Ricky Ah-Man. Woo et al.

Patent Trials and Appeals Board

Aug 21, 2019

13717754 - (D) (P.T.A.B. Aug. 21, 2019)

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.
13/717,754 12/18/2012 Ricky Ah-Man WOO 11536MC 1055
27752 7590 08/21/2019
THE PROCTER & GAMBLE COMPANY
Global IP Services
Central Building, C9
One Procter and Gamble Plaza
CINCINNATI, OH 45202
EXAMINER
PURDY, KYLE A
ART UNIT PAPER NUMBER
1611
NOTIFICATION DATE DELIVERY MODE
08/21/2019 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
mayer.jk@pg.com
pair_pg@firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte RICKY AH-MAN WOO, STEVEN ANTHONY HORENZIAK,
RHONDA JEAN JACKSON, ZAIYOU LIU,
MICHAEL-VINCENT NARIO MALANYAON,
JASON JOHN OLCHOVY, and CHRISTINE MARIE READNOUR
__________

Appeal 2018-001312
Application 13/717,754
Technology Center 1600
__________

Before FRANCISCO C. PRATS, JEFFREY N. FREDMAN, and
RYAN H. FLAX, Administrative Patent Judges.

FREDMAN, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal1,2 under 35 U.S.C. § 134 involving claims to a
malodor control composition. The Examiner rejected the claims as 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 (see App. Br. 1).
2 We have considered and refer to the Specification of Dec. 18, 2012
(“Spec.”); Final Office Action of Dec. 20, 2016 (“Final Action”); Appeal
Brief of May 12, 2017 (“App. Br.”); Examiner’s Answer of Sept. 25, 2017
(“Ans.”); and Reply Brief of Nov. 21, 2017 (“Reply Br.”).
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Statement of the Case
Background
“Products for reducing or masking malodors are well known in the art
. . . . However, not all odors are effectively controlled by products on the
market” (Spec. 1:10–13). “There remains a need for a fast acting malodor
control composition that neutralizes malodors and is effective on a broad
range of malodors, including amine-based and sulfur-based malodors, while
not overpowering malodors with an overwhelming perfume” (Spec. 1:20–
23).
The Claims
Claims 1–5, 10–14, and 16 are on appeal. Claim 1 is independent,
representative, and reads as follows:
1. A malodor control composition comprising:
at least one volatile aldehyde present at a level of about 1
wt% to about 5 wt%, by weight of the malodor control
composition
0.4 wt% to about 1.5 wt%, by weight of the malodor
control composition, of an acid catalyst having a vapor pressure
of about 0.01 torr to about 2 torr at 25°C selected from the
group consisting of: acetic acid, benzoic acid, succinic acid, and
mixtures thereof,
wherein the composition is in liquid form.
The Rejections
A. The Examiner rejected claims 1–5 and 10–13 under 35 U.S.C.
§ 103(a) as obvious over Fuwa3 and Wei4 (Ans. 2–4).

3 Fuwa et al., US 5,382,567, issued Jan. 17, 1995.
4 Wei et al., US 7,700,528 B2, issued Apr. 20, 2010.
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B. The Examiner rejected claims 14 and 16 under 35 U.S.C. § 103(a) as
obvious over Fuwa, Wei, and Needleman5 (Ans. 4–5).

A. 35 U.S.C. § 103(a) over Fuwa and Wei
The Examiner finds Fuwa teaches “compositions for controlling
aromas” that “comprise a perfume agent such as anisaldehyde” “in an
amount of between 0.1-30% of the composition” (Ans. 2). The Examiner
finds Fuwa teaches the composition may “comprise an acidic component
such as benzoic acid which is to be present in an amount of between 50-
1000 parts by weight per 100 parts cyclodextrin” (Ans. 2). The Examiner
finds Fuwa teaches “the pH of the composition is to range from 4-8” (Ans.
3). The Examiner finds the Fuwa teaches the “composition would be a
liquid formulation of the solid substance” (Ans. 3).
The Examiner acknowledges that Fuwa does not “teach the
anisaldehyde as being that of o-anisaldehyde” (Ans. 3).
The Examiner finds Wei teaches “personal care compositions that
comprise a perfume agent. The perfume material may be selected from m-,
p-, and o-anisaldehyde” (Ans. 3). The Examiner therefore finds “o-
anisaldehyde and p-anisaldehyde are obvious variants” (Ans. 3).
The Examiner finds it obvious “to modify Fuwa such that their
perfume formulation comprised o-anisaldehyde with a reasonable
expectation in the modification providing acceptable perfume benefit” (Ans.
3). The Examiner finds the vapor pressure is an inherent property of the
aldehyde (see Ans. 3).

5 Needleman et al., US 5,993,854, issued Nov. 30, 1999.
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The issue with respect to this rejection is: Does a preponderance of
the evidence of record support the Examiner’s conclusion that Fuwa and
Wei render claim 1 obvious?
Findings of Fact
1. Fuwa teaches “an aromatic composition which comprises a
release-controlled perfume so that a release of the aroma or fragrance is
minutely controllable” (Fuwa 1:35–37).
2. Fuwa taches “[s]pecific examples of the perfumes include . . .
chemical substances such as . . . anisaldehyde” (Fuwa 2:67 to 3:11).
3. Fuwa teaches the “amount of the perfume is . . . preferably from
0.1 to 30 wt %, based on the total of the aromatic composition” (Fuwa 3:26–
28).
4. Fuwa teaches the “aromatic composition of the invention
should comprise a pH-adjusting substance in order to cause the perfume-
including ability of the cyclodextrin or the solubility of the coating material
to be properly controlled” (Fuwa 4:18–22).
5. Fuwa teaches “[e]xamples of the acidity-adjusting substances
include . . . benzoic acid” (Fuwa 4:24–29).
6. Fuwa teaches the “amount of the pH-adjusting substance may
vary depending on the release rate of fragrance and the release time. In
general, the amount is in the range from 50 to 1,000 parts by weight . . . per
100 parts by weight of the cyclodextrin or coating material” (Fuwa 4:54–
59).
7. Fuwa teaches “amount of the cyclodextrin is in the range of
from 0.01 to 50 wt %, preferably from 0.1 to 5 wt %, based on the total
aromatic composition” (Fuwa 3:53–55).
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8. Fuwa teaches the “ingredients of the aromatic composition of
the invention may be prepared and preserved in various forms prior to use
provided that these ingredients can be mixed in a liquid medium on use”
(Fuwa 5:4–7). Fuwa teaches “[f]or instance, a perfume, a cyclodextrin and a
pH-adjusting agent may all be mixed to obtain a single mixture in the form
of a solid or solution” (Fuwa 5:8–10).
9. Wei teaches “perfume raw materials are selected from the
group consisting of . . . o-anisaldehyde & m- & p- also” (Wei 2:9–20).
Principles of Law
“The combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield predictable results.”
KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007).
Analysis
We adopt the Examiner’s findings of fact and conclusion of law (see
Ans. 2–4, FF 1–9) and agree that Fuwa and Wei render claim 1 obvious. We
address Appellants’ arguments below.
Appellants contend
that neither Fuwa nor Wei teach or suggest a composition
comprising at least one volatile aldehyde present at a level of
about 1 wt% to about 5 wt%, by weight of the malodor control
composition; and 0.4 wt% to about 1.5 wt%, by weight of the
malodor control composition, of an acid catalyst having a vapor
pressure of about 0.01 torr to about 2 torr at 25°C selected from
the group consisting of: acetic acid, benzoic acid, succinic acid,
and mixtures thereof, wherein the composition is in liquid form.
(App. Br. 4). Appellants contend that “[w]hile Fuwa teaches levels of
perfume and pH-adjusting substances of the aromatic composition, Fuwa
does not teach or suggest the claimed levels of volatile aldehyde and acid
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catalyst after mixing the aromatic composition of Fuwa in a liquid medium
at the time of use” (App. Br. 4).
The Examiner responds, relative to the amount of the volatile
aldehyde, that Fuwa teaches a range “from 0.1-30 wt.% of the composition”
that encompasses the claimed range (Ans. 6). The Examiner calculates that
“a potential range for the acid component is from 0.05-2.5% by weight of
the composition (using solely the 0.1 % cyclodextrin concentration and a 0.5
multiplier; math not shown)” (Ans. 6). The Examiner finds “the amount of
acid overlaps with that claimed” (Ans. 6). Lastly, the Examiner finds “Fuwa
clearly claims that the ‘composition’ be a liquid resulting from mixing the
separate liquid preparation and the solid perfume material” (Ans. 5–6).
Upon considering the arguments and evidence of record, we find that
the Examiner has the better position. Fuwa clearly teaches that all of the
components including the aldehyde perfume and the benzoic acid pH
adjusting agent “can be mixed in a liquid medium on use” (FF 8).
As to the amounts, Appellants provide no rebuttal evidence to the
Examiner’s finding that Fuwa teaches overlapping ranges for both the
aldehyde amount in the composition (FF 3) or the benzoic acid amount in
the composition (FF 6–7). See In re Peterson, 315 F.3d 1325, 1329 (“In
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.”) Appellants also provide no rebuttal evidence to the
Examiner’s inherency finding that the vapor pressure of the aldehyde is an
inherent property (see Final Act. 6).
Appellants contend, “the weight percentage of perfume taught in
Fuwa and cited by the Examiner refers to the weight percentage of the
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aromatic composition, not the combination of aromatic composition and
solvent that the aromatic composition is mixed in to form a solution” (Reply
Br. 3).
We find this argument unpersuasive because to the extent that
Appellants are contending that when Fuwa’s composition is in liquid form,
the amounts would differ from when in solid form, Appellants have
provided no persuasive evidence or reasoning rebutting the Examiner’s
prima facie case of obviousness. Moreover, the perfume amounts are clearly
related to the weight percent of “the total of the aromatic composition” (FF
3) and the pH adjusting amounts are also calculated “based on the total
aromatic composition” (FF 7). Thus, the ordinary understanding would be
the amounts identified by the Examiner represent final amounts in the
composition when solvent is present and Appellants provide no persuasive
evidence to disturb this conclusion.
Conclusion of Law
A preponderance of the evidence of record supports the Examiner’s
conclusion that Fuwa and Wei render claim 1 obvious.

B. 35 U.S.C. § 103(a) over Fuwa, Wei, and Needleman
Appellants contend that
Needleman teaches a laundry list of potential acids for use in
the composition. Among the acids taught by Needleman are
acids having vapor pressures outside of the vapor pressure
range of about 0.01 torr to about 2 torr at 25°C as claimed in
independent claim 1, including formic and acetic acids.
Needleman does not teach or suggest selecting an acid based on
vapor pressure and does not recognize the vapor pressure of a
pH-adjusting substance as a result-effective variable. As such,
there is no apparent reason to select an acid having a vapor
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pressure of about 0.01 torr to about 2 torr at 25°C selected from
the group consisting of phenol, tiglic acid, caprylic acid,
succinic acid, and/or combinations thereof as required by claim
14.
(App. Br. 7).
The Examiner responds, “Needleman is cited to provide the acidic
species of the claimed invention not taught by Wei, such as succinic acid”
(Ans. 7). The Examiner finds “Needleman, in claim 8, teaches that benzoic
acid, tartaric acid and succinic acid are useful acidifying agents” (Ans. 7).
The Examiner concludes that “Needleman teaches succinic acid is an
equivalent to the benzoic and tartaric acid of Wei and one of ordinary skill in
the art would have a reasonable expected success in using succinic acid in
the formulation of Wei” (Ans. 7).
We find that the Examiner has the better position. Needleman teaches
the “combination of acidic and alkaline materials can be varied in order to
give an acidic or alkaline pH” (Needleman 2:29–31). Needleman teaches
that a list of acids “usable in the invention include . . . succinic acid . . .
benzoic acid” (Needleman 2:42–51). Thus, Needleman provides evidence
that for purposes of varying pH, the concern of Fuwa (FF 4–5), succinic acid
and benzoic acid are art recognized equivalents. KSR recognizes the
obviousness of pursuing known options within the technical grasp of the
skilled artisan, e.g., known equivalents. KSR, 550 U.S. at 421.
We recognize Appellants’ argument that not every equivalent acid in
the list recited by Needleman would satisfy the vapor pressure requirement
of claim 14 (see App. Br. 7). However, Appellants do not identify any
unexpected result or other secondary consideration that demonstrates
criticality of the vapor pressure. Therefore, Appellants have not
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demonstrated that use of the known equivalent succinic acid for benzoic acid
as disclosed by Fuwa would have been unobvious.

SUMMARY
We affirm the rejection of claim 1 under 35 U.S.C. § 103(a) as
obvious over Fuwa and Wei. Claims 2–5 and 10–13 fall with claim 1.
We affirm the rejection of claims 14 and 16 under 35 U.S.C. § 103(a)
as obvious over Fuwa, Wei, and Needleman.
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