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 .
Formal Matters
Applicant’s claim amendments and arguments in the reply filed on 11 September 2025 is are acknowledged and have been fully considered. Claims 1 and 3-16 are pending. Claims 1, 3-6, 13, and 16 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 Claims 7-12 and 14-15 remain withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention and/or species, there being no allowable generic or linking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. Claim 2 is canceled. Applicant amended claims 1, 3, and 16.
Withdrawn Objections/Rejections
Rejections and/or objections not reiterated from previous office actions are hereby withdrawn as are those rejections and/or objections expressly stated to be withdrawn.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 Rejections-Necessitated by Amendments
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.
Claim 1 is 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 contains the trademarks/trade names listed in table 2 under the column labeled “Fragrance”. Where a trademark or trade name is used in a claim as a limitation to identify or describe a particular material or product, the claim does not comply with the requirements of 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph. See Ex parte Simpson, 218 USPQ 1020 (Bd. App. 1982). The claim scope is uncertain since the trademark or trade name cannot be used properly to identify any particular material or product. A trademark or trade name is used to identify a source of goods, and not the goods themselves. Thus, a trademark or trade name does not identify or describe the goods associated with the trademark or trade name. In the present case, the trademark/trade name is used to identify/describe different fragrance(s) compounds and/or compositions of their respective chemical names are listed in table 2 under the column labeled “Chemical Name” and, accordingly, the identifications/descriptions are indefinite. Since the table identifies the High-performance fragrance ingredients by trade name, chemical name and CAS No. it is unclear which identifier is actually limiting in the claim. The examiner advises Applicant should properly identify the recited High-Performance fragrance ingredients by their chemical names only. Furthermore, the examiner suggest Applicant should use the proper Markush language “selected from the group consisting of” followed by the recited list of High-performance fragrance ingredients.
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, 3-6, 13, and 16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Caswell et al. (WO 01/85892, newly 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 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 ) and four 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 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%. Caswell et al. disclose 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
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, 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 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%. Caswell et al. disclose 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 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 recite "the High-Performance fragrance composition comprises at least 55% by weight of five or more of High-Performance fragrance ingredients listed in Table 2". Applicant submits that Caswell failed to teach or fairly suggest a fragrance composition comprising five or more of fragrance ingredients listed in Table 2. Therefore, claim 1 and its dependent claims 3-6, 13 and 16 are patentable over Caswell.
The above assertions are not found persuasive because Caswell et al. indeed teach five or more fragrances from table 2 as shown above.
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 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%. Caswell et al. disclose 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 12).
Applicant argues Claim 13 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 product required 40% to 85% fabric softener active. (See Caswell, page 2, lines 15-17). Applicant submits that Caswell failed to teach or fairly suggest a fabric conditioner containing between 1% and 20% fabric conditioner active. Applicant further submits that the Office failed to establish prima facie obviousness of claim 13.
The above assertions re not found persuasive because contrary to Applicant’s assertion Caswell et al. indeed teach 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). It should be noticed that Applicant elected esterquat as species of active. 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.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/TIGABU KASSA/Primary Examiner, Art Unit 1619