The Procter & Gamble Company

Patent Trials and Appeals Board

Oct 13, 2020

2019006859 (P.T.A.B. Oct. 13, 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.
14/819,465 08/06/2015 Karel Jozef Maria DEPOOT CM4126M 9387
27752 7590 10/13/2020
THE PROCTER & GAMBLE COMPANY
GLOBAL IP SERVICES
CENTRAL BUILDING, C9
ONE PROCTER AND GAMBLE PLAZA
CINCINNATI, OH 45202
EXAMINER
DELCOTTO, GREGORY R
ART UNIT PAPER NUMBER
1761
NOTIFICATION DATE DELIVERY MODE
10/13/2020 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 KAREL JOZEF MARIA DEPOOT and
KATRIEN ANDREA LIEVEN VAN ELSEN

Appeal 2019-006859
Application 14/819,465
Technology Center 1700
Before ADRIENE LEPIANE HANLON, CHRISTOPHER C. KENNEDY,
and BRIAN D. RANGE, Administrative Patent Judges.
RANGE, 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 to reject claims 1, 7–14, 16, and 17. 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 real party in interest as The Procter &
Gamble Company. Appeal Br. 1.
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CLAIMED SUBJECT MATTER2
Appellant states that laundry unit dose articles (usually water-soluble
films containing laundry detergent composition) have become popular with
consumers. Spec. 1:7–2:4. Appellant describes the invention as relating to
use of freshness actives in the form of perfumes or encapsulated perfumes
within a laundry unit dose article. Id. Claim 1 is the only independent claim
on appeal and is illustrative:
1. A water-soluble laundry unit dose article comprising a
liquid composition, wherein said composition comprises;
- from about 30 wt% to about 40 wt% of an anionic
surfactant, wherein the anionic surfactant comprises linear C11-
C18 alkylbenzene sulphonate, C10-C18 alkyl alkoxy sulphates
(AExS) wherein x is from 1-30, and combinations thereof, and
wherein the anionic surfactant further comprises a fatty acid;
- from about 1 wt% to about 5 wt% of a non-ionic
surfactant, wherein the nonionic surfactant comprises a fatty
alcohol ethoxylate of formula R(EO)n, wherein R represents an
alkyl chain between about 4 and about 30 carbon atoms, (EO)
represents one unit of ethylene oxide monomer and n has an
average value between about 0.5 and about 20;
- water;
wherein the weight ratio of total anionic : non-ionic is
between about 5:1 and about 9:1; and wherein the composition
comprises a perfume and between about 0.1 wt% and about 1
wt% of an encapsulated perfume; and wherein the water-soluble
unit dose article comprises at least two compartments and
wherein the liquid composition within the water-soluble unit
dose article is between about 10 ml and 30 ml.

2 In this Decision, we refer to the Final Office Action dated September 11,
2018 (“Final Act.”), the Appeal Brief filed March 26, 2019 (“Appeal Br.”),
and the Examiner’s Answer dated July 19, 2019 (“Ans.”).
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REFERENCES
The Examiner relies upon the prior art below in rejecting the claims
on appeal:
Name Reference Date
Briggs et al.
(“Briggs”)
US 2008/0261850 A1 Oct. 23, 2008
Boutoille et al.
(“Boutoille”)
US 2009/0312220 A1 Dec. 17, 2009
Menting et al.
(“Menting”)
US 2010/0313360 A1 Dec. 16, 2010
Labeque et al.
(“Labeque”)
US 2011/0319311 A1 Dec. 29, 2011
The Examiner uses additional references in making nonstatutory
double patenting rejections. Ans. 10–15.

REJECTIONS
The Examiner maintains the following rejections on appeal:
A. Claims 1, 7–14, 16, and 17 under 35 U.S.C. § 112 as failing to comply
with the written description requirement. Ans. 3.
B. Claims 1 and 7–14 under 35 U.S.C. § 103 as obvious over Labeque in
view of Menting. Id. at 4.
C. Claims 1, 11–14, 16, and 17 under 35 U.S.C. § 103 as obvious over
Boutoille in view of Labeque. Id. at 6.
D. Claims 16 and 17 under 35 U.S.C. § 103 as obvious over Labeque in
view of Menting and further in view of Boutoille. Id. at 8.
E. Claims 7–10 under 35 U.S.C. § 103 as obvious over Boutoille in view
of Labeque and further in view of Briggs. Id. at 9.
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F. Claims 1, 11–14, 16, and 17 on the ground of nonstatutory double
patenting over claims 1–8 of US 10,023,826 B2 (Application
14/819,466), issued July 17, 2018, in view of Menting. Id. at 10.
G. Claims 1, 11–14, 16, and 17 on the ground of nonstatutory double
patenting over claims 1–15 of US 9,920,279 B2, issued Mar. 20,
2018, in view of Menting. Id. at 11.
H. Claims 1, 11–14, 16, and 17 on the ground of nonstatutory double
patenting over claims 1–16 of US 9,657,255 B2, issued May 23, 2017,
in view of Menting. Id. at 12.
I. Claims 7–10 on the ground of nonstatutory double patenting over
claims 1–8 of US 10,023,826 B2 (Application 14/819,466), issued
July 17, 2018, in view of Menting and Briggs. Id at 13.
J. Claims 7–10 on the ground of nonstatutory double patenting over
claims 1–16 of US 9,657,255 B2, issued May 23, 2017, in view of
Menting and Briggs. Id. at 14.
K. Claims 1, 7–14, 16, and 17 on the ground of nonstatutory double
patenting over claims 1–14 of US 9,896,646 B2, issued Feb. 20, 2018,
in view of Menting. Id.

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
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presented in this Appeal and each of Appellant’s arguments, we are not
persuaded that Appellant identifies reversible error. Thus, we affirm the
Examiner’s rejections for the reasons expressed in the Final Office Action
and the Answer. We add the following primarily for emphasis.
Rejection A, written description. Appellant does not dispute this
rejection. We, therefore, summarily sustain the rejection. Ex parte Frye, 94
USPQ2d at 1075.
Rejection B, obviousness over Labeque and Menting. The Examiner
rejects claims 1 and 7–14 under 35 U.S.C. § 103 as obvious over Labeque in
view of Menting. Ans. 4. Appellant argues all claims as a group. See Appeal
Br. 3–7. 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 subject to this rejection stand or fall together with claim 1.
The Examiner finds, among other things, that Labeque teaches a quick
dissolving unit dose fabric care article that may contain 1 to 70% by weight
“anionic and/or nonionic surfactants.” Ans. 4 (citing, for example, Labeque
¶¶ 38–41). The Examiner finds that Labeque does not teach certain other
claim recitations. Id. at 5. The Examiner finds, however, that Menting
teaches the remaining recitations of claim 1 and explains why a person of
skill in the art would have combined the teachings of Labeque and Menting.
Id. at 5–6 (citing Menting).
Appellant argues that neither Labeque nor Menting teaches that the
ratio of anionic surfactant to non-ionic surfactant is a result effective
variable. Appeal Br. 6. This argument is unpersuasive because the Examiner
relies on overlapping ranges taught in Labeque to reach claim 1’s recited
ratio. Ans. 15–17. The Examiner finds that Labeque suggests, for example,
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30% anionic surfactant and 5% non-ionic surfactant resulting in a 6:1 ratio
within the scope of claim 1. Id. at 17. Appellant does not persuasively
dispute this point.
Appellant also argues that Menting teaches away from claim 1’s
recited ratio because Menting prefers 80% non-ionic surfactant such that
there would be four times as much non-ionic surfactant as other surfactants.
Appeal Br. 6. Appellant’s argument is unpersuasive. Menting states,
“according to the process of the present invention, the non-ionic surfactant is
present at a level of 5% of higher . . . preferably the level of non-ionic
surfactant is up to 80% of the total surfactant present by weight.” Menting ¶
89. Menting thus prefers non-ionic surfactant as low as 5% by weight.
Appellant does not establish that Menting discourages the ratios that
Labeque suggests. See In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994) (“A
reference may be said to teach away when a person of ordinary skill, upon
reading the reference, would be discouraged from following the path set out
in the reference, or would be led in a direction divergent from the path that
was taken by the applicant.”); In re Susi, 440 F.2d 442, 446 n.3 (CCPA
1971) (holding that disclosed examples do not teach away from a broader
disclosure).
Appellant also argues unexpected results. Appeal Br. 3–6. In
particular, Appellant argues that the ratio of freshness actives, anionic
surfactant, and non-ionic surfactant in the detergent composition surprisingly
improves deposition of perfumes and freshness actives onto fabrics. Id. at 3.
A party asserting unexpected results as evidence of nonobviousness has the
burden of proving that the results are unexpected. In re Geisler, 116 F.3d
1465, 1469–70 (Fed. Cir. 1997). The evidence of unexpected results must
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also be reasonably commensurate in scope with the claims. In re Peterson,
315 F.3d 1325, 1330–31 (Fed. Cir. 2003) (explaining that applicant may
overcome a prima facie case of obviousness by showing unexpected results
but the showing of unexpected results “must be commensurate in scope with
the claims which the evidence is offered to support”).
Here, Appellant presents a “headspace analysis” for four formulations.
Appeal Br. 4–5. Appellant contends that this analysis demonstrates that an
anionic to non-ionic weight ratio between 5:1 and 9:1 delivers 40% to
greater than 200% better headspace analysis scores. Id. We agree with the
Examiner that Appellant’s data does not demonstrate unexpected results
commensurate in scope with claim 1. Ans. 22. Claim 1 is open to, for
example, many different surfactants and different perfumes in a wide variety
of amounts. Id. Appellant has not established data or other evidence
sufficient to support a conclusion that other embodiments within the scope
of claim 1 will behave in the same manner as the examples Appellant tested.
In re Huai-Hung Kao, 639 F.3d 1057, 1068 (Fed. Cir. 2011) (“If an
applicant demonstrates that an embodiment has an unexpected result and
provides an adequate basis to support the conclusion that other embodiments
falling within the claim will behave in the same manner, this will generally
establish that the evidence is commensurate with scope of the claims.”).
Because Appellant’s evidence of unexpected results is not commensurate in
scope with claim 1, this evidence does not outweigh the factors supporting
obviousness that we address above and that the Examiner provides.
Because Appellant’s arguments do not establish Examiner error, we
sustain the Examiner’s rejection.
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Rejection C, obviousness over Boutoille and Labeque. The Examiner
rejects claims 1, 11–14, 16, and 17 under 35 U.S.C. § 103 as obvious over
Boutoille in view of Labeque. Ans. 6. Appellant argues that Boutoille does
not cure the deficiencies of Labeque regarding weight ratio. Appeal Br. 7.
As explained above, Labeque suggests Appellant’s claimed ratio. We, thus,
sustain this rejection.
Rejection D, obviousness over Labeque, Menting, and Boutoille. The
Examiner rejects claims 16 and 17 as obvious over Labeque in view of
Menting and further in view of Boutoille. Ans. 8. Appellant raises the same
arguments we addressed above. Appeal Br. 7–8. We, thus, sustain this
rejection.
Rejection E, obviousness over Boutoille, Labeque, and Briggs. The
Examiner rejects claims 7–10 as obvious over Boutoille in view of Labeque
and further in view of Briggs. Ans. 9. Appellant raises the same arguments
we addressed above. Appeal Br. 8–9. We, thus, sustain this rejection.
Rejections F–K, nonstatutory double patenting. Appellant does not
dispute the Examiner’s nonstatutory double patenting rejections. We
summarily sustain these rejections. Ex parte Frye, 94 USPQ2d at 1075.

DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 7–14, 16,
17
112 Written Description 1, 7–14,
16, 17

1, 7–14 103 Labeque, Menting 1, 7–14
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Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 11–14,
16, 17
103 Boutoille, Labeque 1, 11–14,
16, 17

16, 17 103 Labeque, Menting,
Boutoille
16, 17
7–10 103 Boutoille, Labeque,
Briggs
7–10
1, 11–14,
16, 17
Nonstatutory Double
Patenting, Application
14/819,466, Patent
10,023,826, Menting
1, 11–14,
16, 17

1, 11–14,
16, 17
Nonstatutory Double
Patenting, Patent
9,920,279, Menting
1, 11–14,
16, 17

1, 11–14,
16, 17
Nonstatutory Double
Patenting, Patent
9,657,255, Menting
1, 11–14,
16, 17

7–10 Nonstatutory Double
Patenting, Application
14/819,466, Patent
10,023,826, Menting,
Briggs
7–10
7–10 Nonstatutory Double
Patenting, Patent
9,657,255, Menting,
Briggs
7–10
1, 7–14, 16,
17
Nonstatutory Double
Patenting, Patent
9,896,646, Menting
1, 7–14,
16, 17

Overall
Outcome
1, 7–14,
16, 17

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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). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED