398 F.2d 849
Application of Norman R. SMITH.
Patent Appeal No. 7989.
United States Court of Customs and Patent Appeals.
June 27, 1968.
Rehearing Denied October 10, 1968.

Richard C. Witte, Robert B. Aylor, Cincinnati, Ohio, Watson, Cole, Grindle & Watson, William J. Daniel, Washington, D. C., for appellant.
Joseph Schimmel, Washington, D. C. (Jack E. Armore, Washington, D. C., of counsel), for the Commissioner of Patents.
Before WORLEY, Chief Judge, and Judges RICH, SMITH, ALMOND, and KIRKPATRICK.*
ALMOND, Judge.


1
This is an appeal from the decision of the Patent Office Board of Appeals affirming the final rejection of claims 11 to 16 of appellant's application entitled "Liquid Detergent Composition."1 No claims have been allowed.


2
The claimed compositions are said to be homogeneous heavy-duty liquid laundry detergent compositions consisting essentially of a zwitterionic quaternary ammonium compound2 of the sultaine class, an anionic detergent, a detergency builder salt, a hydrotroping agent,3 a silicate corrosion inhibitor, ethyl alcohol and water.

Claim 13 is illustrative:

3
13. A homogeneous heavy-duty high sudsing liquid detergent composition consisting essentially of:


4
(a) from 3% to about 15% of a zwitterionic quaternary ammonium compound having the general formula:


5
NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE


6
wherein R1 is an alkyl radical having from 10 to about 18 carbon atoms, R2 and R3 are each alkyl radicals having from about 1 to about 3 carbon atoms, and R4 is selected from the group consisting of alkylene and hydroxyalkylene radicals having from 1 to 4 carbon atoms;


7
(b) from about 3% to about 12% of a water-soluble salt of an anionic organic sulfuric reaction product selected from the group consisting of RSO — 4, R(OC2H4)x SO — 4, where x is an integer from 1 to 5, R &IILF; SO NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE 3, R being an alkyl radical containing 9 to 16 carbon atoms, and mixtures thereof;


8
(c) from about 8% to about 30% of potassium pyrophosphate;


9
(d) from about 5% to about 15% of an alkali metal salt of an aryl sulfonic acid; selected from the group consisting of benzene sulfonic acid, toluene sulfonic acid and xylene sulfonic acid;


10
(e) from about 3.5% to about 6% of a corrosion inhibitor selected from the group consisting of potassium silicates and sodium silicates, said silicates having a weight ratio of SiO2/M2O of from about 1.0 to about 2.6 wherein M refers to sodium and potassium;


11
(f) up to about 7% ethyl alcohol; and the balance substantially


12
(g) water;


13
said alkali metals of component (d) being selected from the group consisting of sodium and potassium; the sum of components (a) and (b) being not more than about 27%; and the sum of components (a), (b), and (c) being from about 25% to about 40%, all percentages herein being by weight of the composition.


14
Claims 14 and 15 depend from claim 13, and each specifies a particular zwitterionic compound. Claim 11 is an independent claim which is cast more broadly than claim 13 in its recitations of the anionic detergent and the builder. Claim 12 depends from claim 11 and recites a particular zwitterionic compound. The references relied upon were:


15
  Downing et al. (Downing)        2,129,264      September 6, 1938
  Isbell                          2,619,467      November 25, 1952
  Krumrei et al. (Krumrei)        2,877,185         March 10, 1959
  Goff                            2,950,255        August 23, 1960
  Lang                            3,086,943         April 23, 1963
  Bohme (Germany)                 1,018,421       October 31, 1957


16
Krumrei discloses a detergent composition as follows:


17
A typical composition embodying this prior discovery may contain from about 6% to about 15% of salts of alkyl glyceryl ether sulfonate, 12% to 27% of potassium pyrophosphate, or potassium tripolyphosphate, 2% to 6% of ethyl or isopropyl alcohol, * * * 3.5% to 6% of silicate of soda (solids basis) of SiO2:Na2O ratio of 1.6:1 to 2.6:1, 3% to 8% of a solubilizing agent, and water to make 100%. This produces a clear solution at room temperature and remains clear down to about 50° F.


18
The patent also discloses that the preferred solubilizing agent is sodium toluene sulfonate. This reference thus discloses all of the elements of the claimed combination within the ranges claimed except for the zwitterionic compound.


19
Downing discloses zwitterionic compounds within the scope of the claims, and describes their utility as follows:


20
Quaternary ammonium salts described herein, and their described derivatives are capable of use for innumerable purposes. One of their chief uses is for wetting, detergent, emulsifying and dispersing purposes. In this connection it may be stated that they are capable of use either in admixture with one another and/or in admixture with soap or soap-like products for utilization in all the processes where soap or soap-like products have heretofore been used or are capable of use. A relative few of these uses will now be given merely for purposes of illustration:


21
* * * * * *

E. General:

22
1 The reagents may be used in pure or standardized form.


23
2 May be used in conjunction with the known processing or treating agents.


24
Bohme discloses zwitterionic compounds within the scope of the claims and discloses their compatibility with anionic detergents as specified in appellant's claims.


25
Isbell discloses amphoteric detergents4 as being usable with anionic detergents, phosphate salts, silicate salts and hydrotrope sulfonates.


26
The examiner rejected the claims under 35 USC 103, and the board affirmed that rejection, reasoning as follows:


27
It is the Examiner's position that it would be obvious to a detergent chemist of ordinary skill in the art in view of the teachings in Downing et al., [Bohme] and Isbell to add any of the sulfobetaines disclosed in the Downing et al. and Bohme patents to the heavy duty liquid detergent composition of Krumrei et al. which, incidentally, includes all the components of the claimed composition except the specific zwitterionic compounds, e. g., sulfobetaines (also known as sultaines) which are employed by appellant * * *. Downing et al. teach that the claimed betaine-like zwitterionic compounds are detergents which are usable with soap and soaplike products * * * in aqueous media * * *. The German application (Bohme) also teaches that amphoteric compounds of the type claimed may be employed in combination with sulfate and sulfonate detergents of the types recited in the instant claims * * *. Isbell teaches that equivalent amphoteric detergents are usable with anionic detergents, phosphate salts, silicate sales and hydrotrope sulfonates. * * *


28
We agree with the examiner and the board that it appears obvious to add the zwitterionic compounds of Downing and Bohme to virtually any known detergent composition in view of the clear statements in those references that the compounds are compatible with and useful in combination with such compositions. Since Downing states that the sultaines are useful "in conjunction with the known processing or treating agents," and Bohme suggests their use with sulfonate anionics, we see nothing unobvious about using the sultaines with the known anionic-containing composition of Krumrei. Appellant's argument that neither Downing nor Bohme suggests the use of a zwitterionic compound in a built5 composition such as that of Krumrei is unpersuasive since Downing discloses the use of zwitterionic compounds "in admixture with soap or soap-like products" for use "[a]s cleansing agents particularly in hard water * * *." This suggests the use of zwitterionic compounds in built detergent compositions since the use of builders is known in compositions designed for hard water use. Furthermore, Isbell teaches the use of amphoteric detergents, which are zwitterionic within certain pH ranges, in conjunction with builders.


29
Appellant argues, however, that his invention is patentable because he achieved an unexpected and unpredictable improvement in suds stability by combining a sultaine and an anionic detergent in a built composition. In support of this argument, appellant directs our attention to two affidavits in the record. The examiner refused to accept these affidavits as sufficient to overcome the obviousness rejection because of their limited scope relative to the breadth of the claims. The two affidavits together show six compositions within the scope of the claims. All of these employ only two sultaines, and only two anionic detergents. In each composition the total detergent concentration is 12%. We agree with the examiner that these limited comparative tests, when compared with the number of compounds and ranges of concentrations within the scope of the claims, are inadequate to overcome the strong suggestion of obviousness inferred from the references.


30
The decision of the board is affirmed.


31
Affirmed.


32
  Isbell                          2,619,467      November 25, 1952
  Krumrei et al. (Krumrei)        2,877,185         March 10, 1959
  Goff                            2,950,255        August 23, 1960
  Lang                            3,086,943         April 23, 1963
  Bohme (Germany)                 1,018,421       October 31, 1957



Notes:


*
 Senior District Judge, Eastern District of Pennsylvania, sitting by designation


1
 Serial No. 80,991 filed January 6, 1961


2
 Appellant defines zwitterionic compounds as:
* * * organic compounds which in solution and over a relatively broad pH range contain on the same molecule both a positively charged substituent group (cation) and a negatively charged substituent group (anion). When the cation is a quaternary ammonium group and the anion is a carboxylate group (-CCO(—)), the name "betaine" is applied. When the cation is a quaternary ammonium group and the anion is a sulfonate group (-SO, (—)), the name "sultaine" [or "sulfobetaine"] is applied. Therefore, a zwitterionic detergent is a detergent which under the ordinary conditions of use in a built detergent system bears both a positively charged (cationic) and negatively charged portion (anionic) on the hydrophobic portion of the molecule giving the detergent molecule an "inner salt" (ring) structure.


3
 Appellant defines hydrotroping agents as:
Compounds such as potassium toluene sulfonate, which co-solubilize inorganic builder salts and organic detergents in concentrated aqueous compositions to permit the formulation of homogeneous detergent compositions.


4
 Appellant defines an amphoteric detergent as:
A detergent which can be either an anionic detergent, a cationic detergent or a zwitterionic detergent depending on the pH. An amphoteric detergent can only be a zwitterionic detergent at a specific pH. Under the normal conditions of use in a built detergent system an amphoteric detergent bears only an anionic (negative) charge on the hydrophobic portion of the molecule.


5
 Appellant defines "built" as:
A term referring to a detergent composition containing water-soluble alkaline salts such as potassium pyrophosphate which have the capability of combining with (sequestering) calcium ions (the "hardness" in water) to promote the detergency of the composition.


