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 .
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 02/09/2026 and 07/17/2026, are in compliance with the provisions of 37 CFR 1.97 and 37 CFR 1.98. The IDS documents were considered. A signed copy of Form PTO-1449 is enclosed herewith.
Withdrawn Rejections:
The rejection of claims 29, 35 and 42 under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, is overcome by the Applicants’ amendments and is hereby withdrawn. Specifically, Applicants amended claim 29 to introduce the limitation of “about 34 wt% to about 60 wt%”. Claims 35 and 42 are cancelled.
The rejection of claims 32-37, 39 and 45 under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, is overcome by the Applicants’ amendments and is hereby withdrawn. Specifically, Applicants amended claim 39, so that claim 39 depends from claim 26. Claims 35 and 42 are cancelled.
Status of the Claims
Claims 26-31 and 38-40 are pending.
Applicants’ arguments filed 07/17/2026, have been fully considered. Rejections and/or objections not reiterated from previous Office actions are hereby withdrawn. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set of rejections and/or objections presently being applied to the instant application.
Applicants’ amendments, filed on 07/17/2026, have each been entered into the record. Applicants have amended claims 26 and 29. Applicants have cancelled claims 32-37 and 41-45. Claims 38 and 40 remain withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to non-elected invention. Claim 31 remains withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to non-elected species of non-odorous fragrance modulator. Therefore, claims 26-30 and 39 are subject of the Office action below.
Claim Rejections - 35 USC § 112
New Grounds of Rejection Necessitated by Applicants’ Amendments
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 26-30 and 39 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 27-30 and 39 depend from claim 26 and are therefore, also rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, for the reasons set forth below.
Claim 26 recites “the at least one high volatile fragrance material comprising …...”, to describe a Markush group of high volatile fragrance materials. The transitional term "comprising", is inclusive or open-ended and does not exclude additional, unrecited elements or method steps. Please see MPEP § 2111.03. However, a person skilled in the art cannot reasonably determine the meets and bounds of the recited limitation, because it is unclear to one skilled in the art as to what other high volatile fragrance materials are included. Thus, one of ordinary skill in the art would not be able to draw a clear boundary between what is and is not covered by the claims. The recitation of “comprising”, is an improper Markush language which should be in alternative language, i.e., “selected from the group consisting of ...” A claim element defined by selection from a group of alternatives (a Markush grouping) requires selection from a closed group "consisting of" (rather than "comprising" or "including") the alternative members. Please see MPEP § 803.02 and MPEP § 2111.03.
It is recommended that Applicants amend claim 26 to recite “the at least one high volatile fragrance material selected from the group consisting of ……..”, in order to overcome the rejection. Appropriate correction is required.
Claim 29 recites “about 34 wt%”, however, a person of the ordinary skill in the art cannot reasonably determine the meets and bounds of the recited limitation in claim 29. The phrase “about 34 wt%”, would be construed by one skilled in the art as meaning there is(are) a lower limit(s) below 34 wt%. Claim 26 from which claim 29 depends recites “greater than 34 wt%”, which excludes a lower limit below 34 wt%. Thus, one skilled in the art would not be able to draw a clear boundary between what is and is not covered by claim 29. Appropriate correction is required.
Claim Rejections - 35 USC § 103
Maintained/New Grounds of Rejection Necessitated by Applicants’ Amendments
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 26-30 and 39 are rejected under 35 U.S.C. 103 as being unpatentable over Holland of record (U.S. Pub. No. 20160362630) in view of: 1) Timung et al (hereinafter “Timung”, Industrial Crops and Products, 2016, 94, 178-188) and 2) Bonnet of record (U.S. Pub. No. 20150164764).
Applicants’ invention is directed to a fragrance composition. For example, independent claim 26 recites: “A composition comprising:
a fragrance component present in an amount of from about 0.04 wt% to about 30 wt%, relative to the total weight of the composition, and wherein the fragrance component comprises:
at least one low volatile fragrance material having a vapor pressure less than 0.001 Torr (0.000133 kPa) at 25 °C present in an amount of from about 1 wt% to about 30 wt%, relative to the total weight of the fragrance component;
at least one moderate volatile fragrance material having a vapor pressure in the range of 0.1 Torr to 0.001 Torr (0.0133 kPa to 0.000133 kPa) at 25 °C present in an amount of from about 25 wt% to about 65 wt%, relative to the total weight of the fragrance component; and
at least one high volatile fragrance material selected from the group consisting of the list disclosed therein, and having a vapor pressure greater than 0.1 Torr (0.0133 kPa) at 25 °C present in an amount of greater than 34 wt % relative to the total weight of the fragrance component; and
at least one substantially non-odorous fragrance modulator present in the amount of from about 0.1 wt% to about 20 wt%, relative to the total weight of the composition.”
Similar to claims 26-30 and 39, Holland (see reference claim 1), teaches analogous fragrance composition. Please see Table below for side-by-side comparison of instant claim 26 and claim 1 of Holland.
Applicants’ claim 26
Holland’s claim 1
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522
664
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925
680
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Holland (see ¶ 0116), teaches consumer products including but not limited to fabric care product (addressing claim 39).
The claimed “from about 0.04 wt% to about 30 wt% of a fragrance component, is anticipated by Holland, who teaches “from about 0.04 wt% to about 30 wt% of a fragrance component” (see discussions above).
The claimed “at least one low volatile fragrance material in an amount of from about 1 wt% to about 30 wt% of the fragrance component and having a vapor pressure of less than 0.001 Torr at 25 oC”, is anticipated by Holland, because Holland teaches at least one low volatile fragrance material in an amount of from about 10 wt% to about 30 wt% of the fragrance component and having a vapor pressure of less than 0.001 Torr at 25 oC (see discussions above). The “from about 10 wt% to about 30 wt% of the fragrance component” disclosed by Holland, is within the claimed “from about 1 wt% to about 30 wt% of the fragrance component”. A specific example in the prior art which is within a claimed range anticipates the range. Please MPEP § 2131.03.
The claimed “at least one moderate volatile fragrance material in an amount of from about 25 wt% to about 65 wt% of the fragrance component and having a vapor pressure of from 0.001-0.01 Torr at 25 oC”, overlaps or lies inside the range disclosed by Holland, because Holland teaches at least one moderate volatile fragrance material in an amount of from about 40 wt% to about 80 wt% of the fragrance component and having a vapor pressure of from 0.001-0.01 Torr at 25 oC (see discussions above).
Holland teaches high volatile fragrance materials selected from the group consisting a list the includes citronellal (see Table 3).
Timung (see Table 6) discloses citronellal as a component of citronella oil, which is of great interest for fragrance industry (see page 178).
The claimed “at least one substantially non-odorous fragrance modulator in an amount of from about 0.1 wt% to about 20 wt% of the composition”, is anticipated by Holland, who teaches “at least one substantially non-odorous fragrance modulator in an amount of from about 0.1 wt% to about 20 wt% of the composition” disclosed by Holland (see discussions above). The at least one substantially non-odorous fragrance modulator is selected from the group consisting of methyl glucoside polyol, ethyl glucoside polyol, propyl glucoside polyol or mixtures thereof (see reference claim 12)
A prima facie case of obviousness exists in the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" (see MPEP § 2144.05). Similarly, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close (see MPEP § 2144.05). In the instant case, because the claimed component dosage ranges, not only overlap or lie inside ranges disclosed by the prior art, but are also merely close to the ranges disclosed by the prior art (see discussions above), a prima facie case of obviousness exists. Furthermore, MPEP § 2144.05(II)(B), states that “after KSR, the presence of a known result-effective variable would be one, but not the only, motivation for a person of ordinary skill in the art to experiment to reach another workable product or process.”
It is noted that no criticality has been demonstrated in the specification with regard to the claimed composition component dosage ranges.
Holland differs from the claimed invention, only insofar as Holland only discloses the at least one high volatile fragrance material in an amount of from about 1 wt% to about 30 wt%, rather than in an amount greater than 34 wt% (claim 26) or from about 34 wt% to about 60 wt% (claim 29).
However, the claimed invention would have been obvious over Holland, because the about 30 wt% disclosed by Holland includes an upper limit of greater than 30 wt. Thus, the claimed “greater than 34 wt%” or “from about 34 wt% to about 60 wt”, is merely close to, overlap or lie in the range disclosed by Holland. Furthermore, at the time of the instant invention, it was known in the art that a fragrance composition can contain from about 0.1-40 wt% of high volatile fragrance material. For example, Bonnet (see ¶s 0002-0003), discloses that a fragrance composition can contain from about 0.1-40 wt% of high volatile fragrance material.
A prima facie case of obviousness exists in the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" (see MPEP § 2144.05). Similarly, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close (see MPEP § 2144.05).
In the instant case, because the claimed component dosage ranges, not only overlap or lie inside ranges disclosed by the prior art, but are also merely close to the ranges disclosed by the prior art (see discussions above), a prima facie case of obviousness exists.
The claimed “greater than 34 wt%” or “from about 34 wt% to about 60 wt”, is a result effective variable that would have been routinely determined and optimized in the pharmaceutical art, following the guidelines set forth in the prior art disclosure (see discussions above).
Furthermore, MPEP § 2144.05(II)(B), states that “after KSR, the presence of a known result-effective variable would be one, but not the only, motivation for a person of ordinary skill in the art to experiment to reach another workable product or process.”
It is noted that no criticality has been demonstrated in the specification with regard to the claimed amount for the high volatile fragrance material.
Therefore, a person skilled in the art would have found it obvious to arrive at the claimed invention, following the guidance provided in the Holland, Timung and Bonnet references, with a reasonable expectation that the composition would exhibit utility as a perfume (see abstracts of Holland).
Obviousness requires only a reasonable expectation of success, not complete confidence in a given outcome; "at least some degree of predictability" is all that is required. M.P.E.P. § 2143.02.
The prior art can be modified or combined to reject claims as prima facie obvious as long as there is a reasonable expectation of success. See In re Merck & Co., Inc., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986) (see MPEP § 2143.02).
In light of the forgoing discussion, the Examiner concludes that the subject matter defined by the instant claims would have been obvious within the meaning of 35 USC 103(a). From the teachings of the reference, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Thus, the claims fail to patentably distinguish over the state of the art as represented by the cited references.
Response to the Applicant’s Arguments
Applicants raised several arguments (see pages 12-19 of Remarks), alleging that the claimed invention is non-obvious over the cited prior art on the grounds that:
1) Holland and Bonnet fail to teach or suggest at least one high volatile fragrance material selected from the group consisting of the list disclosed in instant claim 26 (see pages 12-13 and 18-19 of Remarks).
Response:
Applicants’ arguments have been fully considered but they are not found to be persuasive, because Holland and Timung combine to disclose citronella oil (see discussions above).
2) Holland and Bonnet fail to teach or suggest high volatile fragrance material in an amount of greater than 34 wt% (see pages 13-14 and 17-18 of Remarks).
Response:
Applicants’ arguments have been fully considered but they are not found to be persuasive. This is because Holland teaches high volatile fragrance material in an amount of from about 1 wt% to about 30 wt% (see discussions above). The about 30 wt% disclosed by Holland includes an upper limit of greater than 30 wt. Thus, the claimed “greater than 34 wt%” or “from about 34 wt% to about 60 wt”, is merely close to, overlap or lie in the range disclosed by Holland. Furthermore, at the time of the instant invention, it was known in the art that a fragrance composition can contain from about 0.1-40 wt% of high volatile fragrance material. For example, Bonnet (see ¶s 0002-0003), discloses that a fragrance composition can contain from about 0.1-40 wt% of high volatile fragrance material.
A prima facie case of obviousness exists in the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" (see MPEP § 2144.05). Similarly, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close (see MPEP § 2144.05).
In the instant case, because the claimed component dosage ranges, not only overlap or lie inside ranges disclosed by the prior art, but are also merely close to the ranges disclosed by the prior art (see discussions above), a prima facie case of obviousness exists.
The claimed “greater than 34 wt%” or “from about 34 wt% to about 60 wt”, is a result effective variable that would have been routinely determined and optimized in the pharmaceutical art, following the guidelines set forth in the prior art disclosure (see discussions above).
Furthermore, MPEP § 2144.05(II)(B), states that “after KSR, the presence of a known result-effective variable would be one, but not the only, motivation for a person of ordinary skill in the art to experiment to reach another workable product or process.”
It is noted that no criticality has been demonstrated in the specification with regard to the claimed amount for the high volatile fragrance material.
3) Holland fails to exemplify a high volatile fragrance material in an amount of greater than 30 wt% (see page 14 of Remarks).
Response:
Applicants’ arguments have been fully considered but they are not found to be persuasive, because Holland (see ¶ 0322) states:
“
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178
538
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”.
4) Bonnet fails to teach or suggest using substantially non-odorous fragrance modulator in a fragrance composition (see page 14 of Remarks).
Response:
Applicants’ arguments have been fully considered but they are not found to be persuasive, because the limitation of employing substantially non-odorous fragrance modulator in a fragrance composition is addressed by Holland (see discussions above).
5) Bonnet exemplifies high volatile fragrance material in an amount of less than 34 wt% (see page 14 of Remarks).
Response:
Applicants’ arguments have been fully considered but they are not found to be persuasive, because Bonnet (see ¶ 0193) states:
“
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178
546
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”.
6) Holland and Bonnet address different technical problems (see pages 15-17 of Remarks).
Response:
Applicants’ arguments have been fully considered but they are not found to be persuasive, because f Holland and Bonnet combine to disclose that a fragrance composition can contain a high volatile fragrance material within the concentration limitation of the claimed invention (see discussions above).
7) Holland and Bonnet address different technical problems (see pages 15-17 of Remarks).
Response:
Applicants’ arguments have been fully considered but they are not found to be persuasive, because f Holland and Bonnet combine to disclose that a fragrance composition can contain a high volatile fragrance material within the concentration limitation of the claimed invention (see discussions above).
8) The objective of Holland invention is diamond construct (defined in terms of low volatility, intermediate volatility and high volatility), which is different from traditional construct (defined in terms of base, heart (or middle) and top notes). Holland teaches away from any attempt to use its teaching to construct a perfume composition that does not have a diamond construct. Please see page 16 of Remarks.
Response:
Applicants’ arguments have been fully considered but they are not found to be persuasive. This is because in supporting a rejection under 35 U.S.C. 103, the reason or motivation to modify the reference may often suggest what the inventor has done, but for a different purpose or to solve a different problem. Please see MPEP §2144(iv), under the title “RATIONALE DIFFERENT FROM APPLICANT’S IS PERMISSIBLE”.
Nonstatutory Double Patenting Rejections-Maintained
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
The rejection of claims 26-30 and 39 on the ground of nonstatutory double patenting as being unpatentable over claims of U.S. patent Nos: 9,814,661; 10,138,441; 10,336,966; and 10,501,706, is maintained for the reasons of record set forth in the previous Office action.
The provisional rejection of claims 26-30 and 39 on the ground of nonstatutory double patenting as being unpatentable over claims of U.S. patent application Nos: 16/967,920; and 16/548,385, is maintained for the reasons of record set forth in the previous Office action.
Response to the Applicant’s Arguments
Applicants have not properly addressed the specific grounds of rejections as discussed in the previous Office action setting. Applicants defer responding until an indication of allowable claims. Please see pages 19-20 of Remarks.
Response:
Applicants’ comments are acknowledged. However, the rejections will be maintained until a terminal disclaimer is filed or the claims are amended to obviate the rejections.
Conclusion
No claim is allowable.
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.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to IBRAHIM D BORI whose telephone number is (571)270-7020. The examiner can normally be reached on Monday through Friday 8:00AM-5:00PM(EST).
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, JEFFREY S LUNDGREN can be reached on 571-272-5541. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/IBRAHIM D BORI/
Examiner, Art Unit 1629
/JEFFREY S LUNDGREN/Supervisory Patent Examiner, Art Unit 1629
