Appeal No. 2007-0360 Page 5
Application No. 11/050,001
siloxane is in a pre-emulsified form”, the Examiner states that “[u]se of an
emulsified silicone polymer is exemplified, although this silicone polymer is not
specifically disclosed as being a polydimethylsiloxane. . . . [W]here the use of
emulsified silicones is disclosed [at 33, l. 5] and the suitab[i]lity of polydimethyl-
siloxanes is disclosed, the use of an emulsified polydimethylsiloxane would be
obvious in the absence of any evidence of unexpected results.” Answer 4. The
Examiner also asserts that the requirement in claim 1 that the PDMS is “pre-
emulsified” is a product-by-process limitation and that there is no pre-emulsified
silicone present in the final claimed product. Id. at 5.
With respect to the overlapping amounts, the Examiner concludes that “[i]n
the case where the claimed ranges overlap or lie inside ranges disclosed by the
prior art, a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257,
191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934
(Fed Cir. 1990).” Answer 4-5. With the exception of claim 11 (see infra p. 9),
Appellants do not challenge this conclusion.
Appellants assert that Brockett “fail[s] to disclose a solid particulate laundry
detergent composition wherein the polydimethylsiloxane is in a pre-emulsified
form.” Br. 7, ll. 3-5. They argue that the skilled worker would recognize that
emulsified PDMS is
distinguishable from a nonemulsified form and further, the
specification discloses that the pre-emulsified form of polydimethyl-
siloxane improves the processability of the particulate admixture of
polydimethylsiloxane and clay. . . . In addition, the claim limitation of
claim 1 is not limited to the process of making the final product (i.e.,
detergent composition), but rather, claim 1 recites a detergent
composition comprising a component not taught by Brockett et al
(i.e., polydimethylsiloxane in its pre-emulsified form).
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