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 .
Priority
Acknowledgement is made of the Applicant’s claim of domestic priority to provisional US application 63/038,635 filed 12 June 2020.
Election/Restrictions
The Applicant has previously elected methyl-1-tallow amido-ethyl-2-tallow imidazolinium methyl sulfate (quaternary ammonium compound) and 3-(triethoxysilyl)-propyl-dimethyloctadecyl ammonium chloride (antimicrobial agent).
Examiner’s Note
Applicant's amendments and arguments filed 1 October 2025 are acknowledged and have been fully considered. The Examiner has re-weighed all the evidence of record. Rejections and/or objections not reiterated from previous office actions are hereby withdrawn. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application. In the Applicant’s response, filed 1 October 2025, it is noted that claim 1 has been amended. Support can be found in the claims as originally filed. No new matter or claims have been added.
Status of the Claims
Claims 1-11, and 13-22 are pending.
Claim 5 is withdrawn.
Claims 1-4, 6-11, and 13-22 are rejected.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
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.
Claims 1-4, 6-11, and 13-22 stand rejected under 35 U.S.C. 103 as being unpatentable over Blank et al. (US 5,145,596) in view of Accosoft 808-90 (https://www.knowde.com/stores/stepan-company/documents/350940) in view of Pashovych et al. (US 11,096,391).
Blank teaches a method of treating fabrics in order to eliminate odor caused by microbial growth by adding an antibacterially effective amount of an organosilicon QAC to the fabric (abstract). QAC antimicrobial agents are bactericidal, fungicidal, algicidal, and viricidal against lipophilic viruses (col 1, lns 52-57). The QAC can be of the following formula, which reads on formula I of the instant claims but differs in the alkoxide group of the elected species (col 7, ln 64- col 8, ln 30).
PNG
media_image1.png
200
400
media_image1.png
Greyscale
This compound is a durable antimicrobial agent (col 8, lns 30-32). More generically, the agent can be of the following formula wherein R can be methyl or ethyl (col 9, lns 1-8, 54-60).
PNG
media_image2.png
200
400
media_image2.png
Greyscale
Blank further teaches that the organosilane may be mixed with organic ammonium salts such as quaternary imidazolinium textile softeners (col 11, lns 36-42). In addition, the composition may comprise a surfactant (col 11, lns 26-30). Regarding the activity of the compounds of Blank, such compounds have been found to be effective against a number of microorganisms including E. coli, K. pneumoniae, P. aeruginosa, and S. aureus (col 16, lns 21-44).
Blank does not teach the quaternary imidazolinium textile softeners as being the elected species. Blank does not teach a guanide salt. Blank does not teach efficacy against all the targets recited in claim 1.
Accosoft teaches methyl (1) tallow amidoethyl (2) tallow imidazolinium methyl sulfate, which reads on the elected species of quaternary ammonium compound with fabric softening properties (pg 1). Accosoft 808-90 is said to impart softness to fabrics and reduce static cling (pg 1).
Pashovych teaches that PHMB is a known broad spectrum antimicrobial compound used as a sanitizer or preservative to kill bacteria and viruses including methicillin-resistant S. aureus (col 1, lns 13-35). One utility of PHMB is for controlling odors in textiles (id). PHMB can be used as the HCl salt (col 2, lns 44-49).
It must be remembered that “[w]hen a patent simply arranges old elements with each performing the same function it had been known to perform and yields no more than one would expect from such an arrangement, the combination is obvious.” KSR v. Teleflex, 127 S.Ct. 1727, 1740 (2007) (quoting Sakraida v. A.G. Pro, 425 U.S. 273, 282 (1976)). “[W]hen the question is whether a patent claiming the combination of elements of prior art is obvious,” the relevant question is “whether the improvement is more than the predictable use of prior art elements according to their established functions.” (Id.). Addressing the issue of obviousness, the Supreme Court noted that the analysis under 35 USC 103 “need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.” KSR at 1741. The Court emphasized that “[a] person of ordinary skill is… a person of ordinary creativity, not an automaton.” Id. at 1742.
Consistent with this reasoning, it would have been obvious to have selected various combinations of organosilane QAC and organic QAC salts such as quaternary imidazolinium textile softener from within Blank, to arrive at compositions “yielding no more than one would expect from such an arrangement.” Moreover, it would have been obvious to prepare the preferred QAC, shown above, and modify the siloxane to include ethoxy groups, which are taught by Blank as being suitable alternatives to methyl groups.
Regarding the selection of organic QAC salts such as quaternary imidazolinium textile softener, Blank does not specify further. As such, it would have been obvious to look to Accosoft which teaches a suitable quaternary imidazolinium textile softener that reads on the elected species of the instant claims. Generally, it is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use (see MPEP § 2144.07). Moreover, Blank teaches including any surfactant without further specification, thus a nonionic surfactant would have been obvious to include. The resulting composition would have been a fabric conditioning blend of 3-(triethoxysilyl)-propyl-dimethyloctadecyl ammonium chloride (quaternary imidazolinium textile softener) and methyl-1-tallow amido-ethyl-2-tallow imidazolinium methyl sulfate (quaternary ammonium compound), optionally comprising a nonionic surfactant, that is a liquid solution (col 8, lns 40-42) that is useful as both a broad-spectrum antimicrobial agent and also a fabric softening agent.
It would have been prima facie obvious to prepare the antimicrobial, anti-odor composition of Blank in view of Accosoft wherein said composition is useful for eliminating odors in textiles, and further include PHMB HCl as an additional antimicrobial agent. It would have been obvious to include PHMB because of the common ability of PHMB to eliminate odors and be an antimicrobial agent, similarly to the invention of Blank. Generally, it is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use (see MPEP § 2144.07). The resulting composition would have been a fabric conditioning blend of 3-(triethoxysilyl)-propyl-dimethyloctadecyl ammonium chloride (quaternary imidazolinium textile softener), methyl-1-tallow amido-ethyl-2-tallow imidazolinium methyl sulfate (quaternary ammonium compound), PHMB HCl (as both an antimicrobial agent and a preservative), optionally comprising a nonionic surfactant, that is a liquid solution that is useful as both a broad spectrum antimicrobial agent and also a fabric softening agent. It is further noted that both QACs, in general, and PHMB are taught in the prior art as being effective against E. coli, K. pneumoniae, P. aeruginosa, and S. aureus and viruses, and thus would necessarily impart antibacterial and antiviral activity onto the final composition, thus rendering obvious instant claims 1-4, 6-11, and 13-22.
Response to Arguments
Applicant's arguments filed 1 October 2025 have been fully considered but they are not persuasive. The Applicant argues, on pages 6-7 of their remarks, that Blank and the other references do not teach a composition that has antiviral activity and is efficacious against the claimed combination of bacteria and viruses including Norovirus families.
In response, Blank teaches that QAC antimicrobial agents are bactericidal, fungicidal, algicidal, and viricidal against lipophilic viruses. Pashovych teaches that PHMB is a known broad spectrum antimicrobial compound used as a sanitizer or preservative to kill bacteria and viruses. Both agents have antiviral activity and would, when combined, continue to impart antiviral activity in the final composition. Moreover, the ability of the individual agents in the claimed composition, and accordingly taught in the prior art, to be effective against the claimed viruses is a property that is inherent. To be sure, Wang et al. (Polymers 2021, 13, 2601) teaches that PHMB is highly effective against coronavirus (abstract). Schorr et al. (US 2007/0048358) teaches that PHMB solution is effective against influenza virus [0127]. Shimamoto et al. (US 2010/0240600) teaches that solutions comprising 0.05% PHMB have norovirus-inactivating activity [0004]. Therefore, the Applicant’s limitations related to efficacy of the claimed composition are inherent properties of the components included in the composition and which are rendered obvious by the prior art.
Conclusion
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANDREW S ROSENTHAL whose telephone number is (571)272-6276. The examiner can normally be reached M-F 8-5pm EST.
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, Brian Kwon can be reached at 571-272-0581. 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.
/ANDREW S ROSENTHAL/Primary Examiner, Art Unit 1613