Response to Amendment
Election/Restrictions
Restriction is withdrawn in view of the amendments to the claims. Claims 15-33 are rejoined.
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) 15-19, 23-36 is/are rejected under 35 U.S.C. 103 as being unpatentable over Faris (5,705,470) in view of DE (102019200702) is withdrawn.
Claim(s) 15-19, 23-36 is/are rejected under 35 U.S.C. 103 as being unpatentable over Faris (5,705,470).
Faris discloses a sprayable cleansing gel, dispenser and method of using the same, comprising a cleansing composition 75% to 98% of a liquid carrier includes water and alcohol such as isopropyl alcohol; from 0.005-20% of a surfactant such as anionic, nonionic and cationic surfactants or mixtures thereof; 0.01 to 10% of a polymeric thickener and with a viscosity of over 900 cP – 5500 cP (col. 6, lines 19-30 and col. 9, lines 55-60). Anionic surfactants include sulfates, alkyl ether sulfates, sulfosuccinates and alkyl benzene sulfonates (col. 7, lines 22-51); solvents in an amount from 1-8% such as glycol ethers (col. 8, lines 49-67) and adjuvants such as fragrance, colorants and chelants (col. 6, lines 42-45). See Table 3 and claims. The method of depositing said cleansing composition is spraying said gel on a surface to be cleaned wherein said gel composition comprises a liquid carrier; surfactant; thickener; solvent with optional components; spreading said gel and wiping clean off the surface (col. 14, lines 40-64).
Faris teach all of the instantly required except a teaching of at least 40% of surfactant (b) or a total amount of surfactant within said compositions (a) and (b) of 25%.
With further respect to the total amounts of surfactants, Farris teach a combined total amount of surfactants having an upper limit of 20%, which is lower than the total for new claim 34 requirements. The examiner contends that optimization of surfactants are recognized as result effective variables and one skilled in the art would readily increase the surfactants of Farris to level 5% more to increase surface tension abilities and cleansing effectiveness. Furthermore, since optimization is within the level of ordinary skill and a prima facie case of obviousness has been established within the claimed binary composition, which Farris teaches may be admixed within said container and sprayable upon a surface to produce a hydrogel composition, one skilled would expect optimization of levels to further improve or enhance surface tensions to readily cleanse or remove desired contaminants, absent a showing to the contrary, commensurate in scope with the claimed invention.
“The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages” Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382; In re Hoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969) Merck & Co. Inc. v. Biocraft Laboratories Inc., 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir.), cert. denied, 493 U.S. 975 (1989); In re Kulling, 897 F.2d 1147, 14 USPQ2d 1056 (Fed. Cir. 1990); and In re Geisler, 116 F.3d 1465, 43 USPQ2d 1362 (Fed. Cir. 1997).
Similarly, a prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have the same properties. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed. Cir. 1985)
Response to Arguments
Applicant's arguments filed 9-15-2025 have been fully considered but they are not persuasive.
Applicant argues the prior art does not suggest mixing the compositions to comprise a hydrogel or that the compositions do not suggest a hydrogel.
The examiner reminds applicants attorney that a composition does not have to perform or imply intended use. Once the ingredients are met and in their requisite proportions, then the claim limitations are satisfied.
Statement of intended use in an apparatus claim did not distinguish over the prior art apparatus. If a prior art structure is capable of performing the intended use as recited in the preamble, then it meets the claim. In re Sinex, 309 F.2d 488, 492, 135 USPQ 302, 305 (CCPA 1962)
Applicant argues that Farris is “not relevant” for teachings viscosity exceeding 300 mPas and the claims refer to at least 300 mPas viscosity.
Again the examiner reminds attorney the term of “at least” encompasses ranges exceeding said amount including the range provided by Farris of greater than 900 mPas.
Applicant argues the maximum amount of surfactants within Farris is at most 20%, which is lower than the total for new claim 34 requirements of 25%. The examiner contends that optimization of surfactants are recognized as result effective variables and one skilled in the art would readily increase the surfactants of Farris to level 5% more to increase surface tension abilities and cleansing effectiveness. Furthermore, since optimization is within the level of ordinary skill and a prima facie case of obviousness has been established within the claimed binary composition, which Farris teaches may be admixed within said container and sprayable upon a surface to produce a hydrogel composition, one skilled would expect optimization of levels to further improve or enhance surface tensions to readily cleanse or remove desired contaminants, absent a showing to the contrary, commensurate in scope with the claimed invention.
“The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages” Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382; In re Hoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969) Merck & Co. Inc. v. Biocraft Laboratories Inc., 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir.), cert. denied, 493 U.S. 975 (1989); In re Kulling, 897 F.2d 1147, 14 USPQ2d 1056 (Fed. Cir. 1990); and In re Geisler, 116 F.3d 1465, 43 USPQ2d 1362 (Fed. Cir. 1997).
Similarly, a prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have the same properties. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed. Cir. 1985)
Conclusion
THIS ACTION IS MADE FINAL. 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 NECHOLUS OGDEN JR whose telephone number is (571)272-1322. The examiner can normally be reached 8-4:30 EST M-F.
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/NECHOLUS OGDEN JR/ Primary Examiner, Art Unit 1761
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