaidel defines “nonaqueous” as meaning “does not contain appreciable amounts of chemically-unbound water” and “less than about 5% water in the carrier and therefore reads on the limitation of claim 1 Appeal 2021-002738 Application 13/518,971 9 reciting “an orally acceptable carrier having a total concentration of water of 0% to 4% w/w.” Id. (citing Zaidel ¶ 63). The Examiner finds that the compositions taught by Zaidel also comprise “sweeteners, flavorants.” Id. (citing Zaidel ¶ 45). The Examiner further finds that Zaidel specifically teaches use of “peroxydone XL-10,” a cross-linked polyvinylpyrrolidone (“PVP”) complexed with hydrogen peroxide, present in an amount of about 0.5% to about 40% of the total weight of the composition. Final Act. 5 (citing Zaidel ¶ 27, ¶ 25). The Examiner also finds that the orally acceptable carrier of Zaidel includes surfactants, such as sodium lauryl sulfate, which are preferably present in an amount of “about 0.1 % to about 2%.” Final Act. 5 (quoting Zaidel ¶ 64). The Examiner finds that Zaidel also teaches adhesion agents, such as hydrophilic block copolymers of polyethylene glycols and ethylene oxide/propylene oxide, having an average molecular weight from 2,000 to about 15,000, e.g., Pluraflo LI 220, and including polyethylene glycol 600, preferably present from about 0.001 % to about 75%. Id. at 5-6 (citing Zaidel ¶¶ 50-53, 46). The Examiner notes that Zaidel does not expressly teach the limitation reciting “wherein the composition provides improved flavor.” Final Act. 7. The Examiner reasons that this limitation is not limiting upon the invention, because “wherein” clauses that suggest or make optional, but do not require steps to be performed, or by claim language that does not limit a claim to a particular structure are generally not limiting on a composition claim. Id. (citing, e.g., Hoffer v. Microsoft Corp., 405 F.3d 1326, 1329 (Fed. Cir. Appeal 2021-002738 Application 13/518,971 10 2005). The Examiner finds that, in the claims presently before us on appeal, the “wherein” clause expresses the intended property of the composition. Id. The Examiner finds that the improved flavor would have been implicit, insofar as the prior art compositions comprise flavorants, as well as sodium lauryl sulfate in the claimed amount. Id. The Examiner also reasons that the teachings of Zaidel also obviate increased flavor insofar as it teaches, “[f]lavorants among those useful herein include any material or mixture of materials operable to enhance the taste of the composition.” Id. (citing 70). Analysis Appellant argues that the limitation reciting “wherein the composition provides improved flavor when compared with a similar composition having 1.75% or 1.2% w/w sodium lauryl sulfate (“SLS”) when rated in an organoleptic evaluation by an experienced flavorist” requires the composition to have the improved flavor recited, which is specifically assessed in the Examples in relation to varying levels of SLS. App. Br. 6. Appellant contends that this property, conferred by one chemical in relation to other chemicals in the formulation, can be determined by an experienced flavorist and is no different from any other physical property of a composition (e.g., melting point, absorbance spectrum) that can be determined by physical means. Id. It is irrelevant, argues Appellant, whether the measurement of the parameter is made by a thermometer, spectrophotometer, or a professional trained to evaluate the parameter. Id. Appellant contends that the claims on appeal do not claim the compositions of Zaidel, but rather a very narrow and particular combination of components, as recited in claim 1. App. Br. 6. According to Appellant, Appeal 2021-002738 Application 13/518,971 11 this combination specifically provides improved flavor when compared with a similar composition having 1.75% or 1.2% w/w SLS when rated in an organoleptic evaluation by an experienced flavorist, as described in the Appellant’s Specification. Id. Appellant asserts that this limitation must be given patentable weight as well. Id. at 6-7 (citing, e.g., Allergan Sales, LLC v. Sandoz, Inc., 935 F.3d 1370 (Fed. Cir. 2019)). Appellant argues further that it is the Examiner’s burden to demonstrate that separate limitations to physical properties of claim elements are obvious. App. Br. 7 (In re Stepan Co., 868 F.3d 1342 (Fed. Cir. 2017). Appellant points to paragraph [0007] of the Specification, which discloses: It also is known to incorporate sodium lauryl sulfate in whitening dentifrices having moderate to high levels of water. Most aqueous non-peroxide commercial whitening dentifrices include at most 1.2% sodium lauryl sulfate by weight. However, to maintain peroxide stability in peroxide-containing whitening dentifrices, a low water system is required which can impart negative taste attributes due to lower flavor release and peroxide taste. For example, low water formulations of superior whitening formulations containing 1-2% hydrogen peroxide having 1.2% sodium lauryl sulfate showed poor flavor release in spite of containing a flavor content of 2.25% by weight, which exceeds the normal flavor level from 1 % to 1.5%. In dentifrices containing low levels of water or which are substantially nonaqueous, such conventional low levels of sodium lauryl sulfate result in poor flavor release on brushing and consequently an unpleasant taste in the mouth. Appellant asserts that it is therefore unexpected that selection of the specific values recited in the present claims would provide a flavor benefit over a similar composition having less SLS, and the Office has not presented sufficient evidence or rationale demonstrating otherwise. Id. at 7-8. Appeal 2021-002738 Application 13/518,971 12 Appellant argues further that, even assuming, arguendo, that the recited ranges fell into the ranges taught by the cited art, this is still not dispositive. App. Br. 8. That a claimed species or subgenus is encompassed by a prior art genus does not establish prima facie obviousness. Id. (citing In re Baird, 16 F.3d 380, 382 (Fed. Cir. 1994)). Rather, Appellant argues, there must be some consideration of the size of the genus, express teachings, or teachings of structural similarities. Id. Appellant asserts that the logic of Baird applies to the selection of the instantly claimed amounts of SLS, tetrasodium pyrophosphate and phosphoric acid in the present appeal. App. Br. 8. Appellant alleges that the Examiner has not demonstrated could have been expected or predicted without the benefit of the Appellant’s Specification. Id. Appellant contends that the claimed ranges are very narrow compared to the disclosed prior art ranges; for example, the present claims recite single, specific concentrations of SLS (2.0%), tetrasodium pyrophosphate (2%) and phosphoric acid (0.20%). Further, the range of hydrogen peroxide bound to a cross-linked polymer (1% to 2%) is only 2.5% of Zaidel’s disclosed range. Id. According to Appellant, these specific values and ranges recited by the claims on appeal are not obvious in view of the much broader ranges disclosed in the cited art, which provides no teaching, suggestion or motivation for one skilled in the art to select those narrow values. Id. Furthermore, argues Appellant, it is only with the benefit of Appellant’s disclosure that one can discern that the compositions of the present claims possess the flavor benefit discussed in the specification, which benefit provides the only reason to select the specific values recited in the present claims. App. Br. 8. Appellant contends, however, that the Appeal 2021-002738 Application 13/518,971 13 Examiner has not demonstrated that Zaidel provides any motivation to select sodium lauryl sulfate specifically as a surfactant, and even less does it motivate any combination of sodium lauryl sulfate, polyethylene glycol, and ethylene oxide/propylene oxide copolymers in Appellant’s narrow claimed concentrations. Id. Appellant asserts that Zaidel teaches that materials “useful in carriers include adhesion agents, viscosity modifiers, diluents, surfactants, foam modulators, peroxide activators, peroxide stability agents, abrasives, pH modifying agents, humectants, mouth feel agents, sweeteners, flavorants, colorants, and combinations thereof.” Id. (quoting Zaidel ¶ 45). Appellant argues that, out of this vast teaching of optional ingredients, Zaidel further suggests that “[s]urfactants among those useful herein include anionic, nonionic, and amphoteric surfactants” but, “[p]referably, the surfactant is nonionic.” Id. at 8-9 (quoting Zaidel ¶ 64). Appellant points out that Zaidel also suggests that suitable anionic surfactants include any C8-C20 alkyl sulfate, for example, sodium lauryl sulfate, but this example is one of several suggested surfactants provided by Zaidel. App. Br. 9 (citing Zaidel ¶ 64). Appellant asserts that none of the exemplary compositions demonstrated in Zaidel include any anionic surfactant. Id. (citing Zaidel ¶¶ 103-109). Appellant also argues that Zaidel similarly teaches that adhesion agents include “hydrophilic organic polymers, hydrophobic organic polymers, silicone gums, silicone adhesives, silica, and combinations thereof.” App. Br. 9 (citing Zaidel 46). Appellant asserts that this constitutes a vast number of chemically and physically distinct species. Id. Appellant argues that Zaidel further teaches that within the hydrophilic organic polymers category there are “polyethylene glycols, nonionic Appeal 2021-002738 Application 13/518,971 14 polymers of ethylene oxide, block copolymers of ethylene oxide and propylene oxide, carboxymethylene polymers, N-vinyl heterocyclic polymers, and mixtures thereof.” Id. (citing Zaidel ¶ 50). Appellant notes that, of Zaidel’s three exemplary compositions, only two include any hydrophilic organic polymer (Pluracare L-1220) and both of these include it at 1 wt% weight percent, which is outside of Appellants' claimed scope. Id. (citing Zaidel ¶¶ 106, 108). Pluracare L-1220 is a block copolymer of ethylene oxide and propylene oxide, and none of Zaidel’s examples include any polyethylene glycol. Id. Appellant contends that a skilled artisan would have had no motivation to select Appellant’s claimed amounts of 2% sodium lauryl sulfate and 2-35% polyethylene glycol and ethylene oxide/propylene oxide copolymer. Id. Appellant next disputes the Examiner’s finding that “[i]mproved flavor would have been implicit insofar as the prior art compositions comprise flavorants, as well as sodium lauryl sulfate in the claimed amount” and that “Zaidel et al. also obviates increased flavor insofar as it teaches: ‘Flavorants among those useful herein include any material or mixture of materials operable to enhance the taste of the composition.” App. Br. 9 (citing Final Act. 7 (quoting Zaidel ¶ 70)). Appellant asserts, however, that the mere presence of flavorants in Zaidel does not lead those of skill in the art to select the specific components, in the specific amounts (particularly the low water and high SLS content) recited in the claims, or that such a selection would provide improved flavor when compared with a similar composition having 1.75% or 1.2% w/w sodium lauryl sulfate. Id. at 9-10. Finally, argues Appellant, even assuming, arguendo, that Zaidel discloses the presence of flavorants and some amount of SLS, the Examiner Appeal 2021-002738 Application 13/518,971 15 has not demonstrated why one of skill in the art would have further been motivated to pick and select particular flavorants and particular concentrations of SLS without any guidance or motivation for doing so, much less how one of skill in the art would have been motivated to use the amounts of each ingredient required by the instant claims. App. Br. 10. To this latter point, Appellant argues that where a particular parameter or combination of ingredients in particular amounts provides an effect which is different in kind and not merely in degree from the results of the prior art, the parameter is not recognized as “result-effective,” its optimization cannot be considered obvious. Id. (citing In re Applied Materials, Inc., 692 F.3d 1289, 1295 (Fed. Cir. 2012) (citing In re Antonie, 559 F.2d 618, 620 (CCPA 1977)). Appellant contends that the Examiner has not provided any reasoning or evidence as to why a person of ordinary skill in the art would believe that increasing the level of SLS to 2%, in the specific formulation claimed would be expected to improve rather than impair the flavor of the formulation. App. Br. 10. We are not persuaded by Appellant’s arguments. As an initial matter, we note that the organoleptic evaluation disclosed in Appellant’s Specification is not commensurate with the scope of the claims. See Spec. ¶ 53, Table 2. The test compositions contain an undisclosed “flavoring agent” as well as various sweeteners (saccharin, sucralose) that are not recited in, or implicitly required by the claims, and are thus not necessary elements of the claimed invention. Consequently, it is impossible to tell if the “improved flavor when compared with a similar composition having 1.75% or 1.2% w/w [SLS]” recited in the claims is inherent to the claimed 2% SLS Appeal 2021-002738 Application 13/518,971 16 composition as claimed, or is the result of interaction between the SLS and one of the other non-claimed ingredients of the test compositions. That is sufficient to confound Appellant’s arguments. Unexpected results must be “commensurate in scope with the degree of protection sought by the claimed subject matter.” In re Harris, 409 F.3d 1339, 1344 (Fed. Cir. 2005). Moreover, it is undisputed that the constituents of the composition recited in claim 1 fall within the ranges taught by Zaidel. The table below discloses the constituent concentrations recited in claim 1 and representative ranges of those constituents taught by Zaidel: Constituent Claim 1 Zaidel Non-aqueous carrier [H20] 0%-4% w/w 0%-<5% Anionic surfactant (SLS) 2.0% w/w 0.1% - 2% w/w Peroxide-polymer whitening agent 1% - 2% w/w 1% -10% Polyethylene glycol and one or more ethylene oxide/propylene oxide copolymers 2%-35% w/w 1%-85% w/w Tetrasodium pyrophosphate 2% w/w 0.1% -15% w/w See Zaidel ¶¶ 63, 64, 39, 56, 80. As can be observed, the values recited in the claims fall squarely within the representative ranges taught by Zaidel. Nor are we persuaded that the ranges of Zaidel are so large, that selecting a value from within that range would not have been obvious to a person of ordinary skill in the art. See In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003) (holding that “[i]n cases involving overlapping ranges, we and our predecessor court have consistently held that even a slight overlap in range establishes a prima facie case of obviousness”). Appeal 2021-002738 Application 13/518,971 17 Appellant’s principal argument is that the claimed “improved flavor when compared with a similar composition having 1.75% or 1.2% w/w sodium lauryl sulfate” achieved via the inclusion of 2.0% SLS is sufficient to render the claimed invention nonobvious over the compositions taught by Zaidel. We disagree. Zaidel is silent on the subject of the organoleptic properties imparted by different concentrations of SLS, although it does discuss flavorants and sweeteners generally and in some detail. See, e.g., Zaidel ¶¶ 70, 71, 93. Nevertheless, [m]ere recognition of latent properties in the prior art does not render nonobvious an otherwise known invention.” In re Baxter Travenol Labs., 952 F.2d 388, 392 (Fed. Cir. 1991). In this instance, the improved taste of a composition containing 2% SLS, as compared to lesser concentrations of SLS, is a property that is latent in compositions containing that concentration of compositions already taught by Zaidel. The fact that this property was not previously recognized in the art is insufficient to overcome the fact that Zaidel teaches compositions which read upon Appellant’s claimed invention. We consequently affirm the Examiner’s rejection upon this ground. C. Rejection of the claims under § 103 over Zaidel and Lokken The Examiner’s findings and conclusions The Examiner finds that Lokken teaches a composition for whitening teeth comprising an anhydrous polyol carrier, a stabilized oxidizing agent, and a surfactant. Final Act. 8 (citing Lokken Abstr.). The Examiner finds that Lokken teaches a specific single-phase, crosslinked PVP-H202 (bound whitening agent) dentifrice formulation comprising 3% crosslinked PVP- H2O2, abrasive silica, 1% sodium lauroyl sarcosinate (an anionic surfactant), Appeal 2021-002738 Application 13/518,971 18 sodium monofluorophosphate (fluoride salt) and an orally acceptable polyol carrier having low water content, i.e. PEG- 18 (polyethylene glycol). Id. (citing Lokken, 3, Table III). The Examiner also finds that inorganic polyphosphates may also be added as anticalculus agents. Id. (citing Lokken ¶ 27). The Examiner finds that Lokken alternatively teaches SLS as a surfactant, and that such surfactants may be present from about 0.1 to 5 wt%, which encompasses Appellant’s claimed range of 2%. Id. (citing Lokken ¶ 23). The Examiner further finds that Lokken teaches the use of 0.5% phosphoric acid at Table II, which the Examiner reasons is sufficiently close to the claimed 0.2% to suggest the same properties. Id. (citing Lokken ¶ 31; also citing MPEP § 2131.03). The Examiner acknowledges that Lokken does not expressly teach an amount of bound peroxide between 1% and 2%, but teaches a range of concentrations between 1% and 10% of the peroxide, which encompasses the claimed range. Final Act. 9 (citing Lokken ¶ 20). The Examiner also acknowledges that Lokken does not teach that the carrier is a copolymer of ethylene oxide and propylene oxide. Final Act. 9. The Examiner relies upon Zaidel as teaching this constituent, as related in the preceding section. Id. The Examiner concludes that it would have been obvious to combine the teachings of Lokken and Zaidel, based upon Zaidel’s teaching that copolymers of ethylene oxide and propylene oxide are suitable for use in oral care compositions comprising cross-linked polymer peroxides. Id. at 10. Appeal 2021-002738 Application 13/518,971 19 Analysis Appellant incorporates by reference the arguments presented with respect to Zaidel supra, and argues that the same references apply equally to Lokken. App. Br. 10. Appellant argues that Lokken would not have motivated a skilled artisan to specifically select 2% sodium lauryl sulfate as a surfactant. Id. According to Appellant, Lokken teaches only two surfactants: sodium lauryl sulfate and sodium lauryl sarcosinate, both present in the broad range of 0.1 to 5% by weight. Id. (citing Lokken ¶ 23). Appellant contends that, although Lokken does teach that these two specific anionic surfactants are useful for reducing surface tension and reducing viscosity, the Examiner has not demonstrated that Lokken would suggest to a person of ordinary skill in the art that either of these surfactants would be useful in influencing the organoleptic properties of the composition. Id. at 10-11. Appellant repeats its argument supra that the very narrow claimed amount of 2% of SLS is nonobvious over the broad 0.1-5% range of surfactant taught by Lokken. App. Br. 10. Appellant asserts that it has amply demonstrated an unexpected technical effect and criticality associated with the narrowly claimed amount of 2% surfactant that is not suggested by Lokken, Zaidel or the combination of these references. Id. We are not persuaded by Appellant’s arguments for the same reasons that we set forth with respect to the Examiner’s rejection of the claims over Zaidel alone, viz., that recognition of latent properties in the prior art does not render nonobvious an otherwise known invention. Baxter Travenol, 952 F.2d at 392. We consequently affirm the Examiner’s rejection upon this ground. Appeal 2021-002738 Application 13/518,971 20 D. Rejection of the claims under § 103 over Zaidel and Chopra The Examiner’s findings and conclusions The Examiner incorporates the findings and conclusions with respect to Zaidel set forth in the preceding sections B and C. The Examiner finds Chopra teaches a single phase whitening dentifrice comprising a whitening agent, an abrasive, and a substantially anhydrous orally acceptable carrier. Final Act. 11 (citing Chopra Abstr.). The Examiner finds that the dentifrice of Chopra has a low water content, i.e. “less than about 4%,” and a whitening agent present in an amount of “about 0.1% to about 30%.” Id. (citing Chopra ¶ 8, claim 7). The Examiner finds that Chopra teaches a specific embodiment comprising 16.5% cross-linked PVP-hydrogen peroxide complex, a polyethylene glycol/ethylene oxide block copolymer (Pluraflo), ethylene oxide/propylene oxide block copolymer (Pluraflo), 1.2% sodium lauryl sulfate, 1% tetrasodium pyrophosphate, 7% sodium tripolyphosphate, sodium fluoride, and flavor. Final Act. 11-12 (citing Chopra Table 1). The Examiner finds that the compositions of Chopra further comprise abrasives, such as silica and calcium pyrophosphate, typically in amounts from about 0.1% to about 40%. Id. at 12 (citing Chopra ¶ 11). The Examiner also finds that Chopra expressly teaches SLS, but does not limit its concentration. Final Act. 12 (citing Chopra ¶ 17). The Examiner finds that Chopra does not expressly require from 1 to 2% of the whitening agent, as recited in the claims on appeal, but the Examiner notes that the claimed range is encompassed by the range of about 0.1% to about 30% whitening agent, as taught by Chopra. Id. Appeal 2021-002738 Application 13/518,971 21 With respect to SLS, the Examiner concludes that it would have been obvious to use a relatively small amount, as claimed, given the 1.2% concentration of surfactant disclosed in the examples of Chopra. Final Act. 12. The Examiner reasons that “[w]here 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,” particularly in view of the teachings of Zaidel. Id. (quoting In re Aller, 220 F.2d 454, 456 (C.C.P.A. 1955). Analysis Appellant incorporates its arguments with respect to Zaidel’s teachings of anionic surfactant and hydrophilic organic polymer adhesive agents as presented supra. App. Br. 11. Appellant asserts that the Examiner has not demonstrated that Chopra teaches or suggests Appellant’s claimed limitation of 2% SLS surfactant. Id. Appellant agrees with the Examiner that Chopra’s teaching of 1.2% SLS, in Tables 1 and 2, appear to be the only disclosures in Chopra concerning the amount of surfactant to use. Id. Appellant contends that, beyond stating that the compositions taught therein “preferably comprise a surface active agent,” the Examiner has not demonstrated a sufficient motivation in Chopra for actually including a surfactant agent in the composition of Chopra, much less any particular surface active agent at any specific concentration other than 1.2%. Id. (quoting Chopra ¶ 17). Appellant asserts that the Examiner has not adequately demonstrated that Chopra would teach, suggest or motivate one skilled in the art to formulate a composition comprising 2% sodium lauryl sulfate. App. Br. 11. Appellant contends that the data disclosed by the Specification demonstrates Appeal 2021-002738 Application 13/518,971 22 that the concentration of sodium lauryl sulfate is determinative of the flavor impact of the composition; a concern that Appellant argues is neither raised nor suggested by Chopra. Id. Because Chopra allegedly teaches nothing more than that a surfactant may be included in its compositions, Chopra provides no reason to use routine experimentation to optimize the concentration of the surfactant. Id. Appellant contends that Chopra teaches a single concentration of SLS, 1.2%, and provides no context for why that concentration is chosen or what benefit would result from varying it. Id. Appellant therefore contends that Chopra does not provide motivation to optimize the concentration of SLS to arrive at Appellant’s claimed 2% concentration of SLS. Id. at 11-12. We are not persuaded by Appellant’s arguments. Although Chopra teaches only a 1.2% concentration of SLS, Zaidel teaches a range of SLS concentrations of 0.1% to 2%, which encompasses Appellant’s claimed 2.0% concentration. See Zaidel ¶ 64. As our reviewing court has stated “[i]n cases involving overlapping ranges, we and our predecessor court have consistently held that even a slight overlap in range establishes a prima facie case of obviousness. Peterson, 315 F.3d at 1329. The teachings of Zaidel with respect to SLS concentration encompass the concentration recited in the claims and that is sufficient. We repeat our reasoning presented with respect to the prior rejections, viz., that Appellant’s recognition of latent properties in the prior art, i.e., the “improved flavor when compared with a similar composition having 1.75% or 1.2% w/w sodium lauryl sulfate when rated in an organoleptic evaluation by an experienced flavorist,” does not render nonobvious an otherwise known invention. Baxter Travenol, 952 F.2d at 392. Appeal 2021-002738 Application 13/518,971 23 We consequently affirm the Examiner’s rejection of the claims upon this ground. CONCLUSION The rejection of claims 1, 6, 8, 10, 13, 14, 16-19, and 24-28 as unpatentable under 35 U.S.C. § 112(a) is reversed. The rejection of claims 1, 6, 8, 10, 13, 14, 16-19, and 24-28 as unpatentable under 35 U.S.C. § 103 is affirmed. 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). AFFIRMED Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 6, 8, 10, 13, 14, 16- 19, 24-28 112(a) Written Description 1, 6, 8, 10, 13, 14, 16-19, 24- 28 1, 6, 8, 10, 13, 14, 16- 19, 24-28 103 Zaidel 1, 6, 8, 10, 13, 14, 16- 19, 24-28 1, 6, 8, 10, 13, 14, 16- 19, 24-28 103 Zaidel, Lokken 1, 6, 8, 10, 13, 14, 16- 19, 24-28 1, 6, 8, 10, 13, 14, 16- 19, 24-28 103 Zaidel, Chopra 1, 6, 8, 10, 13, 14, 16- 19, 24-28 Appeal 2021-002738 Application 13/518,971 24 Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed Overall Outcome 1, 6, 8, 10, 13, 14, 16- 19, 24-28