SMITH, Edward Dewey. et al.

Patent Trials and Appeals Board

Jan 14, 2020

15135675 - (D) (P.T.A.B. Jan. 14, 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.
15/135,675 04/22/2016 Edward Dewey SMITH III 13808M 1056
27752 7590 01/14/2020
THE PROCTER & GAMBLE COMPANY
GLOBAL IP SERVICES
CENTRAL BUILDING, C9
ONE PROCTER AND GAMBLE PLAZA
CINCINNATI, OH 45202
EXAMINER
OGDEN JR, NECHOLUS
ART UNIT PAPER NUMBER
1761
NOTIFICATION DATE DELIVERY MODE
01/14/2020 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):
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 EDWARD DEWEY SMITH III,
SHAWN DAVID MCCONAUGHY,
JIANJUN JUSTIN LI, and
MARC ADAM FLICKINGER

Appeal 2019-002280
Application 15/135,675
Technology Center 1700
Before ROMULO H. DELMENDO, JULIA HEANEY, and
LILAN REN, Administrative Patent Judges.
HEANEY, Administrative Patent Judge.
Appeal 2019-002280
Application 15/135,675

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DECISION ON APPEAL
STATEMENT OF THE CASE1
Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner’s decision to reject claims 1–20. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
CLAIMED SUBJECT MATTER
The claimed subject matter relates to a method of enhancing fragrance
longevity of a perfumed rinse-off cleansing composition. Appeal Br. 1–2.
According to Appellant, most perfume in cleansing compositions is washed
away during rinsing and the skin retains no or very little scent and only for a
short duration after cleaning. Spec. 4:19–22. Appellant seeks to improve
perfume retention on the skin by providing perfume in a microemulsion
comprising a surfactant and a hydric solvent. Id. at 6:7–18. Claim 1,
reproduced below, is illustrative of the claimed subject matter:
1. A method of enhancing fragrance longevity of a rinse-
off cleansing composition, comprising, combining: a) from
about 35% to about 85%, by weight of the composition, of
surfactant; b) from about 4% to about 30%, by weight of the
composition, of a perfume, wherein the weight percent of

1 In this Decision, we refer to the Specification dated April 22, 2016
(“Spec.”), the Final Office Action dated March 15, 2018 (“Final Act.”), the
Appeal Brief dated August 14, 2018 (“Appeal Br.”), the Examiner’s Answer
dated November 19, 2018 (“Ans.”), and the Reply Brief dated January 17,
2019 (“Reply Br.”).
2 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42(a). Appellant identifies the real party in interest as The
Procter & Gamble Company. Appeal Br. 1.
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perfume is from about 8% to about 90%, by weight of the
surfactant; c) from about 6% to about 20%, by weight of the
composition, of a hydric solvent and wherein the weight
percent of the hydric solvent is from about 7% to about 60%, by
weight of the surfactant; and d) from about 2% to about 57%,
by weight of the composition, of water, to form the cleansing
composition; wherein the rinse-off cleansing composition is not
a ringing gel.
Appeal Br. 7 (Claims Appendix).

REFERENCES
The Examiner relies upon the following prior art:
Name Reference Date
Frantz US 2003/0180246 A1 Sept. 25, 2003
Taylor US 2012/0015009 A9 Jan. 19, 2012

REJECTION
The Examiner maintains the rejection of claims 1–20 under 35 U.S.C.
§ 103 as being unpatentable over Taylor in view of Frantz. Ans. 3.
OPINION
We review the appealed rejections for error based upon the issues
identified by Appellant and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential),
cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (“[I]t
has long been the Board’s practice to require an applicant to identify the
alleged error in the examiner’s rejections.”). After considering the evidence
presented and each of Appellant’s arguments in this appeal, we are not
persuaded that Appellant identifies reversible error. Thus, we affirm the
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Examiner’s rejections for the reasons expressed in the Final Office Action
and the Answer. We add the following primarily for emphasis.
Appellant argues all claims as a group. See Appeal Br. 2–6.
Therefore, consistent with the provisions of 37 C.F.R. § 41.37(c)(1)(iv)
(2013), we limit our discussion to claim 1, and all other claims on appeal
stand or fall together with claim 1.
The Examiner finds that Taylor teaches a multi-phase personal
cleansing composition that may be a rinse-off composition, comprising at
least 0.40% by weight of a blooming perfume, 0–80% of solvents such as
dipropylene glycols, 30–90% by weight of water or aqueous phase, and 2–
40% of a surfactant. Final Act. 2 (citing Taylor Abstract, ¶¶ 15–17, 19, 30–
31, 38–41, 52). The Examiner finds that Taylor does not specifically teach
the percentage by weight of the composition of perfume, or the percentage
by weight of the composition of solvent, as recited in appealed claim 1. Id.
at 2–3. The Examiner finds that a person of ordinary skill in the art would
have optimized Taylor’s proportions in order to reach the claimed
percentage range of perfume in the composition. Id.
The Examiner finds that Frantz teaches aqueous personal cleansing
formulations comprising surfactants, thickening agents, perfumes, and
humectants such as dipropylene glycol. Id. at 3 (citing Frantz). The
Examiner finds that Frantz teaches using dipropylene glycol at levels up to
10% of the composition (citing Frantz ¶ 83), and that a person of ordinary
skill in the art would have been able to optimize the amount of dipropylene
glycol in order to reach the claimed percentage range of solvent. Id. at 4.
Appellant argues that Taylor teaches levels of perfume that are well
below the lowest level of perfume recited in claim 1. Appeal Br. 2–3.
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Similarly, Appellant argues that it is impossible to tell from Taylor’s
examples how much perfume is in the final composition. Id. at 3. This
argument does not persuasively identify error because the Examiner’s
rejection is based on a person of ordinary skill in the art optimizing the
percentage of perfume taught in Taylor, which teaches that its composition
comprises at least 0.40% by weight of blooming perfume ingredients,
without an upper limit. Taylor ¶ 19. Appellant does not dispute this
teaching, or point to evidence of record to show that the claimed percentage
levels of perfume are critical.
Appellant further argues that the Examiner fails to show a teaching in
Taylor of 6% to 20% solvent, at least 5% of which is hydric, or weight
percentage of hydric solvent by weight of surfactant (as recited in appealed
claim 1) or the weight percentage of dipropylene glycol (as recited in
appealed claim 20. Appeal Br. 3–4. This argument does not persuasively
identify error because the Examiner’s rejection is based on Frantz’s teaching
of dipropylene glycol used as a humectant at concentration levels up to 10%.
Ans. 7 (citing Frantz ¶ 83). The Examiner reasons that a person of ordinary
skill in the art would have been motivated to adjust the dipropylene glycol
solvent in Taylor’s composition to the amount taught by Frantz, in view of
the benefit of humectants taught by Frantz, and in order to optimize the
amount of solvent in Taylor. Id. at 7–8. Based on the preponderance of the
evidence, we agree with the Examiner’s rationale as to why a person of
ordinary skill in the art would have combined the teachings of Taylor and
Frantz. Further, Appellant’s argument that there is nothing in Frantz to
overcome the lack of teaching in Taylor with respect to perfume levels,
hydric solvent by weight of surfactant, or G’ levels is not persuasive because
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it attacks the references individually when the rejection is based on a
combination of the references. In re Keller, 642 F.2d 413, 425 (CCPA
1981).
Based on our determination above that the Examiner did not err in
finding that the combination of Taylor and Frantz teaches all of the
ingredients of Appellant’s claimed cleansing composition, with their
requisite proportions, we do not find persuasive Appellant’s argument
specifically directed to the limitation of G’ in claim 2 (Appeal Br. 5), which
is based on Appellant’s contention that the Examiner “failed to show
teachings of several claimed elements at least some of which can impact the
G’ value.” Id.
We have also considered Appellant’s argument that Taylor is not
relevant prior art for the problem solved by the claimed subject matter,
because Appellant is claiming a method of enhancing in-vitro bloom and
retention of a rinse-off composition, in contradiction to Taylor, which
teaches a product that leaves little or no residual odor on the skin and hair
after the shower. Appeal Br. 4–5 (citing Taylor ¶ 4). Appellant’s argument
is not persuasive of error, because Taylor is relevant for all that it reasonably
would have suggested to a person of ordinary skill in the art, and Appellant
does not dispute that it teaches at least 0.40% by weight of the composition
of perfume. To the extent that Appellant is attempting to argue that Taylor
teaches away, Appellant does not point to any teaching in Taylor that would
discourage increasing the level of perfume to the claimed range, and
therefore, Taylor does not teach away from the claimed subject matter.
With regard to Appellant’s argument specifically directed to the
additional limitation recited in claim 17 that “the composition is a
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microemulsion or contains a microemulsion phase” (Appeal Br. 6), we are
not persuaded by Appellant’s argument that the Examiner failed to show a
teaching of this limitation, because the Examiner found that Taylor’s
composition will comprise a microemulsion upon mixing of its benefit and
cleansing phases. Ans. 10. Appellant does not appear to dispute that
finding, and thus, does not persuade us of error in the rejection. See In re
Lovin, 652 F.3d 1349 (Fed. Cir. 2011) (Board reasonably interpreted Rule
41.37 to require more substantive arguments in an appeal brief than a mere
recitation of the claim elements and naked assertion that the corresponding
elements were not found in the prior art).
CONCLUSION
The Examiner’s rejection is affirmed.
DECISION SUMMARY
Claims
Rejected
35 U.S.C. § References/Basis Affirmed Reversed
1–20 103 Taylor, Frantz 1–20

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