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 .
DETAILED ACTION
Claims 1-3, 7-15, and 17-24 are pending. Claims 4-6 and 16 have been canceled. Note that, Applicant’s amendment and arguments filed February 2, 2026, have been entered.
Claims 19 and 20 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on July 2, 2025.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 February 20, 2026, has been entered.
Objections/Rejections Withdrawn
The following objections/rejections as set forth in the Office action mailed 9/24/25 have been withdrawn:
The rejection of claims 1, 2, 7-12, and 21-24 under 35 U.S.C. 103 as being unpatentable over Keenan et al (US2005/0288208), has been withdrawn.
The rejection of claims 1, 2, 4, 7-12, 15-18, 21, 22, and 24 under 35 U.S.C. 103 as being unpatentable over WO2020/172423 in view of Lucka et al (US 2010/0267599) or EP 1,479,377, has been withdrawn.
The rejection of claims 3, 13, and 14 under 35 U.S.C. 103 as being unpatentable over WO2020/172423 in view of Lucka et al (US 2010/0267599) or EP 1,479,377 as applied to claims 1, 2, 4, 7-12, 15-18, 21, 22, and 24 above, and further in view of Heath et al (US 2011/0039744) or WO2013/013164, has been withdrawn.
The rejection of claim 23 under 35 U.S.C. 103 as being unpatentable over WO2020/172423 in view of Lucka et al (US 2010/0267599) or EP 1,479,377 as applied to claims 1, 2, 4, 7-12, 15-18, 21, 22, and 24 above, and further in view of Keenan et al (US2005/0288208), has been withdrawn.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.
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.
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.
Claims 1, 2, 7-12, 15, and 21-24 are rejected under 35 U.S.C. 103 as being unpatentable over Keenan et al (US2005/0288208) in view of Premachandran et al (US2018/0092357).
With respect to independent, instant claim 1, Keenan et al teach a personal care cleansing article is provided which includes a cleansing composition having a lathering surfactant and a water absorbing material capable of accepting at least ten times the weight of the material of water, the composition being held within a water-insoluble sachet. See Abstract. The articles of the present invention typically include at least one lathering surfactant in an amount from about 0.5% to about 60%, preferably from about 0.75% to about 40%, and more preferably from about 1% to about 20%, even more preferably from about 2% to about 15% based on the weight of the cleansing composition. A wide variety of lathering surfactants are useful herein and include those selected from the group consisting of anionic, nonionic, cationic, amphoteric and lathering surfactant mixtures thereof. See paras. 16 and 17. Suitable anionic surfactants include fatty acyl isethionates having from 10 to 22 carbon atoms, with sodium cocoyl isethionate being preferred. See para. 27. Personal care articles of the present invention in a preferred embodiment are substantially dry. In another embodiment of the present invention, any water present in an otherwise substantially dry personal care article will be tied up with the water absorbent solid of this invention. By the term "substantially anhydrous" or "substantially dry" is meant the presence of no more than about 25%, preferably no more than about 10%, more preferably no more than about 5%, and optimally no more than 1% of water by weight of the cleansing composition or article, respectively. See para. 45.
Personal care articles of the present invention in a preferred embodiment are substantially dry. In another embodiment of the present invention, any water present in an otherwise substantially dry personal care article will be tied up with the water absorbent solid of this invention. By the term "substantially anhydrous" or "substantially dry" is meant the presence of no more than about 25%, preferably no more than about 10%, more preferably no more than about 5%, and optimally no more than 1% of water by weight of the cleansing composition or article, respectively.
When the personal care article is intended to be an effervescent type, an alkaline material must be present and an acidic material is present. Suitable acidic materials include citric acid, etc. See paras. 43 and 44. Advantageously the combined amount of acidic and alkaline materials when present will be at least about 1.5%, preferably from about 40 to about 95%. See para. 46. A variety of skin benefit agents may be included to improve after-feel properties. Advantageously these substances will be available as substantially dry powders. Alternatively these substances may be liquids deposited upon or into a powdered substrate (e.g. calcium silicate or zeolite) to achieve a resultant dry flowing powder. Within the skin benefit agent scope are several categories of materials. These include emollients, antiaging actives, antibacterials and fungicides, skin lighteners, sunscreens and combinations thereof. Amounts of the skin benefit agents may range from about 0.001 to about 40%, preferably from about 0.1 to about 20%, more preferably from about 0.5 to about 10%, optimally between about 1 and about 5% by weight of the total composition. See para. 47. Emollients may be in the form of natural or synthetic esters, silicone oils, hydrocarbons, starches, fatty acids and mixtures thereof. Typically the emollient may range in concentration from about 0.1 to about 35% by weight of the cleansing composition. Electrolytes may be selected from alkali, alkaline earth or ammonium salts of phosphates, silicates, halides, sulphates and mixtures thereof. Thickeners which may improve afterfeel properties on skin include inorganic or organic substances. A particularly preferred inorganic thickener is sodium magnesium silicate commercially available as Optigel SH.RTM. Organic thickeners include alginic acid as well as sodium and calcium alginates, sodium carboxymethyl cellulose, hydroxypropyl methylcellulose, hydroxypropyl cellulose, hydroxyethyl cellulose and combinations thereof. Amounts of the thickener may range from about 0.1 to about 20% by weight of the cleansing composition. See paras. 48-68. Advantageously an emotive agent such as a fragrance and/or botanical extract are included with the effervescent cleansing composition. Fragrances and botanicals are often liquids. For this reason it may be necessary to uniformly distribute and allow absorption of liquid components into the solid powder. One method of best achieving this is to spray these liquids onto the solids. Amounts of the fragrance and/or botanicals combined may be at levels from about 0.1 to about 3%, preferably from 0.5 to 2%, optimally from 0.8 to 1.5% by weight of the cleansing composition. See para. 70.
Keenan et al do not teach the use of sodium benzoate and potassium sorbate or a composition containing an acidic cleaner, a pH control agent, a gelling agent, a drying agent, a water softener, a surfactant, preservative boosters comprising sodium benzoate and potassium sorbate, and the other requisite components in the specific amounts as recited by independent, instant claim 1 and the respective dependent claims.
Premachandran et al teach a synergistic preservative composition capable of providing broad spectrum antimicrobial activity comprising: (i) about 0.1 wt. % to about 99.9 wt. % of propylene carbonate; (ii) about 0.1 wt. % to about 99.9 wt. % of one or more organic compounds, and wherein, inclusion of each additional organic compound is capable of demonstrating cumulative synergistic effect; and (iii) optionally about 0.1 wt. % to 99.0 wt. % of one or more preservative compounds, and wherein, inclusion of each preservative compound is capable of demonstrating cumulative synergistic effect. See Abstract. the synergistic preservative composition comprises: (i) propylene carbonate; (ii) one or more organic compounds and additionally one or more preservative compounds. Non-limiting examples of additional preservatives employed are selected from the group consisting of potassium sorbate, sodium benzoate, etc. See para. 59. The synergistic preservative composition of the present application is capable of inhibiting or killing yeasts, mold spores, gram (+), gram (−) bacterial strains, acne causing strains, odor causing strains, or mycoses causing strains, and wherein, the compositions can inhibit or retard or kill Candida tropicalis, Candida albicans, Hansenula anomala, Saccharomyces cerevisiae, Torulaspora delbreuckii, Zygosaccharomyces bailii, Zygosaccharomyces rouxii, Bacillus subtilis, Bacillus cereus, Staphylococcus aureus, Staphylococus epidermidis, Escherichia coli, Salmonella typhimurium, Salmonella enteritidis, Pseudomonas aeruginosa, Aspergillus niger, Aspergillus flavus, Penicillium islandicum, Penicillium citrinum, Penicillium chrysogenum, Fusarium oxysporum, Fusarium graminearum, Fusarium solani, Alternaria alternata, Aspergillus brasiliensis, Burkhodelia cepacia, Enterobacter aerogenes, Enterobacter cloacae, Enterobacter gergoviae, Klebsiella pneumoniae, Proteus vulgaris, Pseudomonas fluorescens, Pseudomonas putida, Penicillium pinophilum and/or Mucor racemosus. See para. 69. Such formulated synergistic preservative composition comprising propylene carbonate, organic compound and preservative can be used in various end-user based consumer applications, particularly in cosmetic products, toiletry products, personal care products, oral care products, skin care products, hair care products, etc. See para. 73.
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to use a preservative system containing sodium benzoate and potassium sorbate in the composition taught by Keenan et al, with a reasonable expectation of success, because Premachandran et al teach that the use of a preservative system containing sodium benzoate and potassium sorbate in a similar composition provides broad spectrum antimicrobial activity in a similar composition and further, such properties would be desirable in the composition taught by Keenan et al.
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to formulate a composition containing an acidic cleaner, a pH control agent, a gelling agent, a drying agent, a water softener, a surfactant, preservative boosters comprising sodium benzoate and potassium sorbate, and the other requisite components in the specific amounts as recited by independent, instant claim 1 and the respective dependent claims, with a reasonable expectation of success and similar results with respect to other disclosed components, because the broad teachings of Keenan et al in view of Premachandran et al suggest a composition containing an acidic cleaner, a pH control agent, a gelling agent, a drying agent, a water softener, a surfactant, preservative boosters comprising sodium benzoate and potassium sorbate, and the other requisite components in the specific amounts as recited by independent, instant claim 1 and the respective dependent claims. Note that, the Examiner asserts that the broad teachings of Keenan et al in view of Premachandran et al would suggest compositions which are capable of producing a stable gel with pH ranging from 7.5 to 12.5 when dissolved in water as recited by the instant claims because Keenan et al in view of ‘423 teach compositions containing the same components in the same amounts as recited by the instant claims and further, such properties would flow naturally from the teachings of Keenan et al in view of Premachandran et al.
Claims 3, 13, and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Keenan et al (US2005/0288208) in view of Premachandran et al (US2018/0092357) as applied to the rejected claims above, and further in view of Heath et al (US 2011/0039744) or WO2013/013164.
Keenan et al relied upon as set forth above. However, Keenan et al do not teach the use of oat flour in addition to the other requisite components of the composition as recited by the instant claims.
Heath teaches a personal cleaning composition containing a liquid matrix comprising water, a lathering surfactant and an external structurant, etc. See Abstract. The composition may contain exfoliating agents such as oat flour, etc., in amounts from 1% to 15% by weight of the composition. See paras. 64-65.
‘164 teaches a hand wash composition containing from about 0.3% to about 8% by weight of phthalimido-peroxyhexanoic acid, and at least one anionic surfactant, etc. See paras. 2-4. The composition may contain a thickening agent such as hydroxypropyl methyl cellulose, oat flour, etc. See paras. 25-30.
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to use oat flour in the composition taught by Keenan et al, with a reasonable expectation of success, because Heath et al teach the use of oat flour as an exfoliant in a similar composition, wherein an exfoliant would be desirable in Keenan et al to provide enhanced and improved cleaning; or ‘164 teaches the equivalence of oat flour to hydroxypropyl methyl cellulose as a thickening agent in a similar composition and further, Keenan et al teach the use of hydroxypropyl methyl cellulose as a thickener.
Claims 17 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Keenan et al (US2005/0288208) in view of Premachandran et al (US2018/0092357) as applied to the claims 1, 2, 7-12, 15, and 21-24 above, and further in view of WO2020/172423.
Keenan et al relied upon as set forth above. However, Keenan et al do not teach the use of a powder or tablet form as recited by the instant claims.
‘423 teaches stable, anhydrous foaming and gelling hand soap concentrate formulations. The concentrate formulations may be in a solid form such as a tablet, powder, within a polymer membrane, etc. The stable concentrate comprises a surfactant and a pH control agent. The stable anhydrous hand soap concentrate formulation in a solid form can further comprise an ingredient selected from a preservative, a preservative booster, a water softening agent, an emollient, a viscosity adjuster, an acidic cleaning, a basic cleaner, a thickening agent, and a binding agent. The foaming concentrate may have a pH of about 4 to about 6 when dissolved in an appropriate amount of water. See paras. 5-10 and 33-36. The amount of acidic cleaner may range from about 1% to about 85% by weight and the acidic cleaner may be citric acid, etc. See para. 49. Note that, citric acid as taught by ‘423 would fall within the scope of both acidic cleaning and pH control agent as recited by the instant claims (See instant claims 8 and 10). The amount of preservative booster is from about 0.1% to about 10% by weight and includes a sorbate such as potassium sorbate. See para. 52. A lubricating agent may be used in amounts from about 0.1 to about 2% by weight and include sodium benzoate, etc. See para. 60. Suitable thickening agents (i.e., gelling agents) include xanthan gum, potassium alginate, guar gum and/or hydroxypropyl methyl cellulose, etc., which may be used in amounts from 1% to about 15% by weight. See para. 53. The water-softening agent (i.e., chelating agent) may be use in amounts from about 0.01% to about 95% by weight and includes EDTA, MGDA, etc. The amount of a binding agent may range from about 0% to about 30% by weight and includes polyethylene glycol, sorbitol, etc. See para. 57. A carrier may be used in amounts from about 1% to about 10% by weight and includes silicon dioxide, etc. See para. 61. Note that, the Examiner asserts that silicon dioxide would fall within the broad scope of “drying agent” as recited by the instant claims. Process aids/emollients may be used in the compositions such as coconut oil, coconut fatty acid, etc. See para. 59.
Surfactants may be used in amounts from about 0.01% to about 40% by weight. See claim 4. Fragrances may be used in amounts from 1 to 3% by weight.
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to formulate the composition as taught by Keenan et al as a powder or table composition, with a reasonable expectation of success, because ‘423 teaches a similar personal cleansing composition in the form of a powder or tablet and further, Keenan et al teach the formulation of dry personal cleansing compositions in general.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-3, 7-15, 17, 18, and 21-24 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-4, 6-18, and 21-24 of copending Application No. 17/860658 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because claims 1-4, 6-18, and 21-24 of copending Application No. 17/860658 encompass the material limitations of the instant claims.
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to formulate a composition containing an acidic cleaner, a pH control agent, a gelling agent, a drying agent, a water softener, a surfactant, and the other requisite components in the specific amounts as recited by independent, instant claim 1 and the respective dependent claims, with a reasonable expectation of success and similar results with respect to other disclosed components, because claims 1-4, 6-18, and 21-24 of copending Application No. 17/860658 suggest a composition containing an acidic cleaner, a pH control agent, a gelling agent, a drying agent, a water softener, a surfactant, and the other requisite components in the specific amounts as recited by independent, instant claim 1 and the respective dependent claims.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Response to Arguments
With respect to the rejection of the instant claims under 35 U.S.C. 103 as being unpatentable over Keenan et al, Applicant states that Although Keenan discloses that the cleaning composition comprises a water-absorbing material that can form a gel network when combined with water, Keenan does not teach or suggest a formulation comprising about 50-60% surfactant. Applicant states that Keenan et al, which, despite disclosing a broad surfactant percentage range of 0.5% to 60%, specifically teaches a much lower, narrower preference of 2% to 15%, with examples limited only to 11% to 14%. Also, Applicant states that, Keenan et al do not point to the use of a combination of sodium benzoate and potassium sorbate as preservatives and does not provide any specific teachings or suggestions regarding the pH of the cleaning composition, such as, for example, from a pH of about 7.5 to about 12.5.
In response, note that, the Examiner asserts that the teachings of a reference are not limited to the preferred embodiments and that the broad teachings of Keenan et al in view of Premachandran et al suggest compositions containing same components in the same amounts as recited by the instant claims. Note that, the fact that a specific embodiment is taught to be preferred is not controlling, since all disclosures of the prior art, including unpreferred embodiments, must be considered. Merck & Co., Inc. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989). The prior art’s mere disclosure of more than one alternative does not constitute a teaching away from any of the disclosed alternatives. See In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). "[a] reference must be considered for everything that it teaches, not simply the described invention or a preferred embodiment." CRFD Research, Inc. v. Matal, 876 F.3d 1330, 1349 (Fed. Cir. 2017) (quoting In re Applied Materials, Inc., 692 F.3d 1289, 1298 (Fed. Cir. 2012)); see also In re Heck, 699 F.2d 1331, 1333 (Fed. Cir. 1983) (explaining that "[t]he use of patents as references is not limited to what the patentees describe as their own inventions". Additionally, disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments. In re Susi, 440 F.2d 442, 169 USPQ 423 (CCPA 1971); a known or obvious composition does not become patentable simply because it has been described as somewhat inferior to some other product for the same use. In re Gurley, 27 F.3d 551, 554, 31 USPQ2d 1130, 1132 (Fed. Cir. 1994); See MPEP 2123(II). The fact that a reference discloses a multitude of effective combinations does not render any particular formulation less obvious. Merck & Co., Inc. v. Biocraft Labs, 874 R.2d 804, 808 (Fed. Cir. 1989). See also, In re Corkill, 771 F.2d 1496, 1500 (Fed. Cir. 1985) (obviousness rejection of claims affirmed in light of prior art teaching that “hydrated zeolites will work” in detergent formulations even though “the inventors selected the zeolites of the claims from amount thousands of compounds”); In re Susi, 440 F.2d 442, 445 (CCPA 1971) (obviousness rejection affirmed where the disclosure of the prior art was huge, but it undeniably included at least some of the compounds recited in appellant’s generic claims and was a class of chemicals to be used for the same purpose as appellant’s additives).
For example, Keenan et al clearly teach that the composition includes at least one lathering surfactant in an amount from about 0.5% to about 60% (See para. 27 of Keenan et al) which would clearly suggest compositions containing, for example, 50% or 60% by weight of surfactant, and fall within the scope of the instant claims. Also, the Examiner asserts that Premachandran et al is analogous prior art relative to the claimed invention and Keenan et al and that one of ordinary skill in the art clearly would have looked to the teachings of Premachandran et al to cure the deficiencies of Keenan et al. Premachandran et al is a secondary reference reference relied upon for its teaching of sodium benzoate and potassium sorbate. The Examiner asserts that one of ordinary skill in the at clearly would have been motivated to use a preservative system containing sodium benzoate and potassium sorbate in the composition taught by Keenan et al, with a reasonable expectation of success, because Premachandran et al teach that the use of a preservative system containing sodium benzoate and potassium sorbate in a similar composition provides broad spectrum antimicrobial activity in a similar composition and further, such properties would be desirable in the composition taught by Keenan et al.
Note that, the Examiner asserts that the broad teachings of Keenan et al in view of Premachandran et al would suggest compositions which are capable of producing a stable gel with pH ranging from 7.5 to 12.5 when dissolved in water as recited by the instant claims because Keenan et al in view of Premachandran et al teach compositions containing the same components in the same amounts as recited by the instant claims and further, such properties would flow naturally from the teachings of Keenan et al in view of Premachandran et al. The fact that appellant has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious." Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985) (The prior art taught combustion fluid analyzers which used labyrinth heaters to maintain the samples at a uniform temperature. Although appellant showed an unexpectedly shorter response time was obtained when a labyrinth heater was employed, the Board held this advantage would flow naturally from following the suggestion of the prior art.). See also Lantech Inc. v. Kaufman Co. of Ohio Inc., 878 F.2d 1446, 12 USPQ2d 1076, 1077 (Fed. Cir. 1989), cert. denied, 493 U.S. 1058 (1990) (unpublished — not citable as precedent) ("The recitation of an additional advantage associated with doing what the prior art suggests does not lend patentability to an otherwise unpatentable invention."). See MPEP 2145(II.). Thus, the Examiner asserts that the teachings of Keenan et al in view of Premachandran et al are sufficient to render the claimed invention obvious under 35 USC 103.
With respect to the rejection of claims 3, 13, and 14 under 35 U.S.C. 103 as being unpatentable over Keenan et al in view of Premachandran et al, further in view Heath et al (US 2011/0039744) or WO2013/013164, Applicant states that the teachings of Keenan et al in view of Premachandran et al are not sufficient to suggest the claimed invention and that the teachings of Heath et al or ‘164 are not sufficient to remedy the deficiencies of Keenan et al in view of Premachandran et al. In response, note that, the Examiner asserts that the teachings of Keenan et al in view Premachandran et al are sufficient to suggest the claimed invention for the reasons set forth above. Additionally, the Examiner asserts that Heath et al and ‘164 are analogous prior art relative to the claimed invention and Keenan et al and that one of ordinary skill in the art clearly would have looked to the teachings of Heath et al and ‘164 to cure the deficiencies of Keenan et al with respect to instant claims 3, 13, and 14. Heath et al and ‘164 are secondary references relied for their teaching of oat flour. While Applicant states that Heath et al and ‘164 all disclose liquid cleaning compositions and neither of Heath et al and '164 contemplate anhydrous cleaning compositions, Keenan et al which is the primary reference teaches anhydrous compositions as recited by the instant claims. The Examiner asserts that one of ordinary skill in the art clearly would have been motivated to use oat flour in the composition taught by Keenan et al, with a reasonable expectation of success, because Heath et al teach the use of oat flour as an exfoliant in a similar composition, wherein an exfoliant would be desirable in Keenan et al to provide enhanced and improved cleaning; or ‘164 teaches the equivalence of oat flour to hydroxypropyl methyl cellulose as a thickening agent in a similar composition and further, Keenan et al teach the use of hydroxypropyl methyl cellulose as a thickener. Thus, the Examiner asserts that the teachings of Keenan et al in view of Premachandran et al, further in view Heath et al (US 2011/0039744) or WO2013/013164, are sufficient to render the claimed invention obvious under 35 USC 103. With respect to the rejection of claims 1-3, 7-15, 17, 18, and 21-24 on the ground of nonstatutory double patenting as being unpatentable over claims 1-4, 6-18, and 21-24 of copending Application No. 17/860658 (reference application), Applicant states that the claims, as currently amended, are patentably distinct from the claims of copending Application No. 17/860658, for example because the instant claims recite one or more preservative boosters comprising sodium benzoate and potassium sorbate; and the formulation producing a stable gel with a pH ranging from about 7.5 to 12.5 when dissolved in water, whereas the claims of copending Application No. 17/860658 do not. In response, note that, 17/860658 claims the use of preservative boosters such as sodium benzoate and potassium sorbate which are the same preservatives as recited by the instant claims. Also, the Examiner asserts that claims 1-4, 6-18, and 21-24 of copending Application No. 17/860658 would suggest compositions which are capable of producing a stable gel with pH ranging from 7.5 to 12.5 when dissolved in water as recited by the instant claims because 1-4, 6-18, and 21-24 of copending Application No. 17/860658 teach compositions containing the same components in the same amounts as recited by the instant claims and further, such properties would flow naturally from claims 1-4, 6-18, and 21-24 of copending Application No. 17/860658.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Remaining references cited but not relied upon are considered to be cumulative to or less pertinent than those relied upon or discussed above.
Applicant is reminded that any evidence to be presented in accordance with 37 CFR 1.131 or 1.132 should be submitted before final rejection in order to be considered timely.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to whose telephone number is (571)272-1312. The examiner can normally be reached M-F, 8:30am-6:00pm, EST.
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/GREGORY R DELCOTTO/Primary Examiner, Art Unit 1761
/G.R.D/March 5, 2026