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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 12/09/2025 has been entered.
Claim Status
Claims 1-3, 5, and 7-14 are rejected.
No claims are allowable.
Modified 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 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, 5, and 7-14 are rejected under 35 U.S.C. 103 as being unpatentable over Cochran et al., (US 2019/0105246 A1, April 11, 2019) (hereinafter Cochran).
Cochran discloses a personal cleansing composition having an anionic surfactant, and an aqueous carrier, substantially free of sulfate containing surfactants (Abstract). The composition may be a shower gel (i.e. a product comprising the cosmetic wash composition [0012]). A cationic polymer such as guar hydroxypropyltrimonium chloride can be included by weight of the cleansing composition at about 0.05% to about 3% ([0050]). The composition can include a suspending agent in an amount from about 0.05% to about 10% by weight of the compositions ([0148]). Suitable suspending agents can include anionic polymers such as xanthan gum ([0149]). A surfactant system can include one or more amino acid based anionic surfactants ([0026]). The composition can contain additional anionic surfactants such as isethionates ([0032]) including fatty acid surfactants from palm kernel oil including sodium palm kerneloyl isethionate, (i.e. pre-solubilized/esterified plant-derived oil chemically modified by esterification, [0034]). The composition can include about 20% to about 95%, by weight of the composition, of a liquid carrier such as water ([0126]). The composition can have a viscosity of about 100 cPs to about 15,000 cPs (equal to 0.1 PaS to 15 PaS [0156]). The composition can include a variety of optional components in an amount from about 0.001% to about 10%, by weight of a cleansing composition ([0128]). Optional components include suspending agents and vitamins ([0129]). The composition may comprise from about 3 wt % and from about 35 wt % of an anionic surfactant ([0004]). The surfactant system may further comprise one or more non-ionic surfactants such as lauroyl glucoside ([0046]). The cationic polymer of the composition helps to seal in moisture ([0118]). The cleansing composition may be transparent ([0172]).
Cochran discloses a shower gel containing xanthan gum ([0149]), guar hydroxypropyltrimonium chloride ([0050]), sodium palm kerneloyl isethionate, (i.e. pre-solubilized/esterified plant-derived oil chemically modified by esterification, [0034]), an anionic surfactant ([0026]), and water ([0126]) that is transparent ([0172]). Together these would provide a composition as claimed instantly. The prior art is not anticipatory insofar as these combinations must be selected from various lists/locations in the reference. It would have been obvious, however, to make the combination since all the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination yielded nothing more than predictable results to one of ordinary skill in the art. See MPEP 2143(I)(A).
Regarding claim 1, the composition of Cochran is substantially free of sulfate containing surfactants and any further inorganic and/or organic sulfates and polyethylene glycol and/or polyethylene glycol-derivatives suggested for use are optionally present. One of ordinary skill in the art would have arrived at a composition that does not comprise inorganic and/or organic sulfates and polyethylene glycol and/or polyethylene glycol-derivatives, according to the teachings of Cochran, meeting the claim limitations.
Regarding the claimed concentration of anionic polysaccharide and cationic polysaccharide in claim 1, Cochran teaches xanthan gum (i.e., anionic polysaccharide) at about 0.05% to about 10% by weight of the composition and guar hydroxypropyltrimonium chloride (i.e., cationic polysaccharide) can be included by weight of the cleansing composition at about 0.05% to about 3%. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists. MPEP 2144.05 A.
Regarding the limitation of claim 1 reciting “such that it forms a mono-phasic system with the water,” as discussed above, the aqueous composition of Cochran comprises surfactants such as sodium palm kerneloyl isethionate, (i.e. pre-solubilized/esterified plant-derived oil chemically modified by esterification). As noted in the instant specification on page 4, lines 34-36, a plant-derived oil that is pre-solubilized by the process of esterification is solubilized in an aqueous phase so that the plant-derived oil and an aqueous phase build a mono phasic system. Thus, because the sodium palm kerneloyl isethionate of Cochran is a pre-solubilized/esterified plant-derived oil chemically modified by esterification, the sodium palm kerneloyl isethionate of Cochran would necessarily form a mono-phasic system with water, meeting the limitations of the claims.
Regarding claims 8 and 13, Cochran teaches vitamins in an amount from about 0.001% to about 10%, by weight of a cleansing composition and water in an amount from about 20% to about 95%, by weight of the composition, overlapping with the claimed ranges of at least one vitamin and water. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists. MPEP 2144.05 A.
Regarding claim 14, the composition of Cochran may be a shower gel and has a moisturizing effect. Further, the composition of Cochran comprises all of the limitations of the instantly claimed invention and as such, would necessarily possess the same properties, making it suitable for moisturizing the skin.
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Cochran et al., (US 2019/0105246 A1, April 11, 2019) (hereinafter Cochran) in view of Clark et al., (US 2012/0053339 A1, March 1, 2012) (hereinafter Clark).
As discussed above, Cochran makes obvious the limitations of claim 1 but does not teach wherein the anionic polysaccharide is a xanthan gum having an average particle size of 50 to 1250 µm.
However, Clark discloses a xanthan gum polymer with enhanced properties (Abstract). Examples of an improved property includes a Low Shear Rate Viscosity (LSRV) at 3 rpm of greater than about 1800 mPa·s (cP) ([0009]), full hydration in less than about 8 minutes in a 6 wt % NaCl solution ([0010]), and a viscosity of greater than about 1900 mPa·s ([0011]). The inventive xanthan gum can be used as a thickener, viscosity modifier, emulsifier, or stabilizer in cosmetic formulations ([0012]). The improved properties of the xanthan gum make it possible to incorporate the xanthan gum into formulations, resulting in improved viscosity and suspension of particulates ([0045]). The xanthan gum may be milled to an average particle size of about 50 to about 750 microns ([0048]).
Generally, it is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use. See MPEP 2144.07. Cochran discloses wherein the cosmetic composition comprises suspending agents such as xanthan gum. Accordingly, it would have been obvious to one of ordinary skill in the art to have incorporated a xanthan gum having an average particle size of 50 to 1250 µm into the composition of Cochran since it is a known and effective suspending agent for cosmetic formulations, as taught by Clark.
Response to Applicant’s Arguments
Applicant argues that Cochran does not teach a plant derived oil that is chemically modified to form a mono-basic system with water.
Applicant’s argument has been fully considered but found not to be persuasive. As discussed above, as noted in the instant specification on page 4, lines 34-36, a plant-derived oil that is pre-solubilized by the process of esterification is solubilized in an aqueous phase so that the plant-derived oil and an aqueous phase build a mono phasic system and further on page 4 line 37 through page 5 line 1, the instant specification states that plant-derived oils can be pre-solubilized by the process of esterification of the plant derived oil components. As evidenced by Cosmile Europe (SODIUM PALM KERNELOYL ISETHIONATE, accessed March 10, 2026) (hereinafter Cosmile Europe), sodium palm kerneloyl isethionate is the sodium salt ester of palm kernel oil and isethionic acid (2-hydroxyethane sulfonic acid) (page 2, Substance Information). Thus, because the sodium palm kerneloyl isethionate of Cochran is a plant derived oil that is chemically modified by esterification, and as such is pre-solubilized as indicated by the instant specification, the sodium palm kerneloyl isethionate of Cochran would necessarily form a mono-phasic system with water, meeting the limitations of the claims.
Applicant argues claims 2, 5, and 7-14 depend from claim 1 and are not patentable for the same reasons discussed above and further include additional limitations not taught in the prior art.
Applicant’s argument has been fully considered but found not to be persuasive. The Examiner submits that Applicant’s argument with regards to Cochran is addressed above and is unpersuasive. Also, Applicant has not pointed out the additional limitations not taught in the prior art. Therefore, these rejections are maintained.
Applicant argues that the teachings of Clark are moot since Cochran’s base composition is fundamentally different from the instantly claimed invention.
Applicant’s argument has been fully considered but found not to be persuasive. The Examiner submits that Applicant’s argument with regards to Cochran is addressed above and is unpersuasive. Therefore, these rejections are maintained.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Samantha J Knight whose telephone number is (571)270-3760. The examiner can normally be reached Monday - Friday 8:30 am to 5:00 pm ET.
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/S.J.K./ Examiner, Art Unit 1614
/TRACY LIU/ Primary Examiner, Art Unit 1614