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 .
Claim Status
Claims 1-3, 6-8 and 11-22 are pending.
Claims 1, 3, 6, 16-17 and 21 are currently amended.
Claims 4-5 and 9-10 have been canceled.
Claims 1-3, 6-8 and 11-22 are currently under consideration.
Claims 1-3, 6-8 and 11-22 are rejected.
Acknowledgement of Receipt
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 08/13/2025 has been entered.
Withdrawn Species Requirement
In light of Applicants amending claims to now recite a negative limitation for a species that had been previously elected, the Examiner has withdrawn the previous species requirement.
Withdrawn Rejections
In light of the new amendments, the rejection of claim 1 under 35 U.S.C. § 112(a) is withdrawn. In light of the new amendments, the rejection of claim 21 under 35 U.S.C. § 112(b) is withdrawn.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. § 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Applicant Claims
The instant claims are directed to a method comprising: depositing at least one substance from a medium onto a surface, wherein the medium comprises 0.1% by weight to 30% by weight of a rhamnolipid and 0.05% by weight to 5% by weight of the at least one substance, wherein the at least one substance comprises a quaternized substance, and wherein the medium is free of siloxane (claim 1); wherein the surface is selected from the group consisting of skin and hair (claim 13) and is hair (claim 20), and wherein a zeta potential of the hair is -3.6 mV or more negative (claim 21).
Applicants further claim wherein the medium is selected from the group consisting of: a surfactant mixture, an emulsion, and a microemulsion (claim 7); cosmetic formulations (claim 8); wherein a pH of the medium at 25°C is in a range from 3.5 to 9.0 (claim 12) and from 4.4 to 6.6 (claim 19); an oil in water (O/W) emulsion, a water in oil (W/O) emulsion, a water-in-silicone emulsion, a silicone-in water emulsion, an oil in water (O/W) microemulsion, a water in oil (W/O) microemulsion, a water-in-silicone microemulsion, a silicone-in-water microemulsion, and a dispersion (claim 15) and further comprises at least one other surfactant (claim 22)
Applicants further claim wherein the at least one substance is a polymer (claim 2); selected from the group consisting of a carbohydrate, a peptide, a protein, a protein hydrolysate, a polyallylamine, a polyimine, a polyacrylate, and a polymethacrylate (claim 3); selected from a guar quaternary ammonium compound, and a cellulose quaternary ammonium compound (claim 6); contains at least one selected from the group consisting of protonatable nitrogen and permanently quaternized nitrogen (claim 14), is present in the medium at a concentration of 0.15% by weight to 1.5% by weight, of the total medium (claim 17)
Applicants further claim wherein the rhamnolipid comprises one or more di-rhamnolipids and optionally one or more mono-rhamnolipids, and wherein a weight ratio of a total di-rhamnolipid content to a total mono-rhamnolipid content, if the one or more mono-rhamnolipids are present, is greater than 51:49 (claim 11); the rhamnolipid is present in the medium at a concentration of 1.0% by weight to 12% by weight, of the total medium (claim 16); wherein the weight ratio of all di-rhamnolipids used to all mono-rhamnolipids used is greater than 98:2 (claim 18).
Claims 1-3, 6-8, 13-17 and 19-22 are rejected under 35 U.S.C. § 102 (a)(1) or (a)(2) as being anticipated by Kaga et al. (US 2022/0313591 A1, priority to 06/25/2019) herein referenced Kaga.
Applicant cannot rely upon the certified copy of the foreign priority application to overcome this rejection because a translation of said application has not been made of record in accordance with 37 CFR 1.55. When an English language translation of a non-English language foreign application is required, the translation must be that of the certified copy (of the foreign application as filed) submitted together with a statement that the translation of the certified copy is accurate. See MPEP §§ 215 and 216.
Kaga discloses a composition comprising (a) at least one biosurfactant; and (b) at least one carboxybetaine polymer (abstract, [0022], claim 1). Kaga does not mention siloxanes.
Kaga teaches that the biosurfactants include a rhamnose moiety ([0032]) and discloses that as the rhamnolipids, for example, that sold under glucolipids the name of RHEANCE One from EVONIK can be used ([0038]). Looking to the instant disclosure, Applicants state that as rhamnolipids, use was made of RHEANCE@ One (Evonik Industries, 50%, INCI: Glycolipids) (see Spec., pg. 7, line 31, Examples).
The composition may take various forms, such as an aqueous gel, an aqueous solution, a gel, a lotion, a serum, a suspension, a dispersion, a fluid, a milk, a paste, a cream, an emulsion (O/W or W/O form), or the like ([0023]).
Kaga discloses that (b) carboxybetaine polymer is selected from a copolymer of carboxybetaine monomers and alkyl (meth)acrylate; alkyl (meth)acrylate quaternary ammonium salt, and polyoxyalkylene (meth)acrylate; and a copolymer of carboxybetaine monomers , alkyl (meth)acrylate quaternary ammonium salt and hydroxyalkyl (meth)acrylate ([0067], [0069], [0074], claim 5).
Kaga teaches that the amount of the (a) biosurfactant(s) (i.e., rhamnolipid) in the composition is 0.01% by weight or more and 15% by weight or less (claim 6), the amount of the (b) nonionic surfactant(s) in the composition ranges from 0.1 to 30% by weight (claim 7); the amount of the (b) carboxybetaine polymer in the composition is 0.001% by weight or more and 5% by weight or less (claim 8) relative to the total weight of the composition. Kaga discloses that the composition may comprise ionic surfactants other than the (a) biosurfactant(s) in an amount of 5% by weight or less relative to the total amount of the composition; or be free of ionic surfactants other than the (a) biosurfactant (claim 9). The composition further includes water in an amount of 60% by weight or more relative to the total weight of the composition (claim 10).
Regarding cosmetic formulations, the composition is taught as a cleansing composition or a conditioner for keratinous substances (i.e., hair) and a non-therapeutic cosmetic method for conditioning, caring, or cleansing keratin substances is provided (claims 11-13).
Regarding pH, Kaga teaches that the pH of the composition according to the present invention may be 9.0 or less, more preferably 8.5 or less, and even more preferably 8.0 or less, and be 5.0 or more, more preferably 5.5 or more, and even more preferably 6.0 or more ([0117]).
Regarding zeta potential, while zeta potential is not taught by Kaga, MPEP § 2112.01 states that if a composition is physically the same, it must have the same properties. Thus, the claimed zeta potential is presumed to be present in any composition that meets the structural requirements of the claims.
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 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 (a) are summarized as follows:
Determining the scope and contents of the prior art.
Ascertaining the differences between the prior art and the claims at issue.
Resolving the level of ordinary skill in the pertinent art.
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. Applicants are 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 1-3, 6-8 and 11-22 are rejected under 35 U.S.C. § 103 as being unpatentable over Meiring et al. (WO 2020114793 A1, priority 04/11/2018 MT), Lu et al. (WO 2017144317 A1, pub. 08/31/2017 MT), further in view of Schulz et al. (WO 2019034490A1, pub. 02/21/2019 MT) herein referenced Schulz. herein referenced Mering and Lu. Citations from Meiring, Lu and Schulz are taken from the translation provided.
Meiring is directed to a cosmetic oil in water (o/w) emulsion containing glycolipids and an o/w emulsion with rhamnolipids (abstract, description, pg. 1, claims 1-2). Meiring discloses that rhamnolipids can be purchased, for example, from Evonik under the trade name RHEANCE ONE (pg. 2, middle of pg.). Looking to the instant disclosure, Applicants state that as rhamnolipids, use was made of RHEANCE@ One (Evonik Industries, 50%, INCI: Glycolipids) (see Spec., pg. 7, line 31, Examples). The o/w emulsion is characterized in that the preparation has a pH of 4.2 to 7.5 (claim 6). Meiring focuses on developing a stable, surfactant-containing oil-in-water emulsion (o/w emulsion) that employs surfactants that are considered non-irritant (pg. 2, para. 3).
Meiring does not mention siloxane.
Meiring teaches that it is advantageous if the o/w emulsion contains rhamnolipids in a concentration of 0.1 to 3% by weight, based on the total weight of the emulsion (pg. 2, para. 7). Meiring teaches that it is also advantageous if the o/w emulsifiers are selected from the group containing surfactants (pg. 2, para. 8) and teaches embodiments characterized in that the preparation contains the o/w emulsifier is in a concentration of 0.1 to 5% by weight, based on the total weight of the preparation (pg. 3, para. 1). Preparations that contain cetyl alcohol, stearyl alcohol and/or behenyl alcohol are advantageous in which these fatty alcohols are preferred in a concentration (total amount) from 0.5 to 4% by weight, based on the total weight of the preparation (pg. 3, last third of the pg.).
Meiring discloses that the composition can contain polymers such as polyacrylic acid, acrylates cross polymers like acrylates/C10-30 alkyl acrylate cross polymer for stabilization (pg. 4, third to the last para. from the bottom). The o/w emulsion contains xanthan gum, carragenan, cellulose derivatives (i.e., quaternized polysaccharides) (claim 13).
Meiring describes for cleaning the surface of skin and hair in the description, and while the example preparations are used as impregnation medium for cleaning wipes (pg. 5, para. 3), this is not to say the application thereof is limited to the applying to the surface of the skin and/or hair.
Meiring does not mention mono- or di- rhamnolipids (i.e., instant claims 11, 18).
Lu discloses an invention that relates to ester derivatives of rhamnolipids of formula (I) as nonionic surfactants, formulations containing same, and the use thereof (abstract). Lu aims to provide substances which cause a soft skin feeling after shaving and formulations thereof may impart an ability to eliminate unwanted skin odors (pg. 2, middle and last para.). Lu provides a process that is mild and gentle that avoids destroying the desired sugar structure (pg. 3, para. 1, see example 1 preparation of di-; example 2 preparation of mono-).
Lu does not mention siloxanes.
Lu teaches that it is inventively preferred when the formulations of the rhamnolipid ester are in an amount of 0.05 wt.% to 40 wt.%, the weight percentages being based on the total formulation (pg. 6, para. 8). Preferred formulations contain, in addition to the rhamnolipid esters, at least one further surfactant, e.g., anionic, nonionic, cationic and/or amphoteric surfactants and from an application point of view, preference is given to mixtures of anionic and nonionic surfactants (pg. 6, para. 9). The total surfactant content of the aqueous formulation is preferably from 5 to 60% by weight, based on the total formulation (pg. 6, para. 9).
The term "aqueous formulation" is to be understood as meaning a formulation which contains at least 5% by weight of water, based on the total composition under consideration (pg. 6, para. 7). The "pH" is defined as the value measured for corresponding substance at 25°C (pg. 4, last para.).
Lu discloses that rhamnolipid esters are preferably selected from diRLC10C10-ester, diC8C10-ester, diRLC10C12-ester, diRLC10C12: 1-ester and monoRLC10C10 ester (pg. 4, middle). Lu teaches and suggests that depending on the application, such mixture compositions contain more weight percent mono rhamnolipid ester than di-rhamnolipid ester OR more weight percent di-rhamnolipid ester as mono rhamnolipid ester, wherein the weight percentages refer to all mono- and di-rhamnolipid esters contained in the mixture composition (pg. 5, para. 1). The mixture compositions may contain, for example, more than 60% by weight, in particular more than 80% by weight, or even more than 95% by weight, di-rhamnolipid ester, or else, for example, more than 60% by weight, in particular more than 80% by weight, or even more than 95% by weight, of mono-rhamnolipid esters, the percentages by weight being based on all mono- and di-rhamnolipid esters present in the mixture composition (pg. 5, para. 2).
Regarding claims 11 and 18, Lu teaches that 60% di- to suggest a ratio of di- to mono- (60:40) and a ratio of di- to mono- (95:5) which are ratios close to those claimed. However, as Lu provides an example formulation showing rhamnolipid esters from Examples 3 and 4, Lu also discloses that Example 4 is made by taking di-rhamnolipid from Example 1 and that the proven yield was less than 5% (pg. 12).
Schulz is provided to show obviousness of the claimed ratios.
Schulz teaches that the washing power of surfactants can be essentially achieved by the use of a rhamnolipid mixture composed of 35 wt% to 45 wt% of C10C10 mono-rhamnolipid and 55 wt% to 65 wt% of C10C10 di-rhamnolipid (abstract, claim 1). Specifically, the rhamnolipid mixture disclosed is of from 35% by weight to 45% by weight of 3-({3-[(6-deoxy-aL-mannopyranosyl)oxy]decanoyl}oxy)decanoic acid and/or its sodium, potassium, ammonium, alkylammonium and/or hydroxyalkylammonium salt (CioCio-mono rhamnolipid) and 55% by weight to 65% by weight of 3-[(3-{[6-deoxy-2-0- (6-deoxy-aL mannopyranosyl)-al-mannopyranosyl] oxy}decanoyl) oxy] decanoic acid and/or its sodium, potassium, ammonium, alkylammonium and/or Hydroxyalkylammoniumsalz (CioCio-di rhamnolipid) (pg. 3, para. 3). Schulz cites a prior art reference in which the weight ratio of di-rhamnolipid to mono-rhamnolipid is greater than 51:49 (to read on instant claim 11); and another reference where rhamnolipid mixtures contain 51% by weight to 95% by weight of a certain di-rhamnolipid and 0.5% by weight to 9% by weight of a certain mono-rhamnolipid in which the weight ratio of di-rhamnolipid to mono-rhamnolipid is greater than 91:9 (pg. 2, para. 2) to read on instant claim 18.
Additionally, Schulz teaches that the active ingredients of these formulations are quaternary ammonium compounds (pg. 5, para. 5-6, see “esterquats”). The rhamnolipid mixture also contains at least 3, in particular at least 4 other surfactants (claim 8).
It would have been prima facie obvious to a person of ordinary skill in the art, ahead of the effective filing date of the claimed invention, to combine and apply the mono- and di- rhamnolipids taught by Lu and Schulz in the o/w emulsion composition taught by Meiring with expected results. One would be motivated to do so with a reasonable expectation of success because as Lu teaches and demonstrates adjusting concentrations of mono- and di- rhamnolipids to achieve a desired feel of the end user cosmetic product, Schulz surprisingly found that the use of certain rhamnolipids with an adjusted ratio of mono rhamnolipid to di-rhamnolipid leads to a superior washing performance (pg. 3, para. 3). Schulz provides a composition that further achieves a softer feel (pg. 5, para. 5). As such, these teachings would contribute to the art, absent a clear showing of evidence to the contrary.
For the foregoing reasons the instant claims are rendered obvious by the teachings of the prior art.
Response to Arguments
Applicants’ arguments are based on newly amended limitations which have been addressed by the new grounds of rejection above.
Conclusion
Claims 1-3, 6-8 and 11-22 are rejected; no claims are currently allowable.
The Examiner asks Applicant to provide support for the amendments in the application disclosure by referencing page numbers, paragraphs, figures, etc. for the sake of compact prosecution.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Karen Ketcham from 0900 to 1700 ET at (571) 270-5896. 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 Automated Interview Request http://www.uspto.gov/interviewpractice.
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, 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.
/Karen Ketcham/Examiner, Art Unit 1614
/ALI SOROUSH/Supervisory Patent Examiner, Art Unit 1614