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 .
Claims 1-8 are currently pending for examination on the merits.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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 text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
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 1-8 are rejected under 35 U.S.C. 103 as being unpatentable over to US 2017/0009184 to Schubert et al.
With regard to Claims 1 and 2, Schubert teaches a solid fabric conditioner composition suitable for diluting with water to produce a liquid fabric conditioner composition ([0023]-[0026]), the solid fabric conditioner comprising: 0.1 to 20 wt% cationic fabric softener ([0051] and [0176]) and 0.1 to 10 wt.% Xanthan gum ([0290]). Overlapping ranges are prima facie evidence of obviousness.
With regard to Claim 3, Schubert teaches the solid composition and water are combined at a ratio of 1:1 to 1:30 ([0321]). Overlapping ranges are prima facie evidence of obviousness. Schubert does not disclosure this producing a liquid is provided having a viscosity of 200 to 400 mPas at a shear rate of 30s-1 and/or a viscosity 75 to 200 mPas at a shear rate of 106s-1 at 20°C. However, Schubert discloses all of the limitations of claim 1. Thus it is reasonably expected that the composition would meet the requirements of the liquid fabric conditioner produced by the method would have viscosity of 200 to 400 mPas at a shear rate of 30s-1 and/or a viscosity 75 to 200 mPas at a shear rate of 106s-1 at 20°C. See MPEP 2112.01(I) and (II).
With regard to Claim 4, Schubert teaches the composition comprises 0.2 to 10% of a free perfume ([0037] and [0293]).
With regard to Claim 5, Schubert teaches 0.02 to 10% of a perfume microcapsule ([0038] and [0293]).
With regard to Claim 6, Schubert teaches the solid fabric conditioning composition comprises sodium carbonate ([0276]).
With regard to Claims 7 and 8, Schubert discloses wherein the pouch material is added to water ([0321]).
Claim 8 is a product by process claim. Please note that the patentability of a product does not depend upon the method of production. “If the product is a product-by-process claim is the same as or obvious from a product of the prior art, then the claim is unpatentable even though the prior art was made by a different process” (see, e.g. MPEP § 2113).
The subject matter would have been obvious to the skilled artisan because the patentability of a product by process claim does not depend on its method of production and where the examiner has found a similar product, the burden rests with the applicant to prove that that product is patentably distinct. See In re Thorpe, 227 USPQ 964 (CAFC 1985); In re Marosi et al, 218 USPQ 289; In re Pilkington, 162 USPQ 145.
"The lack of physical description in a product-by-process claim makes the determination of the patentability of the claim more difficult, since in spite of the fact that the claim may recite only process limitations, it is the patentability of the product claimed and not the process that must be established. We are therefore of the opinion that when the prior art discloses a product which reasonably appears to be identical with or only slightly different than a product claimed in a product-by-process claim, a rejection based alternatively on either section 102 or 103 of the statute is eminently fair and acceptable. As a practical matter, the Patent Office is not equipped to manufacture products by the myriad processes put before it and then obtain prior art products and make physical comparisons therewith." In re Brown, 173 USPQ 685,688 (CCPA 1972).
Claims 1-8 are rejected under 35 U.S.C. 103 as being unpatentable over US 2016/0319228 to Lant.
With regard to Claims 1 and 2, Lant discloses a cleaning composition in the form of a water-soluble unit dose product that comprises less than 10% to less than 50% by weight of alkyl quaternary ammoniums and 0.01 wt% to 5 wt% of xanthan gum ([0004], [0119], [0149]).
Lant teaches the xanthan gum present when the product is in the form of a structured liquid ([0149]). Lant teaches the cleaning product can be made by mixing the solid components and then adding the liquid ([0186]) and xanthan gum is a solid. Thus prior to mixing with the liquid, the cleaning composition of Lant is a solid fabric condition composition.
While Lant is silent to an exact embodiment, the person of ordinary skill in the art would have been motivated to combine the above components to provide a cleaning composition that minimizes the build up of soils over time ([0002]).
With regard to Claim 3, modified Lant discloses wherein when in the form of a liquid, the compositions of the invention may be aqueous (typically above 2 wt % or even above 5 or 10 wt % total water, up to 90 or up to 80 wt % or 70 wt % total water) and detergents of the invention preferably have viscosity from 1 to 1500 mPa*s ([0185]).
With regard to Claim 4, modified Lant discloses wherein the composition comprises 0.001 to 3 wt% of perfume ([0181]).
With regard to Claim 5, modified Lant discloses wherein the composition comprises 0.5 wt% of core-shell melamine formaldehyde perfume microcapsules (Examples 25-30; [0234]).
With regard to Claim 6, modified Lant discloses wherein the composition comprises sodium carbonate (Examples 19-24, [0207]).
With regard to Claims 7 and 8, modified Lant discloses wherein the pouch material is added to water ([0189]).
Claim 8 is a product by process claim. Please note that the patentability of a product does not depend upon the method of production. “If the product is a product-by-process claim is the same as or obvious from a product of the prior art, then the claim is unpatentable even though the prior art was made by a different process” (see, e.g. MPEP § 2113).
The subject matter would have been obvious to the skilled artisan because the patentability of a product by process claim does not depend on its method of production and where the examiner has found a similar product, the burden rests with the applicant to prove that that product is patentably distinct. See In re Thorpe, 227 USPQ 964 (CAFC 1985); In re Marosi et al, 218 USPQ 289; In re Pilkington, 162 USPQ 145.
"The lack of physical description in a product-by-process claim makes the determination of the patentability of the claim more difficult, since in spite of the fact that the claim may recite only process limitations, it is the patentability of the product claimed and not the process that must be established. We are therefore of the opinion that when the prior art discloses a product which reasonably appears to be identical with or only slightly different than a product claimed in a product-by-process claim, a rejection based alternatively on either section 102 or 103 of the statute is eminently fair and acceptable. As a practical matter, the Patent Office is not equipped to manufacture products by the myriad processes put before it and then obtain prior art products and make physical comparisons therewith." In re Brown, 173 USPQ 685,688 (CCPA 1972).
Claims 1-8 are rejected under 35 U.S.C. 103 as being unpatentable over to US 2011/0112003 A1 to Mohs et al in view of US 2016/0319228 to Lant
With regard to Claims 1 and 2, Mohs teaches a solid fabric conditioner composition suitable for diluting with water to produce a liquid fabric conditioner composition ([0007] and [0009]), the solid fabric conditioner comprising: alkyl quaternary ammoniums ([0035]) and fabric softening active ([0061]); and about 2 to about 4 wt.% Xanthan gum ([0045]-[0046]), thus anticipating the claimed range of 0.1-10 wt.%.
Mohs remains silent as to the weight percent of the alkyl quaternary ammoniums and fabric softener and thus does not explicitly teach 5 to 80% fabric softening active. However, Lant teaches it is known in the art to include alkyl quaternary ammoniums in detergent composition less than 10% to less than 50% by weight ([0119]). It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify Mohs to have the alkyl quaternary ammoniums to be less than 50% by weight as taught by Lant with reasonable expectation of success to provide the desired cleaning power to the detergent. Thus it is reasonable that the cleaning composition of Mohs modified by Lant would have the fabric softening actives overlap with the claimed range of 5 to 80%. Overlapping ranges are prima facie evidence of obviousness.
With regard to Claim 3, Mohs teaches that the solid composition and water are combined at a ratio of 1:1 up to 1:8 ([0082]). Overlapping ranges are prima facie evidence of obviousness. Mohs does not disclosure this producing a liquid is provided having a viscosity of 200 to 400 mPas at a shear rate of 30s-1 and/or a viscosity 75 to 200 mPas at a shear rate of 106s-1 at 20°C. However, Mohs modified by Lant discloses all of the limitations of claim 1. Thus it is reasonably expected that the composition would meet the requirements of the liquid fabric conditioner produced by the method would have viscosity of 200 to 400 mPas at a shear rate of 30s-1 and/or a viscosity 75 to 200 mPas at a shear rate of 106s-1 at 20°C. See MPEP 2112.01(I) and (II).
With regard to Claims 4 and 5, Mohs teaches the composition comprising perfume ([0074]-[0075]) but does not specifically teach the solid fabric conditioning composition comprises 0.1 to 18 wt.% free perfume and the solid fabric conditioning composition comprises 0.1 to 15 wt.% perfume microcapsules. However, Lant teaches the composition comprises 0.001 to 3 wt% of perfume ([0181]) and also 0.5 wt% of core-shell melamine formaldehyde perfume microcapsules (Examples 25-30; [0234]). It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify Mohs to have the free fragrance and the fragrance microcapsules as taught by Lant with reasonable expectation of success to provide the desired scent to the composition.
With regard to Claim 6, Mohs teaches the solid fabric conditioner contains sodium carbonate ([0014]).
With regard to Claims 7 and 8, Mohs modified Lant discloses wherein the pouch material is added to water ([0189]).
Claim 8 is a product by process claim. Please note that the patentability of a product does not depend upon the method of production. “If the product is a product-by-process claim is the same as or obvious from a product of the prior art, then the claim is unpatentable even though the prior art was made by a different process” (see, e.g. MPEP § 2113).
The subject matter would have been obvious to the skilled artisan because the patentability of a product by process claim does not depend on its method of production and where the examiner has found a similar product, the burden rests with the applicant to prove that that product is patentably distinct. See In re Thorpe, 227 USPQ 964 (CAFC 1985); In re Marosi et al, 218 USPQ 289; In re Pilkington, 162 USPQ 145.
"The lack of physical description in a product-by-process claim makes the determination of the patentability of the claim more difficult, since in spite of the fact that the claim may recite only process limitations, it is the patentability of the product claimed and not the process that must be established. We are therefore of the opinion that when the prior art discloses a product which reasonably appears to be identical with or only slightly different than a product claimed in a product-by-process claim, a rejection based alternatively on either section 102 or 103 of the statute is eminently fair and acceptable. As a practical matter, the Patent Office is not equipped to manufacture products by the myriad processes put before it and then obtain prior art products and make physical comparisons therewith." In re Brown, 173 USPQ 685,688 (CCPA 1972).
Response to Arguments
Applicant's arguments filed 06/20/2025 have been fully considered but they are not persuasive.
Applicant argues that Lant does not disclose a solid fabric conditioner composition that includes xanthan gum as Lant teaches the structurant is present in the preferred liquid form. However, Lant teaches the cleaning product can be made by mixing the solid components and then adding the liquid ([0186]) and xanthan gum is a solid. Thus prior to mixing with the liquid, the cleaning composition of Lant is a solid fabric condition composition. As such, this argument is not considered persuasive.
As such, claims 1-8 stand rejected over Lant. Additionally, new grounds of rejection are made over Schubert and Mohs in view of Lant, as detailed above.
Conclusion
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KATELYN W. SMITH
Supervisory Patent Examiner
Art Unit 1749
/KATELYN W SMITH/Supervisory Patent Examiner, Art Unit 1749