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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 10/13/2025 has been entered.
Withdrawn Rejections:
Applicant's amendments and arguments filed on 09/25/2025 are acknowledged and have been fully considered. The Examiner has re-weighed all the evidence of record. Any rejection and/or objection not specifically addressed below is herein withdrawn.
The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set of rejections and/or objections presently being applied to the instant application.
Claims 1, 3-9, 11-12, 14-17 and 20 are pending, claims 1, 3-9, 11-12, 16-17 and 20 are under examination.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 10/13/2025 is being considered by the examiner.
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 of this title, 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 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, 3-9, 11-12, 16-17 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Brooks (WO2018087147) in view of Collier et al. (US20120014885) and Fogel (US6126951).
Determination of the scope and content of the prior art
(MPEP 2141.01)
Brooks teaches the deodorizing agent in the form of a pourable liquid at ambient temperature or at the temperature at which it is incorporated into a deodorant composition. Zinc neodecanoate in neat form is a pourable liquid and can
be used as the deodorizing agent as such. In another embodiment of the invention, the deodorizing agent may be in the form of a solution or a blend consisting essentially of zinc neodecanoate and a solvent therefor compatible with deodorant applications. The deodorizing agent of the present invention may further comprise a fragrance component comprising one or more fragrance ingredients. Alternatively, or in addition, the deodorizing agent may also comprise a solvent, such as isopropyl myristate (page 5, line 7-23). The fragrance may be presented in the form of free fragrance oil, or in encapsulated form (page 8, line 14-17). Particular deodorant compositions of the invention may contain levels of deodorizing agent such that the finished deodorant composition comprises up to about 20 wt% of zinc neodecanoate, more particular 2 to 10 wt% (page 9, line 5-10). Deodorant compositions may contain an emollient from about 10 wt% to about 90 wt% based on the total weight of the deodorant composition to have a solution or other homogenous liquid or liquid dispersion. The emollient includes mineral oil, petrolatum, cyclopentasiloxane, dimethicone (page 10, line 27 to page 11, line 21). Depending on the chosen product form, the deodorant compositions of the present invention may employ a propellant. Suitable propellants include, but are not limited to, dimethylether, 1,1-difluoroethane, 1,1,1,2-tetrafluoro ethane, carbon dioxide, butane, isobutane, propane, isopentane, pentane, nitrous oxide, carbon dioxide, halogenated hydrocarbons such as trichlorofluoromethane, dichlorodifluoromethane, dichlorotetra- fluoroethane trichlorotrifluoroethane, trichlorotetrafluoroethane, and monochlorodifluoromethane, and combinations thereof. The total propellant concentration in the deodorant compositions can range from about 5% to about 99%, more typically from about 15% to about 90%, even more preferably from about 20% to about 70%, by weight of the deodorant composition (page 12, line 20-30). The deodorant compositions of the present invention may further comprise one or more components such as avocado oil and other vegetative oils, (page 13. Line 1-7). The deodorant compositions of the present invention can be formulated in any of the
known or otherwise effective product formats. Representative product formats include
solid and solid-like forms (e.g., sticks, waxes, powders), liquids (e.g., aerosol sprays, pump sprays, mist sprays, roll-ans, wipes), and semi-solids (e.g., gels, creams, soft solids, lotions. Particularly preferred product formats are anhydrous aerosol products (page 14, line 14-25).
Collier et al. teaches personal skin care composition (abstract). In one embodiment, the personal care composition is deodorant (page 3, [0020]; page 7, [0066]; page 26, [0242]). The personal composition comprises 1% to 15% of emollient includes straight and branched chain hydrocarbons having from about 7 to about 40 carbon atoms, such as mineral oils, dodecane, squalane, cholesterol, hydrogenated polyisobuty lene, isohexadecane, isoeicosane, isooctahexacontane, iso hexapentacontahectane, and the C7-C40 isoparaffins (page 49, [0472-0473]).
Fogel teaches the cyclomethicones, available from Dow Chemical Corp., among other companies as cyclomethicone 344 and 345, are cyclic tetrameric and pentameric dimethicone compounds which are liquid at room temperature, but which also have a sufficiently low boiling point to be useful as delivery vehicles for dermatological compositions because of their ability to rapidly evaporate from the skin. In the early 1990's, the cyclomethicones very rapidly became a delivery vehicle or emollient of choice for many products including hair care products such as shampoos and conditioners, antiperspirants and deodorants and skin and body lotions. Recently, the use of the cyclomethicones has come under increased scrutiny, as those utilizing the cyclomethicones in dermatological products wrestle with untoward side effects such as significant "problems" with safety studies (column 2, line 30-46).
Ascertainment of the difference between the prior art and the claims
(MPEP 2141.02)
The difference between the instant application and Brooks is that Brooks do not expressly teach saturated hydrocarbon with at least ten carbons. This deficiency in Brooks is cured by the teachings of Collier et al.
Finding of prima facie obviousness
Rational and Motivation (MPEP 2142-2143)
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the invention of Brooks, as suggested by Collier et al., and produce the instant invention.
One of ordinary skill in the art would have been motivated to replace dodecane for mineral oil because this is simple substitution of one known emollient in deodorant composition for another to obtain predictable results. MPEP 2143, it is prima facie obviousness for simple substitution of one known element for another to obtain predictable results. Under guidance from Collier et al. teaching dodecane as alternative to mineral oil as hydrocarbon emollient in deodorant composition, it is obvious for one of ordinary skill in the art to replace dodecane for mineral oil and produce instant claimed invention with reasonable expectation of success.
Regarding claims 1, 3-4, 7-10, the combination of prior ats teaches an anhydrous deodorant aerosol composition comprising a deodorant agent consisting of zinc neodecanoate, encapsulated fragrance and isopropyl myristate (perfumery-compatible solvent, ester oil, according to applicant’s specification, page 5, line 10-15); emollient dodecane (saturated hydrocarbon with 12 carbon atoms) and propellant such as propane or butane.
Regarding the amount of hydrocarbon carrier fluid from 1-5% and claims 16-17, Brooks teaches liquid deodorant compositions of the invention 2 to 10% of zinc neodecanoate and hydrocarbon emollient from about 10 wt% to about 90 wt%; and may include propellant from 5 to 95%. Thus, 2 to 10% of zinc neodecanoate and 10-90% of hydrocarbon emollient are the amount of the composition without propellant. Otherwise, when propellant is 95%, there is only 5% left for all other ingredients and emollient can not be 10-90%. This teaches claims 16-17. When the propellant is included (5 to 95%), for example, at 80%, the composition without propellant is only 20%, then the amount of hydrocarbon in the composition with propellant is 20%x10% to 20%x90% =2% to 18%, this teaches claimed 1-5%. Furthermore, Collier et al. teaches personal skin care composition such as deodorant comprises 1% to 15% of emollient dodecane.
Regarding the limitation of “the deodorant aerosol composition does not comprises cyclic liquid polyorganosiloxanes”, since polyorganosiloxanes such as cyclopentasiloxane is only alternative to mineral oil, it is not required. Furthermore, even polyorganosiloxanes such as cyclomethicone is used in working example, one of ordinary skill in the art would avoid cyclomethicone and replace cyclomethicone by other emollient such mineral oil and dodecane because the potential safety concern of cyclomethicone as suggested by Fogel. Therefore, it is obvious for one of ordinary skill in the art to have deodorant aerosol composition free of cyclic liquid polyorganosiloxanes such as cyclomethicone and produce instant claimed invention with reasonable expectation of success.
Regarding claims 5-6, Brooks teaches avocado oil and other vegetative oils, which are well known to comprise triglyceride oil, ester oil.
Regarding claim 11, Brooks teaches the total propellant concentration in the deodorant compositions can range from about 5% to about 99%, when the propellant is 50%, the base (all other parts of the composition) is 50%, and the ratio is 50:50.
Regarding claim 12, Brooks teaches the composition is homogenous.
Regarding claim 20, since polyorganosiloxane such as dimethicone is only alternative to mineral oil, it is not required. Thus, the limitation of free of liquid polyorganosiloxanes is met.
In light of the forgoing discussion, the Examiner concludes that the subject matter defined by the instant claims would have been obvious within the meaning of 35 USC 103.
From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole was prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, as evidenced by the references, especially in the absence of evidence to the contrary.
Response to argument:
Applicants argue that pending claim 1 provides for deodorant aerosol compositions having enhanced deodorancy performance, stability, dispensing and/or enhanced sensory properties. More specifically, the present inventors surprisingly found that it is possible to make a homogeneous deodorant aerosol composition from zinc neodecanoate, an active ingredient which one of ordinary skill in the art would recognize as a difficult-to-incorporate ingredient. A skilled artisan would appreciate the difficulties in stability and/or ease of dispensing that would result from commonly used carrier fluids like cyclic silicones such as cyclopentasiloxane. It is thus surprising that homogeneity is favored when both zinc neodecanoate and the hydrocarbon carrier fluid have saturated hydrocarbyl chains and have at least ten carbon atoms in each hydrocarbon or carboxylate chain present therein. None of this unexpectedness would have been suggested or taught in Brooks alone or in combination with the other cited references in the slightest. All related arguments are incorporated herein by reference.
In response to this argument: this is not persuasive. Applicant’s argument about unexpected results are not sufficient to overcome the 103 rejections because this is only attorney’s opinion without any evidences being provided. MPEP 716.01(c), Arguments presented by the applicant cannot take the place of evidence in the record. In re Schulze, 346 F.2d 600, 602, 145 USPQ 716, 718 (CCPA 1965) and In re De Blauwe, 736 F.2d 699, 705, 222 USPQ 191, 196 (Fed. Cir. 1984). Furthermore, applicant’s failed to compare with the closest prior art to show any advantage. Thus, no unexpected results has been demonstrated, and the 103 rejection is still proper.
MPEP 2141 III states: “The proper analysis is whether the claimed invention would have been obvious to one of ordinary skill in the art after consideration of all the facts.” Respectfully, after weighing all the evidence, the Examiner has reached a determination that the instant claims are not patentable in view of the preponderance of evidence and consideration of all the facts which is more convincing than the evidence which has been offered in opposition to it.
Conclusion
No claim is allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JIANFENG SONG. Ph.D. whose telephone number is (571)270-1978. The examiner can normally be reached M-F 8-5.
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.
/JIANFENG SONG/Primary Examiner, Art Unit 1613