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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 12 June 2026 has been entered.
Formal Matters
Applicant’s claim amendments and arguments in the reply filed on 12 June 2026 are acknowledged and have been fully considered due to the entered request for continued examination. Claims 1, 3-5, 7-12, 14-17 are pending. Claims 1, 3-5, and 16-17 are under consideration in the instant office action. Claims 7-12 and 14-15 remain withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention and/or species, there being no allowable generic or linking claims. Claims 2, 6, and 13 are canceled. Claim 17 is newly added. Applicant amended claims 1 and 3-5.
Withdrawn Objections/Rejections
Rejections and/or objections not reiterated from previous office actions are hereby withdrawn as are those rejections and/or objections expressly stated to be withdrawn.
New Objections/Rejections
Objection to the title
The title of the invention is not descriptive. A new title is required that is clearly indicative of the invention to which the claims are directed. The title of the instant application is “Consumer Products with Improved Aesthetics”. The title should be brief but technically accurate and descriptive and should contain fewer than 500 characters. The title does not reflect the main inventive concept of Applicant’s invention and the major components of the “Consumer Products with Improved Aesthetics”. The title is generic and can be applicable to any “Consumer Products with Improved Aesthetics”. The examiner advises Applicant to consider including major components of the composition in the title to precisely reflect the inventive concept. Inasmuch as the words "new," "improved," "improvement of," and "improvement in" are not considered as part of the title of an invention, these words should not be included at the beginning of the title of the invention and will be deleted when the Office enters the title into the Office’s computer records, and when any patent issues. Similarly, the articles "a," "an," and "the" should not be included as the first words of the title of the invention and will be deleted when the Office enters the title into the Office’s computer records, and when any patent issues.
Claim Objections
Claims 1, 3-5, and 16-17 are objected to because of the following informalities: The phrase “High-Performance” is capitalized in the middle of sentences. Appropriate correction is required.
Claim 16 is objected to because of the following informalities: Claim 1 recites “a High-Performance fragrance composition”. Claim 16 which depends from claim 1 recites “wherein the consumer product comprises from 0.05% to 0.05% of a high-performance fragrance composition.” The article “a” should be amended to “the” in claim 16 as the phrase is already recited in the base claim. Appropriate correction is required.
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, 3-5, and 16-17 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.
The preamble and claim recite “a consumer product with an improved aesthetic.” The phrase “improved aesthetic is subjective or relative phrase. It is unclear what specific aesthetic properties (e.g., clarity, viscosity, color, stability, caking, etc.) are being “improved,” the baseline or reference product against which improvement is measured, the degree or extent of improvement required, or the conditions under which such improvement must be observed. One of ordinary skill in the art would not be able to determine the metes and bounds of the claim wit reasonable certainty, as the phrase depends on subjective judgment without objective criteria provided in the claim itself. The claim does not tie the “improved aesthetic” limitation to any measurable parameter or standard, rendering the claim indefinite.
Claim 1 recites “wherein the High-Performance fragrance composition comprises at least 55% by weight of five or more of High-Performance fragrance ingredients selected from the group consisting of the High-Performance fragrance ingredients listed in Table 2,…”. The recitation is ambiguous in multiple respects: i) it is unclear whether “at least 55% by weight” applies to the total weight of the five or more selected ingredients collectively, or whether each of the five or more ingredients must individually be present at a level contributing to an overall 55% threshold in some other way. ii) the phrase “of five or more High-Performance fragrance ingredients” creates uncertainty regarding whether the composition must contain exactly five (or more) such ingredients making up ≥55 wt%, or whether it can contain additional ingredients (including other High-Performance fragrances or non-High-Performance ones) as long as some selection of five or more meets the percentage.
The recitations “wherein the High-Performance fragrance composition comprises at least 55% by weight of five or more of High-Performance fragrance ingredients selected from the group consisting of the High-Performance fragrance ingredients listed in Table 2,…” in claim 1; “wherein the High-Performance fragrance composition comprises at least 60% by weight of five or more of High-Performance fragrance ingredients selected from the group consisting of the High-Performance fragrance ingredients listed in Table 2.” in claim 3; “wherein the High-Performance fragrance composition comprises at least 75% by weight of five or more of High-Performance fragrance ingredients selected from the group consisting of the High-Performance fragrance ingredients listed in Table 2.” in claim 4; “wherein the High-Performance fragrance composition comprises at least 90% by weight of five or more of High-Performance fragrance ingredients selected from the group consisting of the High-Performance fragrance ingredients listed in Table 2.” in claim 5; “wherein the High-Performance fragrance composition comprises at least 55% by weight of seven or more of High-Performance fragrance ingredients selected from the group consisting of the High-Performance fragrance ingredients listed in Table 2.” in claim 17 lack a clear and definite reference point for the recited amount limitations. It is unclear from the claim language whether the percentage is calculated: a) based on the total weight of the consumer product (which includes only 0.05% to 1% of the fragrance composition); b) based on the total weight of the High-Performance fragrance composition itself (the most common and likely intended interpretation in analogous prior art as Caswell et al. (WO 01/85892) used in the 103 rejection below; c) based on the total weight of all fragrance ingredients present in the composition (which may include non-High-Performance ingredients; or d) on some other unspecified basis.
The recitations “(i) from 0.05% to 1% of a High-Performance fragrance composition” in claim 1 and “wherein the consumer product comprises from 0.05% to 0.5% of a High-Performance fragrance composition.” in claim 16 lack a clear and definite reference point for the amount recitations. It is unclear from the claim language whether the percentage is calculated: based on the total weight of the consumer product; based on the total weight of the High-Performance fragrance composition; based on the total weight of all fragrance ingredients present in the composition (which may include non-High-Performance ingredients); or on some other unspecified basis.
Rejections Maintained
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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 1, 3-5, and 16-17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Caswell et al. (WO 01/85892, previously cited) and as evidenced by the Safety Data Sheet of Ambermor-EX from International Flavors and Fragrance, revised on November 20, 2016 (provided to Applicant in the previous office action).
Note: The claims were examined previously with respect to the elected species only wherein AMBERMOR EX (which the examiner notes 3a,6,6,9a-Tetramethyldodecahydronaphtho[2,1-b]furan as evidenced by the Safety Data Sheet of Ambermor-EX ) as the species of high performance fragrance composition; (b) esterquat as the species of a consumer product active; (c) 1,2-benzisothiazolin-3-one as the species of further ingredients if it is incorporated; and (d) fabric conditioner as the species of product. The examiner herein further expanded the search in terms of the fragrance type AMBERMOR EX (which the examiner notes 3a,6,6,9a-Tetramethyldodecahydronaphtho[2,1-b]furan as evidenced by the Safety Data Sheet of Ambermor-EX ) to five, seven or more other fragrances listed in Table 2. The other species elections are maintained as elected before.
Applicant Claims
Applicant claims a consumer product with an improved aesthetic containing the ingredients as claimed. Dependent claims thereof further recited different features.
Determination of the Scope and Content of the Prior Art (MPEP §2141.01)
Caswell et al. teach a highly concentrated fabric softening composition for dispensing in a washing machine or by handwashing, the composition comprising: a fabric softener active or mixture of actives that is at least about 40%, preferably at least about 50%, and more preferably at least about 60%, and even more preferably at least about 75% by weight of the composition; optionally, from about 0% to about 15% of a phase stabilizer; optionally, perfume, profragrance, or mixtures thereof; optionally, a water-soluble dye; and wherein the composition has less than about 20%>, preferably less than about 10%, more preferably less than about 5%, even more preferably less than about 1 %>, and even still more preferably less than about 0.5%, water by weight of the composition (see claim 1). The composition of claim 1 , further comprising an active ingredient, to provide additional fabric care benefits, selected from the group consisting of: bodying agent; drape control agent; form control agent; smoothness agent; static control agent; wrinkle control agent; sanitization agent; drying agent; stain resistance agent; soil release agent; malodor control agent; dye fixative agent; dye transfer inhibitor; color maintenance agent; anti- fading agent; whiteness enhancer; anti-abrasion agent; fabric integrity agent; anti-wear agent; defoamer; anti-foaming agent; rinse aid; UV protection agent; sun fade inhibitor; insect repellent; enzyme; and mixtures thereof (see claim 1). The composition of claim 1 , further comprising a. an effective level of principal solvent or mixture of solvents preferably having a ClogP of from about -2.0 to about 2.6, preferably from about -1.7 to about 1.6, and more preferably from about -1.0 to about 1.0; at a level that is less than about 40%>, preferably from about 1% to about 25%>, more preferably from about 3%> to about 15%. by weight of the composition; b. optionally, from 0% to about 20%> of a single monoalkyl quat or diquat; c. optionally, from 0% to about 1 % electrolyte; d. optionally, water soluble solvents, and mixtures thereof; and wherein the concentrated fabric softener composition is clear or translucent (see claim 16). The composition of claim 1 , wherein the fabric softening active is selected from the group consisting of dialkyl quaternaries and amines; dialkyldiester quaternaries and amines; polyquaternaries and amines, dialkyl ester amide quaternaries and amines; silicones; functional silicones, preferably aminosilicones and quaternary silicones; fatty acids, fatty alcohols and fatty esters; clays; natural and synthetic petroleum lubricants, preferably polyolefins, isoparaffins, cyclic paraffins, and mixtures thereof (see claim 17). As used herein, when the DEQA diester (m=2) is specified, it can include the monoester (m=1 ) and/or triester (m=3) that are present. Preferably, at least about 30% of the DEQA is in the diester form, and from 0% to about 30% can be DEQA monoester, e.g., there are three R groups and one R1 group. For softening, under no/low detergent carry-over laundry conditions the percentage of monoester should be as low as possible, preferably no more than about 15%. However, under high, anionic detergent surfactant or detergent builder carry-over conditions, some monoester can be preferred. The overall ratios of diester "quaternary ammonium active" (quat) to monoester quat are from about 2.5:1 to about 1 :1 , preferably from about 2.3:1 to about 1.3:1. Under high detergent carry-over conditions, the di/monoester ratio is preferably about 1.3:1. The level of monoester present can be controlled in manufacturing the DEQA by varying the ratio of fatty acid, or fatty acyl source, to triethanolamine. The overall ratios of diester quat to triester quat are from about 10:1 to about 1.5:1 , preferably from about 5:1 to about 2.8:1 (page 11, lines 31-36 and page 12, lines 1-6). The composition of claim 1 , wherein the perfume composition comprises a perfume active or mixture of perfume actives selected from the group consisting of aromatic and aliphatic esters having molecular weights from about 130 to about 250; aliphatic and aromatic alcohols having molecular weights from about 90 to about 240; aliphatic ketones having molecular weights from about 150 to about 260; aromatic ketones having molecular weights from about 150 to about 270; aromatic and aliphatic lactones having molecular weights from about 130 to about 290; aliphatic aldehydes having molecular weights from about 140 to about 200; aromatic aldehydes having molecular weights from about 90 to about 230; aliphatic and aromatic ethers having molecular weights from about 150 to about 270; and condensation products of aldehydes and amines having molecular weights from about 180 to about 320 and mixtures thereof (see claim 11). The composition of claim 11 , wherein said perfume comprises at least about 25%, more preferably about 50%, and even more preferably about 75%, by weight of the perfume, of perfume ingredients selected from the group consisting of 2,6,10-trimethyl-9-undecen-1- al, allyl amyl glycolate, allyl-3-cyclohexyl propionate, 3-methyl-1 -butanol acetate, amyl salicylate, 4-methoxy benzaldehyde, aurantiol, 2-ethyl-4-(2,2,3-trimethyl-3-cyclopenten-1- yl)-2-buten-1-ol, benzaldehyde (BENZALD FFC 10% DPG in table 2), benzophenone, benzyl acetate, benzyl salicylate, 1-(2,6,6-trimethyl-1-cyclo-hexen-1-yl)-2-buten-1-one, 3-hexen-1-ol, 1 ,5-dimethyl- oximebicyclo[3,2,1]octan-8-one, octahydro-3,6,8,8-tetramethyl-1 H-3A,7-methanoazulen-6-ol, dodecahydro-3A,6,6,9A-tetramethylnaphtho[2,1 B]-furan (which the examiner notes is AMBERMOR EX as per the Safety Data Sheet of Ambermor-EX provided to applicant in the previous office action in table 2 as well), cis-3-hexenyl acetate, beta gamma-hexenyl salicylate, 3,7-dimethyl-6-octenol, geranyl nitrile, clove stem oil, coumarin, cyclohexyl salicylate, 2-methyl-3-(para iso propyl phenyl)propionaldehyde, decyl aldehyde, 1-(2,6,6-trimethyl-3-cyclo-hexen-1-yl)-2-buten-1-one, 3-methylene-7- methyl octan-7-ol, dimethyl benzyl carbinyl acetate, ethyl vanillin, ethyl-2-methyl butyrate, ethylene tridecan-1 ,13-dioate, 1 ,8-epoxy-para-menthane, 4-allyl-2-methoxy phenol, cyclopentadecanolide, dihydro-nor-cyclopentadienyl acetate, 3-(3-isopropylphenyl) butanal (FLORHYDRAL TOCO (ELINCS) in table 2), dihydro-nor-cyclopentadienyl propionate, 1 , 3,4,6,7, 8-hexahydro-4,6, 6,7,8,8- hexamethylcyclopenta-gamma-2-benzopyrane, 4-N-hepty-4-hydroxybutanoic acid lactone, 4-N-octyl-4-hydroxy-butanoic acid lactone, 3,7-dimethyl-2,6-octadien-1-ol, 3,7- dimethyl-2,6-octadien-1-yl acetate, 3J-diemthyl-2,6-octadienenitrile, alpha-methyl- 3,4,(methylenedioxy) hydrocinnamaldehyde, heliotropin, hexyl acteate, alpha-n-hexyl cinnamic aldehyde, hexyl salicylate, 2-cyclododecyl-propanol, hydroxycitronellal, 4- (2,6,6-trimethyl-1-cyclohexenyl-1-yl)-3-buten-2-one, 4-(2,6,6-trimethyl-1-cyclohexen-1-yl)- 3-butene-2-one, 4-(2,6,6-trimethyl-2-cyclohexyl-1 -yl)-3-methyl-3-buten-2-one, 7-acetyl- 1 ,2,3,4,5,6,7,8-octahydro-1 ,1 ,6,7,tetramethyl naphthalene, 2-methoxy-4-(1-propenyl) phenol (EUGENOL NAT EX CLOVE LEAF OIL in table 2), 2-methyl-3-(2-pentenyl)-2-cyclopenten-1-one, acetyl di-isoamylene, lauric aldehyde, lavandin, lavender, lemon CP, 1-methyl-4-iso-propenyl-1-cyclohexene (TERPINOLENE P UB BHT in table 2), 3- hydroxy-3,7-dimethyl-1,6-octadiene, 3-hydroxy-3J-dimethyl-1 ,6-octadiene acetate, diox, 4-(4-hydroxy-4-methyl-pentyl) 3- cylcohexene-1 -carboxaldehyde, 2,2-dimethyl-3-(3-methylphenyl)-propanol, 4-(1 - methylethyl) cyclohexane methanol, methyl-2-aminobenzoate, methyl beta naphthyl ketone, methyl cedrenyl ketone, 1-methyloxy-4,2-propen-1-yl benzene, methyl dihydro jasmonate, methyl nonyl acetaldehyde, 4-acetyl-6-tert butyl-1 , 1 -dimethyl indane, 2-cis- 3,7-dimethyl-2,6-octadien-1-ol, 4-hydroxynonanoic acid lactone, 1-(2,2,6-trimethyl- cyclohexyl)-3-hexanol, orange CP, 2-methyl-3(para tert butylphenyl) propionaldehyde, para hydroxy phenyl butanone, patchouli, 1-oxo-2-phenylethane, phenyl acetaldehyde dimethyl acetal, phenyl ethyl acetate, phenyl ethyl alcohol, 2-phenylethyl phenyl acetate, 3-methyl-5-phenylpentanol, 3,3-dimethyl-5-(2,2,3-trimethyl-3-cyclopenten-1-yl)-4-penten- 2-ol, 2-methylbuten-2-ol-4-acetate, 2-methyl-5-phenyl pentanol, sandalwood, 1-methyl-4- iso-propylcyclohexadiene-1 ,3,para-menth-1-en-8-ol, para-menth-1-en-1-ol, para-menth-1- en-8-yl acetate, 3,7-dimethyl-3-octanol, 2,6-dimethyl-2-octanol, 7-acetyl-1,1,3,4,4,6- hexamethyl tetralin, 4-N-heptyl-4-hydroxybutanoic acid lactone, 4-methyl-3-decen-5-ol (UNDEC VERTOL TOCO in table 2), undecanal (ALDC-11 UNDECYLIC TOCO in table 2), undecylenic aldehyde, 4-hydroxy-3-methoxybenzaldehyde, 2-tert-butyl cyclohexyl acetate, 4-tert-butyl cyclohexyl acetate (see claim 12). The examiner notes that the list of fragrances in claim 12 meets five or more of high performance fragrances listed in claim 1, table 2. The examiner for instance highlights about six from the list in Caswell et al. claim 12 that are listed in Table 2 of instant claim 1. The composition of claim 11 , wherein the perfume is additionally comprised of allyl amyl glycolate, 1 ,5,5,9-tetramethyl-1 ,3-oxatricyclotridecane, anethole, 2-ethyl-4-(2,2,3- trimethyl-3-cyclopenten-1-yl)-2-buten-1-ol, benzyl acetone, benzyl salicylate, butyl anthranilate, calone, dodecahydro-3A,6,6,9A-tetramethylnaphtho[2,1 B]-furan, cinnamic alcohol, etc., and mixtures thereof (see claim 15). The examiner also notes that if one of ordinary skill in the art would pick the seven or more High-Performance fragrances that are listed in Table 2 of claim 1 in Caswell et al, those High-Performance fragrances will be the only fragrances added in the composition which entails 100%. Caswell et al. teach on page 3, lines 1-10 that the compositions, especially the clear, or translucent liquid fabric softener compositions can optionally also contain:
(a) preferably, from 0.001% to about 15%, more preferably from about 0.1% to about 10%, and even more preferably from about 0.2% to about 8%, of perfume; (b) principal solvent extender;
(c) cationic charge booster;
(d) other optional ingredients such as brighteners, chemical stabilizers, soil release agents, bactericides, chelating agents, silicones, and other fabric care agents;
(e) plasticizer, and (f) mixtures thereof.
Note: With regard to the limitations reciting “wherein the High-Performance fragrance composition comprises at least 55% by weight of one or more of High-Performance fragrance ingredients listed in Table 2.” in claim 1 and the similar recitations in claims 3-5, The examiner also notes that as the fragrances dodecahydro-3A,6,6,9A-tetramethylnaphtho[2,1 B]-furan and other four or more fragrances, that are recited in the Markush as one of the fragrance types, are once picked those fragrances entail 100% of the high performance fragrances. Additionally, Caswell et al. teach that the composition of claim 11 , wherein said perfume comprises at least about 25%, more preferably about 50%, and even more preferably about 75%, by weight of the perfume, of perfume ingredients (see claim 13). Furthermore, the preferred clear fabric conditioner compositions disclosed herein allow high level usage with minimal fabric staining which is commonly observed for conventional fabric softener compositions when used at high levels. The benefits provided by high usage include superior softness, static control, and, especially, maintenance of fabric appearance including recovery of fabric color appearance, improved color integrity, and anti-wrinkling benefits. Color maintenance has become an important attribute in the consumer's mind. Colored garments that are otherwise wearable, are often discarded, or not worn, because they look unacceptable. This invention provides improved appearance to garments, especially cotton, which is currently the preferred fabric. The greatest improvement is observed when the fabrics are dried in a conventional automatic tumble dryer (see page 4).
Ascertainment of the Difference Between Scope of the Prior Art and the Claims
(MPEP §2141.012)
Caswell et al. teach the amount of the ester quats and fragrance in overlapping manner which renders the claims obvious.
Finding of Prima Facie Obviousness Rationale and Motivation
(MPEP §2142-2143)
It would have been prima facie obvious before the effective filing date of the instant invention to incorporate a consumer product active ester quats and also fragrances in amounts in a fabric softener composition as recited in the instant claims because Caswell et al. teach a highly concentrated fabric softening composition for dispensing in a washing machine or by handwashing, the composition comprising: a fabric softener active or mixture of actives that is at least about 40%, preferably at least about 50%, and more preferably at least about 60%, and even more preferably at least about 75% by weight of the composition; optionally, from about 0% to about 15% of a phase stabilizer; optionally, perfume, profragrance, or mixtures thereof; optionally, a water-soluble dye; and wherein the composition has less than about 20%>, preferably less than about 10%, more preferably less than about 5%, even more preferably less than about 1 %>, and even still more preferably less than about 0.5%, water by weight of the composition (see claim 1). The composition of claim 1 , further comprising an active ingredient, to provide additional fabric care benefits, selected from the group consisting of: bodying agent; drape control agent; form control agent; smoothness agent; static control agent; wrinkle control agent; sanitization agent; drying agent; stain resistance agent; soil release agent; malodor control agent; dye fixative agent; dye transfer inhibitor; color maintenance agent; anti- fading agent; whiteness enhancer; anti-abrasion agent; fabric integrity agent; anti-wear agent; defoamer; anti-foaming agent; rinse aid; UV protection agent; sun fade inhibitor; insect repellent; enzyme; and mixtures thereof (see claim 1). The composition of claim 1 , further comprising a. an effective level of principal solvent or mixture of solvents preferably having a ClogP of from about -2.0 to about 2.6, preferably from about -1.7 to about 1.6, and more preferably from about -1.0 to about 1.0; at a level that is less than about 40%>, preferably from about 1% to about 25%>, more preferably from about 3%> to about 15%. by weight of the composition; b. optionally, from 0% to about 20%> of a single monoalkyl quat or diquat; c. optionally, from 0% to about 1 % electrolyte; d. optionally, water soluble solvents, and mixtures thereof; and wherein the concentrated fabric softener composition is clear or translucent (see claim 16). The composition of claim 1 , wherein the fabric softening active is selected from the group consisting of dialkyl quaternaries and amines; dialkyldiester quaternaries and amines; polyquaternaries and amines, dialkyl ester amide quaternaries and amines; silicones; functional silicones, preferably aminosilicones and quaternary silicones; fatty acids, fatty alcohols and fatty esters; clays; natural and synthetic petroleum lubricants, preferably polyolefins, isoparaffins, cyclic paraffins, and mixtures thereof (see claim 17). As used herein, when the DEQA diester (m=2) is specified, it can include the monoester (m=1 ) and/or triester (m=3) that are present. Preferably, at least about 30% of the DEQA is in the diester form, and from 0% to about 30% can be DEQA monoester, e.g., there are three R groups and one R1 group. For softening, under no/low detergent carry-over laundry conditions the percentage of monoester should be as low as possible, preferably no more than about 15%. However, under high, anionic detergent surfactant or detergent builder carry-over conditions, some monoester can be preferred. The overall ratios of diester "quaternary ammonium active" (quat) to monoester quat are from about 2.5:1 to about 1 :1 , preferably from about 2.3:1 to about 1.3:1. Under high detergent carry-over conditions, the di/monoester ratio is preferably about 1.3:1. The level of monoester present can be controlled in manufacturing the DEQA by varying the ratio of fatty acid, or fatty acyl source, to triethanolamine. The overall ratios of diester quat to triester quat are from about 10:1 to about 1.5:1 , preferably from about 5:1 to about 2.8:1 (page 11, lines 31-36 and page 12, lines 1-6). The composition of claim 1 , wherein the perfume composition comprises a perfume active or mixture of perfume actives selected from the group consisting of aromatic and aliphatic esters having molecular weights from about 130 to about 250; aliphatic and aromatic alcohols having molecular weights from about 90 to about 240; aliphatic ketones having molecular weights from about 150 to about 260; aromatic ketones having molecular weights from about 150 to about 270; aromatic and aliphatic lactones having molecular weights from about 130 to about 290; aliphatic aldehydes having molecular weights from about 140 to about 200; aromatic aldehydes having molecular weights from about 90 to about 230; aliphatic and aromatic ethers having molecular weights from about 150 to about 270; and condensation products of aldehydes and amines having molecular weights from about 180 to about 320 and mixtures thereof (see claim 11). The composition of claim 11 , wherein said perfume comprises at least about 25%, more preferably about 50%, and even more preferably about 75%, by weight of the perfume, of perfume ingredients selected from the group consisting of 2,6,10-trimethyl-9-undecen-1- al, allyl amyl glycolate, allyl-3-cyclohexyl propionate, 3-methyl-1 -butanol acetate, amyl salicylate, 4-methoxy benzaldehyde, aurantiol, 2-ethyl-4-(2,2,3-trimethyl-3-cyclopenten-1- yl)-2-buten-1-ol, benzaldehyde (BENZALD FFC 10% DPG in table 2), benzophenone, benzyl acetate, benzyl salicylate, 1-(2,6,6-trimethyl-1-cyclo-hexen-1-yl)-2-buten-1-one, 3-hexen-1-ol, 1 ,5-dimethyl- oximebicyclo[3,2,1]octan-8-one, octahydro-3,6,8,8-tetramethyl-1 H-3A,7-methanoazulen-6-ol, dodecahydro-3A,6,6,9A-tetramethylnaphtho[2,1 B]-furan (which the examiner notes is AMBERMOR EX as per the Safety Data Sheet of Ambermor-EX provided to applicant in the previous office action in table 2 as well), cis-3-hexenyl acetate, beta gamma-hexenyl salicylate, 3,7-dimethyl-6-octenol, geranyl nitrile, clove stem oil, coumarin, cyclohexyl salicylate, 2-methyl-3-(para iso propyl phenyl)propionaldehyde, decyl aldehyde, 1-(2,6,6-trimethyl-3-cyclo-hexen-1-yl)-2-buten-1-one, 3-methylene-7- methyl octan-7-ol, dimethyl benzyl carbinyl acetate, ethyl vanillin, ethyl-2-methyl butyrate, ethylene tridecan-1 ,13-dioate, 1 ,8-epoxy-para-menthane, 4-allyl-2-methoxy phenol, cyclopentadecanolide, dihydro-nor-cyclopentadienyl acetate, 3-(3-isopropylphenyl) butanal (FLORHYDRAL TOCO (ELINCS) in table 2), dihydro-nor-cyclopentadienyl propionate, 1 , 3,4,6,7, 8-hexahydro-4,6, 6,7,8,8- hexamethylcyclopenta-gamma-2-benzopyrane, 4-N-hepty-4-hydroxybutanoic acid lactone, 4-N-octyl-4-hydroxy-butanoic acid lactone, 3,7-dimethyl-2,6-octadien-1-ol, 3,7- dimethyl-2,6-octadien-1-yl acetate, 3J-diemthyl-2,6-octadienenitrile, alpha-methyl- 3,4,(methylenedioxy) hydrocinnamaldehyde, heliotropin, hexyl acteate, alpha-n-hexyl cinnamic aldehyde, hexyl salicylate, 2-cyclododecyl-propanol, hydroxycitronellal, 4- (2,6,6-trimethyl-1-cyclohexenyl-1-yl)-3-buten-2-one, 4-(2,6,6-trimethyl-1-cyclohexen-1-yl)- 3-butene-2-one, 4-(2,6,6-trimethyl-2-cyclohexyl-1 -yl)-3-methyl-3-buten-2-one, 7-acetyl- 1 ,2,3,4,5,6,7,8-octahydro-1 ,1 ,6,7,tetramethyl naphthalene, 2-methoxy-4-(1-propenyl) phenol (EUGENOL NAT EX CLOVE LEAF OIL in table 2), 2-methyl-3-(2-pentenyl)-2-cyclopenten-1-one, acetyl di-isoamylene, lauric aldehyde, lavandin, lavender, lemon CP, 1-methyl-4-iso-propenyl-1-cyclohexene (TERPINOLENE P UB BHT in table 2), 3- hydroxy-3,7-dimethyl-1,6-octadiene, 3-hydroxy-3J-dimethyl-1 ,6-octadiene acetate, diox, 4-(4-hydroxy-4-methyl-pentyl) 3- cylcohexene-1 -carboxaldehyde, 2,2-dimethyl-3-(3-methylphenyl)-propanol, 4-(1 - methylethyl) cyclohexane methanol, methyl-2-aminobenzoate, methyl beta naphthyl ketone, methyl cedrenyl ketone, 1-methyloxy-4,2-propen-1-yl benzene, methyl dihydro jasmonate, methyl nonyl acetaldehyde, 4-acetyl-6-tert butyl-1 , 1 -dimethyl indane, 2-cis- 3,7-dimethyl-2,6-octadien-1-ol, 4-hydroxynonanoic acid lactone, 1-(2,2,6-trimethyl- cyclohexyl)-3-hexanol, orange CP, 2-methyl-3(para tert butylphenyl) propionaldehyde, para hydroxy phenyl butanone, patchouli, 1-oxo-2-phenylethane, phenyl acetaldehyde dimethyl acetal, phenyl ethyl acetate, phenyl ethyl alcohol, 2-phenylethyl phenyl acetate, 3-methyl-5-phenylpentanol, 3,3-dimethyl-5-(2,2,3-trimethyl-3-cyclopenten-1-yl)-4-penten- 2-ol, 2-methylbuten-2-ol-4-acetate, 2-methyl-5-phenyl pentanol, sandalwood, 1-methyl-4- iso-propylcyclohexadiene-1 ,3,para-menth-1-en-8-ol, para-menth-1-en-1-ol, para-menth-1- en-8-yl acetate, 3,7-dimethyl-3-octanol, 2,6-dimethyl-2-octanol, 7-acetyl-1,1,3,4,4,6- hexamethyl tetralin, 4-N-heptyl-4-hydroxybutanoic acid lactone, 4-methyl-3-decen-5-ol (UNDEC VERTOL TOCO in table 2), undecanal (ALDC-11 UNDECYLIC TOCO in table 2), undecylenic aldehyde, 4-hydroxy-3-methoxybenzaldehyde, 2-tert-butyl cyclohexyl acetate, 4-tert-butyl cyclohexyl acetate (see claim 12). The examiner notes that the list of fragrances in claim 12 meets five or more of high performance fragrances listed in claim 1 or seven or more in claim 17, table 2. The examiner for instance highlights about seven from the list in Caswell et al., fragrances that are listed in Table 2 of instant claim 1 as described above. The composition of claim 11 , wherein the perfume is additionally comprised of allyl amyl glycolate, 1 ,5,5,9-tetramethyl-1 ,3-oxatricyclotridecane, anethole, 2-ethyl-4-(2,2,3- trimethyl-3-cyclopenten-1-yl)-2-buten-1-ol, benzyl acetone, benzyl salicylate, butyl anthranilate, calone, dodecahydro-3A,6,6,9A-tetramethylnaphtho[2,1 B]-furan, cinnamic alcohol, etc., and mixtures thereof (see claim 15). The examiner also notes that as any of the five or more fragrances such as dodecahydro-3A,6,6,9A-tetramethylnaphtho[2,1 B]-furan and other, is recited in the Markush as the fragrance types picked, those will be the only fragrances added in the composition which entails 100% meeting the limitations recited in claims 1, 3-5, and 17. Caswell et al. disclose on page 3, lines 1-10 that the compositions, especially the clear, or translucent liquid fabric softener compositions (which the examiner notes the consumer product) can optionally also contain:
(a) preferably, from 0.001% to about 15%, more preferably from about 0.1% to about 10%, and even more preferably from about 0.2% to about 8%, of perfume; (b) principal solvent extender;
(c) cationic charge booster;
(d) other optional ingredients such as brighteners, chemical stabilizers, soil release agents, bactericides, chelating agents, silicones, and other fabric care agents;
(e) plasticizer, and (f) mixtures thereof.
Note: With regard to the limitations reciting “wherein the High-Performance fragrance composition comprises at least 55% by weight of one or more of High-Performance fragrance ingredients listed in Table 2.” in claim 1 and the similar recitations in claims 3-5 and 17, the examiner notes that as the fragrances dodecahydro-3A,6,6,9A-tetramethylnaphtho[2,1 B]-furan and other five, seven, or more fragrances from Table 2 of claim 1, are fully contemplated in Caswell et al., once one of ordinary skill in the art picked those fragrances, the amount will entail 100% of the high performance fragrances. Additionally, Caswell et al. teach that the composition of claim 11 , wherein said perfume comprises at least about 25%, more preferably about 50%, and even more preferably about 75%, by weight of the perfume, of perfume ingredients (see claim 12).
The selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination in Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (Claims to a printing ink comprising a solvent having the vapor pressure characteristics of butyl carbitol so that the ink would not dry at room temperature but would dry quickly upon heating were held invalid over a reference teaching a printing ink made with a different solvent that was nonvolatile at room temperature but highly volatile when heated in view of an article which taught the desired boiling point and vapor pressure characteristics of a solvent for printing inks and a catalog teaching the boiling point and vapor pressure characteristics of butyl carbitol.) Furthermore, in the case where the claimed ranges for the amounts of fragrance and ester quats “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). Similarly, 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). Furthermore, generally differences in concentration including ratios will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). It is within the purview of the skilled artisan to optimize the amounts of ingredients absent a showing of criticality. It is a result effective parameter. The skilled artisan would have had a reasonable expectation of success in producing the instant invention by following the teachings of Caswell et al. because Caswell et al. teach fragrance and ester quat containing fabric softener compositions which are substantially identical as the instant claims.
Response to Arguments
Applicant's arguments filed 11 September 2025 have been fully considered but they are not persuasive.
Applicant argues Claim 1 has been amended to incorporate original claim 13 which recites that the consumer product is a fabric conditioner and the consumer product active is at a level between 1% and 20% by weight of the consumer product. Applicant notes Caswell's fabric softening composition required 40% to 85% fabric softener active. (See Caswell, page 2, lines 15-17). Caswell specifically taught that fabric softening composition having at least 40% fabric softener active minimizes residues and staining on the treated fabrics. (See Caswell, page 2, lines 1-3). Therefore, such high concentration (at least 40% fabric softener active) is essential to the success of Caswell's fabric softening composition. Therefore, Caswell's teaching cannot render amended claim 1 (requiring 1% to 20% fabric conditioner active) obvious.
The above assertions are not found persuasive because first it must be recognized that Applicant elected esterquat as the species of a consumer product active. Caswell et al. teach that The composition of claim 1 , further comprising a. an effective level of principal solvent or mixture of solvents preferably having a ClogP of from about -2.0 to about 2.6, preferably from about -1.7 to about 1.6, and more preferably from about -1.0 to about 1.0; at a level that is less than about 40%>, preferably from about 1% to about 25%>, more preferably from about 3%> to about 15%. by weight of the composition; b. optionally, from 0% to about 20%> of a single monoalkyl quat or diquat; c. optionally, from 0% to about 1 % electrolyte; d. optionally, water soluble solvents, and mixtures thereof; and wherein the concentrated fabric softener composition is clear or translucent (see claim 16). The composition of claim 1 , wherein the fabric softening active is selected from the group consisting of dialkyl quaternaries and amines; dialkyldiester quaternaries and amines; polyquaternaries and amines, dialkyl ester amide quaternaries and amines; silicones; functional silicones, preferably aminosilicones and quaternary silicones; fatty acids, fatty alcohols and fatty esters; clays; natural and synthetic petroleum lubricants, preferably polyolefins, isoparaffins, cyclic paraffins, and mixtures thereof (see claim 17). As used herein, when the DEQA diester (m=2) is specified, it can include the monoester (m=1 ) and/or triester (m=3) that are present. Preferably, at least about 30% of the DEQA is in the diester form, and from 0% to about 30% can be DEQA monoester, e.g., there are three R groups and one R1 group. For softening, under no/low detergent carry-over laundry conditions the percentage of monoester should be as low as possible, preferably no more than about 15%. A prior art reference must be considered in its entirety, i.e., as a whole, including portions that would lead away from the claimed invention. W.L. Gore & Assoc., Inc. v. Garlock, Inc., 721 F.2d 1540, 220 USPQ 303 (Fed. Cir. 1983). Furthermore, in the case where the claimed ranges for the amounts of fragrance and ester quats “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). Similarly, 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). Furthermore, generally differences in concentration including ratios will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). It is within the purview of the skilled artisan to optimize the amounts of ingredients absent a showing of criticality. It is a result effective parameter. The skilled artisan would have had a reasonable expectation of success in producing the instant invention by following the teachings of Caswell et al. because Caswell et al. teach fragrance and ester quat containing fabric softener compositions which are substantially identical as the instant claims.
Conclusion
No claim is allowed.
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/TIGABU KASSA/Primary Examiner, Art Unit 1619
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