Response to Amendment
Claim Rejections - 35 USC § 103
Claim(s) 1-14, 16-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Serobian (2017/0081551) is withdrawn.
Claim(s) 1-14 and 16-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Serobian (2017/0081551) in view of WO (99/01135).
Serobian discloses a vehicle wheel and automotive cleaner comprising 5-15% of protectants such as amino modified organopolysiloxanes (0086 and 0091), which are diluted with water and solvents to prepare an emulsion (0102). Serobian further teach the inclusion of solvents such as 60-95% water (0105), and up to 1% organic solvents such as isopropanol and diethylene glycol monobutyl ether (butyl carbitol) (0107). Moreover, Serobian teach the inclusion of buffers to adjust the pH from a variety of mixtures in amounts from 0.01-5% (0110-0114); and that said composition is dispensed by means of pump or aerosol spray (0121).
Serobian is silent with respect to the pH, however the skilled artisan would recognize that the teachings are suggested towards a buffered solution. Furthermore, the examples are easily recognizable as having a pH that is over 7 by the contents of thee mixtures being non-acidic and buffered with ingredients to suggest a basic composition at least One skilled in the art would easily optimize the pH to suggest the range over 9 and overlap the claims since optimization is within the skilled of the ordinary artisan and proportions outside the range are optimizable, absent a showing to the contrary commensurate in scope with the claimed invention.
WO ‘135 disclose a hard surface and glass cleaner which comprises buffers such as amino-alkanols and non-preferred alkali metal hydroxides, sodium bicarbonate, carbonates and mixtures thereof at levels up to 0.5%. WO ‘135 teaches that said pH of said hard surface cleaner is from 8-10 (page 13).
It would have been obvious to the skilled artisan to adjust the pH of between 8-10 to the compositions of Serobian in view of the teachings of WO ‘135, which teaches overlapping ranges of pH with alkalinity agents improve filming and streaking (page 13). In the absence of a showing to the contrary, commensurate in scope with the claims, one skilled in the art would have been motivated to optimize the pH for the benefits of the alkalinity agents provide to produce a hard surface cleanser having a pH in the range of 8-10.
It would have been obvious to optimizes the first and second alkaline agents as suggested in a ratio of 1:1, given that Serobian teaches alkaline agents within proportions and mixture thereof. Furthermore, optimization is within the level of skill absent a showing to the contrary.
[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 Int'l Co. v.Teleflex Inc., 550 U.S. at 418 (quoting Sakraida v. Ag Pro, Inc., 425 U.S. 273,282 (1976).]
“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).
A reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill the art, including nonpreferred embodiments. Merck & Co. v. Biocraft Laboratories, 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir.), cert. denied, 493 U.S. 975 (1989).
Response to Arguments
Applicant's arguments filed 2-25-2026 have been fully considered but they are not persuasive.
Applicant argues that Serobian would not overlap in pH above 9.2-9.8 as claimed.
The examiner contends that Serobian, while being silent with respect to the pH in the body of the reference teaches a pH of from 9-11 in examples 1-6 of Table 1. When the values of the pH when calculated comprise a range, where through optimization would present a prima facie case of obviousness. Serobian teaches a plethora of buffers to adjust the pH and one skilled in the art would have been readily amenable to utilize a number of ingredients to suggest a pH of 9-10 as claimed in the dependent claim.
WO ‘135 teaches the inclusion of a pH range of 8-10 would have been obvious for the benefits of less filming and steaking on hard surfaces.
In the absence of a showing to the contrary, commensurate in scope with the claimed invention, one skilled in the art would optimize the pH to suggest the claimed invention through routine experimentation and for the purpose of creating a basic composition through weak alkaline agents to effectively cleansing the hard surfaces without acidic harm to the finishes.
As stated in KSR Int'l Co., v. Teleflex, Inc., 550 U.S. 398, 418 (2007):
"[A]nalysis [of whether the subject matter of a claimwould have been prima facie obvious] need not seek out preciseteachings directed to the specific subject matter of thechallenged claim, for a court can take account of the inferencesand creative steps that a person of ordinary skill in the artwould employ."
The 1.132 under 37 CFR 1.132 filed 2-29-2026 is insufficient to overcome the rejection of claims 1-14, 16-20 based upon Serobian et al in view of WO ‘135 as set forth in the last Office action because:
The affidavit is not commensurate in scope. The most comprehensive claims 1, is drawn broadly to 1) a first and second alkaline agent in a ratio of 1:1 2) aminofunctional silicone and 3) a pH of 9.2-9.8.
The affidavit is drawn to an extremely narrow composition of sodium bicarbonate, sodium benzoate, acrylic polymer, polydimethylsiloxane, FZ-77; alkane sulfonate, nonionic surfactants and a plethora of adjunct ingredients.
The skilled artisan would readily recognize the claims are outside of the scope of the affidavit and therefore criticality cannot be established.
Whether the unexpected results are the result of unexpectedly improved results or a property not taught by the prior art, the “objective evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support.” In other words, the showing of unexpected results must be reviewed to see if the results occur over the entire claimed range. In re Clemens, 622 F.2d 1029, 1036, 206 USPQ 289, 296 (CCPA 1980)
Conclusion
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 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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