Ryther, Robert J. et al.

Patent Trials and Appeals Board

Apr 20, 2020

13568724 - (D) (P.T.A.B. Apr. 20, 2020)

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.
13/568,724 08/07/2012 Robert J. Ryther 00163.3181US01 6519
92160 7590 04/20/2020
Merchant & Gould Ecolab
P.O. Box 2903
Minneapolis, MN 55402
EXAMINER
ASDJODI, MOHAMMADREZA
ART UNIT PAPER NUMBER
1767
NOTIFICATION DATE DELIVERY MODE
04/20/2020 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):
USPTO92160@merchantgould.com
ecolab_PAIR@firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte ROBERT J. RYTHER, NICOLE M. DELANEY,
JESSE D. HINES, and LINDA E. GRIEME
____________________

Appeal 2019-003429
Application 13/568,724
Technology Center 1700
____________________

Before DONNA M. PRAISS, N. WHITNEY WILSON, and
MERRELL C. CASHION, JR., Administrative Patent Judges.

WILSON, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
January 29, 2018 decision rejecting claims 1, 3, 5, 7–16, and 36–51 (“Non-
Final Act.”). We have jurisdiction over the appeal under 35 U.S.C. § 6(b).
An oral hearing was held on April 3, 2020. A transcript of that hearing will
be part of the record.
We reverse.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies Ecolab USA Inc. as the real party in
interest (Appeal Br. 2).
Appeal 2019-003429
Application 13/568,724

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CLAIMED SUBJECT MATTER
Appellant’s disclosure relates to a high flashpoint alcohol based
cleaning, sanitizing, and disinfecting composition (Abstract). According to
the Specification, the disclosed composition relates to a quick drying and
ready-to-use cleaning and sanitizing formula with an alcohol level low
enough to permit a reduced flammability rating, but which has
microbiological sanitizing and disinfecting properties (Spec. ¶ 1). The
disclosed composition is also said to have low enough levels of its
components to be classified by the Environmental Protection Agency as a
“no-rinse food contact surface sanitizer” (Spec. ¶¶ 42, 45, 77, 82). Details of
the claimed invention are set forth in claim 1, which is reproduced below
from the Claims Appendix to the Appeal Brief (emphasis added):
1. A ready to use cleaning, sanitizing and disinfecting
composition comprising:
(a) about 1 to about 12.1 wt% alcohol;
(b) one or more anionic, nonionic, cationic, amphoteric
or zwitterionic surfactants or mixtures thereof;
(c) an antimicrobial amount of quaternary ammonium
alkyl or aryl salt or a combination thereof;
(d) about 0.001 to about 1 wt% hydrogen peroxide; and
(e) an effective amount of a peroxide stabilizing agent;
wherein the composition is an aqueous no-rinse use-
solution having a pH of about pH 3 to about pH 12 and exhibits
a closed cup flashpoint of greater than l00°F; and
wherein the composition exhibits at least a 4 log
reduction in Staphylococcus aureus ATCC 6538 or Escherichia
coli ATCC 11229 in a 30 second food contact sanitizing test.

Appeal 2019-003429
Application 13/568,724

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REJECTIONS
1. Claims 1–3, 5, 7, 8, 10–16, 36, 38–41, 48, and 50 are rejected
under 35 U.S.C. § 103(a) as unpatentable over Cheung2 in view of Wieland,3
as further evidenced by Man.4
2. Claim 9 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Cheung in view of Wieland, and further in view of Laughlin.5
3. Claim 37 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Cheung in view of Wieland, and further in view of Li.6
4. Claims 42–47, 49, and 51 are rejected under 35 U.S.C. § 103(a)
as unpatentable over Cheung in view of Wieland and Li.
We discuss Rejections 1–3 together, and address Rejection 4
separately.
DISCUSSION
Rejections 1–3. We decide the appeal of Rejections 1–3 based on a
limitation common to each of the claims covered by those rejections.
Accordingly, we focus our discussion of these rejections on the rejection of
claim 1 over Cheung in view of Wieland, as further evidenced by Man.
The Examiner’s findings underlying Rejection 1 are found at pages 3–
4 of the Non-Final Action. The Examiner finds that Cheung teaches an
aqueous cleaning and disinfecting composition for hard surfaces which
includes claimed components (a)–(c) (Non-Final Act. 3–4). The Examiner
further finds that the limitation that the claimed solution is a “no-rinse use-

2 Cheung et al., US 6,642,197 B1, issued November 4, 2003.
3 Wieland, et al., US 7,510,859 B2, issued March 31, 2009.
4 Man et al., US 2003/0162685 A1, published August 28, 2003.
5 Laughlin et al., US 3,929,678, issued December 30, 1975.
6 Li et al., US 2010/0021557 A1, published January 28, 2010.
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Application 13/568,724

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solution” does not impart any structural limitation to the composition that is
not taught by Cheung (Non-Final Act. 3). In particular, the Examiner
construes the limitation “no-rinse” as being met by Cheung’s failure to state
that further rinsing is required (id.).
The Examiner further finds that Cheung does not teach the claimed
hydrogen peroxide and peroxide stabilizing agents, but that Wieland
discloses the use of both components in a hard surface cleaning agent (Non-
Final Act. 3–4). The Examiner determines that it would have been obvious
to add Wieland’s peroxide and peroxide stabilizer to Cheung’s composition
to enhance the soil removing efficacy of Cheung (Non-Final Act. 4).
Appellant argues, inter alia, that the Examiner did not properly
construe the term “no-rinse” and, therefore, erred in finding that this
limitation was taught by Cheung (Appeal Br. 15–18). It is well established
that “the PTO must give claims their broadest reasonable construction
consistent with the specification . . . . Therefore, we look to the specification
to see if it provides a definition for claim terms, but otherwise apply a broad
interpretation.” In re ICON Health & Fitness, Inc., 496 F.3d 1374, 1379
(Fed. Cir. 2007). To the extent possible, claim terms are given their ordinary
and customary meaning, as they would be understood by one of ordinary
skill in the art in question at the time of the invention. Phillips v. AWH
Corp., 415 F.3d 1303, 1312–13 (Fed. Cir. 2005) (en banc). Idiosyncratic
language, highly technical terms, or terms coined by the inventor are best
understood by reference to the specification. Id. at 1315–16.
In this instance, the Specification recites that “the level of alcohol
within the present invention is below the maximum levels specified by the
United States Environmental Protection Agency for use as a no-rinse food
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contact surface sanitizer” (Spec. ¶ 42). Analogous statements are made for
the maximum levels of surfactants (Spec. ¶ 45), quaternary ammonium
salts (Spec. ¶ 77), and peroxide sources (Spec. ¶ 82).
Based on the foregoing sections of the Specification, in combination
with the evidence set forth in the Rule 132 Declaration of Robert Ryther, we
conclude that the broadest reasonable interpretation of the term “no-rinse use
solution” as used in claim 1 which is consistent with the Specification is that
the maximum concentrations of the various components of the composition
must be below the maximum concentrations allowable by the EPA for a no-
rinse food contact surface sanitizer.
To establish a prima facie case of obviousness, the Examiner must
show that each and every limitation of the claim is described or suggested by
the prior art or would have been obvious based on the knowledge of those of
ordinary skill in the art or the inferences and creative steps a person of
ordinary skill in the art would have employed. In re Fine, 837 F.2d 1071,
1074 (Fed. Cir. 1988); KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 417
(2007). In the absence of a proper prima facie case of obviousness, an
applicant who complies with the other statutory requirements is entitled to a
patent. In re Rouffet, 149 F.3d 1350, 1355 (Fed. Cir. 1998); see also In re
Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992). On the record before us, the
Examiner has not made findings or determinations that the prior art would
have taught or suggested the use of the claimed components in a
concentration range such that the composition would be a “no-rinse use
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Application 13/568,724

6
solution” (see, e.g. Non-Final Act. 3; Ans. 17). Accordingly, we reverse the
rejection of claim 1 and each claim which depends from it.7
Rejection 4. Independent claim 42 does not recite that the claimed
composition is a no-rinse solution. Accordingly, we analyze the rejection of
claim 42 and the claims which depend from it (i.e. claims 43–47, 49, and 51)
differently than the rejection of claim 1.
The Examiner finds that Cheung does not disclose the use of
hydrogen peroxide and peroxide stabilizing agents, but that Wieland teaches
a hard surface cleaning composition which contains hydrogen peroxide
(Non-Final Act. 8). The Examiner determines that it would have been
obvious to incorporate the peroxide from Wieland into Cheung’s
composition to enhance the soil removing efficacy of Cheung’s composition
as taught by Wieland (id.).
However, Appellant persuasively argues (Appeal Br. 15) that the
Examiner’s explanation of why a person of skill in the art would have
incorporated Wieland’s hydrogen peroxide into Cheung’s composition is not
adequately supported by the evidence of record. In particular, it is not
disputed that Wieland describes novel perhydrolases that can be used in
washing and cleaning products as a bleach enzyme. The enzyme described
by Wieland has an improved ability to perhydrolyze esters of percarboxylic
acid using hydrogen peroxide (Wieland, 2:45–48). While the Examiner
correctly finds that Wieland does disclose that hydrogen peroxide can serve
as a bleaching agent independent of its use to perhydrolyze esters of
percarboxylic acid (Ans. 18–19, Wieland, 16:39–43), the Examiner has not

7 We note that our reasons for reversing Rejection 4 apply equally to
Rejections 1–3.
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adequately established that Wieland teaches the use of hydrogen peroxide to
enhance soil removal efficacy, either by making findings as to what Wieland
discloses or as to what a person of skill in the art would have understood
regarding hydrogen peroxide.
Because it is incumbent on the Examiner to establish an adequate
reason why a person of skill in the art would have been motivated to include
hydrogen peroxide in Cheung’s composition and, on the present record, the
Examiner has not so established this reason, we also reverse Rejection 4.

CONCLUSION
In summary:

Claims
Rejected
35 U.S.C.
§
References Affirmed Reversed
1–3, 5, 7, 8,
10–16, 36,
38–41, 48, 50
103(a)
Cheung, Wieland,
Man

1–3, 5, 7, 8,
10–16, 36,
38–41, 48,
50
9 103(a)
Cheung, Wieland,
Laughlin
9
37 103(a)
Cheung, Wieland,
Li
37
42–47, 49, 51 103(a)
Cheung, Wieland,
Li

42–47, 49,
51
Overall
Outcome

1, 3, 5, 7–
16, 36–51

REVERSED