DETAILED ACTION
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 canceled claims 2, 3 and 6-14.
In view of the amendment, previous 112(b) rejection on claims 1-20 and 112(b) rejection on claims 2-5, 12 and 14 are hereby withdrawn.
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.
Claim Objections
Claim 1 is objected to because of the following informalities: on line 4, applicant need to change “the dispenser” to --- the dispenser container ---. Appropriate correction is required.
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.
Claims 1, 4, 5 and 15-20 are 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.
In their amendment of claim 1, applicant broadened the scope of their invention by deleting (from claim 1) the previously required components of their antiperspirant or deodorant composition (i.e., a non-volatile silicone fluid having a concentration from about 30% to about 70% by weight of the antiperspirant composition, an organoclay material and at least one liquid activation enhancer having a Hansen Solubility Parameter for Hydrogen Bonding, dh, between about 2 and about 6 and a light transmittance value greater than 90%), and such deletion constitute a new matter (when applicant add the deleted components back into instant claim 1 in response to instant 112(a) rejection, applicant need to make correction as explained in Paragraph 2 (item number (vi)) of the last Office Action.
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 19 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 19 recites the limitation "the median particle size" in lines 1-2. There is insufficient antecedent basis for this limitation in the claim (instant 112(b) rejection was already made in Paragraph 14 of the last Office Action).
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim(s) 1, 4, 5 and 15-17 are rejected under 35 U.S.C. 103 as being unpatentable over MENON et al (US 2015/0023885 A1) in view of BARRATT et al (WO 2020/021473 A1).
Menon teaches the following in its claim 1:
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With respect to instant ethanol and water, Menon furthermore teaches (claims 7 and 8) that its antiperspirant composition (as described above in claim 1) further comprises a clay activator, which is selected from propylene carbonate, triethyl citrate, methanol, ethanol, acetone, water or combinations thereof. Based on such teaching, it would have been obvious to one skilled in the art to use a combination of ethanol and water as the clay activator in Menon’s antiperspirant composition with a reasonable expectation of success. With respect to instant dipropylene glycol and liquid fragrance materials, Menon also teaches ([0098]-[0099]) that its antiperspirant composition may optionally comprise one or more liquid fragrance materials, which are typically a mixture of perfume or aromatic components that are mixed with a suitable solvent, diluent or carrier. Menon further teaches that suitable solvents, diluents or carriers for the perfume components may include dipropylene glycol. According to Menon’s teaching, it would have been obvious to one skilled in the art to add one or more liquid fragrance materials to Menon’s antiperspirant composition and use dipropylene glycol as a solvent, diluent or carrier for the perfume components of the liquid fragrance materials with a reasonable expectation of success. Menon teaches (claim 14) that its antiperspirant composition is substantially free of a volatile silicone fluid and teaches (claim 16) that its antiperspirant composition is substantially free of mineral oil, isohexadecane, PPG-14 butyl ether and octyldodecanol. Thus, Menon teaches instant antiperspirant or deodorant composition as described in instant claim 1.
Menon’s hand held spray device (of claim 1) does not teach instant dispenser of claim 1. However, Menon does teaches ([0162]) that other spray devices may also be used with its antiperspirant composition. Barratt teaches (claim 1) a dispenser comprising: a dispenser container filled with a dispensing carrier gas and fitted with a valve assembly comprising a mounting cup, one or more gaskets, a valve seat, a spring, a housing and a dip tube; and an ingredient-containing reservoir (filled with an ingredient for dispensing) operatively connected to the dispenser container and the dip tube via first and second tubes such that on actuation of the valve assembly the ingredient (contained in the reservoir) and carrier dispensing gas travel along the first tube and the second tube respectively, and mix in the valve assembly before exiting the dispenser container via the actuator spray nozzle to an environment or subject (or
the carrier dispensing gas travels along the second tube into the ingredient-containing reservoir and carries the ingredient along the first tube where they mix in the valve assembly before exiting the dispenser container via the actuator spray nozzle to an environment or subject). Barratt further teaches (claim 9) that the dispensing carrier gas (as mentioned in its claim 1) can be nitrogen or carbon dioxide (instant compressed gas). Barratt teaches [0001]) that its inventive dispenser relates to improvements made in a delivery technology referred to in the industry as bag-on-valve (BOV) technology and teaches ([0002]-[0003]) that BOV technology is preferred by consumers because it minimizes product wastage thereby ensuring value for money, allows a longer shelf-life for oxygen sensitive products that contain fewer or no preservatives, reduces the risk of explosion and allows for an effective filling process. Barratt further teaches ([0019]) that the BOV technology can be used in dispensing deodorants and antiperspirants.
Since Menon teaches that other spray devices may be used with its antiperspirant composition, and since Barratt teaches that the BOV technology can be used in dispensing antiperspirants, it would have been obvious to one skilled in the art to use Barratt’s improved bag-on-valve aerosol dispensers (as discussed above) to dispense Menon’s antiperspirant composition (as discussed above) in order to realize many advantages of using the BOV technology as stated above. Thus, Menon in view of Barratt renders obvious instant aerosol antiperspirant or deodorant product of claim 1.
With respect to instant claims 4 and 5, Menon teaches (claim 5) that its liquid activation enhancer is selected from isopropyl myristate, isopropyl palmitate, butyl stearate, C12-15 alkyl benzoate or combinations thereof. Thus, Menon in view of Barratt renders obvious instant claims 4 and 5.
With respect to instant claim 15, Barratt teaches (claim 2) that the dip tube of the valve assembly divides into the first and second tubes, which are seated within the dispenser container. The first tube (seated within the dispenser) is connected to the ingredient-containing reservoir, allowing the ingredient to be dispensed on actuation of the valve. Thus, Menon in view of Barratt renders obvious instant claim 15.
With respect to instant claim 16, Barratt teaches (claim 3) that its ingredient-containing reservoir is a bag or pouch. Thus, Menon in view of Barratt renders obvious instant claim 16.
With respect to instant claim 17, Barratt teaches (claim 6) that its dispenser comprises three or more tubes and at least two ingredient-containing reservoir comprising different ingredients. Thus, Menon in view of Barratt renders obvious instant claim 17.
Claim(s) 18-20 are rejected under 35 U.S.C. 103 as being unpatentable over MENON et al (US 2015/0023885 A1) in view of BARRATT et al (WO 2020/021473 A1)
as applied to claim 1 above, and further in view of Zhu (COSMETIC INGREDIENT REVIEW, Resource Document – Respiratory Exposure to Cosmetic Ingredients (09/2019), obtained from the website https://www.cir-safety.org/sites/default/files/RespiratoryExposure%20-%20Zhu%20-%202019.pdf).
With respect to instant claim 18, Menon teaches ([0207]-[0208]) that its aerosol antiperspirant product was applied once each morning on 48 subjects for five days. Menon further teaches that its spray devices containing its antiperspirant composition produces lower sweat values (which means less perspiration was released from the underarm area) than from a comparative commercial product. Thus, Menon teaches instant steps (a) and (c) of claim 18. With respect to instant step (b), Menon teaches ([0160]) that the mass flow rate of the antiperspirant composition ranges from about 0.1 g/s to about 0.6 g/s. Such range overlaps with instant range of from about 0.05 g/s to about 0.4 g/s, thus rendering instant range prima facie obvious. In the case “where the [claimed] ranges overlap or lie inside ranges disclosed by the prior art,” a prima facie case of obviousness would exist which may be overcome by a showing of unexpected results, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976). With respect to instant limitation as to the average particle size distribution (Dv50) of less than or equal to 50 microns, Menon in view of Barratt does not explicitly teach such limitation. As evidenced by Zhu (see pg.3, 4th paragraph under “Measurement of Particle Size Distribution”) it is known in the art that typically, the average particle size distribution (Dv50) of droplets/particles released from propellent/antiperspirant sprays is 23 (± 33.2) mm. Such range overlaps with instant range (less than or equal to 50 microns), thus rendering instant range prima facie obvious. In re Wertheim, supra.
Thus, Menon in view of Barratt and further in view of Zhu renders obvious instant claim 18.
With respect to instant claim 19, since Menon in view of Barratt and Zhu teaches instant method of claim 18 (including instant aerosol antiperspirant or deodorant product of claim 1 and instant steps (a)-(c) with overlapping ranges for the Dv50 and mass flow rate), instant limitation of claim 19 as to the mass flow rate and median particle size variation would naturally or accordingly be satisfied (besides, Menon teaches ([0005] and [0011]) that its antiperspirant compositions are designed to provide a uniform dose of the antiperspirant active from an aerosol spray device). Thus, Menon in view of Barratt and further in view of Zhu renders obvious instant claim 19.
With respect to instant claim 20, since Menon in view of Barratt and Zhu teaches instant method of claim 18 (including instant aerosol antiperspirant or deodorant product of claim 1 and instant steps (a)-(c) with overlapping ranges for the Dv50 and mass flow rate), instant limitation of claim 20 (as to the composition being dispensed without substantial clogging in the valve assembly) would naturally or accordingly be satisfied (besides, Menon teaches ([0073]) that its organoclay material is used to reduce the risk of clogging in its spray device). Thus, Menon in view of Barratt and further in view of Zhu renders obvious instant claim 20.
Response to Arguments
With respect to instant 103 rejection on claims 1, 4, 5 and 15-17 over Menon in view of Barratt, applicant argue that the Office Action does not cite any reference which teaches the newly added limitation “wherein the composition comprises ethanol, dipropylene glycol, water, liquid fragrance materials, and a deodorant and/or antiperspirant active” as recited in claim 1. The Examiner believes that applicant’s such argument was already answered above.
Applicant further argue that there is no reasonable expectation of success that combining the dispenser container with the claimed composition will result in a composition that “is dispensed without substantial clogging in the valve assembly,” as recited in claim 20, or a “mass flow rate and the median particle size vary by no more than 30% from the mean value of the first 25% of the canister to the mean value of the last 25% of the canister,” as recited in claim 19. However, as already explained above, Menon in view of Barratt and Zhu teaches instant method of claim 18 (including instant aerosol antiperspirant or deodorant product of claim 1 and instant steps (a)-(c) with overlapping ranges for the Dv50 and mass flow rate). Thus, instant limitation of claim 19 (as to variation of the mass flow rate and median particle size) as well as instant limitation of claim 20 (as to the composition being dispensed “without substantial clogging in the valve assembly”) would accordingly be satisfied (besides, Menon teaches ([0073]) that its organoclay material is used to reduce the risk of clogging in its spray device).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SIN J. LEE whose telephone number is (571)272-1333. The examiner can normally be reached on M-F 9 am-5:30pm.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Brian Kwon can be reached on 571-272-0581. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/SIN J LEE/
Primary Examiner, Art Unit 1613
October 28, 2025