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 declaration, claim amendments and arguments in the response filed 28 November 2025 are acknowledged.
Claims 1-10, 12-20 & 22 are pending.
Claims 11 & 21 are cancelled.
Claim 22 is new.
Claims 1 & 20 are amended.
Claims 12 & 15 are withdrawn.
Claims 1-10, 13, 14, 16-20 & 22 are under consideration.
Examination on the merits is extended to the extent of the following species:
1) Component (ii)- coco betaine as amphoteric surfactant of general formula (II);
2) Component (iii)-polyquaternium 10;
3) Inorganic electrolyte sodium chloride;
4) Composition is free from silicone;
5) composition is free from thickening polymers and secondary surfactant not defined in component (ii); and
6) isotropic surfactant phase is absent.
Declaration Filed Under § 1.132
The declaration filed on 28 November 2025 by Applicant is acknowledged. The declaration is addressed in “Withdrawn Rejections” section and the response to Applicant’s traverse below.
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.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 01 March 2026 has been fully considered by the examiner. A signed and initialed copy of each IDS is included with the instant Office Action.
Withdrawn Rejections
The rejection of claims 1-10, 13, 14 & 16-21 under 35 U.S.C. 103 over Deckner, Heide and Dalrymple [as evidenced by Agerton] is withdrawn due to Applicant’s persuasive declaration showing not all of Deckner’s taught secondary surfactants exhibit viscosity when paired with alpha-olefin sulfonate.
New and Maintained Objections/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 1-10, 13, 14, 16-20 & 22 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.
Claim 1 does not recite what the M+ substituent is for General Formulae (II)-(V).
Claims 2-10, 13, 14, 16-20 & 22 are rejected under 35 USC 112(b) because they ultimately depend from indefinite claim 1 but do not clarify the issue.
Response to Arguments
Applicant argues they disagree with the Examiner and have amended claims 1 & 20 to recite M+ instead of M (reply, pg. 9).
This is not persuasive. The issue is General Formulae (II)-(V) are independent formulae and need to have each variable defined. M+ in these formulae are not defined.
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 1-10, 13, 14, 16-20 & 22 are rejected under 35 U.S.C. 103 as being unpatentable over Dong [(WO 2011/049932; Published: 04/28/2011; IDS- 03/01/2026); as evidenced by Hewlings (J. Cardiovasc. Dev. Dis. 2020 7, 59; Published: 12/17/2020)] in view of Zhu (US 2013/0210923; Published: 08/15/2013) and PQ-10 (Cosmetics & Toiletries; Published 03/29/2018).
*Note: M+ in general formula (II) is interpreted as being a hydrogen based upon Applicant’s election of cocobetaine for examination.
The examiner notes the term, “Coco derived” is not defined by the specification or the claims. The term has been broadly interpreted as any aliphatic group present in coconut oil.
With regard to claims 1 (A)(i), 1(A)(ii) 1 ( C), 2, 6, 8, 13, 14, 16, 18, 19, 20 (A) (i), 20 (C) & 22, Dong in Table 9, Example 51 teaches a composition consisting of 8.8% active sodium (C14-16) alpha olefin sulfonate (i.e. M+ is the sodium solubilizing cation, R1= C11-C13), 1.0% active dimethyl cocobetaine (i.e. cocobetaine), 2.2 % active cetyl dimethyl betaine (i.e. cetyl betaine) and 2.0% sodium chloride (pg. 37). With regard to claims 1 & 3, The alkyl betaines are present in a combined amount of 3.2 %. As evidenced by Hewlings, palmitic acid is a C16:0 fatty acid (i.e. cetyl) found in coconut oil (pg. 4-Figure 1). With regard to claim 1 ( D) & 20 ( D), Dong teaches water is present in an amount to balance the composition to a total of 100% and only 14% of the reagents are accounted for in Table 9, as such teaching water in an amount of 86%. With regard to claims 1, 5, 13 & 20, Dong teaches the weight ratio of (i) to (ii) in Table 9, Example 51 is 2.75: 1. With regard to claims 1, 9 & 22, Dong in Table 9, Example 51 teaches the composition is sulfate free and has a viscosity of 3,510 cps at 25 °C. With regard to claim 4, Dong in Table 9, Example 51 teaches the combined amounts (i) and (ii) is 12%. With regard to claims 10 & 22, Dong in Table 9, Example 51 teaches the composition is free of silicone. With regard to claim 20, Dong teaches the pH of the composition is alternatively between about 5.0 to about 6.0 [0052]. With regard to claims 14 & 18, more broadly, Dong teaches the hydrotropic surfactant, which may be alpha olefin sulfonate, may most preferably be present in an amount of about 3.5 to about 15% and in Example 7 teaches inclusion of the hydrotropic surfactant in an amount of 10% ([0017] & [0018]). With regard to claims 14 & 18, Dong in Table 4, Example 31-33 teaches the amount of hydrotropic surfactant to be 10 % actives (pg. 31). With regard to claims 14 & 18, more broadly, Dong teaches inclusion of an alkyl betaine in an amount from about 2 % to about 20% by actives weight ([0038]). With regard to claims 14 & 18, it would have been prima facie obvious to the ordinary skilled artisan before the effective filing date to have to have modified Dong’s example 51 formulation by adjusting the amount of the sodium (C14-16) alpha olefin sulfonate to be 10% as suggested by Dong’s Example 31-33 and preferred teachings and adjusted the combined amount of cetyl dimethyl betaine and coco dimethyl betaine to be 2% [yielding a 5:1 ratio] because active sodium (C14-16) alpha olefin sulfonate is a hydrotropic surfactant suitable for use in practicing the invention and this amount of hydrotropic surfactant is suitable as taught by Dong; cetyl dimethyl and coco dimethyl betaine are surfactants suitable for practicing the invention and Dong teaches this amount as suitable for practicing their invention. With regard to claim 20, Dong teaches the composition of their invention comprises at least one alkyl betaine and in Examples 62 & 63 exemplify coco dimethyl betaine (cocobetaine) as the sole alkyl betaine in combination with a hydrotropic surfactants, water and salt ([0038]; Table 11- pg. 39). It would have been prima facie obvious to the ordinary skilled artisan before the effective filing date to have modified Dong’s Example 51 formulation by removing the cetyl dimethyl betaine and adjusting the amount of coco dimethyl betaine to be 3.2% active because Dong teaches the formulation of their invention comprise at least one alkyl betaine and exemplify coco dimethyl betaine as the sole alkyl betaine in Example 62 & 63. The ordinary skilled artisan would have been motivated to do so, with an expectation of success, in order to save on reagent costs by limiting the variety of reagents present in the composition. Dong teaches inclusion of antimicrobials including the polyquaternium series used in hand soap [0050].
Dong does not teach inclusion of 0.05 to 0.5% of a cationic polymer or that the cationic polymer is selected from Polyquaternium 10, the polyquaternium 10’s molecular weight or charge density.
In the same field of invention of hand soaps, with regard to claims 1 ( B), 20 ( B) & 22, Zhu teaches an aqueous composition comprising 0.02-10% wt. of a germicidally effective amount of a quaternary ammonium surfactant compound which may be Polyquaternium 10 which also has the added benefit of skin conditioning (abstract; [0034], [0059]).
In the same field of invention, PQ-10 teaches polyquaternium 10 imparts viscosity to the final product (pg. 7). PQ-10 teaches the molecular weight of polyquaternium 10 affects formulation viscosity and deposition (Table 1-pg. 11). With regard to claim 7, PQ-10 teaches polyquaternium 10 “usually exhibits medium to high molecular weight (MW) values ranging from 4.0 × 105 g/mol to 9.0 × 105 g/mol” (pg. 5). With regard to claim 7, PQ-10 teaches “cationic DS for personal care grade PQ-10 generally ranges from 0.7–1.25 meq/g” (pg. 5).
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) in which it would have been prima facie obvious to the ordinary skilled artisan before the effective filing date to have modified Dong’s Example 51 formulation by adding 0.02-10% wt. of polyquaternium-10 with a molecular weight ranging from 4.0 × 105 g/mol to 9.0 × 105 g/mol and charge density of 0.7–1.25 meq/g as suggested by the combined teachings of Zhu and PQ-10 because Dong teaches inclusion of polyquaternium compounds that are used in hand soaps and polyquaternium-10 is used in used in hand soaps in an amount of 0.02-10% wt as taught by Zhu, with molecular weight ranging from 4.0 × 105 g/mol to 9.0 × 105 g/mol and charge density of 0.7–1.25 meq/g being what is usual molecular weights and charge densities for personal care formulations as taught by PQ-10. The ordinary skilled artisan would have been motivated to do so, with an expectation of success, in order to provide skin emolliency and thickening with a polyquaternium polymer art recognized as suitable for use in hand soaps using molecular weights and charge densities suitable for personal care compositions.
With regard to the recited amount of sodium α olefin sulfonate anionic surfactant; alkyl betaine amphoteric surfactant/cocobetaine; cationic polymer/polyquaternium-10; inorganic electrolyte/sodium chloride; ratio of sodium α olefin sulfonate anionic surfactant to alkyl betaine; pH; the combined amount of sodium α olefin sulfonate anionic surfactant and alkyl betaine amphoteric surfactant; and viscosity, the combined teachings of Dong, Zhu and PQ-10 suggest these parameters with values which overlap or fall within the recited 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).
With regard to claim 17, the composition suggested by the combined teachings of Dong, Zhu and PQ-10 necessarily has a viscosity from 4,000 to 12,000 mPa.s when measured using a Brookfield V2 viscometer with spindle RTV5 for 1 minute at 20 rpm and 30°C because the combined teachings of Dong, Zhu and PQ-10 teach the recited reagents in the recited amounts. "Products of identical chemical composition can not have mutually exclusive properties." A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). This assertion is supported by Dong’s teaching the “most preferred viscosity range is between 3,500 and 15,000 cps” (Dong-[0034]) and PQ-10’s teaching that polyquaternium 10 imparts viscosity to the final product (PQ-10; pg. 7).
Response to Arguments
Declarant’s declaration seeks to establish two things. The first is the reliability of in silico modeling of viscosity and the second is a showing that the not all the primary and secondary surfactants of Deckner perform equally as well (Declaration in its entirety; reply, pg. 10-14). Applicant’s representative argues predictive weight has not been given to in silico modeling with respect to the Puntambekar Declaration and the first Orio Declaration (reply, pg. 10-11).
With regard to predictive value of modeling the examiner notes that Declarant confuses the data by not keeping the salt concentrations in compositions 3 and 4 the same as compositions 3 and 4 in the specification at page 19. While Declarant explains for composition 3 that the composition was “quite viscous” below 3% NaCl and was only measured at 0.15%, if Declarant is attempting to show the robust and reliability of their model in predicting the viscosity for the genera of reagents and their wide amounts, Declarant has failed. “Quite viscous” is subjective and there is no way for one to envisage what viscosity that is. What was predicted was 24,000 cps. An opposite problem occurs with composition 4 in which the salt concentration was increased in the declaration because “the scientist …determined that the formulation lacked viscosity at 3%” (Declaration-paragraph 8). There is no way to determine whether the model would have failed for the combination of reagents and amounts in Compositions 3 and 4. Declarant showed their model worked for compositions 1 and 2 but were unable to demonstrate that for compositions 3 and 4. Given that the model appeared to fail with over 50% of the formulations supplied, the examiner is not persuaded to the veracity of in silico modeling as a mechanism to demonstrate the differences in viscosity between compositions falling within the recited claims and those that all outside are unexpectedly and significantly different. This is important because claim 1 broadly requires just “( C) an inorganic electrolyte” and cationic polymers. Guar hydroxypropyltrimonium chloride and polyquaternium-10, which are cationic polymers, are art recognized thickeners.
With regard to overcoming the Deckner reference, Declarant has persuasively shown that not all of Deckner’s taught surfactant perform equally as well.
Applicant’s representative argues the criticality of the weight ratios and that nothing in the cited references teach or suggest the amount of alpha olefin sulfonate anionic surfactant to the amount of amphoteric or zwitterionic surfactant at the specific weight ratio result in the claimed viscosities (reply, pg. 13-14).
This is not persuasive because it is not commensurate with the scope of the claims. Applicant/Declarant supplied just two species that work (i.e. compositions 1 and 2). One weight ratio of alpha olefin sulfonate (Bioterge AS-40) to cocobetaine and one weight ratio of alpha olefin sulfonate (Bioterge AS-40) to lauryl hydroxybetaine. Only one cationic polymer was used (PQ-10) at a low concentration; and one inorganic electrolyte (sodium chloride). However, the claims also encompass zwitterionic surfactants including alkyl aminopropyl hydroxy sultaine and an alkyl amphoacetate. The claims are generic to inorganic electrolytes, amount of water, protonating agents, preservatives, structurants (i.e. thickeners), and their amounts. The claims are generic to the amount of water which will also effect viscosity. "[O]bjective evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support." In other words, the showing of unexpected results must be reviewed to see if the results occur over the entire claimed range. In re Clemens, 622 F.2d 1029, 1036, 206 USPQ 289, 296 (CCPA 1980).
This is particularly important as shown by Applicant’s own declaration where the amount of salt matters and Heide’s (WO 2012/168126; Published: 2012-12-13 previously cited) recognition that sodium chloride acts as a thickener. It is also supported by the prior art recognizing that polyquaternium-10 increases viscosities.
Applicant requests examination of the full scope of the claims and rejoinder of the withdrawn claims (reply, pg. 14-15).
This is not persuasive as patentable subject material has not yet been identified.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-9, 13, 14 & 16-19 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-9, 12, 13, 15 & 16 of U.S. Patent No. 11,969,495 (Published: 04/30/2024; hereinafter the ‘495) in view of Heide (WO 2012/168126; Published: 2012-12-13; previously cited). Although the claims at issue are not identical, they are not patentably distinct from each other because the instant claims and the ‘495 patent both recite a sulfate-free composition comprising (A) (i) from 3 to 13 wt% of an alpha olefin sulphonate of formula (I), (ii) from 1 to 6% of an alkyl betaine of general formul II in which R2 is C12 or coco derived, (B) from 0.05 to 0.9 wt. % a cationic conditioning polymer/cationic polymer which may be polyquaternium-10, inorganic electrolyte from 1 to 3% wt %, and a preservative including “sodium benzoate…” In both the instant application and ‘495 patent, the weight ratio of (i) to (ii)is recited to be from 1:1 to 6:1. The instant application and the ‘495 patent recite the pH of the composition is from 3 to 6.5. The instant application and the ‘495 patent have a viscosity in overlapping ranges in which the ‘495 patent recites the viscosity is from 3,500 to 15,000 mPa*s. The ‘495 patent does not recite that the inorganic electrolyte is a metal chloride. The teachings of Heide are described above. In brief, Heidi teaches sodium chloride is an electrolyte which thickens cleansers which may be shampoos. It would have been prima facie obvious to the ordinary skilled artisan at the time of the effective filing date to have modified the ‘495 patent by substituting the generically taught electrolyte with sodium chloride (i.e. metal chlorides) because both the ‘495 patent and Heide are directed towards cleansers which may be shampoos. The ordinary skilled artisan would have been motivated to do so, with an expectation of success in order to thicken the cleanser/shampoo with an inorganic electrolyte art recognized as suitable. The pending claims are therefore an obvious variant of the conflicting, patented claims in view of the prior art.
Response to Arguments
Applicant’s representative makes no arguments pertaining to the outstanding double patenting rejection.
Conclusions
No claims are allowed.
Applicant's submission of an information disclosure statement under 37 CFR 1.97(c) with the timing fee set forth in 37 CFR 1.17(p) on 01 March 2026 prompted the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 609.04(b). 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LORI K MATTISON whose telephone number is (571)270-5866. The examiner can normally be reached 9-7 (M-F).
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, David J Blanchard can be reached at 5712720827. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/LORI K MATTISON/ Examiner, Art Unit 1619
/NICOLE P BABSON/ Primary Examiner, Art Unit 1619