The Procter & Gamble Company

Patent Trials and Appeals Board

Sep 23, 2020

15401508 - (D) (P.T.A.B. Sep. 23, 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.
15/401,508 01/09/2017 Richard Timothy HARTSHORN 14648 1397
27752 7590 09/23/2020
THE PROCTER & GAMBLE COMPANY
GLOBAL IP SERVICES
CENTRAL BUILDING, C9
ONE PROCTER AND GAMBLE PLAZA
CINCINNATI, OH 45202
EXAMINER
THOMAS, JAISON P
ART UNIT PAPER NUMBER
1761
NOTIFICATION DATE DELIVERY MODE
09/23/2020 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 RICHARD TIMOTHY HARTSHORN
____________

Appeal 2019-006584
Application 15/401,508
Technology Center 1700
____________

Before BEVERLY A. FRANKLIN, JEFFREY R. SNAY, and
MICHAEL G. MCMANUS, Administrative Patent Judges.

SNAY, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision rejecting claims 1–18. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies The Proctor & Gamble Company as the real
party in interest. Appeal Br. 1.
Appeal 2019-006584
Application 15/401,508

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BACKGROUND
The invention relates to laundry scent particles. Spec. 1. Claim 1 is
the sole independent claim on appeal and reads as follows:
1. A packaged composition comprising a plurality of
particles, wherein said particles comprise:
polyethylene glycol;
perfume; and
a material selected from the group consisting of:
a polyalkylene polymer of formula H-
(C2H4O)x-(CH(CH3)CH2O)y-(C2H4O)z-OH wherein
x is from about 50 to about 300, y is from about 20
to about 100, and z is from about 10 to about 200;
a polyethylene glycol fatty acid ester of
formula (C2H4O)q-C(O)O-(CH2)r-CH3 wherein q is
from about 20 to about 200 and r is from about 10
to about 30;
a polyethylene glycol fatty alcohol ether of
formula HO-( C2H4O)s-(CH2)t)-CH3 wherein s is
from about 30 to about 250 and t is from about 10
to about 30;
and mixtures thereof;
wherein each of said particles has a density from about 0.3
g/cm3 to less than 1 g/cm3;
wherein each of said particles has a mass from about 0.1 mg to
about 5 g; and
wherein each of said particles has a maximum dimension of
less than about 10 mm.
Appeal Br. 4 (Claims Appendix) (emphasis added to highlight a disputed
recitation).

Appeal 2019-006584
Application 15/401,508

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REJECTIONS2
I. Claims 1 and 6–183 stand rejected under 35 U.S.C. § 103 as
unpatentable over Bautista.4
II. Claims 2–5 stand rejected under 35 U.S.C. § 103 as unpatentable over
Bautista and Dykstra. 5

OPINION
With regard to Rejection I, Appellant argues only claim 1, Appeal Br.
2–3, which we select as representative of the rejected group.6 With regard to
Rejection II, Appellant solely relies on arguments presented for claim 1.
Reply Br. 3. Claims 2–18 stand or fall with claim 1.
Relevant to Appellant’s arguments on appeal, the Examiner finds
Bautista discloses particles formulated from components within the recited
formulae, but fails to disclose particle density. Final Act. 3, 5. The
Examiner finds Bautista teaches particle mass and diameter ranges which
encompass values that, for generally spherical particles, would have resulted
in a particle density within Appellant’s recited range. Id. at 3, 6 (citing
Bautista ¶ 15). In light of the foregoing disclosures in Bautista, the
Examiner finds one of ordinary skill in the art would have had a reason to

2 See Ans. 3–7. The Examiner’s rejection of claims 1 and 6–17 under 35
U.S.C. § 102 stands withdrawn. Id. at 7.
3 Claim 19 is canceled. See Advisory Action, dated July 3, 2019.
4 WO 2016/081006 A1, published May 26, 2016 (“Bautista”).
5 US 2016/0369211 A1, published December 22, 2016 (“Dykstra”).
6 Appellant’s arguments regarding claim 18 which are raised for the first
time in the Reply Brief without showing good cause are waived. See 37
C.F.R. § 41.41(b)(2).
Appeal 2019-006584
Application 15/401,508

4
select particle mass and diameter values which would have yielded particle
density within the range recited in claim 1. Id. at 6.
Appellant argues the Examiner “improperly relies on the theory of
inherency to find the claimed range of density in [Bautista].” Appeal Br. 2.
Appellant contends the Examiner “is in error failing to identify in art, as
cited, particles having a density within the range claimed.” Id. at 2–3.
Appellant’s argument is not persuasive of reversible error. The
Examiner’s rejection on appeal, and in particular the Examiner’s finding
regarding particle density, is premised on obviousness, not inherency. See
Final Act. 6 (“[I]t would have been obvious to one of ordinary skill in the art
to arrive at the claimed density from the prior art composition.”); Ans. 8
(“The Examiner is not suggesting the prior art inherently discloses the
density property.”).
A preponderance of the evidence presented supports the Examiner’s
finding. Bautista identifies particles preferably having a mass of about 0.035
g and longest size dimension of from 4–6 mm. Bautista ¶ 15. For spherical
particles,7 those values correspond to a particle density range of about 0.1 to
about 1 g/cm3, which overlaps the recited range.8 When claimed ranges
overlap or lie inside ranges disclosed by the prior art for every component in
a claim, a prima facie case of obviousness is established. See In re Peterson,
315 F.3d 1325, 1329 (Fed. Cir. 2003); In re Geisler, 116 F.3d 1465, 1469-70
(Fed. Cir. 1997). Indeed, the law is replete with cases in which the
difference between the claimed invention and the prior art is some range or

7 Appellant in the Appeal Brief does not challenge the Examiner’s reading of
Bautista as including spherical particles.
8 The volume of a sphere of radius r is (4/3)πr3, and density is mass/volume.
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Application 15/401,508

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other variable within the claims. These cases have consistently held that the
Appellants must show that the particular range is critical, generally by
showing that the claimed range achieves unexpected results relative to the
prior art range. In re Woodruff, 919 F.2d 1575, 1578 (Fed. Cir. 1990).
Appellant has not made this showing.

For the foregoing reasons, Appellant does not identify reversible error
in the Examiner’s obviousness rejection of claim 1. Accordingly, we sustain
the rejections of claims 1–18 under 35 U.S.C. § 103.

CONCLUSION
The Examiner’s decision rejecting claims 1–19 is affirmed.

DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 6–18 103 Bautista 1, 6–18
2–5 103 Bautista, Dykstra 2–5
Overall
outcome
1–18

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