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 .
Formal Matters
Receipt of Applicant’s response, dated 11/12/2025, is acknowledged.
Claims 1-2, 6-12, and 16-26 are pending.
Claims 3-5 and 13-15 are canceled.
Claims 1-2, 6-12, and 16-20 are amended.
Claims 21-26 are new.
Claims 11-12 and 16-20 remain withdrawn from consideration as being drawn to a nonelected invention.
Claims 1-2, 6-10, and 21-26 are under consideration in the instant Office action to the extent of the elected species, i.e., the at least one anionic surfactant is sodium lauroyl glutamate and the at least one amphoteric surfactant is cocamidopropyl betaine.
Information Disclosure Statement
The information disclosure statement (IDS) filed 11/12/2025 has been considered by the Examiner. A signed copy of the IDS is included with the present Office Action. The IDS filed 10/21/2025 has not been considered by the Examiner and has been added to the case file with contents crossed out because all references contained therein are duplicated in the IDS filed 11/12/2025 which contains the corrected typographical error for U.S. Patent Application Publication Cite No. 17 corresponding to US 2023/0000753 A1.
OBJECTIONS/REJECTIONS WITHDRAWN
Specification
The objection to the specification set forth in the Office action dated 08/12/2025 is hereby withdrawn in light of Applicant’s amendment to the specification.
Claim Objections
The objections to claims 1-2, 6, and 9-10 set forth in the Office action dated 08/12/2025 are hereby withdrawn in light of Applicant’s amendments to the claims. The objections to claims 3-5 set forth in the Office action dated 08/12/2025 are hereby withdrawn in light of Applicant’s cancelation of claims 3-5.
Claim Rejections - 35 USC § 103
The obviousness rejection of claims 1-10 over Mustafa et al in view of Lee et al and Chawrai et al set forth in the Office action dated 08/12/2025 is hereby withdrawn in light of Applicant’s amendments to the claims and in favor of the new grounds of rejection set forth below as necessitated by Applicant’s amendments to the claims.
NEW GROUNDS OF OBJECTION/REJECTION
Claim Objections
Claims 1, 21, and 23-26 are objected to because of the following:
In line 12 of claim 1 and lines 1 and 3 of claim 23, each recitation of “said” should be amended to “the” in order to improve claim consistency; and
In lines 4, 6, and 8 of claim 1, line 2 of claim 21, line 2 of claim 24, line 2 of claim 25, and line 2 of claim 26, “on” should be added following each recitation of “based” for grammatical correctness.
Appropriate correction is required.
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.
Claims 1-2, 6-10, and 21-26 are rejected under 35 U.S.C. 103 as being unpatentable over Vanderhoof et al (WO 2019/096978 A1, published 05/23/2019).
Vanderhoof et al teach rheology modifier compositions in the form of dry, stable powders comprising at least one core-shell polymer particle, at least one polysaccharide from at least about 20 wt% to about 90 wt%, and less than 25 wt% water, where wt% is based on the composition (See entire document, e.g., Page 24 Lines 20 and 25-27, Page 25 Lines 7-15).
The core-shell polymer particle can be in a form in which the core portion is completely coated or encapsulated within the shell portion or can be in a form in which the core portion is only partly coated or encapsulated (e.g., Page 6 Lines 1-4). The at least one shell copolymer constituting the shell portion may be e.g. acrylate-based polymers and cationic polymers (e.g., Page 9 Line 25-Page 10 Line 20). The polysaccharide(s) may be starches, including starch derived from maize (i.e., corn starch), potato starch, tapioca starch, and maltodextrins (e.g., Page 26 Line 21-23, Page 27 Line 6).
Product formulations comprising the rheology modifier compositions include personal care products and can be formulated at pH ranges from about 0.5 to 12, wherein the desired pH will depend upon the specific end product applications and will generally have a desired pH range of about 3 to about 7.5 (e.g., Page 31 Lines 22-23 and 26-27, Page 36 Lines 13-18).
The core-shell polymers can be formulated with at least one surfactant and with conditioning agents (e.g., Page 37 Lines 26-27, Page 38 Lines 28-29, Page 40 Line 27). Surfactants include anionic, cationic, amphoteric, and nonionic surfactants, as well as mixtures thereof, such as betaines e.g. cocoamidopropyl betaine and amino acid surfactants e.g. sodium lauroyl glutamate (e.g., Page 43 Lines 22-24, Page 47 Lines 15-20, Page 48 Lines 12-14). The amount of the surfactants can vary widely depending on the desired application but generally range from about 1% to about 80% by weight based on the total weight of the composition in which it is included (e.g., Page 50 Lines 10-17).
The compositions may, i.e. or may not, comprise an anticaking agent, e.g. talc (e.g., Page 30 Lines 22-25).
The specific combination of features claimed is disclosed within the broad generic ranges taught by Vanderhoof et al but such “picking and choosing” within several variables does not necessarily give rise to anticipation (Corning Glass Works v. Sumitomo Elec., 868 F.2d 1251, 1262 (Fed. Circ. 1989)). That being said, however, 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 U.S.C. 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 at 1741). 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 prima facie obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, based on the teachings of Vanderhoof et al, to provide a personal care formulation comprising a rheology modifier composition, wherein the rheology modifier composition is in the form of a dry, stable powder comprising a core-shell polymer particle, at least one polysaccharide, and less than 25 wt% of water based on the weight of the composition, wherein the core-shell polymer particle is in a form in which the core portion is completely or only partly coated or encapsulated within the shell portion, wherein the shell portion comprises at least one shell copolymer being acrylate-based polymers and/or cationic polymers, wherein the at least one polysaccharide is at least corn starch, potato starch, tapioca starch, and maltodextrins totaling from about 20 wt% to 90 wt% based on the weight of the composition, wherein the formulation has a pH from about 0.5 to 12 or from about 3 to about 7.5, comprises surfactants being cocamidopropyl betaine and sodium lauroyl glutamate totaling from about 1% to about 80% by weight based on the weight of the formulation and conditioning agents.
Regarding the requirement of instant claim 1 that the composition be free of talc, the formulation of Vanderhoof et al not comprising talc as an anticaking agent meets this limitation. Regarding the requirement of instant claim 1 that the composition be a “conditioning composition”, the formulation Vanderhoof et al comprising conditioning agents meets this limitation.
Because the formulation of Vanderhoof et al is the same as the composition of the instant claims, i.e., a formulation comprising a composition, wherein the composition is in the form of a dry, stable powder comprising a core-shell polymer particle, at least one polysaccharide, and less than 25 wt% of water based on the weight of the composition, wherein the core-shell polymer particle is in a form in which the core portion is at least partly coated or encapsulated within the shell portion, wherein the shell portion comprises at least one shell copolymer being acrylate-based polymers and/or cationic polymers, wherein the at least one polysaccharide is at least corn starch, potato starch, tapioca starch, and maltodextrins totaling from about 20 wt% to 90 wt% based on the weight of the composition, wherein the formulation has a pH from about 0.5 to 12 or from about 3 to about 7.5, comprises surfactants being cocamidopropyl betaine and sodium lauroyl glutamate totaling from about 1% to about 80% by weight based on the weight of the formulation and conditioning agents (i.e., a “conditioning composition”), and wherein the formulation does not comprise talc as anticaking agent, the formulation of Vanderhoof et al would necessarily produce a flash foam of less than about 10 mL when contacted with water at a temperature of from about 26°C to about 30°C and would necessarily have a viscosity of from about 3,500 to about 87,000 cps as determined using a Brookfield Gel Timer DV2T Viscometer, RV, Spindle #6, at about 6 rpm for about 60 seconds at about 28°C. Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established (In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977)). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not" (In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990)). Therefore, the prima facie case can be rebutted by evidence showing that the prior art products do not necessarily possess the characteristics of the claimed product.
Regarding the ranges required by the instant claims, a prima facie case of obviousness typically exists when the ranges of a claimed composition overlap the ranges disclosed in the prior art (In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003)). Specifically regarding the ranges of each of tapioca starch, potato starch, corn starch, and maltodextrin required by instant claims 1, 6, and 23-26, the formulation of Vanderhoof et al comprising polysaccharides being corn starch, potato starch, tapioca starch, and maltodextrins in a total amount of from about 20 to 90 wt% based on the weight of the rheology modifier composition comprised in the formulation renders obvious each of these required ranges because 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 experimentation (In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955)).
The formulation of Vanderhoof et al renders obvious the composition of instant claims 1-2, 6-10, and 21-26.
Response to Applicant’s Arguments
Applicant’s arguments filed on 11/12/2025 have been considered, however, are moot because they regard the teachings of Mustafa et al, Lee et al, and Chawrai et al which were applied in the rejection of claims 1-10 under 35 USC 103 set forth in the Office action dated 08/12/2025, for which said rejection has been withdrawn in favor of the new grounds of rejection under 35 USC 103 set forth above necessitated by Applicant’s amendments to the claims which does not include any of the teachings of Mustafa et al, Lee et al, nor Chawrai et al.
Conclusion
No claims are allowable.
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.
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/K.E.O./Examiner, Art Unit 1619
/DAVID J BLANCHARD/Supervisory Patent Examiner, Art Unit 1619