DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Status
Applicant’s specification and claim amendments and arguments in the response filed 28 April 2026 are acknowledged.
Claims 1, 6, 10 & 12-21 are pending.
Claims 2-5, 7-9 & 11 are cancelled.
Claims 1, 10, 15, 19 & 21 are amended.
Claims 12, 16, 17 & 20 are withdrawn.
Claims 1, 6, 10, 13-15, 18, 19 & 21 are under consideration.
Examination on the merits is extended to the extent of the following species:
At least one nonaqueous solvent- absent;
At least one surfactant- present and it is capryloyl/caproyl methyl glucamide;
Emulsifier- absent;
At least one scrubbing agent- present and it is cornmeal;
At least one preservative- absent;
At least one pH modifier- absent;
Auxillaries and/or additives- absent;
Additional thickener- absent.
Priority
Receipt is acknowledged of papers submitted under 35 U.S.C. 119(a)-(d), which papers have been placed of record in the file.
Improper Pointing to the US Publication
Applicant’s representative points to paragraphs of the US Publication for support for the proposed claim amendments. This is improper. The US Publication is not the original disclosure in that it is not Applicant’s immediate work as filed and there is potential for errors to be inadvertently introduced by the printers/typesetters. MPEP 608 is quite clear. “All amendments and claims must find descriptive basis in the original disclosure. No new matter may be introduced into an application after its filing date. Applicant may for disclosure upon the specification with original claims and drawings, as filed. See also 37 CFR 1.121(f) and MPEP § 608.04.” (emphasis added; MPEP 608). Applicant’s future responses should point to support in the as-filed specification either by page and line number or paragraph number.
Withdrawn Rejections
The rejection of claims 1, 6, 10, 13, 14 & 19 under 35 U.S.C. 103 over Allef in view of Deleersnyder; claim 15 under 35 U.S.C. 103 over Allef and Deleersnyder and further in view of Grimadell; claim 18 under 35 U.S.C. 103 over Allef and Deleersnyder and further in view of Rosenberger; and claim 21 under 35 U.S.C. 103 over Allef in view of Deleersnyder and Hirotaka is withdrawn due to Applicant’s amendments to claims 1, 15, and 21 to recite the surfactant “comprising 2 to 5.5% by weight of one or more fatty acid glucamides…”
New Rejections
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1, 6, 10, 13-15, 18 & 19 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claims 1 and 15 are unclear. Claims 1 and 15 recite “ a surfactant comprising a combination of 2 to 5.5% by weight of one or more fatty acid glucamides, sodium laureth sulfate, and disodium laureth sulfosuccinate”. It is unclear with the amount of “2 to 5.5% by weight” refers to the “one or more fatty acid glucamides” or each one of the members of the Markush group of “one or more fatty acid glucamides, sodium laureth sulfate, and disodium laureth sulfosuccinate”.
If Applicant’s representative intended for the “2 to 5.5% by weight” to refer to only the “one or more fatty acid glucamides”, Applicant’s representative may wish to consider whether an amendment to claims 1 & 15 to recite “c) 7 to 30% by weight of a surfactant comprising a combination of sodium laureth sulfate, disodium laureth sulfosuccinate, and 2 to 5.5% by weight of one or more fatty glucamides; “ would obviate the rejections. Support for these suggested amendments are found at pg. 6 of the as-filed specification.
Claims 6, 10, 13, 14, 18 & 19 are rejected under 35 USC 112(b) because they depend from indefinite claim 1 and do not clarify the issue.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1, 6, 10, 13, 14 & 19 are rejected under 35 U.S.C. 103 as being unpatentable over Allef (US 2013/0338052; IDS-11/14/2019; previously cited) in view of Deleersnyder (US 2011/0262371; previously cited) and Glucotain Clear (Published: 06/2015; previously cited-PTO-892: 03/17/2021).
*Please note that in the process of searching for the elected embodiment, the examiner found art which reads on the broader recitation of the claims (i.e. abrasive/scrubbing agent which is a genera to which the elected, but unrecited species of cornmeal belongs) and in an effort to expedite prosecution, this art has been applied.
Claim Interpretation: Claim 1 is interpreted as being a liquid hand cleansing composition capable of foaming. The “wherein clause” in the last two lines of the claims is interpreted as a statement of intended use which does not further limit the structure/form of the hand cleansing composition beyond that of a liquid composition, particularly since the preamble of the claim is drawn to a composition, the body of the claim is drawn to reagents present in the composition, and no limitations pertaining to the structure of the hand pump foamer apparatus is present in the body of the claim.
The emulsifier is interpreted as being absent due to Applicant’s election and the recitation of the range 0 to 3% by claim 1. The preservative is interpreted as being absent due to Applicant’s election and the recitation of the range 0 to 2% by claim 1. The pH modifier is interpreted as being absent due to Applicant’s election and the recitation of the range 0 to 2% by claim 1. The additional thickener is interpreted as being absent due to Applicant’s election and the recitation of the range “comprising less than 0.5 wt% by claim 14.
With regard to claims 1a) & 6, Allef teaches a skin and hand cleansing composition comprising surfactants which include castor oil sulphates and in Example ZD teaches a composition comprising 1.8% sulphated castor oil ([0048], [0053], & Table 1- pg. 8). With regard to claim 1b), Allef teaches inclusion of viscosity modifiers which include xanthan in an amount of 0.1 to 1.5% by weight and in Example ZD teaches inclusion of 0.45% xanthan gum ([0059] & Table 1- pg. 8). With regard to claims 1c), 10 & 19, Allef teaches inclusion of surfactants in an amount of 2 to 40% by weight and in Example ZD teaches inclusion of the surfactants, sodium laureth sulphate and disodium laureth sulphosuccinate in a combined amount of 6.9% ([0048 & Table 1- pg. 8). With regard to claim 1c), more broadly, Allef teaches inclusion of fatty acid glucamides, including N-alkyl-glucamides, as particularly suitable mild, skin-compatible, surfactants [0047]. It would have been prima facie obvious to the ordinary skilled artisan before the effective filing date to have modified Allef’s hand cleanser by adding N-alkyl-glucamides to the composition as taught by Allef because Allef teaches them as suitable for inclusion in their invention as a skin compatible nonionic surfactant. The ordinary skilled artisan would have been motivated to do so with an expectation of success in order to provide skin cleansing with a mild, skin-compatible, surfactant. With regard to claim 1d), Allef teaches “[p]referably, the compositions according to the invention are free from emulsifiers” (i.e. 0% emulsifier; [0061]). With regard to claims 1 e) & 13, Allef teaches inclusion of abrasives which include shells in an amount of 0.05 to 15% by weight and in Example ZD teaches inclusion of 5% JUGLANS REGIA shell powder (i.e. scrubbing powder; [0057] & Table 1-pg. 8). With regard to claim 1 f), Allef teaches inclusion of preservatives and in Example ZD teaches inclusion 2.6% bronopol and sodium chloride (i.e. preservatives; [0048] & Table 1- pg. 8). With regard to claim 1 f), more broadly, Allef teaches preserving agents to be an optional auxiliary, additive, or active ingredient- “If auxiliaries, additives and/or active ingredients are present…” (i.e. emphasis added; [0064] & [0065]). With regard to claim 1 g), Allef teaches inclusion of pH regulators including and in Example ZD teaches inclusion of 0.45% citric acid (i.e. pH modifier; [0064] & pg. 8-Table 1). With regard to claim 1 g), more broadly, Allef teaches pH regulators to be an optional auxiliary, additive, or active ingredient - “If auxiliaries, additives and/or active ingredients are present…” (i.e. emphasis added; [0064] & [0065]). With regard to claim 1 h), Allef teaches the compositions of their invention are characterized in containing super absorbent particles in an amount of 0.01-30 wt% and in Example ZD teaches an inventive formulation free of super absorbent particles; and optional inclusion of emollients, regulating agent for swelling behavior of the super absorbent particle, cosmetic auxillaries, additives and active ingredients (abstract; Allef’s-claim 4 & Table 1-pg. 8). With regard to claim 1i), Allef teaches inclusion of solvents in an amount of preferably 30 to 90% by weight and in Example ZD teaches inclusion of 69.6% water ([0035] & pg. 8-Table 1). With regard to the viscosity recited by claim 1, Allef teaches the compositions of their invention has a viscosity greater than 2,000 mPas [0020]. A viscosity of “less than 2000 mPa*S” and a viscosity of “greater than 2000 mPas” are close enough that one skilled in the art would expect them to have the same properties including being “creamy compositions or flowable viscous pastes” (i.e. liquids because they exhibit flow and creams are known liquids; [0073]). A prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have the same properties. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed. Cir. 1985). This assertion is supported by the instant specification which discloses “Typically, the composition has a viscosity of 500 to 5000 mPa.s. More typically this is less than 3500 mPa.s,…” (pg. 3). With regard to claim 1, Allef teaches the compositions of their invention are foamable by teaching “the skin and hand cleansers according to the invention foam to a considerably greater extent than heavy-duty hand cleansers of the prior art” [0074]. With regard to claim 1, Allef teaches they are dispensed from a hand pump foamer apparatus by teaching “they can be dispensed easily from wall-mounted dispenser” (i.e. the composition foams upon being dispensed from a hand pump foamer apparatus; [0020]). With regard to claim 1, Allef does not teach inclusion of non-aqueous solvents (see document in its entirety). With regard to claim 14, more broadly, Allef teaches inclusion just one thickening agent (i.e. the additional thickener is absent) by stating “it may be advantageous if the composition according to the invention has one or more agents which are suitable for adjusting the viscosity, in particular for increasing the viscosity…” (i.e. emphasis added; [0059]).
Allef does not teach that the pH of the foamable skin and hand cleansing composition is below 5.5 or that the surfactant comprises 2 to 5.5% by weight of one or more fatty glucamides in which N-alkyl-glucamide.
In the same field of invention Deleersnyder teaches cleaning and/or cleansing compositions containing abrasive cleaning particles (abstract). Deleersnyder teaches these compositions are for cleaning human and animal skin [0002]. With regard to claim 1b), Deleersnyder teaches the composition comprises xanthan gum as a thickening agent and in Examples 1-3 teaches xanthan gum sold under the tradename of Keltrol CG-SFT (i.e. smooth flow xanthan; [0109]-[0111] & [0179]). With regard to claim 1, Deleersnyder teaches “another preferred embodiment compositions have pH preferably above pH 4 and alternatively have pH preferably below pH 9” [0026].
Glucotain Clear teaches capryloyl/caproyl methyl glucamide is a mild, nonionic surfactant with a good cleansing ability (pg. 1). Glucotain Clear teaches capryloyl/caproyl methyl glucamide is extremely mild to both skin proteins and skin lipids and are therefore very useful for formulations with mildness claims and for sensitive skin (pg. 1). Glucotain Clear teaches when capryloyl/caproyl methyl glucamide is used as a surfactant it is especially suitable for formulations featuring light and fluffy foam such as refreshing, vitalizing hand washes; it is suitable for formulations provided in foam dispensers as it has high flash foam (pg. 1). Glucotain Clear teaches capryloyl/caproyl methyl glucamide is miscible with all types of surfactants (anionic, non-ionic, cationic and amphoteric; pg. 2). With regard to claim 15 c), Glucotain Clear teaches capryloyl/caproyl methyl glucamide is used at a level of 0.6 % to 6 % as solubilizer (0.3 to 3% active; pg. 2).
The Supreme Court in KSR International Co. v. Teleflex Inc., 550 U.S. 398, 127 S. Ct. 1727, 82 USPQ2d 1385, 1395-97 (2007) identified a number of rationales to support a conclusion of obviousness which are consistent with the proper “functional approach” to the determination of obviousness as laid down in Graham. The key to supporting any rejection under 35 U.S.C. 103 is the clear articulation of the reason(s) why the claimed invention would have been obvious. The Supreme Court in KSR noted that the analysis supporting a rejection under 35 U.S.C. 103 should be made explicit.
Exemplary rationales that may support a conclusion of obviousness include:
(A) Combining prior art elements according to known methods to yield predictable results;
(B) Simple substitution of one known element for another to obtain predictable results;
(C) Use of known technique to improve similar devices (methods, or products) in the same way;
(D) Applying a known technique to a known device (method, or product) ready for improvement to yield predictable results;
(E) “Obvious to try” – choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success;
(F) Known work in one field of endeavor may prompt variations of it for use in either the same field or a different one based on design incentives or other market forces if the variations are predictable to one of ordinary skill in the art;
(G) Some teaching, suggestion, or motivation in the prior art that would have led one of ordinary skill to modify the prior art reference or to combine prior art reference teachings to arrive at the claimed invention.
Note that the list of rationales provided is not intended to be an all-inclusive list. Other rationales to support a conclusion of obviousness may be relied upon by Office personnel.
Here, at least rationale (G) may be employed in which it would have been prima facie obvious to the ordinary skilled artisan before the effective filing date to have modified Allef’s composition by modifying the pH of the cleanser to be above a pH 4 and a pH preferably below pH 9 as suggested by Deleersnyder’s teachings, and substituted Allef’s generically taught N-alkyl-glucamide with 0.3 to 3% active capryloyl/caproyl methyl glucamides as taught by Glucotain Clear because Allef, Deleersnyder and Glucotain Clear are directed to skin cleansers and it is obvious to modify similar compositions in the same way. The ordinary skilled artisan would have been motivated to do so, with an expectation of success, in order to provide the abrasive skin cleanser in a pH range that is suitable for application to the skin as taught by Deleersnyder while providing formulations with good cleansing ability and a light and fluffy foam as taught by Glucotain Clear.
With regard to the recited viscosity, pH, and the recited amount of sulfated castor oil, xanthan gum, surfactant, one or more fatty glucoamides which are capryloyl/caproyl methyl glucamides, at least one emulsifier, scrubbing agent, preservative, pH modifier, auxiliaries and/or additive and water, the combined teachings of Allef, Deleersnyder and Glucotain Clear teach these parameters in ranges which fall within or overlap with the claimed ranges. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over Allef, Deleersnyder and Glucotain Clear as applied to claims 1, 6, 10, 13, 14 & 19 above, and further in view of Grimadell (WO 2014/019944; Applicant Supplied IDS-11/14/2019; previously cited).
*Please note that in the process of searching for the elected embodiment, the examiner found art which reads on the broader recitation of the claims (i.e. abrasive/scrubbing agent which is a genera to which the elected, but unrecited. species of cornmeal belongs) and in an effort to expedite prosecution, this art has been applied.
The teachings of Allef, Deleersnyder and Glucotain Clear are addressed above. In brief, with regard to claims 15 a) & 15c), Allef teaches a topical abrasive skin cleanser comprising the surfactants, castor oil sulphates, n-alkyl glucamides, sodium laureth sulfate, and disodium laureth sulfosuccinate. With regard to claims 15a), Allef teaches a skin and hand cleansing composition in Example ZD teaches a composition comprising 1.8% sulphated castor oil ([0048], [0053], & Table 1- pg. 8). With regard to claim 15b), Allef teaches inclusion of viscosity modifiers which include xanthan in an amount of 0.1 to 1.5% by weight and in Example ZD teaches inclusion of 0.45% xanthan gum ([0059] & Table 1- pg. 8). With regard to claims 15c), Allef teaches inclusion of surfactants in an amount of 2 to 40% by weight and in Example ZD teaches inclusion of the surfactants, sodium laureth sulphate and disodium laureth sulphosuccinate in a combined amount of 6.9% ([0048 & Table 1- pg. 8). With regard to claim 15c), more broadly, Allef teaches inclusion of fatty acid glucamides, including N-alkyl-glucamides, as particularly suitable mild, skin-compatible, surfactants [0047]. With regard to claim 15c), Glucotain Clear teaches capryloyl/caproyl methyl glucamide is a mild, nonionic surfactant with a good cleansing ability (pg. 1). With regard to claim 15c), Glucotain Clear teaches capryloyl/caproyl methyl glucamide is extremely mild to both skin proteins and skin lipids and are therefore very useful for formulations with mildness claims and for sensitive skin (pg. 1). With regard to claim 15c), Glucotain Clear teaches when capryloyl/caproyl methyl glucamide is used as a surfactant it is especially suitable for formulations featuring light and fluffy foam such as refreshing, vitalizing hand washes; it is suitable for formulations provided in foam dispensers as it has high flash foam (pg. 1). With regard to claim 15c), Glucotain Clear teaches capryloyl/caproyl methyl glucamide is miscible with all types of surfactants (anionic, non-ionic, cationic and amphoteric; pg. 2). With regard to claim 15c), Glucotain Clear teaches capryloyl/caproyl methyl glucamide is used at a level of 0.6 % to 6 % as solubilizer (0.3 to 3% active; pg. 2). It would have been prima facie obvious to the ordinary skilled artisan before the effective filing date to have modified Allef’s hand cleanser by adding 0.3 to 3% active capryloyl/caproyl methyl glucamides to the composition as taught by Glucotain Clear because Allef teaches N-alkyl-glucamides as suitable for inclusion in their invention as a skin compatible nonionic surfactant and Glucotain Clear teaches capryloyl/caproyl methyl glucamides (an N-alkyl-glucamide) has good cleansing ability and is suitable for hand washes provided in foam dispenser. The ordinary skilled artisan would have been motivated to do so with an expectation of success in order to provide skin cleansing with a mild, skin-compatible, surfactant while providing a light fluffy foam as taught by Glucotain Clear. With regard to claim 15d), Allef teaches “[p]referably, the compositions according to the invention are free from emulsifiers” (i.e. 0% emulsifier; [0061]). With regard to claim 1e), Allef teaches inclusion of abrasives which include shells in an amount of 0.05 to 15% by weight and in in Example ZD teaches inclusion of 5% JUGLANS REGIA shell powder (i.e. scrubbing powder; [0057] & Table 1-pg. 8). With regard to claim 15f), Allef teaches inclusion of preservatives and in Example ZD teaches inclusion 2.6% bronopol and sodium chloride (i.e. preservatives; [0048] & Table 1- pg. 8). With regard to claim 15f), more broadly, Allef teaches preserving agents to be an optional auxiliary, additive, or active ingredient- “If auxiliaries, additives and/or active ingredients are present…” (i.e. emphasis added; [0064] & [0065]). With regard to claim 15g), Allef teaches inclusion of pH regulators including and in Example ZD teaches inclusion of 0.45% citric acid (i.e. pH modifier; [0064] & pg. 8-Table 1). With regard to claim 15g), more broadly, Allef teaches pH regulators to be an optional auxiliary, additive, or active ingredient - “If auxiliaries, additives and/or active ingredients are present…” (i.e. emphasis added; [0064] & [0065]). With regard to claim 15h), Allef teaches the compositions of their invention are characterized in containing super absorbent particles in an amount of 0.01-30 wt% and in Example ZD teaches an inventive formulation free of super absorbent particles; and optional inclusion of emollients, regulating agent for swelling behavior of the super absorbent particle, cosmetic auxillaries, additives and active ingredients (abstract; Allef’s-claim 4 & Table 1-pg. 8). With regard to claim 15i), Allef teaches inclusion of solvents in an amount of preferably 30 to 90% by weight and in Example ZD teaches inclusion of 69.6% water ([0035] & pg. 8-Table 1). With regard to the viscosity recited by claim 15, Allef teaches the compositions of their invention has a viscosity greater than 2,000 mPas [0020]. A viscosity of “less than 2000 mPa*S” and a viscosity of “greater than 2000 mPas” are close enough that one skilled in the art would expect them to have the same properties including being “creamy compositions or flowable viscous pastes” (i.e. liquids because they have flow and creams are known liquids; Allef-[0073]). A prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have the same properties. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed. Cir. 1985). This assertion is supported by the instant specification which discloses “Typically, the composition has a viscosity of 500 to 5000 mPa.s. More typically this is less than 3500 mPa.s,…” (pg. 3). With regard to claim 15, Allef teaches the compositions of their invention are foamable by teaching “the skin and hand cleansers according to the invention foam to a considerably greater extent than heavy-duty hand cleansers of the prior art” [0074]. With regard to claim 15, Allef teaches they are dispensed from a hand pump foamer apparatus by teaching “they can be dispensed easily from wall-mounted dispenser” (i.e. the composition foams upon being dispensed from a hand pump foamer apparatus; [0020]). With regard to claims 1 & 15, Allef does not teach inclusion of non-aqueous solvents (see document in its entirety). With regard to claim 15, more broadly, Allef teaches inclusion just one thickening agent (i.e. the additional thickener is absent) by stating “it may be advantageous if the composition according to the invention has one or more agents which are suitable for adjusting the viscosity, in particular for increasing the viscosity…” (i.e. emphasis added; [0059]). With regard to claim 15, Deleersnyder teaches “another preferred embodiment compositions have pH preferably above pH 4 and alternatively have pH preferably below pH 9” [0026].
Neither Allef, Deleersnyder, nor Glucotain Clear teach a hand pump foamer apparatus.
In the same field of invention of gritty hand cleansing compositions which use cornmeal and walnut shells as the scrubbing agents, Grimadell teaches a hand cleanser and non-aerosol or unpressurized pump dispenser (abstract; pg. 3; Example: Table 1-pg.12). Grimadell teaches foam hand cleansers offer many benefits over lotion hand cleansers including being quicker and easier to use and having more effective spreading properties which provides better cleaning with less product (pg. 2). Grimadell teaches if the product is too thick (too viscous), the amount of force required to foam the formulation becomes too high resulting in excessive operating force for the dispenser user and a poor quality foam results (pg. 6 & 7). Grimadell teaches use of a non-Newtonian thickening agent is selected to give the foamable gritty composition a viscosity in a range from about 500 cPoise to about 4000 cPoise such that the foamable gritty composition is dispensable as a foam from a non-aerosol foam dispenser (pg. 9). The non-Newtonian thickening agent is a natural thickener which may be xanthan gum (pg. 10). The non-Newtonian thickening agent is present in a range from about 0.05% w/w to about 10% w/w (pg. 10). Grimadell teaches while it is assumed in the field that if surfactants are present, it will naturally foam (pg. 7). However while this is a necessary condition, the inventors have found that it is not a sufficient condition to obtain a foam when particulate scrubbing agents are present (pg. 7). First, the fluid must be capable of becoming aerated and second it must be capable of stabilizing the entrained air bubbles divided by fluid films (pg. 7). The presence of surfactants in a suitable concentration broadly satisfies the second of these requirements by providing a means of stabilizing fluid films by setting up a surface tension gradient that acts to oppose draining forces and hence maintains the thickness of the films, avoiding collapse (pg. 7). However, the presence of surfactants alone does not meet the first requirement, which requires that the fluid is sufficiently low in viscosity to allow for mixing with air under the conditions provided by the pump (i.e. without the requirement for excessive force; pg. 7). If the fluid is too viscous, air will not mix and hence bubbles will not form (and then cannot be stabilized as foam). This issue is central to providing a fluid of sufficiently low viscosity to allow for efficient mixing and hence foam formation, and also to contribute to suspending particles in the fluid when at rest (pg. 7). Grimadell teaches a useful non-aerosol, unpressurized pump used for dispensing a foamable gritty composition; air and the gritty composition are introduced into a mixing chamber by mechanical actuation of a dispensing feature(s) (i.e. an aerator structure), and this mechanical actuation can be initiated by a user actuating the dispensing feature(s) or by sensor activated dispensing feature(s) when the presence of a user is detected (pg. 10). A gritty foam is dispensed to the user from the outlet (pg. 11).
Here, at least rationale (A) may be employed in which it would have been obvious at the time of filing to have modified the abrasive cleansing composition suggested by the combined teachings of Allef, Deleersnyder and Glucotain Clear by combining/packaging it in the dispenser and administering it as a topical foam as taught by Grimadell because the composition suggested by the combined teachings of Allef, Deleersnyder and Glucotain Clear is a foamable cleansing composition comprising xanthan gum and abrasives/grit dispensed from a dispenser and Grimadell’s dispenser is explicitly taught for dispensing gritty foamable compositions comprising an abrasive and xanthan gum as a foam. The ordinary skilled artisan would have been motivated to do so, with an expectation of success, so that the consumer may more effectively cleanse their skin.
With regard to the recited amount of sulfated castor oil, xanthan gum, surfactant, one or more fatty glucoamides which are capryloyl/caproyl methyl glucamides, scrubbing agent, preservative, one pH modifier, additives/auxiliaries, and water, the combined teachings of Allef, Deleersnyder, Glucotain Clear and Grimadell teach these parameters in ranges which fall within or overlap with the claimed ranges. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over Allef, Deleersnyder and Glucotain Clear, as applied to claims 1, 6, 10, 13, 14 & 19 above, and further in view of Rosenberger (US 6,376,438; Published: 04/23/2002).
The teachings of Allef, Deleersnyder and Glucotain Clear are described above. In brief, Allef teaches a topical abrasive skin cleanser comprising surfactants which include castor oil sulphates and in Example ZD teaches a composition comprising 1.8% sulfated castor oil ([0048], [0053], & Table 1- pg. 8).
Neither Allef, Deleersnyder nor Glucotain Clear teach the composition comprises 3% to 5% by weight sulfated castor oil.
In the same field of invention, Rosenberger teaches hand cleansing agents which comprise one or more scrubbing agents based on natural kernel (Rosenberger’s claim 1 & 6). With regard to claim 18, Rosenberger teaches the composition comprise 1-10% castor oil sulfonate and in Examples 1-9 teaches 1-3% castor oil sulfate (i.e. sulfated castor oil; col. 3, ll. 25-30; col. 7 & 8).
Here at least rational (G) may be employed in which it would have been prima facie obvious to the ordinary skilled artisan before the effective filing date to have modified the topical abrasive cleanser suggested by the combined teachings of Allef, Deleersnyder and Glucotain Clear by adjusting the amount of sulfated castor oil to be 3-10% as suggested by Rosenberger because Allef and Rosenberger are directed to topical abrasive skin cleansers and it is obvious to modify similar compositions in the same way. The ordinary skilled artisan would have been motivated to do so, with an expectation of success, in order to modify the cleansing/detersiveness of the composition by using the sulfated castor oil in art recognized amounts suitable for topical abrasive cleansers.
Claim 21 is rejected under 35 U.S.C. 103 as being unpatentable over Allef (US 2010/0210499; Published: 08/19/2010; hereinafter Allef’499; previously cited) in view of Deleersnyder (US 2011/0262371; previously cited), Glucotain Clear (Published: 06/2015; previously cited-PTO-892: 03/17/2021) and Hirotaka (JP 2010083866; Published: 04/15/2010; previously cited).
Claim Interpretation: Claim 21 is interpreted as being a liquid hand cleansing composition capable of foaming. The “wherein clause” in the last two lines of the claim is interpreted as a statement of intended use which does not further limit the structure/form of the hand cleansing composition beyond that of a liquid, particularly since the preamble of the claim is drawn to a composition, the body of the claim is drawn to reagents present in the composition, and no limitations pertaining to the structure of the hand pump foamer apparatus is present in the body of the claim. The at least one emulsifier is interpreted as being absent due to Applicant’s election and the recitation of the range 0 to 3% by claim 21. The at least one preservative is interpreted as being absent due to Applicant’s election and the recitation of the range 0 to 2% by claim 21. The at least one pH modifier is interpreted as being absent due to Applicant’s election and the recitation of the range “0 to 2%” by claim 21.
With regard to claim 21a) and 21c), Allef ‘499 teaches a skin/hand cleaner which foams comprising 2 to 40 wt. % of at least one surfactant which may be sulfated fatty acids including sulfated castor oil and fatty alcohol ethoxylates (abstract; [0041]; [0051]). With regard to claims 21a and 21c) it would be obvious to the ordinary skilled artisan at the time of filing to have selected a 1:1 ratio of fatty alcohol ethoxylates and sulfated castor oil as a place to start optimization, yielding a composition comprising 1%-20% sulfated castor oil and 1-20% fatty alcohol ethoxylates (i.e. at least one surfactant). With regard to claim 21c), Allef teaches inclusion of hydrophilic emollients having an HLB > 10 [0011]. With regard to claim 21c), Allef teaches their formulations resulted in lower drying out of skin after washing [0051]. With regard to claim 21 b), Allef ‘499 teaches a skin/hand cleaner comprising 0.1 to 1.5% by weight of viscosity-forming agents which may be xanthan [0046]. With regard to claim 21e), Allef ‘499 teaches inclusion of abrasive/scrubbing agents which are natural kernel and shell flours in an amount 0 to 30% by weight and preferably 5 to 25% by weight (abstract; [0044]). With regard to claim 21h), Allef ‘499 teaches inclusion of an emollient in an amount of at least 0.1 wt. % (abstract). With regard to claim 21h), Allef ‘499 teaches inclusion of an ”other optional cosmetic auxiliary agents, additives, and/or active substances”. With regard to claim 21i), Allef ‘499 teaches the compositions of their invention contain 30-90% water (abstract). With regard to claim 21, Allef ‘499 teaches the compositions are free from organic solvents (i.e. contain a non-aqueous solvent; [0042]).
Allef ‘499 does not teach the pH of the composition is below 5.5, the xanthan gum is smooth flow xanthan, that the viscosity of 200 to less than 2000 mPas or that the surfactant comprises 2 to 5.5% by weight of one or more fatty acid glucamides.
In the same field of invention, Deleersnyder teaches cleaning and/or cleansing compositions containing abrasive cleaning particles which are for cleaning human and animal skin (abstract; [0002]). With regard to claim 21 b), Deleersnyder teaches the composition comprises xanthan gum as a thickening agent and in Examples 1-3 teaches xanthan gum sold under the tradename of Keltrol CG-SFT (i.e. smooth flow xanthan; [0109]-[0111] & [0179]). With regard to claim 21, Deleersnyder teaches “another preferred embodiment compositions have pH preferably above pH 4 and alternatively have pH preferably below pH 9” [0026].
With regard to claim 21 c), Glucotain Clear teaches capryloyl/caproyl methyl glucamide is a mild, nonionic surfactant with a good cleansing ability (pg. 1). Glucotain Clear teaches capryloyl/caproyl methyl glucamide is extremely mild to both skin proteins and skin lipids and are therefore very useful for formulations with mildness claims and for sensitive skin (pg. 1). Glucotain Clear teaches when capryloyl/caproyl methyl glucamide is used as a surfactant it is especially suitable for formulations featuring light and fluffy foam such as refreshing, vitalizing hand washes; it is suitable for formulations provided in foam dispensers as it has high flash foam and liquid soaps (pg. 1 & 2). Glucotain Clear teaches capryloyl/caproyl methyl glucamide is miscible with all types of surfactants (anionic, non-ionic, cationic and amphoteric; pg. 2). With regard to claim 21 c), Glucotain Clear teaches capryloyl/caproyl methyl glucamide is used at a level of 0.6 % to 6 % as solubilizer (0.3 to 3% active; pg. 2). With regard to claim 21 c), Glucotain Clear teaches their capryloyl/caproyl methyl glucamides has an HLB of 13 (pg. 1).
In the same field of invention, with regard to claim 21, Hirotaka teaches a cleansing composition usable under the conditions of wet hands and a wet face (abstract). With regard to claim 21, Hirotaka teaches the composition is a liquid cleanser having a viscosity of 300 to 1,000 mPa*s to ensure excellent useability (pg. 2). With regard to claim 21, Hirotaka teaches if the viscosity is less than 300 mPa*S, the viscosity is too low, and application to the target site is not easy (pg. 5).
Here, at least rationale (G) may be employed in which it would have been prima facie obvious to the ordinary skilled artisan at the time of filing to have modified Allef ‘499’s abrasive hand cleanser by formulating the composition to a pH preferably above 4 and alternatively preferably below 9, substituting the xanthan gum with smooth flow xanthan, adding 0.3 to 3% active capryloyl/caproyl methyl glucamides and adjusting the viscosity of the composition to be from 300 to 1,000 mPa*s as suggested by the combined teachings of Deleersnyder, Glucotain Clear and Hirotaka because Allef ‘499, Deleersnyder, Glucotain Clear and Hirotaka are directed to liquid topical cleansing compositions. The ordinary skilled artisan would have been motivated to do so, with an expectation of success in order to provide the liquid hand cleanser with pH and viscosity ranges art recognized as suitable for topical liquid cleansers, thickening the composition with species of xanthan gum (i.e. smooth flow) art recognized as suitable for topical liquid cleansers, and solubilizing emollients with an HLB >10 with a mild surfactant that is suitable for foams and liquid soaps as taught by Glucotain Clear which also meets Allef’s goal of a cleanser which is less drying to skin.
With regard to the pH and viscosity of the composition; and the amounts of sulphated castor oil, smooth flow xanthan gum, at least one surfactant/fatty alcohol ethoxylate, one or more fatty glucoamides which are capryloyl/caproyl methyl glucamides, at least one emulsifier, at least one scrubbing agent, at least one preservative, at least one pH modifier, auxiliaries and/or additive and water, the combined teachings of Allef ‘499, Deleersnyder, Glucotain Clear and Hirotaka teach these parameters with values which overlap or fall within the claimed ranges. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a grime facie case of obviousness exists. In re Wertheim, 541F.2d 257, 191 USPQ 90 (CCPA 1976); fa re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Response to Arguments
In the traverse of the rejection of claims 1, 6, 10, 13, 14, and 19 under 35 U.S.C. §103 over Allef and Deleersnyder, Applicant argues that Allef teaches fatty acid glucamides as one of a number of particularly suitable mild, skin compatible surfactants and fails to disclose an amount for the fatty acid glucamides (reply, pg. 6 & 7). In the traverse of claim 15 under 35 U.S.C. §103 over Allef and Deleersnyder in further view of Grimadell; claim 18 under 35 U.S.C. §103 over Allef and Deleersnyder and in further view of Rosenberger; and claim 21 under 35 U.S.C. §103 over Allef and Deleersnyder in further view of Hirotaka, Applicant argues none of the cited references teach any range of fatty acid glucamides by weight (reply, pg. 7-8).
Applicant’s arguments have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
No claims are allowed.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/LORI K MATTISON/ Examiner, Art Unit 1619
/NICOLE P BABSON/ Primary Examiner, Art Unit 1619
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