Process for making detergent; Advanced BioCatalytics Corp.; U.S. Pat. No. 7,759,301

U.S. Patent No. 7,759,301, issued on July 20, 2010 to Advanced BioCatalytics Corp. (ABC) of Irvine, CA, discloses a method of making detergents that contain surfactant materials.

As explained by the ’301 patent, surfactants are organic chemicals that reduce surface tension in water and other liquids useful in cleaning grease, dirt, and oil.  They are often used in personal care products, household cleaning products, as well as industrial applications (e.g., waste-water treatment).  Surfactants are also used in dispersants after oil spills, such as the Corexit 9500 dispersant recently used in the Gulf of Mexico.  The ’301 patent discloses the use of a protein additive to surfactant-containing detergents to improve the surface-active properties of the surfactants, allowing the detergent to be made more effective or formulated to have a lower surfactant concentration.

According to its website, ABC is an industrial biotech company that markets the C.O.D.E.® protein-based chemistry for cleaners and waste-water treatment that provides improved chemical performance, while lowering water and energy use and replacing more environmentally-harmful chemistries.  C.O.D.E. stands for “Catalytic Organic Degradation Equation.”  The company’s website also touts ABC’s “proprietary technologies [which] combine low molecular weight proteins and surfactants that change the nature of surfactant chemistry and accelerate the biological degradation or organic materials.”  According to the USPTO datbase, the company currently owns seven U.S. patents, including the ’301 patent and the ’237 patent discussed below.

The ’301 patent is a divisional of another patent application (which resulted in U.S. Pat. No. 7,659,237 issued on February 9, 2010).  Divisional applications are similar to continuation applications, as I discussed briefly in a previous post.  The bulk of a divisional application (called the “specification”) includes the same information as does the original patent application, but the scope of protection as defined by the claims is different.  Also, in order to have the same priority date as the original patent application, the divisional application must be filed while the original patent application is still pending in the USPTO. 

Advanced BioCatalytics’ original patent application (which resulted in the ’237 patent) was filed with claims directed to both the detergent and the method of making the detergent.  However, when this original application was first examined by the USPTO, the examiner deemed the detergent and the method of making it to be independent and distinct inventions.  Since a patent application may not include claims to two or more such inventions, the examiner required the company to select which of the two inventions to pursue in the original patent application (called a “restriction requirement”).  The company responded by selecting the “detergent” invention, opting to decide later whether to pursue claims directed to the “method of making” the detergent in a divisional application.  The company almost waited too long, because the divisional application was filed on February 9, 2010, which was the last day of pendency of the original patent application (i.e., the issue date of the ’237 patent). 

It is not uncommon for continuation applications and divisional applications to have very short pendencies at the USPTO.  For example, the ’301 patent was filed in February 2010 and issued in July 2010.  These short pendencies are attributable to the fact that examiners are motivated to work on continuation/divisional applications over other patent applications.  Examiners are evaluated by the USPTO in part based on the number of applications they dispose of (i.e., that are either allowed or abandoned) during the year, and these evaluations are a significant factor in their promotions and pay raises.  Since continuation/divisional applications often go to the same examiner that worked on the original application, the examiner is already familiar with the technology, including the prior art references in the field by virtue having performed the earlier examination.  In addition, disposal of a continuation/divisional counts the same as disposal of a new patent application for evaluation purposes.  Therefore, the examiner naturally prefers to pick up continuation/divisional applications from his queue, since they take less work to dispose of.  I have had good effect in using this knowledge in getting continuation applications allowed quickly by the USPTO.