DETAILED ACTION
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 6/23/2026 has been entered.
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
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Drawings
The drawings filed 7/02/2021 are accepted.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim(s) 1, 3-6, and 9-13 is/are rejected under 35 U.S.C. 103 as being unpatentable over WO2015/023961 (herein referred to as Lei) in view of Hayashi et al (US 2006/0210711) and Ouali et al. (US 9,034,384).
Regarding claims 1; Lei teaches a process for preparing a core-shell microcapsule comprising:
Dissolving at least a polyisocyanate having at least two isocyanate functional groups in a hydrophobic material to form an oil phase (0023),
preparing a dispersing phase comprising a stabilizer and a solvent, wherein the phase is no miscible with the oil phase, and wherein the solvent consists of water (0023; example 1),
adding the oil phase into the dispersing phase to from a two-phase dispersion (0023),
adding a crosslinking agent (herein relied upon to read on the claimed “reactant”) to the dispersion obtained in step c) wherein the reactant is selected from the group consisting of an amino acid, a polyamine, a polyol, and mixtures thereof (0057)
performing a curing step to from core-shell microcapsules in the form of a slurry (0023; example 1).
Lei teaches aliphatic polyisocyanates may be utilized in the process but does not explicitly teaching the use of lysine triisocyanate. However, Hayashi teaches a process for producing microcapsules wherein the isocyanate utilized to make said microcapsule may comprise lysine triisocyanate (0092). It would have been obvious to one of ordinary skill in the art at the time the invention was made to utilize the lysine triisocyanate as the isocyanate disclose in Lei. The motivation for doing so would have been that Hayashi teaches lysine triisocyanate is a useful isocyanate for the production of microcapsules and is functionally equivalent to the isocyanates disclosed in Lei. The examiner notes that the species disclosed in the prior art is understood to read on the claimed genus (amino-acid polyisocyanate ) as the courts have held that a species taught by the prior art anticipates a claimed genus (see MPEP 2131.02). Furthermore, the teachings of Hayashi are understood to render obvious the invention of claim 9.
Lei teaches the microcapsules may be used as perfuming microcapsules, but does not teach said microcapsules should be used in a perfuming consumer product comprising (i) the perfume microcapsule, (ii) at least one ingredient selected from the group consisting of a perfumery carrier, a perfumery co-ingredient and mixtures thereof, (iii) optionally at least one perfumery adjuvant and (iv) an anionic surfactant. However, Ouali teaches that perfume containing microcapsules may be utilized in a liquid perfumed consumer product comprising: a) from 2 to 65% by weight, relative to the total weight of the consumer product, of at least one anionic surfactant (col 4, lines 53+; col 5, lines 61+) water or a water-miscible hydrophilic organic solvent; and the microcapsule comprising perfume (table 12). Thus, it would have been obvious to one of ordinary skill in the art at the time the invention was made to utilize the perfume containing microcapsules of Lei in view of Hayashi in a composition comprising a) from 2 to 65% by weight, relative to the total weight, of at least one anionic surfactant; water or a water-miscible hydrophilic organic solvent; and the microcapsule comprising perfume as Ouali teaches compositions with such components are known to be useful for consumer products.
With regards to claim 3, Lei teaches the reactant is used an amount of between 0.1 and 5%, by total weight of the slurry composition (0068).
With regards to claim 4, Lei teaches the polyamine reactant may be selected from the group consisting of water soluble guanidine salts, guanidine, and tris-(2-aminoethyl)amine, N,N,N’,N’-tetrakis(3-aminopropy]l)-1,4- butanediamine (0064).
With regards to claim 5, said claim does not require that the polyaminoester be present, said claim merely further limits the polyaminoester from the claimed group of claim 4 when polyaminoester is present.
With regards to claim 6, Lei teaches the reactant may be amino acid such as lysine (0063).
With regards to claim 10, Lei teaches the polyisocyanate may be present in an amount of between 0.5 and 20%, these percentages being defined by weight relative to the total weight of the oil phase (0055).
With regards to claim 11, Lei teaches the polyisocyanate utilized may include blends of polyisocyanates including a trimethylol propane-adduct of toluene diisocyanate and a trimethylol propane-adduct of xylylene diisocyanate( 0020)
With regards to claim 12, Lei teaches the emulsifier may be chosen from the group consisting of gum Arabic, modified starch, polyvinyl alcohol, polyvinylpyrolidone (PVP), carboxymethylcellulose (CMC), anionic polysaccharides, acrylamide copolymer, inorganic particles, protein such as including soy protein, rice protein, whey protein, white egg albumin, sodium caseinate, gelatin, bovine serum albumin, hydrolyzed soy protein, hydrolyzed sericin, pseudo-collagen, silk protein, sericin powder, and mixtures thereof (0072).
With regards to claim 13, Lei teaches the composition is useful for making a core-shell microcapsule comprising an oil-based core comprising a hydrophobic material, preferably comprising a perfume (0085).
Response to Arguments
Applicant's arguments filed 6/23/2026 have been fully considered but are not persuasive.
Rejections under 35 U.S.C. §103
With regards to the rejection of claims 1, 3-6, and 9-13 stand rejected under 35 U.S.C. 103 as allegedly being unpatentable over Lei (WO 2015/023961) in view of Hayashi (US 2006/0210711), Applicant respectfully disagrees with the Office’s position that t it would have been obvious to a person of ordinary skill in the art to modify Lei to use the lysine triisocyanate of Hayashi, because lysine triisocyanate is functionally equivalent to the isocyanates disclosed in Lei. Applicant and the examiner agree Hayashi lists lysine ester triisocyanate among numerous possible isocyanates that may be used in forming microcapsule walls, but applicant argues the inclusion of lysine triisocyanate within a broad list of alternatives does not teach or suggest selecting an amino-acid derived polyisocyanate as required by the claims. The examiner respectfully disagrees; arguing the courts have held the use of a functionally equivalent component is prima facie obvious. While applicant argues that the Office has the burden to identify a reason why a person of ordinary skill in the art would have selected the particular substitute at issue from among the numerous alternatives available in the prior art, the courts have held an express suggestion to substitute one equivalent component or process for another is not necessary to render such substitution obvious. In re Fout, 675 F.2d 297, 213 USPQ 532 (CCPA 1982).
Applicant contends both Lei and Hayashi generally disclose polyisocyanates, describing broad classes of isocyanates and further providing illustrative species representative, though the illustrative
species are presented merely as non-limiting examples of broader polyisocyanate classes and sub-classes. The references do not characterize these species as preferred, required, or critical, nor do they limit the disclosed genus to the exemplified compounds. And the illustrative species serve only to demonstrate that members of the broader classes can be used, without excluding or disfavoring the numerous other species encompassed within the disclosed genera. Applicant argues, however, said references fail to render obvious the claimed invention because the non-limiting species do not provide teaching or suggestion that would have motivated a person of ordinary skill in the art to select the specific amino-acid derived polyisocyanate required by the present claims from among the vast number of available alternatives. The examiner disagrees for reasons of record. Specifically, the courts have held an express suggestion to substitute one equivalent component or process for another is not necessary to render such substitution obvious. In re Fout, 675 F.2d 297, 213 USPQ 532 (CCPA 1982)."
With regards to amended claim 1, applicant argues the claimed amino-acid derived polyisocyanate shell chemistry provides unexpected stability in challenging consumer product bases comprising anionic surfactants. In support of said position, applicant points to example 2, Table 8, and Table 9 in the specification. Said argument is noted but is not persuasive as said showing is not commensurate in scope with the pending claims; the compositions of the claims are much broader than the compositions tested in the specification. There is no evidence or argument that the “unexpected resulted” could be extrapolated to the entire breadth of the pending claims. Furthermore, said showing is not persuasive as said showing is not compared to the closest prior art.
Thus, applicant’s arguments are not persuasive and the claims remain rejected for the reasons set forth herein.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KEVIN R KRUER whose telephone number is (571)272-1510. The examiner can normally be reached M-F 8am-5pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Callie Shosho can be reached on (571) 272-1123. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/KEVIN R KRUER/Primary Examiner, Art Unit 1787
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