Ex parte Brooker
| Docket Number | Appeal 2023-000254,Application 16/690,275,Technology Center 1700 |
| Decision Date | 26 January 2024 |
| Parties | Ex parte ANJU DEEPALI MASSEY BROOKER, CARLOS AMADOR ZAMARRENO, LAURA BUENO ROMO, KATHERINE ESTHER LATIMER, LIBBI MOON, and EVANGELIA ARGENTOU |
| Court | Patent Trial and Appeal Board |
Before BEVERLY A. FRANKLIN, CHRISTOPHER C. KENNEDY, and SHELDON M. MCGEE, Administrative Patent Judges.
KENNEDY, ADMINISTRATIVE PATENT JUDGE.
The Appellant[1] appeals under 35 U.S.C. § 134(a) the Examiner's decision rejecting claims 1-13 and 15-18. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM.
The subject matter on appeal relates to "method[s] for treating fabrics, particularly in an automatic washing machine." E.g., Spec. 1:5-6; Claim 1.
Claim 1 is reproduced below from page 15 (Claims Appendix) of the Appeal Brief:
1. A method of treating fabrics, comprising the steps of:
Claims Rejected
References
1-5, 7-9, 12, 15, 16
103
Gohl,[2] Ciko,[3] Sadlowski[4]
103
Gohl, Ciko, Sadlowski, Gosselink[5]
103
Gohl, Ciko, Sadlowski, Gassenmeier[6]
1-5, 7-9, 11-13, 15, 16
103
Cala,[7] Ciko, Sadlowski
103
Cala, Ciko, Sadlowski, Gosselink
103
Cala, Ciko, Sadlowski, Gassenmeier
1-5, 7, 12, 15-18
103
Lang,[8] Sadlowski
6, 8, 9
103
Lang, Sadlowski, Gosselink
103
Lang, Sadlowski, Gassenmeier
The Appellant argues all claims and all rejections as a single group. We select claim 1 of Rejection 1 as representative, and the remaining claims and rejections will stand or fall with claim 1 of Rejection 1.
After review of the cited evidence in the appeal record and the opposing positions of the Appellant and the Examiner, we determine that the Appellant has not identified reversible error in the Examiner's rejections. Accordingly, we affirm the rejections for reasons set forth below, in the Final Action dated August 25, 2021, and in the Examiner's Answer dated August 1, 2022.
The Examiner finds that the prior art teaches or suggests each element of claim 1. See Final Act. 2-5. The Appellant does not dispute that. See generally Appeal Br. As to each ground of rejection, the Appellant's sole argument is that unexpected results support a conclusion of nonobviousness. See id.
The Appellant bears the burden of establishing that unexpected results support a conclusion of nonobviousness. See In re Huang, 100 F.3d 135, 139 (Fed. Cir. 1996). A persuasive showing of unexpected results requires data that is commensurate in scope with the claims. In re Peterson, 315 F.3d 1325, 1329-31 (Fed. Cir. 2003). "Establishing that one (or a small number of) species gives unexpected results is inadequate proof, for 'it is the view of [the CCPA] that objective evidence of non-obviousness must be commensurate in scope with the claims which the evidence is offered to support.'" In re Greenfield, 571 F.2d 1185, 1189 (CCPA 1978) (quoting In re Tiffin, 448 F.2d 791, 792 (CCPA 1971)).
The Appellant has not carried that burden in this case. Claim 1 permits the use of any "aqueous wash liquor" having at least one detersive surfactant, but the data relied on by the Appellant appears to concern at most two wash liquor formulations. See, e.g., Appeal Br. 4. As the Examiner correctly explains, see Ans. 14-15 (), the Appellant does not persuasively establish that those formulations are representative of the full scope of the claims. Additionally, claim 1 recites a first pH range of 7.0 to 9.0, a second pH range of 10.0 to 13.0 for 5 to 30 minutes, a third pH range of 7.0 to 9.0 for 1 to 60 minutes, and a fourth pH range of 3.0 to 6.0. See Appeal Br. 15 (Claims Appendix). The relied upon data appears to use only a first pH of 8 for 2 minutes, a second pH of 12 for 10 minutes, a third pH of 8 for 18 minutes, and a fourth pH of 4. See id. at 3-4. As the Examiner correctly explains, see Ans. 16 (), the Appellant does not establish that the data's single pH and time period within each range is representative of the full scope of the claimed ranges. Moreover, the Appellant does not file a Reply Brief to address the Examiner's additional discussion in the Examiner's Answer further explaining why the data relied on by the Appellant is not commensurate in scope with the claims.
On this record, the Appellant fails to identify reversible error in the Examiner's rejections. See In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) ().
In summary:
Claim(s) Rejected
Reference(s)/Basis
Affirmed
Reversed
1-5, 7-9, 12, 15, 16
103
Gohl, Ciko, Sadlowski
1-5, 7-9, 12, 15, 16
103
Gohl, Ciko, Sadlowski, Gosselink
103
Gohl, Ciko, Sadlowski, Gassenmeier
1-5, 7-9, 11-13, 15, 16
103
Cala, Ciko, Sadlowski
1-5, 7-9, 11-13, 15, 16
103
Cala, Ciko, Sadlowski, Gosselink
103
Cala, Ciko, Sadlowski, Gassenmeier
1-5, 7, 12, 15-18
103
Lang, Sadlowski
1-5, 7, 12, 15-18
6, 8, 9
103
Lang, Sadlowski, Gosselink
6, 8, 9
103
Lang, Sadlowski, Gassenmeier
Overall Outcome
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
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[1] "Appellant" refers to "applicant" as defined in 37 C.F.R. § 1.42. The Appellant identifies the real party in interest as The Procter & Gamble Company. Appeal Br. 1.
[2] U.S. 2005/0153859 A1, published July 14, 2005.
[3] U.S. 4,053,423, issued Oct. 11, 1977.
[4] U.S. 2005/0124521 A1, published June 9, 2005.
[5] U.S. 4,721,580, issued Jan. 26, 1988.
[6] U.S. 2001/0031714 A1, published Oct. 18, 2001.
[7] U.S. 5,919,745, issued July 6, 1999.
[8] U.S. 2018/0371373 A1, published Dec. 27, 2018.
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