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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________________
`
`
`CONOPCO, INC. dba UNILEVER
`Petitioner
`
`v.
`
`THE PROCTER & GAMBLE COMPANY
`Patent Owner
`
`U.S. Patent No. 6,974,569
`_____________________
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`Inter Partes Review Case No. Unassigned
`_____________________
`
`DECLARATION OF ARUN NANDAGIRI
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`

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`I. 
`II. 
`III. 
`IV. 
`V. 
`VI. 
`VII. 
`VIII. 
`IX. 
`X. 
`XI. 
`
`XII. 
`
`XIII. 
`XIV. 
`
`XV. 
`XVI. 
`
`XVII. 
`
`XVIII. 
`
`XIX. 
`XX. 
`XXI. 
`
`XXII. 
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`
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`Inter Partes Review of USPN 6,974,569
`Declaration of Arun Nandagiri (UNL 1003)
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`
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`TABLE OF CONTENTS
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`Introduction ................................................................................................................... 4 
`My Background and Qualifications .............................................................................. 5 
`List of Documents I Considered in Formulating My Opinion ...................................... 7 
`Person of Ordinary Skill in the Art ............................................................................. 10 
`The '569 Patent Specification ..................................................................................... 10 
`The Claims of the '569 patent ..................................................................................... 11 
`State of the Art as of May 3, 1999 .............................................................................. 15 
`Summary Chart of Analysis Over the Art ................................................................... 21 
`Basis of my Analysis with Respect to Anticipation ................................................... 22 
`The Basis of my Analysis with Respect to Obviousness ............................................ 22 
`Ground 1: Each and Every Element of Claims 1-9, 11, 12, 15, 17-19, 23, 26,
`28-30, and 32 of the '569 Patent Is Set Forth in Kanebo ........................................... 24 
`Ground 2: Claims 1-12, 15, 17-22, 28-30 Would Have Been Obvious Over
`Kanebo ........................................................................................................................ 37 
`Ground 3: Claim 13 would have been Obvious over Kanebo and Liu ....................... 43 
`Ground 4: Claims 14 and 16 would have been Obvious over Kanebo and
`Cardin. ......................................................................................................................... 44 
`Ground 5: Claim 27 would have been Obvious over Kanebo and Evans ................... 46 
`Ground 6: Claims 31 and 33 would have been obvious over Kanebo in view of
`Schwen and Gibson..................................................................................................... 47 
`Ground 7: Each and Every Element of Claims 1-12, 15, 17-23, 29, 30 and 32
`is Set Forth in Reid ..................................................................................................... 49 
`Ground 8: Claims 1-12, 15, 17-23, 29, 30 and 32 Would Have Been Obvious
`Over Reid .................................................................................................................... 57 
`Ground 9: Claim 13 would have been Obvious over Reid and Liu ............................ 59 
`Ground 10: Claims 14-16 Would Have Been Obvious Over Reid and Cardin .......... 59 
`Ground 11: Claims 24-25 would have been Obvious over Reid in view of
`Coffindaffer ................................................................................................................. 61 
`Ground 12: Claims 31 and 33 Would Have Been Obvious Over Reid, Schwen
`and Gibson .................................................................................................................. 62 
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`2
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`XXIII. 
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`Inter Partes Review of USPN 6,974,569
`Declaration of Arun Nandagiri (UNL 1003)
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`XXIV. 
`XXV. 
`
`XXVI. 
`
`Ground 13: Claims 1-12, 15, 17-19, 21-23, and 26-33 Would Have Been
`Obvious Over Bowser in View of Evans .................................................................... 63 
`Ground 14: Claim 13 would have been Obvious over Bowser, Evans and Liu ......... 74 
`Ground 15: Claims 14 and 16 would have been Obvious over Bowser, Evans
`and Cardin ................................................................................................................... 75 
`Ground 16: Claims 24-25 would have been obvious over Bowser, Evans, and
`Coffindaffer ................................................................................................................. 76 
`XXVII.  Ground 17: Claims 31 and 33 would have been obvious over Bowser in view
`of Evans, Schwen and Gibson .................................................................................... 77 
`XXVIII.  Objective Indicia of Nonobviousness ......................................................................... 78 
`XXIX. 
`Conclusion .................................................................................................................. 81 
`
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`3
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`I.
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`Inter Partes Review of USPN 6,974,569
`Declaration of Arun Nandagiri (UNL 1003)
`
`I, Arun Nandagiri, hereby declare as follows.
`
`Introduction
`1.
`
`I am over the age of eighteen (18) and otherwise competent to make
`
`this declaration.
`
`2.
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`I have been retained as an expert witness on behalf of CONOPCO, INC.
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`(UNILEVER) for the above-captioned inter partes review (IPR). I am being
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`compensated for my time in connection with this IPR at my standard legal
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`consulting rate, which is $290 per hour. I understand that the petition for inter
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`partes review involves U.S. Patent No. 6,974,569 ("the '569 patent"), UNL 1001,
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`which resulted from U.S. Application No. 09/558,465 ("the '465 application"),
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`filed on April 25, 2000, and alleging a priority date of May 3, 1999. The '569
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`patent names David Scott Dunlop, Roberta Atwood Boyd, Susan Marie Guskey,
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`James Robert Schwartz, and Anthony Raymond Marchetta as inventors. The '569
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`patent issued on December 13, 2005, from the '465 application. I further
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`understand that, according to the USPTO records, the '569 patent is currently
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`assigned to the Procter & Gamble Company ("P&G").
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`3.
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`In preparing this Declaration, I have reviewed the '569 patent and
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`considered each of the documents cited herein, in light of general knowledge in the
`
`art. In formulating my opinions, I have relied upon my experience, education and
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`knowledge in the relevant art. In formulating my opinions, I have also considered
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`4
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`
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`the viewpoint of a person of ordinary skill in the art ("POSA") (i.e., a person of
`
`Inter Partes Review of USPN 6,974,569
`Declaration of Arun Nandagiri (UNL 1003)
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`ordinary skill in the field of shampoos and conditioners, defined further below in
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`Section IV) prior to May 3, 1999.
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`II.
`
`My Background and Qualifications
`4.
`
`I am an expert in the field of shampoos and conditioners, including
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`anti-dandruff conditioning shampoos. I have more than 30 years' experience in
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`formulating shampoos and conditioners and have been personally involved in the
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`formulation of hundreds of hair care products. I received my Masters of Science
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`degree in Pharmacy from Andhra University, India where master's thesis was
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`entitled "Manufacture of Antibiotics." Additionally, I received my Masters of
`
`Science degree in Pharmacy Administration from Brooklyn College of Pharmacy
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`in 1972. From 1970-1972, I was an aerosol chemist at Block Drug company, where
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`I worked with aerosol shampoos and hairsprays.
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`5.
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`From 1972 to 1975, I was a Senior Scientist for the Hair Care and
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`Antiperspirants division of Beecham, Inc. From 1975 to 1982, I was Group Leader
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`of the Hair Care and Antiperspirants division of Shulton, Inc. At both of these
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`positions, I was involved in formulating shampoos and conditioners, and was
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`involved in selecting formulation components and testing of conditioning
`
`properties. As a Group Leader at Shulton, I also had a group of formulation
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`chemists reporting to me.
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`
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`5
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`Inter Partes Review of USPN 6,974,569
`Declaration of Arun Nandagiri (UNL 1003)
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`6.
`
`From 1982 to 1989 I was Director of Research and Development for
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`Playtex-Jhirmack, Inc. As Director, I created, planned, delegated and coordinated
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`all research and development activities for the U.S. and Canadian markets. I was
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`actively involved in formulating all types of hair care products, including
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`shampoos and conditioners. In my role in creating shampoo and conditioner
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`formulations, I was involved in determining which components to use in the
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`formulations and at what concentrations. At Playtex-Jhirmack, I worked with anti-
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`dandruff shampoos, including shampoos containing zinc pyrithione and coal tar.
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`7.
`
`In 1989 I joined Helene Curtis Industries, Inc., which was acquired by
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`Unilever in 1996. I was Director of the Hair Care Research and Development
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`division of Helene Curtis, and then Unilever, from 1989 to 2000. In this position, I
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`managed and directed all development products in hair shampoos, conditioners and
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`other hair products. I coordinated research activities associated with hair care
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`products and managed a staff of up to 40 scientists, stylists and administrators. I
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`also interacted with research and development personnel to create shampoo and
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`conditioning formulations. I also was involved with research and formulation of
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`anti-dandruff shampoos.
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`8.
`
`From 2000 to 2003 I was Director of Hair Care Projects of Unilever
`
`de Argentina. In this position, I was on a global team managing Unilever's hair
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`care products around the world. I successfully expanded Unilever's hair care
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`
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`6
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`
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`market share in Latin America and established an independently functioning
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`Inter Partes Review of USPN 6,974,569
`Declaration of Arun Nandagiri (UNL 1003)
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`research team.
`
`9.
`
`In 2003 I founded Bria Research Labs, a personal care consulting and
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`contract business. Bria Research Labs provides hair care product development and
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`testing services to the personal care industry. I am actively in charge of all of the
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`activities of Bria Research Labs, which include: developing customize shampoo
`
`and conditioner formulations; substantiating product claims via hair swatch testing;
`
`salon testing of products; providing small scale manufacturing on site; and
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`supporting large scale manufacturing. As founder of Bria, I have been involved in
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`multiple projects formulating shampoos and conditioners from scratch in order to
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`meet client needs. I personally formulated hundreds of shampoo and conditioner
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`formulations and also developed several test methods to evaluate the performance
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`of these products in the laboratory and salon.
`
`10. Accordingly, I am an expert in the field of shampoos and conditioners
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`and I was an expert in this field prior to May 3, 1999. My full background is
`
`detailed in my curriculum vitae. UNL 1004.
`
`III.
`
`List of Documents I Considered in Formulating My Opinion
`11.
`
`In formulating my opinion, I have considered
`
`the following
`
`documents:
`
`
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`7
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`Unilever
`Exhibit #
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`Inter Partes Review of USPN 6,974,569
`Declaration of Arun Nandagiri (UNL 1003)
`
`Description
`
`1001
`
`1002
`1003
`1004
`1005
`
`1006
`
`Dunlop et al., U.S. Patent No. 6,451,300, "Anti-Dandruff and
`Conditioning Shampoos Containing Certain Cationic Polymers,"
`(filed April 25, 2000; issued September 17, 2002)
`File history of U.S. Patent No. 6,974,569
`Declaration of Arun Nandagiri
`Curriculum Vitae of Arun Nandagiri
`Kanebo, Ltd., Japanese Application No. 9-188614, "Composition
`having Pearl Lustre," (filed January 9, 1996; laid open July 22,
`1997) (Japanese)
`Kanebo, Ltd., Japanese Application No. 9-188614, "Composition
`having Pearl Lustre," (filed January 9, 1996; laid open July 22,
`1997) (English translation)
`1007 Marsh et al., U.S. Patent No. 7,481,846, "Method of Rapid Hair
`Dyeing," (filed September 22, 2005; issued January 27, 2009)
`Intentionally left blank
`Bowser et al., U.S. Patent No. 5,723,112, "Pyrithione Containing
`Hair Treatment Composition," (filed July 9, 1996; issued March 3,
`1998)
`Evans et al., WO 97/14405, "Conditioning Shampoos Containing
`Polyalkylene Glycol," (filed October 15, 1996; issued April 24,
`1997)
`Intentionally left blank
`Bartolo et al., U.S. Patent No. 5,202,048, "Personal Cleansing
`Product with Odor Compatible Bulky Amine Cationic Polymer
`with Reduced Odor Characteristics," (filed December 30, 1991;
`issued April 13, 1993)
`Coffindaffer et al., U.S. Patent No. 5,624,666, "Anti-Dandruff
`Shampoos with Particulate Active Agent and Cationic Polymer,"
`(filed January 20, 1995; issued April 29, 1997)
`Cardin et al., U.S. Patent No. 5,104,645, "Antidandruff Shampoo
`Compositions," (filed February 2, 1990; issued April 14, 1992)
`Schwen et al., WO 95/03319, "Cyproterone Acetate Thioacetate,"
`(filed July 13, 1994; issued on February 2, 1995)
`
`1008
`1009
`
`1010
`
`1011
`1012
`
`1013
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`1014
`
`1015
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`
`
`8
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`Unilever
`Exhibit #
`
`Inter Partes Review of USPN 6,974,569
`Declaration of Arun Nandagiri (UNL 1003)
`
`Description
`
`1016
`1017
`1018
`
`Intentionally left blank
`Intentionally left blank
`Reid et al., U.S. Patent No. 5,085,857, "Conditioning Shampoo
`Comprising a Surfactant, a Non-Volatile Silicone Oil and Guar
`Hydroxypropyltromium Chloride as a Cationic Conditioning
`Polymer," (filed December 3, 1990; issued February 4, 1992)
`Drakoff, U.S. Patent No. 3,964,500, "Lustering Shampoo
`Containing a Polysiloxane and a Hair-Bodying Agent," (filed June
`18, 1975; issued June 22, 1976)
`Shin et al., U.S. Patent No. 5,886,031, "Hair-Care Cosmetic
`Compositions Having Dandruff Formation-Suppressing Effect,"
`(filed May 22, 1997; issued March 23, 1999)
`Hoshowski et al., U.S. Patent No. 5,137,715, "Hair Shampoo-
`Conditioner Composition," (filed December 7, 1990; issued
`August 11, 1992)
`Liu et al., U.S. Patent No. 5,456,851, "Ketoconazole Shampoo
`Containing Butylated Hydroxytouluene or Butylated
`Hyrdoxyanisole," (filed April 7, 1994; issued October 10, 1995)
`1023 Woods, G.L. and Washington, J.A., "Antibacterial Susceptibility
`Tests: Dilution and Disk Diffusion Methods," Manual of Clinical
`Microbiology Sixth Edition: 1327-1341 (1995)
`Garcia, M.L. and Diaz, J., "Combability Measurements on Human
`Hair," J. Soc. Cosmet. Chem. 27: 379-398 (1976)
`Polydimethylsiloxane spec. sheet, 5 pages
`Embrechts et al., European Patent Application No. 0 872 230,
`"Compositions containing an antifungal and cationic agent," (filed
`April 14, 1997; published October 21, 1998)
`Somasundaran et al., WO 96/03972, "Deposition of Materials to
`Surfaces Using Zwitterionic Carrier Particles," (filed July 8, 1995;
`issued February 15, 1996)
`Sime, U.S. Patent No. 5,037,818, "Washing Composition for the
`Hair," (filed July 26, 1998; issued August 6, 1991)
`Arch Chemicals ZPT data sheet, 3 pages
`Gibson, U.S. Patent No. 5,015,470, "Cosmetic Composition,"
`(filed December 17, 1987; issued May 14, 1991)
`
`1019
`
`1020
`
`1021
`
`1022
`
`1024
`
`1025
`1026
`
`1027
`
`1028
`
`1029
`1030
`
`
`
`9
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`IV.
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`Inter Partes Review of USPN 6,974,569
`Declaration of Arun Nandagiri (UNL 1003)
`
`Person of Ordinary Skill in the Art
`12.
`
`I understand that a person of ordinary skill in the art is one who is
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`presumed to be aware of all pertinent art, thinks along conventional wisdom in the
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`art, and is a person of ordinary creativity. A person of ordinary skill in the art
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`("POSA") of anti-dandruff conditioning shampoos would have had knowledge of
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`the scientific literature concerning use of surfactants as conditioners, as of 1999. A
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`POSA as of 1999 would typically have (i) a Ph.D. or M.S. degree in pharmacy,
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`physical chemistry (colloidal chemistry), chemistry or biochemistry (or a related
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`field) with at least a 2-3 years of experience in the development of shampoo and
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`conditioner formulations, or (ii) a B.S. in pharmacy, chemistry or biochemistry (or
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`a related field) with significant practical experience (4 or more years) in the
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`development of shampoo and conditioner formulations. A POSA may work as part
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`of a multi-disciplinary team and draw upon not only his or her own skills, but also
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`take advantage of certain specialized skills of others in the team, to solve a given
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`problem. For example, a formulator, a colloidal chemist and a surfactant specialist
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`be part of the team.
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`V.
`
`The '569 Patent Specification
`13. This declaration is being submitted together with a petition for inter
`
`partes review of claims 1-33 of the '569 patent.
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`10
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`Inter Partes Review of USPN 6,974,569
`Declaration of Arun Nandagiri (UNL 1003)
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`14.
`
`I have considered the disclosure and file history of the '569 patent in
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`light of general knowledge in the art as of the earliest alleged priority date of the
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`'569 patent, May 3, 1999.
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`15. The
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`'569 patent is directed to anti-dandruff and conditioning
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`shampoos. UNL 1001, Abstract. The '569 patent alleges that the shampoo
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`compositions "provide a superior combination of anti-dandruff efficacy and
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`conditioning…." UNL 1001, Abstract. The '569 patent states that:
`
`Disclosed are shampoo compositions that provide a
`superior combination of anti-dandruff efficacy and
`conditioning, and a method of cleansing and conditioning
`the hair comprising applying to the hair and scalp an
`amount of said compositions. The anti-dandruff and
`conditioning shampoos comprise: (A) from about 5% to
`about 50%, by weight, of an anionic surfactant; (B) from
`about 0.01% to about 10%, by weight, of a non-volatile
`conditioning agent; (C) from about 0.1% to about 4%, by
`weight, of an anti-dandruff agent; (D) from about 0.02%
`to about 5%, by weight, of at least one cationic polymer;
`and
`(E) water. The compositions
`(A) have a
`bioavailability/coverage index value, as defined herein,
`of at least about 1.25; (B) have a first conditioning index
`value, as defined herein, of less than or equal to about
`1.0; (C) have a second conditioning index value, as
`defined herein, of at least about 1.5; and (D) have a
`minimal inhibitory concentration index value, as defined
`herein, of at least about 0.125.
`
` UNL 1001, Abstract.
`
`VI.
`
`The Claims of the '569 patent
`16. Claim 1 of the '569 patent is directed to:
`
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`Inter Partes Review of USPN 6,974,569
`Declaration of Arun Nandagiri (UNL 1003)
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`1. A shampoo composition comprising:
`a) from about 5% to about 50%, by weight, of an anionic
`surfactant;
`b) from about 0.01% to about 10%, by weight, of a non-
`volatile conditioning agent;
`c) from about 0.1% to about 4%, by weight, of an anti-
`dandruff particulate;
`d) from about 0.02% to about 5%, by weight, of a
`cationic polymer;
`e) water;
`f) from about 0.1% to about 10%, by weight of the
`composition, of a suspending agent; wherein said
`composition:
`i. has a bioavailability/coverage index value, of at least
`about 1.25;
`ii. has a first conditioning index value, of less than or
`equal to about 1.0;
`iii. has a second conditioning index value, of at least
`about 1.5; and
`iv. has a minimal inhibitory concentration index value, of
`at least about 0.125.
`
`
`17. The claim term "bioavailability/coverage index value" encompasses
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`results obtained in skin disk diffusion assays that were well known in 1999. See
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`UNL 1023, 1337-1340. The '569 patent discloses a testing method where skin
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`disks treated with shampoo compositions are contacted with agar plates and the
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`average area colonized on the plate is assessed. UNL 1001, 34:42-36:10 The
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`bioavailability/coverage test disclosed in the '569 patent is comparable to skin disk
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`
`
`12
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`diffusion tests known in the art, such as those disclosed in Woods and Shin. UNL
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`Inter Partes Review of USPN 6,974,569
`Declaration of Arun Nandagiri (UNL 1003)
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`1023, 1337-1340; UNL 1020, 6:58-7:17.
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`18. The claim term "first conditioning index value" encompasses results
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`obtained in combing force assays that were well known in 1999. See UNL 1024;
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`UNL 1021, 25:36-61. The '569 patent discloses a testing method where the force
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`neded to pull a comb through a swatch of hair is measured by a force transducer.
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`UNL 1001, 37:31-38:58. The first conditioning index test disclosed in the '569
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`patent is comparable to combing force tests known in the art, such as those
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`disclosed in Garcia and Hoshowski. UNL 1024; UNL 1021, 25:36-61.
`
`19. The claim term "second conditioning index value" encompasses
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`results obtained in clean hair feel assays that were well known in 1999. See UNL
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`1021, 22:12-44. The '569 patent discloses a testing method where a panel of testers
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`evaluates the clean hair feel of swatches of hair by touch. UNL 1001, 40:28-42:11.
`
`The second conditioning index test disclosed in the '569 patent is comparable to
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`clean hair feel tests known in the art, such as that disclosed in Hoshowski. UNL
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`1021, 22:12-44.
`
`20. The claim term "minimal inhibitory concentration index value"
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`encompasses results obtained in minimal inhibitory concentration ("MIC") assays
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`that were well known in 1999. See UNL 1020, 6:59-7:17. The '569 patent discloses
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`a standard MIC assay for determining the minimal concentration at which an agent
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`13
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`prevents antimicrobial growth. UNL 1001, 42:50-43:11. The MIC test disclosed in
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`Inter Partes Review of USPN 6,974,569
`Declaration of Arun Nandagiri (UNL 1003)
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`the '569 patent is comparable to MIC tests known in the art, such as those disclosed
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`in Shin. UNL 1020, 6:59-7:17.
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`21. Claims 12 and 29 recite that the "anti-dandruff particulate is a zinc
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`salt of 1-hydroxy-2-pyridinethione." It is clear from the specification of the '569
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`patent and the use of this term in the art that a zinc salt of 1-hydroxyl-2-
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`pyridinethione is equivalent to "zinc pyrithione". For example, the '569 patent
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`states that the preferred anti-dandruff agent is the zinc salt of 1-hydroxy-2-
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`pyridinethione, which is "(known as 'zinc pyridinethione' or 'ZPT')." UNL 1001,
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`16:55-59. The Example formulations use the term zinc pyrithione and state in a
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`footnote "ZPT having an average particle size of 2.5 μm, available from
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`Arch/Olin." UNL 1001, 32:30-51, fn. 4. When referring to the anti-dandruff agent
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`later in the '569 patent, the term "zinc pyrithione" is used. The '569 patent states:
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`"[i]t is also contemplated that when the anti-dandruff particulate employed is zinc
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`pyrithione, and/or if other optional hair growth regulating agents are employed, the
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`shampoo compositions of the present invention, may, provide for the regulation of
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`growth of the hair." UNL 1001, 31:41-45. Thus, the '569 patent uses the terms
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`"zinc salt of 1-hydroxy-2-pyridinethione," "ZPT," and "zinc pyrithione" as all
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`referring to the same chemical compound.
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`Inter Partes Review of USPN 6,974,569
`Declaration of Arun Nandagiri (UNL 1003)
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`22. Any term I have not expressly defined above, I have given its plain
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`and ordinary meaning under a broadest reasonable claim construction.
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`VII.
`
`State of the Art as of May 3, 1999
`23. Anti-dandruff shampoos having good conditioning properties were
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`known before 1999. Anti-dandruff agents, such as ZPT, had already been
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`formulated into conditioning shampoos, as evidenced by the disclosures of, for
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`example, Kanebo, Bowser and Evans.
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`24. The process of formulating a conditioning anti-dandruff shampoo was
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`well understood by 1999. Conditioning hair involves depositing a cationic polymer
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`along the length of the anionically charged hair shaft in an amount sufficient to
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`make the hair feel conditioned without causing the hair to feel unclean. Effective
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`conditioning while maintaining a good clean feeling is often accomplished by
`
`using cationic conditioning polymers with molecular weights ("MWs") less than
`
`700,000 g/mol1.
`
`25. Treating the hair and scalp for dandruff involves depositing an
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`antimicrobial agent, such as ZPT, along the length of the hair shaft and on the
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`scalp. The anti-dandruff agents approved for use in the U.S. in 1999, including
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`ZPT, are insoluble and generally suspended in formulations to allow for their
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`deposition on the hair and scalp. See, e.g., Bowser 1:15-2:25. It was known as of
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`1 All molecular weights referred to are in g/mol unless otherwise noted.
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`15
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`1999 that water soluble cationic deposition aids could be used to enhance the
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`Inter Partes Review of USPN 6,974,569
`Declaration of Arun Nandagiri (UNL 1003)
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`deposition of insoluble anti-dandruff agents on the hair and scalp. See, e.g., Bowser
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`4:62-67.
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`26.
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`It was also well known in 1999 to use coacervate conditioning
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`systems to deliver both conditioners and anti-dandruff agents to the hair and scalp.
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`As discussed in U.S Patent 3,964,500, coacervate silicone polymer systems have
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`been used in shampoos since at least 1976. See UNL 1019, 3:11-18. Kanebo
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`discloses coacervate systems containing anionic surfactant, silicone conditioning
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`agent, anti-dandruff agent and cationic polymer. UNL1006, [0037], pp. 10-11.
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`Bowser discloses coacervate systems containing anionic surfactant, non-volatile
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`conditioning agent, anti-dandruff particulates and cationic polymers. UNL 1009,
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`8:25-34; 8:44-48; 8:49-51. Evans discloses coacervate systems containing anionic
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`surfactant, insoluble silicone conditioning agent, anti-dandruff agents and cationic
`
`polymers UNL 1010, 3, 11, 24, 27 and 32. A POSA would have understood that
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`each of Kanebo, Bowser and Evans discloses a combination of ingredients that
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`would form coacervates upon dilution in water, leading to enhanced deposition of
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`both conditioning and anti-dandruff agents.
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`27.
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`It was further well known by 1999 to use polyalkylene glycols to
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`enhance the spreadability of shampoos on the hair. For example, Evans teaches:
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`"[i]t has also been found that these selected polyalkylene glycols, when added to a
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`16
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`silicone-containing shampoo composition, enhance spreadability of the shampoo
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`Inter Partes Review of USPN 6,974,569
`Declaration of Arun Nandagiri (UNL 1003)
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`compositions in hair. Enhanced spreading of the shampoo composition during
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`application provides consumers with a perception of enhanced conditioning
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`performance." UNL 1010, 20.
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`28. Exemplary relevant art that published before May 3, 1999 includes the
`
`references described below.
`
`29. Kanebo. Kanebo is Japanese Patent Application No. 08/019,389.
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`Kanebo was filed January 9, 1996 and published July 22, 1997.2 Kanebo is entitled
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`"Composition Having Pearl Lustre." Kanebo discloses anti-dandruff conditioning
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`shampoos containing 10.0% of the anionic surfactant ammonium lauryl sulphate,
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`5.0% of the conditioning agent dimethyl polysiloxane, 0.5% of the anti-dandruff
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`agent zinc pyrithione, 1.0% of the cationic polymer Catinal HC-200, 0.1% of the
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`polyethylene glycol Polyox WSR-301 and water3. UNL1006, [0037], pp. 10-11.
`
`30. Reid. Reid is U.S. Patent 5,085,857. Reid was filed December 3, 1990
`
`and issued February 4, 1992. Reid is entitled "Conditioning shampoo comprising a
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`surfactant, a non-volatile silicone oil and guar hydroxypropyltrimonium chloride as
`
`a cationic conditioning polymer." Reid discloses shampoo compositions containing
`
`
`2 A certified English translation of Kanebo is provided as UNL 1006. All
`citations will be made to the English translation.
`3 Unless otherwise noted, percentage values referred to are percent by
`weight.
`
`
`
`17
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`anionic surfactant, cationic conditioning polymer, non-volatile silicon conditioning
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`Inter Partes Review of USPN 6,974,569
`Declaration of Arun Nandagiri (UNL 1003)
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`agent, water and an antidandruff agent. UNL 1018, 5:15-16, 8:11-21.
`
`31. Bowser. Bowser is U.S. Patent No. 5,723,112. Bowser was filed July
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`9, 1996 and issued March 3, 1998. Bowser is entitled "Pyrithione Containing Hair
`
`Treatment." Bowser discloses shampoo compositions containing anionic
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`surfactant, non-volatile conditioning agent, and water. UNL 1009, 8:25-27; 8:44-
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`48; 8:49-51; and 6:12-15. Bowser also teaches that the shampoo compositions
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`contain anti-dandruff particulates and cationic polymers. UNL 1009, 8:25-34.
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`Bowser also discloses optionally containing "foam boosters." UNL 1009, 6:21-31.
`
`A POSA would have recognized that the class of foam boosters disclosed by
`
`Bowser includes poylalkylene glycols.
`
`32.
`
` Evans. Evans is International Patent Application Publication WO
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`97/14405. Evans was filed October 15, 1996 and claims priority to U.S. Patent
`
`Application No. 08/543,665, which was filed October 16, 1995. Evans is entitled
`
`"Conditioning Shampoos Containing Polyalkylene Glycol." Evans discloses a hair
`
`conditioning shampoo containing 5 to 30% of an anionic surfactant, 0.05 to 10% of
`
`an insoluble silicone conditioning agent and a polyalkylene glycol with an average
`
`n value of from 1,500 to 25,000. UNL 1010, 3, 11, 32. Evans also discloses
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`optional anti-dandruff agents such as pyridinethione salts at concentrations of 0.1%
`
`to 0.4% and cationic polymers as conditioning agents. UNL 1010, 24 and 27.
`
`
`
`18
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`Inter Partes Review of USPN 6,974,569
`Declaration of Arun Nandagiri (UNL 1003)
`
`33.
`
` Cardin. Cardin is U.S. Patent No. 5,104,645. Cardin was filed
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`February 2, 1990 and issued April 14, 1992. Cardin is entitled "Antidandruff
`
`Shampoo Compositions." Cardin discloses anti-dandruff shampoos containing
`
`pyridinethione salts, including zinc pyridinethione. UNL 1014, 6:4-26. Cardin
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`discloses that "[t]he pyridinethione salts useful herein take the form of water-
`
`insoluble flat platelet particles which have a mean sphericity of less than about
`
`0.65, preferably from about 0.20 to about 0.54, and a median particle size of from
`
`about 2 μm to about 15 μm, preferably from about 5 μm to about 9 μm, the particle
`
`size being expressed as the median equivalent diameter of a sphere of equal
`
`volume." UNL 1014, 6:26-36.
`
`34. Coffindaffer. Coffindaffer is U.S. Patent No. 5,624,666. Coffindaffer
`
`was filed January 20, 1995 and issued April 29, 1997. Coffindaffer is entitled
`
`"Anti-Dandruff Shampoos with Particulate Active Agent and Cationic Polymer."
`
`Coffindaffer discloses an "anti-dandruff shampoo composition …, wherein said
`
`cationic polymer has a weight average molecular weight of from about 200,000 to
`
`about 5,000,000 and a charge density of from about 0.6 meq/g to about 4 meq/g."
`
`UNL 1013, 20:45-48.
`
`35. Shin. Shin is U.S. Patent No. 5,886,031. Shin was filed May 22, 1997
`
`and issued March 23, 1999. Shin is entitled "Hair-care cosmetic compositions
`
`having dandruff formation-suppressing effect." As discussed above in ¶¶ 17 and
`
`
`
`19
`
`

`

`
`
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`20, Shin discloses a skin disk diffusion test and a MIC test that are comparable to
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`Inter Partes Review of USPN 6,974,569
`Declaration of Arun Nandagiri (UNL 1003)
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`the bioavailablity/coverage index and MIC index tests disclosed in the '569 patent.
`
`Shin performs the skin disk diffusion and MIC tests using the preferred active
`
`ingredient of the '569 patent, ZPT. Shin also performs these test with the
`
`microorganism Pityrosporum ovlae, which, as evidenced by EP 0872230 to
`
`Embrechts et al., is an earlier-used synonym for Malasessezia furfur, the
`
`microorganism tested in the '569 patent. UNL 1020, 7:21-23; UNL 1001, 33:35-36;
`
`UNL 1026, 3:25-27. Thus, Shin discloses the same antimicrobial tests as those
`
`disclosed in the '569 patent.
`
`36. Hoshowski. Hoshowski is U.S. Patent 5,137,715. Hoshowski was
`
`filed December 7, 1990 and issued August 11, 1992. Hoshowski is entitled "Hair-
`
`shampoo conditioner composition." As discussed above in ¶¶ 18-19, Hoshowski
`
`discloses a combing force test and a subjective hair-feel test comparable to the first
`
`conditioning index and second conditioning index tests disclosed in the '569 patent.
`
`UNL 1021, 22:12-44, 25:36-61; UNL 1001, 36:11-42:11. Thus, Hoshowski
`
`discloses tests comparable to the conditioning tests disclosed in the '569 patent.
`
`37. Schwen. Schwen is International Publ. No. WO 95/003319. Schwen
`
`was filed July 13, 1994 and published February 2, 1995. Schwen is entitled
`
`"Cyproterone Acetate Thioacetate." Schwen discloses shampoos and conditioners
`
`
`
`20
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`containing the hair growth agents cyproterone acetate, minoxidil and finerastide.
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`Inter Partes Review of USPN 6,974,569
`Declaration of Arun Nandagiri (UNL 1003)
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`UNL1015, 3:4-5, 5:30-31, 11:4-25; 14:12-15.
`
`38. Gibson. Gibson is U.S. Patent No. 5,015,470. Gibson was filed
`
`December 17, 1987 and issued May