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 .
Response to Amendment
The Amendment filed on August 25th, 2026 has been entered. Claims 1-3, 5-8, 10-11, and 13-23 are pending in the application. Claims 4, 9, and 12 have been cancelled.
The rejection of claims 1-3, 5-8, 10-11, and 13-23 under U.S.C. 103 as obvious over Ryklin (WO 2009135007 A1) and Renock (US 20210169765 A1) is withdrawn.
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.
Claim 2 and claim 21 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. The limitation of “wherein the composition is free of any thickener” in claim 1 prohibits the use of any thickener in the composition. However, claim 2 and claim 21 narrow the definition of “any thickener”. Further, there is no definition in the instant specifications narrowing this category of compounds.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 2 and claim 21 are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. As stated above, the limitation of “wherein the composition is free of any thickener” in claim 1 prohibits the use of any thickener in the composition. However, claim 2 and claim 21 narrow the definition of “any thickener”. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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.
Claims 1-3, 5-8, 10-11, and 13-23 are rejected under 35 U.S.C. 103 as being unpatentable over Fevola (US 8227393 B1) in view of Renock (US 20210169765 A1).
With regard to claims 1-3, 5-8, 10-11, 15-20, and 23, Fevola discloses a composition produced via the present invention which may be preferably used as or in personal care products for treating or cleansing at least a portion of the human body. Examples of certain preferred personal care products include various products suitable for application to the skin, hair, and/or vaginal region of the body, such as shampoos, hand, face, and/or body washes, bath additives, gels, lotions, creams, and the like (see Col 13 line 62- Col 14 line 1-2). Fevola further discloses the composition may comprise 0.5-20wt% of zwitterionic surfactants and further discloses cocamidopropyl betaine as a suitable zwitterionic surfactant (see Col 6 line 1 and Col 9 line 11). Fevola further discloses 0-25wt% of a non-sulfate anionic surfactant (see Col 12 line 50-53) and further discloses disodium-2-sulfolaurate as a suitable non-sulfate anionic surfactant (see Col 11 line 12). Fevola further discloses the composition may have a pH of below 4.9 (see Col 9 line 46). Fevola further discloses a composition comprising 83.4wt% of water (see Table 4, E10). Fevola further discloses a composition having a viscosity of 1519cP (see Table 5, E10). Fevola further discloses the composition may include rheology modifiers (see Col 13 line 14-25). “May” indicates that the rheology modifiers are not necessary and may be excluded.
With respect to the ratio of amphoteric surfactant to disodium-2-sulfolaurate as 4.5:0.75-3.5-1.5, considering that Fevola teaches disodium-2-sulfolaurate in the range of 0-25wt% as disclosed in Col 12 line 50-53 and cocamidopropyl betaine in the range of 0.5-20wt% as disclosed in Col 6 line 1 and Col 9 line 11, the subject matter as a whole would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have selected the overlapping portion of the range disclosed by the reference (e.g. 4.0wt% cocamidopropyl betaine: 1.0wt% disodium-2-sulfolaurate or 4:1) because overlapping ranges have been held to be a prima facie case of obviousness, see In re Malagari, 182 U.S.P.Q 549; In re Woodruff, 919 F.2d 1575, 1578, 16 USPQ2d 1934, 1936-37 (Fed. Cir. 1990); In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976). In addition, a prima facie case of obviousness exists because the claimed ranges "overlap or lie inside ranges disclosed by the prior art", see In re Wertheim, 541 F.2d 257,191 USPQ 90 (CCPA 1976; In re Woodruff; 919 F.2d 1575,16USPQ2d 1934 (Fed. Cir. 1990). See MPEP 2144.05(I).
Further, “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) MPEP 2144.05.
However, Fevola fails to disclose the entanglement of wormlike micelles in the self-thickening system.
Wand discloses cocamidopropyl betaine as stabilizing wormlike micelles when used as a cosurfactant at lower salt concentrations (see Abstract). Therefore, one having ordinary skill in the art would understand that the addition of cocamidopropyl betaine would stabilize wormlike micelles in the composition of Fevola.
However, Fevola fails to disclose one or more alkyl glucosides.
Renock discloses a personal care composition, an analogous art (see Abstract). Renock further discloses the composition may be a shampoo (see [0003]). Renock further discloses the composition may comprise cocamidopropyl betaine (see [0057]), an anionic surfactant (see [0050]), and decyl glucoside, cocoyl glucoside, and mixtures thereof (see [0061]). Renock further teaches the alkyl glucosides may be in a concentration of 0.25-15wt% (see [0063]).
Both Fevola and Renock disclose shampoo compositions. Fevola discloses compositions comprising nonionic surfactants other than polyglyceryl nonionic surfactants, including decyl glucoside and cocoyl glucoside (see Col 13 line 14-25). It would have been obvious to one of ordinary skill in the art, before the effective filing date, to utilize the decyl glucoside, cocoyl glucoside, and mixtures thereof of Renock in the shampoo composition of Fevola as Fevola discloses nonionic surfactants other than polyglyceryl nonionic surfactants, including decyl glucoside and cocoyl glucoside, and Renock discloses decyl glucoside, cocoyl glucoside, and mixtures thereof at 0.25-15wt%.
Fevola further discloses the composition may be substantially free of sulfated anionic surfactants (see Col 13 line 4-6). Further, Renock further discloses sulfate-free surfactants as less irritating to the scalp (see [0002]).
With regard to claim 13 and claim 14, Fevola discloses the composition may comprise an organic acid and further discloses citric acid, acetic acid, and lactic acid as suitable organic acids (see Col 9 line 50-51).
With regard to claim 21, Fevola discloses the composition may include rheology modifiers (see Col 13 line 14-25). “May” indicates that the rheology modifiers are not necessary and may be excluded.
With regard to claim 22, Fevola makes no mention of phthalates, parabens, or mineral oils. Fevola further discloses 0-5wt% of organic acid preservative (see Col 9 line 54-57).
Response to Arguments
Applicant’s arguments with respect to claims 1-3, 5-8, 10-11, 15-17, and 19-23 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Applicant argues that the closest embodiment of Ryklin fails to teach or fairly suggest "a self- thickening system consisting of ... disodium 2-sulfolaurate (SFA) present in an amount of from 2.1% to 4% by weight..., the amphoteric surfactant is present in an amount of from 13% to 15% by weight, ... one or more alkyl glucosides are present in an amount of from 2% to 8% by weight, ...the amphoteric surfactant and disodium 2-sulfolaurate (SFA) are present in a weight ratio from 4.5:0.75 to 3.5:1.5; wherein the composition is free of any thickener and sulfate but it is self-thickened by entanglement of wormlike micelles in the self-thickening system, so that the composition demonstrates a viscosity in the range of from about 1300 cps to about 3350 cps; and wherein the pH of the composition is between 3.5 and 4.5" in claim 1 as amended.
As Ryklin is no longer relied upon as prior art, Applicant’s arguments regarding Ryklin are moot.
Applicant further argues that the disclosed composition has high naturality. In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., “personal care compositions with a naturality index greater than 95%”) are not recited in the rejected claims. Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
Applicant further argues that the disclosed compositions are free of any thickener or polymer needed in the formulation. The compositions of Fevola and Renock need not contain a rheology modifier. Fevola discloses the composition may include rheology modifiers (see Col 13 line 14-25). “May” indicates that the rheology modifiers are not necessary and may be excluded. Renock discloses the composition can comprise a rheology polymer (see [0135]-[0136]). “Can” indicates the rheology polymer is optional.
Applicant further argues unexpected results with regard to achieving the desired level of thickness without thickeners. As stated above, Fevola further discloses a composition having a viscosity of 1519cP (see Table 5, E10).
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.
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/B.S.H./ Examiner, Art Unit 1761
/LORNA M DOUYON/ Primary Examiner, Art Unit 1761
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