Valerie Jean. Bradford et al.

Patent Trials and Appeals Board

Jan 2, 2020

15193214 - (D) (P.T.A.B. Jan. 2, 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.
15/193,214 06/27/2016 Valerie Jean Bradford CM4295M 5055
27752 7590 01/02/2020
THE PROCTER & GAMBLE COMPANY
GLOBAL IP SERVICES
CENTRAL BUILDING, C9
ONE PROCTER AND GAMBLE PLAZA
CINCINNATI, OH 45202
EXAMINER
BREDEFELD, RACHAEL EVA
ART UNIT PAPER NUMBER
1611
NOTIFICATION DATE DELIVERY MODE
01/02/2020 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 VALERIE JEAN BRADFORD, ALISON FIONA STEPHENS,
and MARTIN STEPHEN WILLIAMSON

_________________

Appeal 2019-000684
Application 15/193,214
Technology Center 1600
_________________

Before FRANCISCO C. PRATS, DEBORAH KATZ, and DAVID COTTA,
Administrative Patent Judges.

KATZ, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 seeks our review2, under 35 U.S.C. § 134(a), of the
Examiner’s decision to reject claims 1–11, 13, and 15–17. We have
jurisdiction under 35 U.S.C. § 6(b). We AFFIRM.

1 We use the word “Appellant” as defined in 37 C.F.R. § 1.42. Appellant
identifies the real party-in-interest as The Gillette Company LLC. (Appeal
Br. 1.)
2 We consider the Final Office Action issued December 1, 2017 (“Final
Act.”), the Amended Appeal Brief filed April 2, 2018 (“Appeal Br.”), and
the Examiner’s Answer issued on September 5, 2018 (“Ans.”).
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Appellant’s specification is directed to liquid compositions, and hair
removal devices that dispense them, comprising silicone polyether block
copolymer to improve the lubricating properties of the composition. (See
Spec. 1:4–5.)
Appellant’s claim 17 recites3:
A personal care composition comprising
[1] from about 40% to about 95% by weight of water,
[2] about 1% to about 6% by weight of a volatile post foaming
agent and
[3] from about 0.1 % to about 60% by weight of silicone
polyether block copolymer, wherein said silicone polyether block
copolymer comprises
[a] from about 1 to about 50%, by weight of polyethylene
oxide,
[b] from about 20% to about 90% by weight of
polypropylene oxide and
[c] from about 1 to about 20%, by weight of silicone.

(Appeal Br. 7, Claims App’x.) Appellant’s claim 1 recites4:
A composition dispensing hair removal device, said device
comprising
a handle connected to a hair removal head, said handle
comprises a cavity for housing a composition disposed within said
handle and
an actuator adapted to displace said composition from said
cavity to a fluid dispensing member, said composition comprising

3 Claim 17 has been modified by adding indentations to separate elements of
the claimed composition and by adding bracketed numbers and letters for
reference purposes. See 37 C.F.R. § 1.75(i).
4 Claim 1 has been modified by adding indentations to separate elements of
the claimed device and by adding bracketed numbers and letters for
reference purposes. See 37 C.F.R. § 1.75(i).
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[3] from about 0.1 % to about 60% by weight of a silicone
polyether block copolymer wherein said silicone
polyether block copolymer comprises
[a] from about 1 to about 50%, by weight of
polyethylene oxide,
[b] from about 20% to about 90% by weight of
polypropylene oxide and
[c] from about 1 % to about 20%, by weight of
silicone.

(Appeal Br. 5.) Thus device of claim 1 dispenses a silicone polyether block
copolymer as recited in claim 17.
Prior Art Rejections
The Examiner made two prior art rejections of Appellant’s claims.
First, the Examiner rejected claim 17 under 35 U.S.C. 103 as being
unpatentable over Alwattari,5 Hendrix,6 and Trinh.7 (See Final Act. 6–8.)
Second, the Examiner rejected claims 1–11, 13, and 15–17 under 35 U.S.C.
103 as being unpatentable over Alwattari, Hendrix, Trinh, and Royle.8 (See
Final Act. 8–13.)
Findings of Fact
1. Alwattari teaches shaving compositions with about 1% to about
6% volatile post-foaming agent, the same range recited in claim 17.
(Alwattari abstract.)

5 US Patent Application Publication 2006/0257350 A1, published November
16, 2006.
6 US Patent Application 2002/0192407 A1, published December 19, 2002.
7 US Patent No. 6,790,819 B2, issued September 14, 2004.
8 U.S. Patent Application Publication 2011/0219621 A1, published
September 15, 2011.
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2. Alwattari provides examples of shaving compositions that are
75.02–78.24% water, a range encompassed by the range recited in claim 17.
(See Alwattari ¶ 23.)
3. Alwattari does not teach compositions comprising silicone
polyether block copolymer as recited in claim 17.
4. Alwattari does teach compositions with a water dispersible
surface active agent selected from mixtures of non-ionic surfactants. (See
Alwattari ¶¶ 9–10.)
5. Hendrix teaches wipes that include a substrate and lotion. (See
Hendrix abstract.)
6. The lotion taught in Hendrix includes a softness and feel
improving agent, a surfactant, and an aqueous carrier. (See Hendrix
abstract.)
7. Hendrix teaches that suitable surfactants in the lotion can be
mixtures of non-ionic surfactants comprising Silwet L-7210 and block
copolymers of propylene oxide and ethylene oxide. (See Hendrix ¶¶ 74, 75,
and 80.)
8. Appellant’s Specification provides that Silwet L-7210 is a
silicone polyether block copolymer with polyethylene oxide at 20 w/w%,
polypropylene oxide at 65 w/w%, and silicone at 20 w/w%, each being
within the ranges recited in claim 17. (See Spec. 23.)
9. The Specification discloses that “[s]ilicone polyether block
copolymers have been described in the literature to provide a number of
benefits such as foaming, defoaming, wetting, deaceration and lubricity.”
Spec. 2:30–31.
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Analysis
The Examiner determines that it would have been obvious to one of
ordinary skill in the art to have used Silwet L-7210 in the shaving
composition of Alwattari because Alwattari teaches the use of non-ionic
surfactants and Hendrix teaches Silwet L-7210 is a suitable non-ionic
surfactant in cosmetic compositions applied to the skin. (See Final Act. 7.)
The Examiner finds that both Alwattari and Hendrix are directed to cosmetic
compositions and applications comprising non-ionic surfactants and,
therefore, one of ordinary skill in the art would have had a reason to
combine their teachings. (See Ans. 4.) Because Alwattari envisages non-
ionic surfactants in the post-foaming gels it teaches, the Examiner
determines that it would have been obvious to incorporate the non-ionic
surfactant, Silwet L-7210, taught by Hendrix into a post-foaming gel.
Appellant argues that the Examiner provided no motivation why one
of ordinary skill in the art would have considered the wipes of Hendrix when
formulating a shave composition as taught in Alwattari. (See Appeal Br. 3.)
Appellant acknowledges that Alwattari is interested in improved lubricity for
shave compositions, but argues there has been no reason why an ordinarily
skilled artisan would look to Hendrix, an invention directed to wipes. (See
id.) Appellant argues further that even if there would have been a reason to
look to the field of wipes, one of ordinary skill reading Altawari would not
have done so because Hendrix does not address improving lubricity, rather
Hendrix is directed to such as eliminating greasy feel for the user. (See id.)
Appellant notes in the background section of the Specification that
“[s]ilicone polyether block copolymers have been described in the literature
to provide a number of benefits such as foaming, defoaming, wetting,
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deaceration and lubricity.” (FF9.) Thus, even if Hendrix does not teach the
use of silicone polyether block copolymers for improved lubrication, this
property was previously known in the art. Appellant states that the
concentrations of silicone block copolymer is the basis for the claimed
invention. (See Spec. 2:31–3:2 (“it has been now been surprisingly found
that the selection of silicone block copolymers having from 20% to 90% by
weight of polypropylene, from 1 % to 50% by weight of polyethylene oxide
and from 1 % to 20% by weight of silicone unexpectedly provide improved
lubrication while ensuring the required level of water dispersion without
impacting stringiness or residue or skin irritation.”).)
The Supreme Court has explained that
[w]hen there is a design need or market pressure to solve a problem
and there are a finite number of identified, predictable solutions, a
person of ordinary skill has good reason to pursue the known options
within his or her technical grasp. If this leads to the anticipated
success, it is likely the product not of innovation but of ordinary skill
and common sense. In that instance the fact that a combination was
obvious to try might show that it was obvious under § 103.

KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007). We are not
persuaded that the Examiner erred in rejecting claim 17 because: 1)
Alwattari contemplates non-ionic surfactants in the shaving compositions, 2)
it was known in the art that silicone polyether block copolymers were useful
for lubricity of compositions, and 3) Hendrix teaches that Silwet L-7210, a
copolymer as recited in claim 17, was known to be useful in cosmetic
products. Accordingly, we affirm the Examiner’s rejection of claim 17.
Claims 1, 2, 4–9, 13, 15, and 16 are drawn to a device with a cavity
that holds a composition with a silicone polyether block copolymer as
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recited in claim 17. (See Appeal Br. 5–7.) The Examiner rejected these
claims, as well as claim 17, under 35 U.S.C. § 103, as being obvious over
the teachings of Altawari, Hendrix, Trinh, and Royle. (See Final Act. 8–13.)
Appellant argues that for the reasons argued against the rejection of claim
17, “Trinh and Royle each fail to provide the necessary missing elements of
Alwattari and Hendrix to render the composition housed in the cavity of the
device of claim 1 obvious.” (See Appeal Br. 3.)
As explained above, we are not persuaded by Appellant’s arguments
against claim 17. Accordingly, we are not persuaded that the Examiner
erred in rejecting claims 1–2, 4–9, 13, and 15–17 over Alwattari, Hendrix,
Trinh, and Royle.
Other Rejections
The Examiner rejected claims 10 and 11 under 35 U.S.C. 112(b) or 35
U.S.C. 112 (pre-AIA), second paragraph, as being indefinite. (See Final
Act. 3–4; see also Ans. 3 (noting that indefiniteness rejection remains
pending).) Claim 10, and therefore claim 11, which depends on claim 10,
recites “polyethylene oxide has an average molecular weight of at least
about 300000.” (Appeal Br. 7.) Claim 10 depends on claim 5, which recites
the device of claim 1, “wherein said silicone polyether block copolymer has
a molecular weight of from about 10000 to about 15000.” (Appeal Br. 6.)
The Examiner finds that claim 10 is indefinite because “it is unclear how the
polyethylene oxide could have a molecular weight of at least 300000 within
the copolymer.” (See Ans. 5.) Appellant presents no arguments against the
Examiner’s rejection. Arguments or authorities not included in the appeal
brief “will be refused consideration.” See 37 C.F.R. § 41.37(c)(1)(iv); see
also MPEP § 1205.02 (“If a ground of rejection stated by the examiner is
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not addressed in the appellant’s brief, appellant has waived any challenge to
that ground of rejection and the Board may summarily sustain it, unless the
examiner subsequently withdrew the rejection in the examiner’s answer.”).
Accordingly, we affirm the rejection.
The Examiner also provisionally rejected claims 1–7, 10–11, and 15–
16 over the claims of copending application 15/193,177 in view of Royle
under the doctrine of obviousness-type patenting. (See Final Act. 18–19.)
Appellant presents no arguments against the Examiner’s rejection and
has waived an appeal of it. (See Ans. 5.) Since the Examiner’s Answer in
this appeal, claims were issued in application 15/193,177 as U.S. Patent
10,457,888. Thus, we do not render an opinion on the patentability of
Appellant’s current claims over the claims of 15/193,177 because they may
not be the same as the issued claims. If prosecution should continue in the
current application, the Examiner may wish to revisit a rejection for
obviousness-type double-patenting over U.S. patent 10,457,888. See Ex
parte Moncla, Appeal No. 2009-006448 (PTAB June 22, 2010) (holding that
it is premature to address a provisional rejection) (designated precedential).
Conclusion
Upon consideration of the record and for the reasons given, we affirm
the Examiner’s rejection.

In summary:
Claims
Rejected
35 U.S.C. § Basis Affirmed Reversed
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Application 15/193,214

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17

103 Alwattari,
Hendrix,
and Trinh
17
1–11, 13, and
15-17
103 Alwattari,
Hendrix,
Trinh, and
Royle
1–11, 13, and
15-17

10, 11 112(b) 10, 11
1–7, 10–11,
and 15–16
Provisional
Obviousness-
type Double
Patenting9
15/193,177
and Royle

Overall
Outcome
1–11, 13, and
15–17

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136.

AFFIRMED

9 As explained above, we do not reach this rejection per Ex parte Moncla,
Appeal No. 2009-006448 (PTAB June 22, 2010) (holding that it is
premature to address a provisional rejection) (designated precedential).