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 .
Applicant’s amendment filed 1/27/2026 has been entered. Claims 6, 7, 10 and 12 were amended. Claims 1-12 are pending. Claims 1-5 are withdrawn. Claims 6-12 are under examination.
Withdrawn rejections
Applicant's amendments and arguments filed 1/27/2026 are acknowledged and have been fully considered. Any rejection and/or objection not specifically addressed below is herein withdrawn.
New Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claim 7 is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 7 has been amended to recite “dispersing a second structurant system into water to form a second concentrate, the structurant system comprising a third polysaccharide and a fourth polysaccharide that is different from the third polysaccharide” which is new matter. The specification does not support or reference a “second structurant system”, a “third polysaccharide” or a “fourth polysaccharide”. Applicant does not point to where support for the amendment can be found. The Examiner has only noted reference to a dilution step wherein the concentrated can be diluted with additional water and along with the water additional structurant system may be added (page 24, lines 21-25).
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 7 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 7 refers to dispersing a “second structurant system” comprising a “third polysaccharide” and a “fourth polysaccharide” which is indefinite. The specification fails to define the metes and bounds of the terms. For the purpose of examination the term “second structurant” has been treated as encompassing any structurant system comprising polysaccharides.
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 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.
Claims 6-12 are rejected under U.S.C. 103 as being unpatentable over Lynch (2018/0028707; published February 1, 2018).
Applicant’s Invention
Applicant claims a method of formulating an aqueous composition comprising:
Dispersing a structurant system comprising a first polysaccharide and a second polysaccharide that is different from the first polysaccharide into water to form a concentrate comprising a concentrated aqueous phase,
Mixing a liquid benefit agent into the concentrate to form droplets dispersed throughout the concentrate and
Diluting the concentrate with additional water to form the aqueous compositions which comprises an aqueous phase and the liquid benefit agent droplets discontinuously dispersed therein.
Determination of the scope and the content of the prior art
(MPEP 2141.01)
With respect to claims 6, 8, 9 and 11 of the instant application, Lynch et al. teach a freshening composition comprising a plurality of particles, a structuring system and aqueous carrier, wherein the composition has a yield stress of greater than 0 Pa and less than 1.0 Pa [0006-0011]. Lynch teach that the benefit agent includes liquid benefit agents, such as perfume mixtures, insect repellent, linalool, silicone oils and essential oils [0037]. The particle is a benefit agent delivery particle comprising a polymer of acrylic acid and the structurant system comprises a first polysaccharide, preferably xanthan gum and a second polysaccharide, preferably selected from konjac gum, locust bean gum and combinations thereof [0011; section E-H; 0047-50]. The freshening composition may include an aqueous carrier in and amount of 85-99.5 wt.% by weight of the freshening composition. The formulations are made by first preparing a 1% konjac gum solution (M2) and a 1% xanthan gum solution (M3) and then forming a perfume oil (M4) and combining the component until all materials are added in sequence [0196-0214]. The formulations include further polysaccharides including carrageenan (M13), gellan gum (M14) and locust bean gum (M15) which may be combined with the xanthan gum Table 8. The formulation is mixed and each material is added in sequence [0215-0220]. To form a good structurant system the first and second polysaccharide must strongly bind and preferred combinations are xanthan gum and konjac gum as well as xanthan gum with locust gum [0227]. This inherently implies the step of dispersing because the polysaccharides are mixed within water to form an aqueous phase. Additionally, Lynch teach that the structurant system may suspend the particles so that the particles do not float to the top or sink to the bottom to evenly distributed throughout the freshening composition [0098]. This implies that the benefit agent droplets are discontinuously dispersed throughout the aqueous phase.
With respect to claim 10, Lynch et al. teach the freshening composition includes particles which may include the benefit agent selected from perfume materials and on average the particles range from 0.1-500 microns, preferably 1-100 microns [0035-37].
With respect to claim 12, Lynch et al. teach the compositions comprise 0.001-20 wt.% of the perfume delivery component [0084].
Ascertainment of the difference between the prior art and the claims
(MPEP 2141.02)
With respect to claims 6-12, Lynch et al. do not specify further diluting of the formulation with additional water, however, water is taught as a carrier of the freshening composition and the water may be present in amounts of 84-99.5 wt.% when an aqueous solution is preferred. The formulations may also include diluents other than water to form a sprayable product [0088-0091]. This inherently implies that the concentrations of the structurant system in the concentrate would be greater than the concentration of the structurant in the aqueous phase after dilution. Therefore, diluting a concentrated form of the freshener composition to make a sprayable aqueous solution would have been prima facie obvious. Since the selection of any order of mixing ingredients is prima facie obvious adding water to dilute the formulation after combining the polysaccharide solutions with benefit agent would have been prima facie obvious.
With respect to claim 7, Lynch et al. do not teach making a first concentrate and a second concentrate using the same process steps, and then combining them (the first and second concentrate) before diluting them. However, Lynch et al. teach formulations are made by combining 1% konjac gum solution (M2), 1% xanthan gum solution (M3) and a perfume oil (M4) in sequence [0196-0214]. The formulations can further include further polysaccharides including gellan gum (M14) and locust bean gum (M15) which may be combined with the xanthan gum Table 8. Therefore, making a first concentrate, then making a second concentrate and combining them together would have been prima facie obvious. It would be prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose in order to form a third composition that is to be used for the very same purpose; the idea of combining them flows logically from their having been individually taught in prior art.” In re Kerkhoven 205 USPQ 1069, (C.C.P.A. 1980).
Finding of prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
Therefore, it would have been prima facie obvious to one of ordinary skill to use the teachings of Lynch et al. and include a further step of diluting the formulation with additional water with a reasonable expectation of success. One of ordinary skill would have been motivated before the time of filing to use the teachings of Lynch et al. to further include diluting concentrated freshening formulations because Lynch et al. teach adding high amounts of water to form a sprayable product and it would have been prima facie obvious to form a concentrated formulations by mixing the polysaccharide solutions with then benefit agent and then diluting the formulation since ingredients can be mixed in a different order to produce the same sprayable product.
Response to Arguments
Applicant's arguments filed 1/27/2026 have been fully considered but they are not persuasive.
Applicant argues that Lynch describes phase-stable sprayable freshening compositions comprising suspended particles. Thus, Applicant alleges that Lynch teaches particles which are not a liquid. The Examiner is not persuaded by this argument because Lynch teaches that the freshening composition includes an aqueous carrier in an amount of 85-99.5 wt.% by weight which implies a liquid formulation. Additionally, Lynch teach liquid benefit agents, e.g. perfumes and conditioning agents, including perfume mixtures, insect repellent, linalool, silicone oils and essential oils [0037]. Therefore the rejection has been maintained.
Conclusion
No claims 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DANIELLE D JOHNSON whose telephone number is (571)270-3285. The examiner can normally be reached Monday-Friday 9:00 am-5:30 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Bethany Barham can be reached on 571-272-6175. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/BETHANY P BARHAM/Supervisory Patent Examiner, Art Unit 1611
DANIELLE D. JOHNSON
Examiner
Art Unit 1617
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