`
`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. 6,451,300 to Dunlop et al.
`Issue Date: September 17, 2002
`Title: Anti-Dandruff and Conditioning Shampoos Containing
`Polyalkylene Glycols and Cationic Polymers
`_____________________
`
`CASE IPR: Unassigned
`_____________________
`
`PETITION FOR INTER PARTES REVIEW OF
`U.S. PATENT NO. 6,451,300 UNDER 35 U.S.C. §§311-319 and
`37 C.F.R. §§42.1-.80, 42.100-.123
`
`
`
`
`
`Mail Stop "PATENT BOARD"
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`
`
`
`
`
`
`

`

`
`
`
`
`
`Petition for IPR of USPN 6,451,300
`
`
`
`TABLE OF CONTENTS
`INTRODUCTION ........................................................................................ 1 
`I. 
`II.  OVERVIEW ................................................................................................... 1 
`III.  STANDING (37 C.F.R. §42.104(a)); PROCEDURAL STATEMENTS ...... 2 
`IV.  MANDATORY NOTICES (37 C.F.R. §42.8(a)(1)) ...................................... 3 
`STATEMENT OF THE PRECISE RELIEF REQUESTED AND THE
`V. 
`REASONS THEREFOR (37 C.F.R. §42.22(a)) ............................................ 4 
`VI.  CLAIM CONSTRUCTION ........................................................................... 4 
`VII.  PERSON OF ORDINARY SKILL IN THE ART & STATE OF THE
`ART ................................................................................................................ 5 
`VIII.  IDENTIFICATION OF CHALLENGE (37 C.F.R. §42.104(b)) ................... 8 
`A.  Ground 1: Claims 6-10 Would Have Been Obvious to a
`POSA Over Kanebo in View of Cothran .............................................. 8 
`B.  Ground 2: Claim 6 Would Have Been Obvious to a POSA
`Over Kanebo in View of Cseh , and the Cosmedia® Guar
`C261 Product Data Sheet .................................................................... 21 
`C.  Ground 3: Claims 6, 8 and 9 Would Have Been Obvious to a
`POSA Over Kanebo in View of Reid and Bartolo .............................. 24 
`D.  Ground 4: Claim 6 Would Have Been Obvious to a POSA
`Over Kanebo in View of Cseh, Sime and c261SPEC ......................... 32 
`Ground 5: Claims 14, 15, 22 Would Have Been Obvious to a
`POSA Over Kanebo in View of Cardin and Kalla .............................. 34 
`Ground 6 Claims 21 and 23 Would Have Been Obvious to a
`POSA Over Kanebo in View of Bar-Shalom ...................................... 39 
`G.  Ground 7: Claims 6-10 Would Have Been Obvious to a
`POSA Over Evans in View of Cothran ............................................... 41 
`H.  Ground 8: Claims 6, 8 and 9 Would Have Been Obvious to a
`POSA Over Evans in View of Cseh and c261SPEC .......................... 54 
`IX.  Objective Indicia of Nonobviousness ........................................................... 60 
`
`
`
`E. 
`
`F. 
`
`ii
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`

`

`
`
`I.
`
`INTRODUCTION
`
`
`
`Petition for IPR of USPN 6,451,300
`
`
`
`CONOPCO, INC.’s Petition for Inter Partes Review seeks cancellation of
`
`claims 6-10, 14, 15 and 21-23 ("challenged claims") of U.S. Pat. No. 6,451,300 to
`
`Dunlop et al., titled "Anti-Dandruff and Conditioning Shampoos Containing
`
`Polyalkylene Glycols and Cationic Polymers" ("the '300 patent"), (UNL 1001),
`
`which is owned by The Procter & Gamble Company ("P&G").
`
`II. OVERVIEW
`
`As shown herein, the challenged claims of the '300 patent should never have
`
`been issued because they are unpatentable over the art cited herein. The shampoo
`
`compositions claimed in the '300 patent are an obvious reformulating of known
`
`shampoos containing known components in known amounts. And the shampoo
`
`compositions and components claimed have properties and uses recognized prior
`
`to the earliest possible priority date (EPD) of the patent. P&G obtained a patent by
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`drafting shampoo composition claims that purport to be complicated – reciting
`
`several components. But, the claims of the '300 patent merely recite shampoos, and
`
`methods of using them, that were known or, at best, simple and obvious variations
`
`of known shampoos prior to the EPD of the '300 patent.
`
`This petition is submitted with a Motion for Joinder within one month of the
`
`institution of trial to join the petitioned Grounds with those instituted in IPR2013-
`
`00509. The petition provides information that addresses the concerns expressed
`
`1
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`

`

`
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`previously by the Board in denying inter partes review of the challenged claims of
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`Petition for IPR of USPN 6,451,300
`
`
`
`
`
`this petition. As shown herein, prior art references such as Kalla and Sime show
`
`that cationic guar gum derivatives having the molecular weights (“MWs”)and
`
`charge densities recited in the claims of the '300 patent were known in the art to
`
`improve the efficacy of anti-dandruff ("AD") shampoos by improving deposition
`
`of the AD agent. A POSA would have known that the recited concentration ranges
`
`of the cationic guar gum derivative is extremely broad and encompasses the
`
`concentrations typically used in formulating shampoos As also shown herein, a
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`POSA would have known that the common AD agent zinc pyrithione is inherently
`
`in particulate form in shampoo formulations and that the claims of the '300 patent
`
`recite well-known concentrations of particulate AD agent. Petitioner is reasonably
`
`likely to prevail in showing obviousness over the prior art.
`
`III. STANDING (37 C.F.R. §42.104(a)); PROCEDURAL STATEMENTS
`
`
`Petitioner certifies that (1) the '300 patent is available for IPR; and (2)
`
`Petitioner is not barred or estopped from requesting IPR of any claim of the '300
`
`patent on the grounds identified herein. This Petition is filed in accordance with
`
`37 CFR §42.106(a.) Concurrently filed herewith are a Power of Attorney and
`
`Exhibit List pursuant to §42.10(b) and §42.63(e). The required fee is paid through
`
`online credit card payment. The Office is authorized to charge fee deficiencies and
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`credit overpayments to Deposit Acct. No. 19-0036 (Customer ID No. 45324).
`
`2
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`
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`IV. MANDATORY NOTICES (37 C.F.R. §42.8(a)(1))
`
`
`
`Petition for IPR of USPN 6,451,300
`
`
`
`Real Parties-In-Interest (37 C.F.R. §42.8(b)(1)) are: CONOPCO, INC.
`
`dba UNILEVER; UNILEVER PLC and UNILEVER BV.
`
`Petitioner Provides Notice of Related Matters (37 C.F.R. §42.8(b)(2)):
`
`Judicial matters: Procter & Gamble Co. v. Conopco Inc., 13-cv-00732, U.S.
`
`District Court, S.D. Ohio. Administrative matters: IPR2013-00509 for the '300
`
`patent, in which trial on claims 1-5, 11-13, 16-20, 24 and 25 was instituted;
`
`IPR2013-00505 for USPN 6,974,569, which issued from distinct applications filed
`
`on the same day and claiming priority to distinct applications filed on the same
`
`day, in which trial on claims 1-12, 15, 17-19, 23, 26, 28-30, and 32 was instituted.
`
`In an additional Petition filed concurrently herewith, Petitioner seeks IPR of U.S.
`
`Pat. No. 6,974,569 over references including those cited herein. IPR2013-00510
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`for U.S. Pat. 6.649,155, which also issued from a distinct application filed on the
`
`same day and claiming priority to distinct applications filed on the same day.
`
`Designation of Lead and Back-Up Counsel (37 C.F.R. §42.8(b)(3)):
`
`Lead Counsel
`Eldora L. Ellison (Reg. No. 39,967)
`STERNE, KESSLER, GOLDSTEIN &
`FOX P.L.L.C.
`1100 New York Avenue, NW
`Washington, DC 20005
`202.772.8508 (telephone)
`202.371.2540 (facsimile)
`eellison-PTAB@skgf.com
`
`Back-Up Counsel
`Robert Greene Sterne (Reg. No. 28,912)
`STERNE, KESSLER, GOLDSTEIN & FOX
`P.L.L.C.
`1100 New York Avenue, NW
`Washington, DC 20005
`202.772.8555 (telephone)
`202.371.2540 (facsimile)
`rsterne-PTAB@skgf.com
`
`3
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`

`

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`
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`Petition for IPR of USPN 6,451,300
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`
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`Notice of Service Information (37 C.F.R. §42.8(b)(4)): Please direct all
`
`correspondence to lead counsel at the above address. Petitioner consents to email
`
`service at: eellison-PTAB@skgf.com and rsterne-PTAB@skgf.com.
`
`V.
`STATEMENT OF THE PRECISE RELIEF REQUESTED AND THE
`REASONS THEREFOR (37 C.F.R. §42.22(a))
`
`
`Petitioner requests IPR and cancellation of claims 6-10, 14, 15, and 21-23. A
`
`detailed statement of the reasons for the relief requested is set forth in §VIII below.
`
`VI. CLAIM CONSTRUCTION
`
`Under 37 C.F.R. §42.100(b), the challenged claims must be given their
`
`broadest reasonable interpretations ("BRI") in light of the specification of the '300
`
`patent. The BRI for the claim term "anti-dandruff particulate is a zinc salt of 1-
`
`hydroxy-2-pyridinethione" encompasses "zinc pyrithione." The '300 patent states
`
`that
`
`the preferred anti-dandruff agent
`
`is
`
`the zinc salt of 1-hydroxy-2-
`
`pyridinethione, which is "(known as 'zinc pyridinethione' or 'ZPT')." (UNL 1001,
`
`16:55-59.) The Example formulations use the term "zinc pyrithione" and state in a
`
`footnote, "ZPT having an average particle size of about 2.5 μm . . . ." (UNL 1001,
`
`32:30-51, fn. 4.) Thus, the refers to "zinc salt of 1-hydroxy-2-pyridinethione, "zinc
`
`pyridinethione," "ZPT," and "zinc pyrithione" interchangeably. (UNL 1043, ¶27.)
`
`A POSA would also understand that the specification of the '300 patent does
`
`not provide a specific method for measuring MWs. (UNL 1043, ¶27.) All other
`
`terms take on their ordinary and customary meanings.
`
`4
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`

`

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`Petition for IPR of USPN 6,451,300
`
`
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`
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`VII. PERSON OF ORDINARY SKILL IN THE ART & STATE OF THE
`ART
`
`A person of ordinary skill in the art ("POSA") is a hypothetical person who
`
`is presumed to be aware of all pertinent art, thinks along conventional wisdom in
`
`the art, and is a person of ordinary creativity. A person of ordinary skill in the art
`
`of anti-dandruff (AD) conditioning shampoos would have had knowledge of the
`
`scientific literature concerning use of surfactants as conditioners, as of May 3,
`
`1999. (UNL 1043, ¶22.) A POSA as of May 3, 1999 would typically have (i) a
`
`Ph.D. or M.S. degree in pharmacy, physical chemistry (colloidal chemistry),
`
`chemistry or biochemistry (or a related field) with at least 2-3 years of experience
`
`in the development of shampoo and conditioner formulations, or (ii) a B.S. in
`
`pharmacy, chemistry or biochemistry (or a related field) with significant practical
`
`experience (4 or more years) in the development of shampoo and conditioner
`
`formulations. (UNL 1043, ¶22.) A POSA may work as part of a multi-disciplinary
`
`team and draw upon not only his or her own skills, but also take advantage of
`
`certain specialized skills of others in the team, to solve a given problem. (UNL
`
`1043, ¶22.) For example, a formulator, a colloidal chemist and a surfactant
`
`specialist may be part of the team. (UNL 1043, ¶22.)
`
`AD shampoos having good conditioning properties were known before the
`
`EPD. (UNL 1043, ¶29.) Anti-dandruff agents, such as ZPT, had already been
`
`formulated into conditioning shampoos, as evidenced by the disclosures of, for
`
`5
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`

`

`
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`example, Kanebo (UNL 1006), Reid (UNL 1018) and Evans (UNL 1010). The
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`Petition for IPR of USPN 6,451,300
`
`
`
`
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`process of formulating a conditioning shampoo was well understood before the
`
`EPD. (UNL 1043, ¶30.) Conditioning shampoos typically deposit a cationic
`
`polymer along the length of the anionically charged hair shaft in an amount
`
`sufficient to make the hair feel conditioned. (UNL 1043, ¶30.) Effective
`
`conditioning while maintaining a good clean feeling was often accomplished by
`
`using cationic conditioning polymers with MWs less than 700,000 g/mol.(All MW
`
`are g/mol unless otherwise noted) (UNL 1043, ¶30.) The process of formulating an
`
`AD conditioning shampoo was also well understood before the EPD. (UNL 1043,
`
`¶30.) For example, Kanebo discloses that an object of the invention is to provide
`
`excellent usability and conditioning effect to the hair, including an AD shampoo
`
`containing an anionic surfactant, a silicone conditioning agent, an AD agent, and a
`
`cationic polymer. (UNL 1006, 3:¶[0004], 10-11:¶[0037].) Evans discloses
`
`conditioning shampoos containing an anionic surfactant, a silicone conditioning
`
`agent, polyalkylene glycols, cationic polymers, and an AD agent. (UNL 1010, 3,
`
`11, 19, 24, 27 and 32.) A POSA would have understood that each of Kanebo and
`
`Evans discloses a combination of ingredients that forms conditioning, AD
`
`shampoos. (UNL 1043, ¶33.)
`
`The MW ranges of for example, "from about 50,000 to about 700,000,"
`
`claimed for cationic polymers were well known as of the EPD. For example, Kalla,
`
`6
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`

`

`
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`a P&G application which published in 1997, is drawn to AD shampoos, states that
`
`Petition for IPR of USPN 6,451,300
`
`
`
`
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`the MW of cationic guar gums "ranges generally from about 2,000 to about
`
`3,000,000." (UNL 1031, 14:15-17.) Sime (UNL 1028), is also drawn to AD
`
`shampoos and discloses that the "cationic polymers employed in this invention
`
`have a MW within the range from about 2,000 to about 3,000,000." (UNL 1028,
`
`2:39-42.) Cothran (UNL 1044), a P&G application which published in 1996,
`
`discloses cationic guar gum derivatives and cationic cellulose derivatives having
`
`MWs "from 400,000 to 2,000,000" (UNL 1044, 34:14-19.) (UNL 1044, 17.)
`
`Uchiyama (UNL 1045) a P&G application which published in 1997, discloses
`
`cationic guar gum derivatives and states that the "cationic polymers hereof will
`
`generally have a weight average molecular weight which is at least about 5,000, …
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`Preferably, the molecular weight is from about 100,000 to about 2 million." (UNL
`
`1045, 18.) Thus, the claimed MW ranges for cationic polymers were well-known.
`
`Sime also states that "cationic derivatives are obtained by reaction between
`
`the hydroxyl groups of the polygalactomannan and reactive quaternary ammonium
`
`compounds. The degree of substitution of the cationic groups is sufficient to
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`provide a cationic charge density of 0.0001 to 0.0017 [0.1 to 1.7 meq/g]." (UNL
`
`1028, 2:63-68.) Thus, a POSA would have known to use the claimed cationic guar
`
`gums in formulating AD shampoos. And it was well known to use polyalkylene
`
`glycols to enhance the spreadability of shampoo components on the hair. (UNL
`
`7
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`

`

`
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`1043, ¶36.) For example, Evans teaches: "polyalkylene glycols, when added to a
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`Petition for IPR of USPN 6,451,300
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`
`
`
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`silicone-containing shampoo composition, enhance spreadability of the shampoo
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`compositions in hair." (UNL 1010, 20:28-32; UNL 1043, ¶36.)
`
`VIII. IDENTIFICATION OF CHALLENGE (37 C.F.R. §42.104(b))
`
`IPR is requested on the obviousness grounds listed in the index below. Per
`
`37 C.F.R. §42.6(d), copies of the references are filed herewith. This Petition is
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`accompanied by a declaration of technical expert Mr. Arun Nandagiri (UNL 1043),
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`which explains what the prior art would have conveyed to a POSA. In related
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`IPR2013-00509, the Board credited Mr. Nandagiri's expert testimony on the '300
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`patent and prior art. (Paper No. 10 dated 2/12/2014, 6-7, fn. 8.)
`
`Grounds 35 U.S.C.
`'300 Patent Claims
`Index of Reference(s)
`1
`§103
`6-10
`Kanebo and Cothran
`2
`§103
`6
`Kanebo, Cseh, and c261SPEC
`3
`§103
`6, 8, 9
`Kanebo, Reid, and Bartolo
`4
`§103
`Kanebo, Cseh, Sime, and c261SPEC 6
`5
`§103
`Kanebo, Cardin, and Kalla
`14, 15, 22
`6
`§103
`Kanebo and Bar-Shalom
`21, 23
`7
`§103
`Evans and Cothran
`6-10
`8
`§103
`Evans, Cseh, and c261SPEC
`6, 8, 9
`A. Ground 1: Claims 6-10 Would Have Been Obvious to a POSA Over
`Kanebo in View of Cothran
`
`Japanese Appl. No. 08/019,389 to Kanebo, Ltd., titled "Composition Having
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`Pearl Lustre," was laid-open on July 22, 1997 as JP Laid-Open No. 9-188,614A
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`("Kanebo".) (UNL 1005.) Because the JP laid-open application is in Japanese, the
`
`8
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`

`

`
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`certified English language translation will be referred to herein. (UNL 1006.) Intl.
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`Petition for IPR of USPN 6,451,300
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`
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`Appl. Publ. WO 96/32919 to Cothran et al. (UNL 1044) published October 24,
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`1996. Both references are as prior art to the '300 patent under 35 U.S.C. §102(b).
`
`Kanebo discloses AD conditioning shampoos containing cationic guar gum
`
`derivatives and cationic cellulose derivatives, and having improved pearl lustre and
`
`spreadability. (UNL 1006, [0014], [0037].) Cothran discloses AD conditioning
`
`shampoos containing cationic polymers that enhance the stability of the shampoo.
`
`(UNL 1044, 3:10-21, 17:10-24, 25:8-20.) As shown herein, claims 6-10 would
`
`have been obvious over the teachings of Kanebo and Cothran. As discussed below,
`
`independent claim 1 and intervening claim 2 are anticipated by Kanebo.
`
`The Board has already instituted IPR on claims 1 and 2 (which recites that
`
`the cationic polymer component is selected from a group that contains guar
`
`derivatives and cellulose derivatives) of the '300 patent as anticipated by Kanebo in
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`related IPR2013-00509. (Paper No. 10 dated 2/12/2014, 17.) Thus, the Board has
`
`already recognized that Petitioner has a reasonable likelihood in showing that
`
`claims 1 and 2 are anticipated by Kanebo. For the reasons discussed below, claims
`
`6-10 would have been obvious over Kanebo and Cothran. Before turning to the
`
`challenged dependent claims, petitioner first provides a discussion of claim 1, from
`
`which the challenged claims directly or indirectly depend.
`
`The '300 Patent
`1. A shampoo composition
`
`Disclosure in Kanebo
`Kanebo: "Example 10 (Anti-dandruff
`
`9
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`

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`
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`Petitionn for IPR of f USPN 6,4511,300
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`
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`
`
`
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`shampooo1)(in %))" (UNL 10006, 10:¶00037)
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`lauryl ssulphate 100.0 [%]"2 (UUNL 10066,
`
`
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`Disclosuure in Kannebo
`
`
`
`
`
`
`
`Kaneboo: Examplle 10: "Ammmonium
`
`
`
`
`11:1)
`
`
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`b) from about 0.01% to abouut 10%, byy Kaneboo: Examplle 10: "Dimmethyl
`
`
`
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`polysilooxane [a noon-volatilee conditionning
`
`
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`agent] ((1,000 cSt;; 25ºC) 5.00 [%]" (UNNL
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`1006, 1
`1:5)
`
`
`Kaneboo: Examplle 10: "Zin
`
`
`
`0.5 [%]]" (UNL 10006, 11:10
`)
`
`The '300 Patent
`
`
`
`comprissing:
`
`
`
`a) from about 5% to about 550%, by
`
`
`
`weight oof the commposition, oof an
`
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`anionic surfactantt;
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`
`
`
`
`
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`weight oof the commposition, oof a non-
`
`
`volatile conditioniing agent;
`
`
`
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`c) from about 0.1%% to aboutt 4%, by
`
`
`
`weight oof the commposition, oof an anti-
`
`
`dandrufff particulaate;
`
`
`
`d) from about 0.022% to abouut 5%, by
`
`
`
`weight oof the commposition, oof at least
`
`
`one catiionic polymmer;
`
`
`
`
`e) from 0.005% too about 1.55%, by
`
`
`
`weight oof the commposition, oof a
`
`
`
`polyalkyylene glycol correspoonding to
`
`the formmula:
`
`i) whereein R is sellected fromm the groupp
`
`
`
`
`
`
`
`
`
`
`consistiing of hydrrogen, methhyl and
`
`mixturees thereof,
`
`
`
`ii) wherrein n is ann integer haaving an
`
`
`
`averagee value fromm about 1,500 to
`
`
`about 1220,000; annd
`
`f) waterr.
`
`
`
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`2. A shaampoo commposition aaccording
`
`
`
`to claimm 1, whereiin said at leeast one
`
`c pyrithionne
`
`
`
`Kaneboo: Examplle 10: "Cat
`ionized
`
`
`
`
`cellulosse derivativve (Trade nname: Catiinal
`
`
`
`
`HC-2000 manufacttured by TToho Kagakku
`
`Kogyo)) 1.0 [%]"
`
`(UNL 10006, 11:6-7)
`
`
`
`Kaneboo: Examplle 10: "Higghly
`
`polymeerised poly
`
`
`ethylene gglycol (Tradde
`
`
`
`
`name: PPolyox WSSR-301; mmanufactureed
`
`
`
`
`by UCCC) 0.1 [%]"" (UNL 10006, 11:11--12)
`
`
`
`Kaneboo: Examplle 10: "Waater balancce"
`
`
`
`
`
`
`(UNL 11006, 11:166)
`
`See claiim 1.
`
`
`
`
`
`Examplle 10: "Cattionized cellulose
`
`
`
`
`
`1 As used h
`
`
`
`
`
`
`
`
`erein, bolddface type iin claim chhart is addeed emphassis.
`
`
`
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`
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`2 All concenntrations inn Kanebo aare % by wweight. (UNNL 1006, 22:[0003].)
`
`
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`
`
`10
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`
`
`Petition for IPR of USPN 6,451,300
`
`
`
`The '300 Patent
`cationic polymer component is
`selected from the group consisting of
`guar derivatives, cellulose derivatives,
`and mixtures thereof.
`
`Disclosure in Kanebo
`derivative (Trade name: Catinal HC-200
`manufactured by Toho Kagaku Kogyo)
`1.0 [%]" (UNL 1006, 11:6-7)
`
`Kanebo discloses "an anti-dandruff particulate": Example 10 of Kanebo
`
`discloses a shampoo composition containing 0.5% zinc pyrithione. (UNL 1006,
`
`11:24-30.) A POSA would have understood that zinc pyrithione ("ZPT"), a well-
`
`known AD agent, necessarily forms particulates, as ZPT is water-insoluble and
`
`thus always is in particulate form in shampoo compositions. (UNL 1043, ¶53;
`
`UNL 1029, 1.) In instituting trial on claim 1 of the '300 patent in IPR2013-00509,
`
`the Board recognized that ZPT disclosed by Kanebo is the same AD agent claimed.
`
`(Paper No. 10 dated 2/12/2014, 7.) Thus, Kanebo discloses an AD particulate as
`
`recited in claim 1.
`
`Kanebo discloses the components claimed: As shown in the claim chart
`
`above, Kanebo discloses a shampoo formulation having all of the components
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`recited in claim 1. Kanebo discloses ammonium lauryl sulphate. (UNL 1006,
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`[0037].) The '300 patent discloses that ammonium lauryl sulphate is an anionic
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`surfactant. (See UNL 1001, 3:30-4:17.)
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`Kanebo discloses dimethyl polysiloxane. (UNL 1006, [0037].) The '300
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`patent lists silicones such as polydimethyl siloxane as preferred conditioning
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`agents. (UNL 1001, 7:13 and 9:38-47.) A POSA would have understood that
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`dimethyl polysiloxane, as taught by Kanebo, is an alternative chemical name for
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`Petition for IPR of USPN 6,451,300
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`polydimethyl siloxane and that both names refer to the same chemical compound.
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`(UNL 1043, ¶55.) Kanebo discloses the cationic cellulose Catinal HC-200. (UNL
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`1006, 11:6-7.) (UNL 1043, ¶55.) Kanebo provides all of these components in a
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`single example, Example 10. (UNL 1006, 11:1-23.) As shown in the claim chart,
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`each component in the shampoo composition of Example 10 of Kanebo falls
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`within the claimed concentration range for each of the corresponding elements in
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`claim 1. (UNL 1043, ¶55.) Thus, Kanebo discloses all of the components of claims
`
`1 and 2, arranged as claimed and enabled to a POSA. Thus, Kanebo anticipates
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`claims 1 and 2. The Board recognized has recognized this in instituting trial of
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`claims 1 and 2 over Kanebo. (IPR2013-00509, Paper No. 10 dated 2/12/2014, 17.)
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`As shown in the claim charts and discussion below, claims 6-10 would have
`
`been obvious to a POSA over the teachings of Kanebo and Cothran.
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`Reason to combine: A POSA would have had a reason to combine the
`
`teachings of Kanebo and Cothran. Kanebo teaches an AD conditioning shampoo
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`containing cationic polymers. (UNL 1006, [0014], [0037].) Kanebo also discloses
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`that cationic cellulose polymers and cationic guar gums can be used for "achieving
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`good dispersing stability and usability" of the shampoo. (UNL 1006, [0015].)
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`Cothran teaches that "the cationic polymers hereof form a net-like suspension by
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`bridging miscelles of the anionic surfactant. The droplets of insoluble silicone
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`become suspended within this network. It has been found that low levels of
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`cationic polymer can be highly effective for providing stability." (UNL 1044, 3:17-
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`21)(UNL 1043, ¶58.)
`
`A POSA reading in Kanebo that cationic polymers can enhance the stability
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`of a shampoo would have looked to Cothran for its teaching of specific cationic
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`polymers that provide such stability enhancements. (UNL 1043, ¶59.) Cothran
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`teaches a shampoo composition with many common components to Kanebo’s,
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`including an anionic surfactant; a non-volatile conditioning agent, silicone; an AD
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`particulate, ZPT; a polyalkylene glycol, and water. (UNL 1044, 4:12-13, 22:36-
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`23:5, 25:9-20, 12:31-35, 22:25-27.) Thus, a POSA would look to enhance the
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`stability of the AD conditioning shampoos in Kanebo and would have looked to
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`the use of cationic polymers in Cothran for enhancing stability. (UNL 1043, ¶59.)
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`Thus, a POSA would have had a reason to combine Kanebo and Cothran.
`
`The '300 Patent
`6. A shampoo
`composition
`according to claim
`2, wherein said
`guar derivatives
`have a molecular
`weight from about
`50,000 to about
`700,000.
`
`
`
`Disclosure in Kanebo and Cothran
`See claim 2 above.
`Kanebo: "Guar gum hydroxypropyltrimethylammonium
`chloride ether." (UNL 1006, ¶[0031] fn. *2)
`Kanebo also discloses that "for achieving the best
`conditioning effect, it is preferred to use a cationic polymer
`such as cationized cellulose derivative, [or] cationized guar
`gum derivative." (UNL 1006, ¶[0014])
`Cothran states: "The cationic polymers hereof will generally
`have a weight average molecular weight which is at least
`about 200,000, typically at least about 400,000,…." (UNL
`1044, 17:25-31)
`Cothran: "Other cationic polymers that can be used include
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`cationic guar gum derivatives, such as guar
`hydroxypropyltrimonium chloride (commercially available
`from Celanese Corp. in their Jaguar® series)." (UNL 1044,
`20:27-31)
`Claim 6: As discussed above, a POSA reading Kanebo would have looked
`
`to Cothran for cationic polymers, including cationic cellulose and cationic guar
`
`gum derivatives, that improve the stability of shampoo compositions. (UNL 1043,
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`¶60.) A POSA combining Kanebo and Cothran would have looked to Cothran's
`
`disclosure of cationic guar gum derivatives for further examples of the cationic
`
`guar gums derivatives disclosed in Kanebo. (UNL 1043, ¶60; UNL 1006, ¶[0014];
`
`UNL 1044, 20:27-29.) A POSA would have also looked to Cothran's disclosure of
`
`the MW of the cationic polymer for determining the MW of the cationic guar gum
`
`to use in the shampoo of Kanebo, as Cothran teaches that cationic polymers of
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`such charge densities improve the stability of the shampoo. (UNL 1043, ¶60; UNL
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`1044, 3:18-21, 17:25-31.)
`
`A POSA would have also had a reasonable expectation of success in making
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`the subject matter of claim 6 from the teachings of Kanebo and Cothran, as both
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`references teach that cationic guar gums can improve the stability of shampoos and
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`as Cothran specifically teaches that cationic guar gums having the claimed MWs
`
`can improve stability. (UNL 1043, ¶61; UNL 1006, [0015]; UNL 1044, 3:18-21,
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`17:25-31.)
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`Further, it is established law that "where the general conditions of a claim
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`are disclosed in the prior art, it is not inventive to discover the optimum or
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`workable ranges by routine experimentation." See In re Aller, 220 F.2d 454, 456,
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`(CCPA 1955); see also In re Peterson, 315 F.3d 1325, 1330 (Fed. Cir. 2003). And
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`the MW range disclosed in Cothran overlaps the claimed ranges of MWs and
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`Patent Owner has not shown criticality for the claimed range. See Peterson, 315
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`F.3d at 1330. It would also have been a matter of routine experimentation to
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`determine the cationic guar gum MW because cationic guar gums were readily
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`available at MWs from 50,000 to about 700,000. (UNL 1018, 14:15-17.)
`
`Determining the optimal MW of cationic guar gum derivatives that provide desired
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`conditioning and AD activity in AD conditioning shampoos containing particulate
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`agents would only be a routine matter of obtaining different MW guar gum
`
`derivatives and routinely preparing and evaluating these properties for conditioning
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`and AD efficacy using methods well known in the art. (UNL 1043, ¶63.)
`
`The '300 Patent Disclosure in Kanebo and Cothran
`See claim 2.
`Kanebo: "Guar gum hydroxypropyltrimethylammonium
`chloride ether." (UNL 1006, ¶[0031] fn. *2)
`Kanebo also discloses that "for achieving the best
`conditioning effect, it is preferred to use a cationic polymer
`such as cationized cellulose derivative, [or] cationized guar
`gum derivative." (UNL 1006, ¶[0014].)
`Cothran: " The cationic charge density is preferably at least
`about 0.3 meq/gram, more preferably at least about 0.6
`meq/gram…." (UNL 1044, 32-33)
`Cothran: "Other cationic polymers that can be used include
`cationic guar gum derivatives, such as guar
`
`7. A shampoo
`composition
`according to
`claim 2, wherein
`said guar
`derivatives have a
`charge density
`from about 0.05
`meq/g to about
`0.9 meq/g.
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`Petition for IPR of USPN 6,451,300
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`hydroxypropyltrimonium chloride (commercially available
`from Celanese Corp. in their Jaguar® series). (UNL 1044,
`20:27-31)
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`Claim 7: As discussed above, a POSA reading Kanebo would have looked
`
`to Cothran for cationic polymers, including cationic cellulose and cationic guar
`
`gum derivatives, that improve the stability of shampoo compositions. (UNL 1043,
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`¶64.) A POSA combining Kanebo and Cothran would have looked to Cothran's
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`disclosure of cationic guar derivatives for further examples of the cationic guar
`
`derivatives disclosed in Kanebo. (UNL 1043, ¶64; UNL 1006, ¶[0014]; UNL 1044,
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`20:27-29.) A POSA would have also looked to Cothran's disclosure of the charge
`
`density of the cationic polymer for determining the charge density of the cationic
`
`guar gum to use in the shampoo of Kanebo, as Cothran teaches that cationic
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`polymers of such MWs improve the stability of the shampoo. (UNL 1043, ¶64;
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`UNL 1044, 3:18-21, 17:32-33.)
`
`A POSA would have also had a reasonable expectation of success in making
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`the subject matter of claim 7 from the teachings of Kanebo and Cothran, as both
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`references teach that cationic guar gums can improve the stability of shampoos and
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`as Cothran specifically teaches that cationic guar gums having the claimed charge
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`density can improve stability. (UNL 1043, ¶65; UNL 1006, [0015]; UNL 1044,
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`3:18-21, 17:32-33.)
`
`Further, as discussed above, it is not inventive to discover the optimum or
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`workable ranges by routine experimentation. And the charge density range
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`disclosed in Cothran overlaps the claimed ranges of charge densities and Patent
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`Owner has not shown criticality for the claimed range. See Peterson, 315 F.3d at
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`1330. It would also have been a matter of routine experimentation to determine the
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`cationic guar gum MW because cationic guar gum derivatives were known to be
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`readily available at charge densities of about 0.05 meq/g to about 0.9 meq/g. (UNL
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`1031, 14:15-17.) Determining the optimal charge density of cationic guar gum
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`derivatives that provide desired conditioning and AD activity in AD conditioning
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`shampoos in containing particulate agents would be a routine matter of obtaining
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`guar gum derivatives with different charge densities and routinely preparing and
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`evaluating these properties using methods well known in the art. (UNL 1043, ¶67.)
`
`The '300 Patent
`9. A
`shampoo
`composition
`according to
`claim 8,
`wherein said
`cellulose
`derivatives
`have a
`molecular
`weight from
`about
`350,000 to
`about
`500,000.
`
`8. A
`shampoo
`composition
`according to
`claim 2,
`wherein
`said
`cellulose
`derivatives
`have a
`molecular
`weight from
`about
`200,000 to
`about
`1,500,000.
`
`Disclosure in Kanebo and Reid
`See claim 2.
`Kanebo also discloses that "it is preferred to use a
`cationic polymer such as cationized cellulose
`derivative, [or] cationized guar gum derivative."
`(UNL 1006, ¶[0014].)
`Cothran states: "The cationic polymers hereof will
`generally have a weight average molecular weight
`which is at least about 200,000, typically at least
`about 400,000,…." (UNL 1044, 17:25-31)
`Cothran: "Other cationic polymers that can be used
`include polysaccharide polymers, such as cationic
`cellulose derivatives … Cationic cellulose is
`available from Amerchol Corp. (Edison, NJ, USA) in
`their Polymer JRTN LRTN,and LKTN series of
`polymers, as salts of hydroxyethyl cellulose reacted
`with trimethyl ammonium substituted epoxide,
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`referred to in the industry (CTFA) as Polyquaternium
`10. (UNL 1044, 20:1-23.)
`Reid: Example 3"[0.3%] Polymer JR 400 is a
`cellulose derivative [having a MW of approx.
`400,000]. "(UNL1018, 6:55-56.)
`Bartolo discloses that JAGUAR C15 has a
`molecular weight of "about 200,000 ± 75,000 "
`(UNL1012, 7:12-37 (Table 2, footnote 4), Table 2,
`fn. 4.)
`
`Claims 8 and 9: As discussed above, a POSA reading Kanebo would have
`
`looked to Cothran for cationic polymers, including cationic cellulose and cationic
`
`guar gum derivatives, that improve the stability of shampoo compositions. (UNL
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`1043, ¶68.) A POSA combining Kanebo and Cothran would have looked to
`
`Cothran's disclosure of cationic cellulose derivatives for further examples of the
`
`cellulose derivatives disclosed in Kanebo. (UNL 1043, ¶68; UNL 1006, ¶[0014];
`
`UNL 1044, 20:1-23.) A POSA would have also looked to Cothran's disclosure of
`
`the MW of the cationic polymer for determining the MW of the cationic guar gum
`
`to use in the shampoo of Kanebo, as Cothran teaches that cationic polymers of
`
`such MWs improve the stability of