DETAILED ACTION
Claims 1-11, 14-16, 22 and 24-28 are currently pending. Claims 1-11, 14-16, 22 and 24-27 are currently under examination.
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 .
Information Disclosure Statement
Applicant’s Informational Disclosure Statement, filed on 02/24/2026 has been considered. Please refer to Applicant's copy of the 1449 submitted herein.
Withdrawn Rejections
The prior rejection of claims 7-9 under 112(b) and (d) is withdrawn in light of Applicant’s amendment to remove “from” in claims 7-9, which the Examiner finds persuasive.
Examiner’s Note
Applicant's amendments and arguments filed 02/24/2026 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 Rejections and/or objections not reiterated from previous office actions are hereby withdrawn.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 02/24/2026, it is noted that claims 1-9, 16 and 26-27 have been amended and no new matter or claims have been added.
Modified Rejection:
The following rejections are modified based on Applicant’s claim amendments.
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.
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) 1-11, 14-16, 22 and 24-27 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 2011/0076309 (previously applied) in view of US 6,033651 (previously applied).
Regarding claims 1-2, 4-6, 16, 26, the limitation of a personal care composition ZAG in an amount of from 8% to 18% by wt of the total composition is met by the ‘309 publication teaching antiperspirant actives include aluminum zirconium tetrachlorohydrex gly ([0029]-[0030]) present at 20 wt% (Formulas 3 to 6).
The limitation of palm kernel oil is an amount of from 31% to 36.8% is met by the ‘309 publication teaching the composition is taught to include at least 10 wt% of plant oil which includes palm kernel oil (abstract, [0009], [0011]) wherein examples include 26.7 to 34.7 (Formulas 3-6).
The limitation of stearyl/cetyl alcohol in an amount of from 19.6 to 22.4% is met by the ‘309 publication teaching gellants are taught to include fatty alcohol [0015] such as stearyl alcohol [0019] present at 16% (Formula 3). It is noted that the “/” in stearyl/cetyl alcohol can stand for and/or thus is met by the ‘309 publication teaching stearyl alcohol. It would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to optimize the gellant amount to obtain the desired gelling of the composition ([0047]).
The limitation of C12-C15 alkyl benzoate in an amount of from 7-13.1% is met by the ‘309 publication teaching emollients include c12-15 alkyl benzoate and is present in any amount desired to achieve a desired emollient effect [0034]. As MPEP 2144.05 recites “where 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 optimization”.
The limitation of glyceryl monostearate in an amount of from 9.8 to 11.6% by wt of the total composition is met by the ‘309 publication teaching emollients may be used which include glyceryl monostearate which may be present in any desired amount [0034]. As MPEP 2144.05 recites “where 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 optimization”.
The limitation of castor oil wax in an amount of from 2.6% to 4.2% by wt is met by the ‘309 publication teaching gellants include waxes [0015] such as hydrogenated castor oil (castor wax) [0020] which is taught as present at 5% [0074] and are taught to provide the consistency suitable for application to the kin [0015] and thus an optimizable parameter.
The limitation of wherein the personal care compositions does not contain more than 5% cyclomethicone by weight of the composition is met by the ‘309 publication teaching in some embodiments volatile silicone is excluded from the compositions, wherein cyclomethicone is a volatile silicone [0032] and examples include no cyclomethicone (Formula 4).
Regarding claim 3, the limitation of further comprising corn starch presented in an amount of about 5% is met by the ‘309 publication teaching the composition may optionally further comprise corn starch as an absorbent material [0043]. Adsorbent materials are taught to include corn starch and talc wherein tac may be present from 1-10 wt% ([0033], [0043]), thus making it obvious to use corn starch in 1-10wt% range an optimize to obtain the desired absorbent properties.
Regarding claims 7-11 and 14-15, the limitation of wherein the glyceryl-based emulsifier is glyceryl monostearate at 9.8, 11.2 and 11.6 %wt is met by the ‘309 publication teaching emollients may be used which include glyceryl monostearate which may be present in any desired amount [0034]. As MPEP 2144.05 recites “where 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 optimization”.
The limitation of wherein ZAG is present in an amount of 18, 10 and 8%, from 7 to 22 wt%, 10-18 wt%, wherein ZAG is activated it met by the ‘309 publication teaching antiperspirant actives include aluminum zirconium tetrachlorohydrex gly ([0029]-[0030]) present at 20 wt% (Formulas 3 to 6). As MPEP 2144.05 recites “where 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 optimization”.
Regarding claim 22, the limitation of wherein the personal care compositions is in the form selected from antiperspirants is met by the ‘309 publication teaching antiperspirant compositions (title).
Regarding claims 24-25 and 27, the limitation of wherein the composition is an antiperspirant does not contain any cyclomethicone is met by the ‘309 publication teaching in some embodiments volatile silicone is excluded from the compositions, wherein cyclomethicone is a volatile silicone [0032] and examples include no cyclomethicone (Formula 4). The composition may include antiperspirant and deodorant active agents ([0031], [0023]).
The ‘309 publication does not specifically teach stearyl and cetyl alcohol (claim 1).
The ‘651 patent teaches a single phase aqueous gel composition comprising an antiperspirant active ingredient (abstract). Oils may include naturally occurring oils such as palm oil (column 13, lines 5-15). Waxes are taught to be in the oily phase and include fatty alcohols. These modifiers are taught as gel structure modifiers for the oily phase and are present from 0.1 to 30%. Fatty alcohols are taught to include cetyl alcohol, stearyl alcohol, cetearyl alcohol and the like (column 14, lines 30-50).
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 v. Teleflex, 127 S.Ct. 1727, 1741 (2007). 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 disclosed ingredients (for example, palm kernel oil, structuring agent such as stearyl alcohol, glyceryl monostearate, metal containing antiperspirant and a first source of emollient, and optimize the amounts to obtain the desired antiperspirant) from within the prior art disclosure of the ‘309 publication, to arrive at the instantly claimed antiperspirant compristion “yielding no more than one would have expected from such an arrangement”.
That being said and in lieu of objective evidence of unexpected results, the ZAG concentration can be viewed as a variable which achieves the recognized result of successfully providing an antiperspirant/deodorant. The optimum or workable range of dosing can be accordingly characterized as routine optimization and experimentation (see MPEP 2144.05 (II)B). “[Discovery of an optimum value of a result effective variable in a known process is ordinarily within the skill of the art.” In re Boesch, 617 F.2d 272, 276 (CCPA 1980). Applicants provide no evidence of any secondary consideration such as unexpected results that would render the optimized amounts of dosage nonobvious.
It would have been obvious to one of ordinary skill in the art to substitute a first fatty alcohol, stearyl alcohol with a second fatty alcohol, i.e. cetearyl alcohol, as taught by the ‘651 patent with a reasonable expectation of success because the simple substitution of one known element for another would have yielded predictable results to one of ordinary skill in the art at the time of the invention. M.P.E.P. §2144.07 states "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).” When substituting equivalents known in the prior art for the same purpose, 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). M.P.E.P. §2144.06.
One of ordinary skill in the art before the filing date of the claimed invention would have reasonable expectation of success in using cetearyl alcohol for the stearyl alcohol taught by the ‘309 publication because the ‘651 patent teaches the use of stearyl alcohol and cetearyl alcohol interchangeability. One of ordinary skill in the art before the effective filing date of the claimed invention would have a reasonable expectation so success as the ‘309 publication and the ‘659 patent are both directed to antiperspirant compositions comprising oils such as palm oil and contain fatty alcohols as structuring agents, thus it would be obvious use cetearyl alcohol a known gel structuring agent for the composition containing gellants as taught by the ‘309 publication.
Response to arguments:
Applicant’s arguments have been fully considered and are not deemed to be persuasive.
103: the ‘309 publication (Misner) in view of the ‘651 patent (Dolak)
Applicant argues the ‘309 publication discloses formulas 3-6. The ‘309 publication fails to suggest formulations that contain ZAG in an amount of from 8-18%, palm kernel oil in an amount of 31-36.8%, stearyl/cetyl alcohol in an amount of from 19.6-22.4%, C12-15 alkyl benzoate in an amount of from 7-13.1%, glycerol monostearate in an amount of from 9.8 to 11.6%, and castor wax in an amount of from 2.6-4.2%.
Applicant's arguments fail to comply with 37 CFR 1.111(b) because they amount to a general allegation that the claims define a patentable invention without specifically pointing out how the language of the claims patentably distinguishes them from the references. Applicant is referred to the discussion of claim 1 above wherein the limitations and citation for each ingredient are taught.
Applicant argues the ‘651 patent fails to teach or fairly suggest formulations that contain ZAG in an amount of from 8-18%, palm kernel oil in an amount of 31-36.8%, stearyl/cetyl alcohol in an amount of from 19.6-22.4%, C12-15 alkyl benzoate in an amount of from 7-13.1%, glycerol monostearate in an amount of from 9.8 to 11.6%, and castor wax in an amount of from 2.6-4.2%.
Applicant's arguments fail to comply with 37 CFR 1.111(b) because they amount to a general allegation that the claims define a patentable invention without specifically pointing out how the language of the claims patentably distinguishes them from the references. Applicant is referred to the discussion of claim 1 above wherein the limitations and citation for each ingredient are taught.
Applicant argues there is no motivation to modify formulas 3-6 and arrive at the claim 1 as a whole.
In response, the ‘309 publication is not only as good as it’s examples, but the teachings as a whole. “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).” (see MPEP 2123). Further, “the prior art’s mere disclosure of more than one alternative does not constitute a teaching away from any of these alternatives because such disclosure does not criticize, discredit, or otherwise discourage the solution claimed….” In re Fulton, 391 F.3d 1195, 1201, 73 USPQ2d 1141, 1146 (Fed. Cir. 2004).” (see MPEP 2141.02).
Applicant argues unexpected results. Applicant argues underarm deodorants control odor by eliminating the bacterial that cause odor. At the same time, skin sensitivity and vulnerability to various compound may limit the practical upper concentrations in personal care formulations. Replacing cyclomethicone, but at the same time maintaining the same desirable properties of an antiperspirant or deodorant product, is a challenge within the personal care composition industry. The inclusion of a glyceryl-based emulsifier (e.g., glyceryl monostearate) acts to make the compristion matrix less hydrophobic, which in turn improves diffusion of water to release a given active and deliver the active to a user’s pores. The improved delivery allows for the use of less a metal active while still maintaining efficacy.
In response, the ‘309 publication is directed to an antiperspirant/deodorant composition (title) wherein a composition in which the volatile silicone is partially or fully replaced by a plant oil (abstract). Emollients are taught to be glyceryl monostearate [0034]. The active agent is taught to include aluminum zirconium tetrachlorohedrex gly [0060]. Thus the ‘309 publication teaches or suggests the use of ZAG and glycerol monostearate to be used in an antiperspirant composition which does not include a volatile silicone compound.
Applicant points to four formula (19-22) in Applicant’s Table 4 stand out from all the tested formulas in Table 4. The sweat reduction performance of the four formulas is unexpectedly higher than all other similar formula (23-27).
In response, the presented data is not a proper side by side comparison. The examples pointed to contain different concentrations of each ingredient thus not pattern to the results can be obtained as multiple variables are changed in each example. The data appears to present optimization of the ingredients to obtain the desired property of sweat reduction and not unexpected results. The market control is taught to be 73.5 and 53.5 % reduction [0183] wherein the results in Table 4 range from 50.4% to 69% reduction, wherein formula which applicant claim are inferior still demonstrate a reduction in sweat more than the market control and thus are not unexpectedly higher.
Conclusion
No claims are 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.
Examiner Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LYNDSEY MARIE BECKHARDT whose telephone number is (571)270-7676. The examiner can normally be reached Monday-Thursday 9am to 4pm and Friday 9am to 2pm.
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-Yong 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.
/LYNDSEY M BECKHARDT/Examiner, Art Unit 1613
/BRIAN-YONG S KWON/Supervisory Patent Examiner, Art Unit 1613