Cussons (International) Limited v Colgate-Palmolive Company

[1996] APO 40

official notice

decision of a delegate of the commissioner of patents

Application  :          No. 622925 in the name of CUSSONS (INTERNATIONAL) LIMITED

Title:          Detergents

Action:          Opposition by COLGATE-PALMOLIVE COMPANY under section 59 of the Patents Act 1952

Decision:          Issued            .

AbstractAn essential feature of the invention is not present in claims 1-14 and as a result these claims are not fairly based, novel or inventive.  Claims 15-33 which include this feature are fairly based, novel and inventive.

patents act 1990

decision of a delegate of the commissioner of patents

Re:     Patent Application No. 622925 by Cussons (International) Limited and Opposition by Colgate-Palmolive Company

background

Patent Application 622925 by Cussons International Limited (Cussons) was filed on 31 July 1989 under the Patent Cooperation treaty as PCT/GB89/00873, claiming priority from GB application 8818613.5 filed on 5 August 1988.  The application was advertised accepted on the 30 April 1992, and a notice of opposition was filed by Colgate-Palmolive Company (Colgate) on 30 July 1992.

The evidence was completed on 17 February 1995 and a hearing to determine the opposition took place in Canberra on 29th and 30th January 1996.  The applicant was represented by Mr Tony Bannon of counsel instructed by Dr Peter Stearne, patent attorney of Davies Collison Cave, Sydney and the opponent was represented by Mr David Catterns of counsel instructed by Mr Mark O’Donnell and Dr Bill Pickering, patent attorneys of F.B. Rice, Melbourne.

As the application was filed before, but accepted after, the commencement of the Patents Act 1990, the provisions of section 59 of the Patents Act 1952 and chapter 5 of the Patents Regulations to the 1990 Act apply in relation to the opposition.

The grounds of opposition listed on the notice of opposition and relied on at the hearing are laid down in paragraphs 59(1) (e), (g), ( h) and (i) of the Patents Act 1952, namely prior publication, obviousness, novelty and non-compliance with section 40 of the Act.

Construction of the Specification and claims

The specification relates to a particular method of making detergents, in particular, highly active, free flowing detergents which consist of particles which are substantially uniform in size.

One known method for detergent manufacture involves “dry neutralisation and associated agglomeration”.  The process depends on the reaction of sulphonic acid with solid alkaline base particles in the presence of water.  The water promotes the reaction between the acid and base such that a neutral salt (sulphonate) is adsorbed onto the solid particles.  At the same time, the salt acts as a glue to join the particles together to form larger (and now neutralised) agglomerates.

From the evidence, early commercial preparations of alkylbenzene sulphonic acids were made using the oleum or acid sulphonation method.  These preparations contained sufficient water to effect neutralisation and addition of extra water was not necessary.  Later commercial preparations (which were used at the priority date of the claims) were made using direct SO₃ sulphonation and contained much lower levels of water.  Extra water was added to promote neutralisation.

The specification taught that the addition of 1-2% water was necessary to completely neutralise the surfactant acid and that the invention resided in not adding water during agglomeration.  The product from such a method will have the surfactant acid adsorbed to the agglomerated particles.  In this decision, I will refer to these products as “acidic agglomerates”.  This method or product are essential features of the invention and a key issue in this decision is whether the claims are limited to this inventive method or product.  In other words, the claims have to be analysed to determine whether they define a method which limits the amount of water present in the agglomeration process to below the level needed to completely neutralise the surfactant acid or define a detergent product which contains acidic agglomerates.

The specification ends with 33 claims of which claims 1, 15 and 17 are the most relevant independent claims:

1. A method of producing a free flowing, high active, anionic detergent comprising the step of adsorbing an anionic surfactant acid onto a powdered or granular material to form an agglomerate, characterised in that there is no addition of water in the agglomeration stage.

1. A free flowing, high active, anionic, powdered or granular detergent composition comprising an anionic surfactant acid adsorbed onto a powdered or granular material characterised in that at least 96% by weight of said detergent composition has a particle size distribution substantially within the range from 250 microns to 1700 microns.

1. A free flowing, high active, anionic, powdered or granular detergent composition comprising an anionic surfactant acid adsorbed onto a powdered or granular material characterised in that the anionic surfactant acid is present in the range from 12% to 40% by weight of the total composition and the powdered or granular material is present within the range from 20% to 50% by weight of the total composition.

Claim 1 defines a method producing a free flowing, high active, anionic detergent comprising the step of adsorbing the anionic surfactant acid onto a powdered or granular material to form an agglomerate characterised in that there is “no addition of water in the agglomeration stage”.

I note that the plain meaning of the phrase “no addition of water in the agglomeration stage” is that water is not added separately to the agglomeration mixture.  This does not exclude water from being in the agglomeration stage because water could be present in the starting materials.  In fact, the evidence clearly shows that some sulphonic acid preparations contain sufficient water to cause neutralisation.  Thus, the phrase “no addition of water in the agglomeration stage” does not limit the amount of water in agglomeration to below the level needed to complete neutralisation..

The applicant argued that claim 1 in defining the method of adsorption of “anionic surfactant acid” effectively limited the claim to an acidic agglomerate.  According to the applicant, if water was present then an aqueous neutralisation occurs and aqueous absorption of the sulphonate salt (for example) rather than the acid occurs.

However, the method claims do not preclude the binding of the neutralised salt in the process as long as some acid binds as well and there is no limitation on the product of the claimed method such that it contains anionic surfactant acid adsorbed to the particles.  Further, the specification acknowledges that at least some acid is adsorbed onto the surface of an alkaline base in a process where water is added in agglomeration (see page 1, lines 25-26).  Therefore the phrase “adsorption of anionic surfactant acid” does not limit the method claims to a process containing a limited amount of water as the applicant suggests.

The applicant also argued that the skilled worker would understand from the specification that there was no intention of using the surfactant acid which already contains water.  I do not accept that an “understanding” from the specification not to use a surfactant acid preparation containing water is sufficient to limit the claims to using particular preparations of sulphonic acid which contain low levels of water.  Sheppard J in Decor Corp v Dart Industries, 13 IPR 385 warns that it is “not legitimate to narrow or expand the boundaries of monopoly as fixed by the words of a claim by adding to those words glosses drawn from other parts of the specification.”

However, I accept that if the skilled addressee would automatically only use a preparation which contains a low level of water (such as the commercially available sulphonic acid produced by SO₃ sulphonation) and interpret the claims to mean this then this feature will be implicit in the claims.

The applicant argued (during examination) that the preparation of sulphonic acid used at the priority date “tends to be” produced by SO₃ sulphonation and even the opponent conceded at one point in their evidence that the preparation of sulphonic acid used is “most likely” to be produced by SO₃ sulphonation.  However, I am not convinced that this is a sufficient reason to change the plain meaning of “surfactant acid” as other preparations of sulphonic acids could have still been used.  I also note that the claims include all surfactant acids and are not limited to sulphonic acids in particular.  It is possible that other types of commercial surfactant acids have higher levels of water.

I conclude that claims 1-14 are not limited to a process using a particular preparation of surfactant acid containing a prescribed low level of water.  It follows that claim 1 does not limit the amount of water in the agglomeration stage to produce acidic agglomerates.  Since (as I have concluded above) this limit is an essential feature of the invention, its absence in claim 1 (and claims 2-14 dependent thereon) renders these claims not fairly based.

Claims 15 and 17 define a detergent composition containing an anionic surfactant acid adsorbed onto a powdered or granular material.  The word “comprising” in the claims means that at least some acid must be adsorbed onto particles in the final product (the free flowing detergent composition).  This is in contrast to claim 1 which defined a method of adsorbing an anionic surfactant acid onto a powdered or granular material, with no limitation on the amount of water contained in the surfactant or on the nature of the final product.

The opponent argued that the term “acid” did not necessarily refer to the acid form per se but simply meant any surface active agent derived from an acid (including a salt).  There appears to be some contexts within the specification where the terminology is used loosely particularly when referring to the final composition of active material.  Thus, page 7, lines 3-4 refers to a type of anionic surfactant acid which was in salt form, page 3, lines 19-20 refers to the maximum surfactant acid content of the prior art detergents (where the prior art detergents contained salts) and the examples all calculate the active material in terms of the salt content regardless of whether the active material is in an acid or salt form.  However, in other parts of the specification, “acid” specifically refers to the chemical in its acid form and this is also the plain chemical meaning of the term.  I do not accept that this plain chemical meaning should be altered because of gloss read from some parts of the specification.  Consequently, throughout the claims, the term “acid” must be construed to mean a chemical in its acid form.

I note that the term “acid” appears twice in claim 17 and I construe this term to mean the same in both instances.  Since one of these instances is referring to the final composition of active material, the claim defines a free flowing detergent product where 12%-40% by weight of the composition contains an anionic surfactant acid in its acid form.

The opponent argued that neither claim 15 nor 17 was fairly based as the claims were not limited to being products of the inventive process.  However, according to the specification, the prior art has a strong teaching to neutralise the acid in the agglomeration process.  In light of this, it would be a completely new principle to have an unneutralised, free flowing detergent composition containing an anionic surfactant acid adsorbed onto a powdered or granular material.  It is well-established case law that if a principle is new, an applicant can claim all modes of carrying that principle into effect as long as it is not so extensive as to amount to any method of solving a particular problem (see David Kahn v Conway Stewart, (1974) RPC 279 and British United Shoe Machinery Co. Ltd. v Simon Collier Ltd., (1909) 26 RPC 21). In this case, claims 15 and 17 do not define all solutions to a problem and therefore these claims (and claims 16, 18-31 dependent thereon) are fairly based.

Claims 32 and 33 are omnibus claims which respectively define:

a) a free flowing detergent composition substantially as herein described with reference to any one of the examples; and

b) a method of producing a free flowing detergent composition substantially as herein described with reference to any one of the examples.

The examples clearly include a limit to the amount of water in the surfactant acid which (according to the specification) results in incomplete neutralisation and therefore both claims are fairly based.

prior use

At the Hearing, the opponent raised an issue of prior publication by use.  The opponent argued that the claims were not fairly based on matter in the basic specification and were therefore not entitled to their earliest priority date.  Since the applicant admitted selling the product “Radiant” on or shortly before 23 October 1988 (ie. before the date of filing of the application but after the earliest priority date), the sale of the product before the date of filing may prior publish some of the claims.

The basic specification is very similar to the complete specification.  Although there are small differences in the way the prior art is discussed and more information on the specific advantages and preferred embodiments in the complete specification, the basic and complete specifications contain the same strong, basic teaching of not adding water during the agglomeration stage to produce acidic agglomerates.  In light of this, I consider that any claim fairly based on the complete specification would also be fairly based on the basic document and therefore be entitled to the earliest priority date.  As there is no evidence of prior use before the earliest priority date, the case of prior use has not been established.

Section 40

The statement of grounds of opposition and particulars outlined a number of reasons why the specification may not comply with section 40.  The two major issues (ie. fair basis of claims 1 and claims 15 and 17) have already been considered above.  The following represent the other issues relied on at the Hearing:

(a)Claims 1-33 are not clear as it is not clear that the phrase “free flowing” appearing in the claims has the same meaning as that set out on page 1 of the specification.  Further the definition of “free flowing” provided in the specification is not clear.

The term “free-flowing” is used widely throughout the citations provided by the opponent, including the Davidson and Milwidsky reference (“Synthetic Detergents” 7th edition (1987)) which both sides concede could form part of the common general knowledge.  I consider that the term must clearly be recognised by the skilled worker in view of its wide use and I note that the term is defined on page 1, lines 6-8 as being sufficiently mobile as to be capable of being poured or dispensed reproducibly as a measured quantity.

(b)Claim 1 is not clear in that it is unclear as to what constitutes the “agglomeration stage”.

It seems self-evident that an “agglomeration stage” is a stage in which agglomerated particles are formed.  From the evidence, the agglomeration process is clearly well known in the art and therefore, I cannot accept that a skilled worker would have any difficulty in determining the stage in which it occurs.  In my opinion, the term is clear.

(c)Claim 2 is unclear.  In a context where water content is critical, the phrase “substantially dry” is indefinite.

Claim 2 defines:

“A method of producing a free flowing, high active detergent as claimed in claim 1, characterised in that said material is heated and is substantially dry prior to adsorption of the anionic surfactant acid.”

I do not believe the phrase “substantially dry” is inherently unclear (and I note that the opponent is not suggesting this).  While water content may be critical to the invention, it can still be present in the agglomeration stage as long as there is insufficient to complete neutralisation of the acid.  There is no evidence to suggest that “a powdered or granular material” defined in claim 1 (on which claim 2 is dependent) would contain enough water to complete neutralisation.  The term “substantially dry” in claim 2 simply limits the moisture content even further making the claim narrower than claim 1.  I therefore find that the term is definite.

(d)Claims 4, 5, 30, and 31 are not fairly based on the description as the feature of using a combination of anionic surfactant acids is not disclosed.

Using a combination of anionic surfactant acids is not explicitly discussed in the body of the specification, but the specification refers implicitly to a mixture of acids when it describes a variety of “suitable anionic surfactants” including linear straight chain alkyl benzene sulphonic acids in which the average number of carbon atoms in the alkyl group is from 11-13.  Therefore, the specification has a broad disclosure of the combination and is not “wholly silent” on it.  The specification also clearly contemplates using a wide range of anionic surfactant acids and I consider that using a mixture of them would be part of the common general knowledge of the skilled worker.  As a result, I find the feature of a “combination of anionic surfactant acids” is fairly based on the specification.

Novelty

The citations relied on for novelty were:

(a)Australian patent number 460689 by Colgate-Palmolive Company (published in Australia on 19 July 1954);

(b)GB patent application 707994 by Ruhrchemie Aktiengesellschaft (published in Australia on 12 July 1954)

(c)an article entitled “Washing Powders sans Spray Drying” by A. Davidson, published in Australia on or before 22 July 1960 in the US Trade Journal Soap and Chemical Specialties;

(d)an article entitled “Detergent Formulation by Dry Neutralisation” by R.R. Keast et al published in Australia on or before 17 October 1967 in US Trade Journal Soap and Chemical Specialties for August 1967;

(e)an article entitled “Detergents for Developing Countries” by A. Davidson published in Australia on or before 8 November 1965 in the US Trade Journal Soap and Chemical Specialties;

(f)a book entitled “Synthetic Detergents” 7th edition (1987) by A Davidson and B Milwidsky (there appears to be no direct evidence establishing the exact publication date of this text.  However, both sides acknowledge they were aware of the text at the priority date of the claims and therefore I accept that the text was published in Australia before this date)

Citations (a), (b), (d) and (f) all disclose a dry neutralisation/agglomeration process which produces a high active product containing an anionic surfactant (sulphonic acid).  In all these citations, there is at least one example where water is not added in the agglomeration stage but is already present in the starting materials (either pre-mixed with sulphonic acid or inherently present in the acid because of the way it was prepared).  The applicant argued that the citations strongly teach the addition of water to neutralise the sulphonic acid.  While this is true, this does not distinguish the citations from claim 1, because, as I concluded previously, this claim (and claims 2-14 dependent thereon) does not specify that incomplete neutralisation occurs.

The applicant further argued that none of the prior art products were necessarily free flowing after agglomeration:

(a)in citation (d), the product was only free flowing where a hydrotropic acid (such as toluene sulphonic acid) was included in formulations;

(b)in citations (a), (b) and (f), the product was only free flowing after a cutting or pulverising process was used to remove lumps.

However, neither possibility is excluded by claim 1 and therefore the prior art processes fall within its scope.  The citations all have more than 12% active matter and comprise over 60% powdered or granular material.  Thus each of the features of claims 1, 4, 5-11 and 14 is disclosed in the prior art depriving these claims of their novelty.

None of the citations specifically disclose pre-heating the powdered material (claim 2), using a fluidised bed (claim 3) or coating the agglomerate with silicate or alkali (claims 12 and 13).  However, since these features are well-known options in the detergent art (see Mr Strasser’s declaration of 25 February 1993), they do not confer novelty to the claims in which they appear.  As a result, claims 2, 3, 12 and 13 are also not novel in light of citations (a), (b), (d) and (f).

With regard to the remaining claims (claims 15-33), the opponent raised 2 main arguments:

(a)The process of the opposed application should produce a neutralised free flowing detergent product (ie: acid was not adsorbed onto the particles of the final product) which was essentially identical to the prior art products.

(b)The agglomerates formed in example 3 of citation (a) (the Colgate patent) were produced in a process where no water was added to neutralise the agglomerate.

With regard to the first argument, I observe from my previous construction of the claims, that claims 15-31 all explicitly define a free flowing detergent composition comprising an anionic surfactant acid adsorbed onto a powdered or granular material.  The argument that this product is not produced in the inventive process is an argument of inutility (which is not a ground of opposition) rather than novelty.  Thus, the opponent’s first argument is not relevant for claims 15-31.

Claims 32 and 33 define a free flowing detergent composition and method for producing it with respect to the examples.  The opponent argued that the addition of water was unnecessary in the examples because complete (albeit slow) neutralisation would happen anyway.  As a result, the exemplified product was neutral and therefore, the product (claim 32) and the method of producing it (claim 33) were the same as prior art products and methods.

The applicant provided positive experimental data (eg.: paragraphs 16-19 of Brian Reidy’s declaration of 17 November 1993) which showed that the free flowing agglomerated particles produced in the inventive process contained free acid and were not neutral as the opponent first suggested.  I am not satisfied that the experiments conducted by the opponent are sufficient to displace this evidence.  As a result, I accept that the agglomerates formed in the inventive process are acidic.

The opponent then argued that the addition of silicate solution after agglomeration in the examples of the opposed specification would ensure complete neutralisation.  Thus, even if there were an acidic agglomerate produced in the process, this would be an intermediate which would not affect the form of the final product.  Thus the exemplified final product would still be neutral and be anticipated by the prior art products.

The applicant contended that the product still retains an acidic character even after silicate treatment but did not produce any evidence verifying this.  The opponent was unable to detect any acid on the surface of the commercial product but, from submissions at the Hearing, it appears to be difficult to detect the acid experimentally and, in any case, Dr Maden (in his declaration 19 January 1995, paragraph 11) queried the opponent’s test procedures.  In light of this, I am not convinced either way on whether the final product does or does not contain acid adsorbed onto the surface of its particles.

However, I note that silicate treatment occurs after the agglomeration stage and is only an optional feature of the invention.  According to the specification, not adding water in agglomeration ensures a high loading of surfactant while maintaining uniform and free flowing particles.  These particles, even when coated with silicate, and even if they were later neutralised, would be a different product from the prior art as a result.

I note that neither side has provided a direct comparison of agglomerates formed in controlled experiments where agglomeration was completed with and without the addition of water (and where all other conditions were kept constant).  I am therefore unable to directly assess the effect of water addition in agglomeration.

Instead, both sides discussed accepted limits to the loadings of anionic surfactant achievable in agglomeration (the Fuchs FMC data).  I accept that these limits relate to the amount of alkylbenzene sulphonic acid that can be adsorbed on various bases whilst still giving a free flowing agglomerate.  The products produced in the examples clearly contain higher surfactant loadings than these accepted limits, and the applicant provided positive experimental evidence in Mr Reidy’s declaration of 17 November 1993 to demonstrate that the agglomerates were free flowing.  I also note that this result was achieved without extra processing (cutting) steps.  Therefore, prima facie, the exemplified product is different to prior art products.

The opponent argued that the product of example 3 of the Colgate patent is the same as the exemplified product.  I accept that, in common with the product of the opposed application, the product of example 3 of the Colgate patent has a high surfactant loading and exceeded the accepted limits of surfactant loading referred to above.  However, the process of this example 3 involved moving the mixture of the anionic detergent acid and neutralising agent through cutting means which would disperse and break down any lumps formed in agglomeration.  The opponent never demonstrated that a free flowing product would have been produced in the citation without these cutting means.  As a result, while I accept that the product of example 3 of the Colgate patent had a high surfactant loading, I am not convinced that the product was free flowing in the absence of these extra cutting means.  Therefore I find that the opponent has not established that the product of example 3 of the Colgate patent was the same as the product claimed in the opposed application and I do not accept the opponent’s first argument.

With regard to the second argument, the opponent suggested that if the skilled addressee followed the instructions in example 3 of the Colgate patent literally (which did not explicitly mention that sufficient water was added to neutralise the agglomerate), they would have inevitably produced an acidic product which would deprive claims 15-33 of their novelty.

However, there is no teaching in the Colgate patent to produce acidic agglomerates and no suggestion that example 3 produces them or even has a significantly different rate of neutralisation than either of the other two examples (both of which use sulphonic acid preparations which inherently contained sufficient water for neutralisation).  Although example 3 in the Colgate patent did not explicitly mention that water was added, the specification contained a clear teaching that the detergent acid must contain sufficient water to cause neutralisation (page 15, paragraph 2), and a stated preference for a fast reaction (page 18, lines 9-11).  Given this teaching to neutralise (and neutralise fast), I believe the skilled worker would automatically add sufficient water to the sulphonic acid preparation to neutralise the agglomerate.  This is especially true given that the example was quite sketchy and the skilled worker needed to rely on details in the other parts of the specification to be able to put it into practice.

The opponent argued that although the Colgate patent taught that the product produced in example 3 was neutralised, this may not have been true since neutralisation was only ever measured qualitatively.  However there is no evidence to support this assertion and therefore I do not accept it.

The opponent also referred to EP 352135 (by Unilever PLC), which discussed the Colgate patent (as its GB equivalent 1369269) in its overview of the prior art.  The opponent argued that the discussion in the EP patent application reflected how the skilled worker would have read the Colgate patent at the priority date of the claims.  The EP patent application referred to the disadvantage of the Colgate patent being that no water was added to promote the neutralisation process.

However, in referring to this disadvantage, the EP patent application does not distinguish example 3 from examples 1 or 2.  Water was not added in examples 1 and 2 because sufficient water was clearly present in the starting preparation of sulphonic acid to neutralise the agglomerates and the implication is that this was also true of example 3.  In fact, the EP patent application acknowledges that neutralisation occurs in the Colgate patent.  I therefore find the opponent’s second argument unconvincing.

Having not accepted either of the Opponent’s above arguments regarding the novelty of claims 15-33, I conclude that citations (a), (b), (d) and (f) do not disclose a free flowing detergent composition comprising anionic surfactant acid adsorbed onto a granular or powdered material nor a process to produce this and hence I find that claims 15-33 are novel in light of these documents.

Citation (c) discusses the general process of dry neutralisation/agglomeration and does not detail any specific methods or products produced by such methods.  The opponent has not established that a high active and free flowing product would be an inherent result of this general process and, as a result, the citation does not deprive any of the claims of their novelty.

Citation (e) discloses dry neutralisation/agglomeration process where neutralisation is taught but where water is added after the (low water) acid has been mixed with the dry powders (see, for example, figure 6 and page 76, middle column of the citation).  The evidence suggests that the agglomeration stage had not been completed before this water was added and therefore I conclude that water was added in the agglomeration stage in citation (e).  Claims 1-14, 33 define a process without this addition of water, and therefore exclude the process disclosed in citation (e).  These claims are therefore novel in light of this citation.

The opponent argued that some agglomeration occurred before water was added and hence particles containing free acid could have formed before water was added (potentially depriving claims 15-32 of their novelty).  While this may be true, there is no evidence that a free flowing product could be produced before the addition of water.  In fact, the citation suggests the opposite on page 76, middle column:

“...the water (or hypochlorite solution) is added and in a few minutes the mass is converted to a dry, free flowing powder indicating the reaction is complete...”

As a result, the citation does not disclose a free flowing detergent composition comprising anionic surfactant acid adsorbed onto a granular or powdered material and does not deprive claims 15-32 of their novelty.

Citation (f) discloses a similar process to citation (e) where water is added after the (low water) sulphonic acid is mixed with the dry materials [I note that this disclosure is in addition to that shared with citations (a), (b) and (d) and discussed above, where water is already present in the sulphonic acid preparation].  Citation (f) mentions that mixing merely disperses the acid suggesting that agglomeration has not occurred before water was added.  The citation also talks about “dark lumps” of sulphonic acid existing before water was added which indicates that the mixture of acid and base was not free flowing.  Both differences distinguish this method from any of the claimed methods and products and hence claims 1-33 are novel in light of this part of the disclosure of citation (f).

Obviousness

Under the 1952 Act, obviousness is assessed against the common general knowledge.  Of the citations listed above [documents (a) to (f)], only one [Davidson and Milwidsky, document (f)] can be considered to form part of the common general knowledge on the basis of the evidence before me.  This citation is from a well-known textbook which both sides admit they were aware of at the priority date and concede could be part of the common general knowledge.

Part of the disclosure of document (f) involves a dry neutralisation/ agglomeration process using 90% alkyl benzene sulphonic acid.  In this process, the sulphonic acid contains sufficient water for neutralisation (see page 203, paragraph 4).  As I noted above in novelty, this disclosure deprives claims 1-14 of novelty.  For the same reasons, it will also deprive these claims of an inventive step.

I also concluded above that claims 15-33 were novel in light of that part of document (f), which does not disclose a free flowing detergent composition comprising anionic surfactant acid adsorbed onto a granular or powdered material nor a process to produce this.  In fact, document (f) contains a strong teaching that neutralisation has to occur (see page 202, paragraph 4).  In view of this strong teaching, the product claimed in claims 15-32 and the process claimed in claim 33 is taught away from.  As a result, there is insufficient evidence that claims 15-33 lack an inventive step.

As I also noted above, document (f) discloses the neutralisation/ agglomeration process using 100% alkyl benzene sulphonic acid where water is added to the reaction to complete neutralisation.  This addition of water is consistent with the document’s strong teaching that neutralisation has to occur.  By stressing the importance of both neutralisation and the role of water in this process, the disclosure teaches away both from omitting the addition of water in the process and from producing a free flowing detergent composition comprising anionic surfactant acid adsorbed onto a granular or powdered material.  It follows that none of the claims are suggested by this part of the disclosure and, as a result, there is insufficient evidence of a lack of inventive step.

Summary

1. Claims 1-14 are not fairly based as they do not contain a limitation to the amount of water present in agglomeration such that there is insufficient to cause neutralisation and that an acidic agglomerate is produced.  Because the claims lack this feature, they are also not novel in light of citations (a), (b), and (d) and neither novel nor inventive in light of citation (f), which forms part of the common general knowledge.

1. Claims 15-33 which contain some limitation to the amount of water present in agglomeration or which define a free-flowing detergent composition containing an anionic surfactant acid adsorbed onto a powdered or granular material are fairly based, novel and inventive in light of the evidence provided by the opponent.

1. Any claim fairly based on the complete specification would also be fairly based on the basic document and be entitled to the earliest priority date.  There is no evidence of prior use before the earliest priority date and hence the case of prior use has not been established.

The problems I have identified can easily be solved by amendment and I give the applicant 60 days from the date of this decision to propose relevant amendments.

Costs

In actions before the Commissioner, costs normally follow the event.  As the Opposition was successful in respect of a major issue in the construction of the claims, I award costs against the applicant, Cussons (International) Limited.

Karen Ayers
Delegate of the Commissioner of Patents

Patent attorneys for the applicant  : Davies, Collison Cave, Sydney

Patent attorneys for the opponent  : F.B. Rice, Melbourne