DETAILED ACTION
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of t/e previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 2/19/2026 has been entered.
Status of Application
The Examiner acknowledges receipt of the amendments filed on 2/12/2026 wherein claims 1, 5, 6, 16 and 17 have been amended.
Claims 1-18 and 21-22 are presented for examination on the merits. The following rejections are made.
Response to Applicants’ Arguments
Applicant’s response filed 2/12/2026 does not traverse the rejection of claim 10 made by the Examiner under 35 USC 112(b). This rejection has been MAINTAINED for the reasons of record in the Office Action mailed 11/18/2025.
Applicant’s amendments filed 2/12/2026 overcome the rejection of claims 5, 6, 16 and 17 made by the Examiner under 35 USC 112(b). This rejection has been withdrawn.
Applicant’s amendments filed 2/12/2026 overcome the rejection of claims 1-5, 8-10, 13-18 made by the Examiner under 35 USC 103 over Scoones (US 10357034) in view of Stockel et al. (US 2009/0318557). This rejection has been withdrawn as the references do not contemplate excluding PHMB and/or bronopol.
Applicant’s amendments filed 2/12/2026 overcome the rejection of claims 1-5, 8-10, 13-18 made by the Examiner under 35 USC 103 over Scoones (US 10357034) in view of Stockel et al. (US 2009/0318557) further in view of Wei (US 2009/0098159). This rejection has been withdrawn for the reasons noted under section 5.
Maintained Rejections, of Record
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
Claim 10 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor, or for pre-AIA the applicant regards as the invention.
Regarding claim 10, the phrase "optionally" renders the claim(s) indefinite because the claim(s) include(s) elements not actually disclosed (those encompassed by "or the like"), thereby rendering the scope of the claim(s) unascertainable. See MPEP § 2173.05(d).
New Rejections, Necessitated by Amendment
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.
Claims 1-16, 18, 21 and 22 is/are rejected under 35 U.S.C. 103 as being unpatentable over Albright et al. (US 2019/0191704), evidenced by Pubmed (lauramine oxide).
Albright describes antimicrobial compositions for reducing bacteria on surfaces such as the skin, the composition comprising an antimicrobial active compound comprising one or more of benzalkonium chloride, chlorhexidine gluconate and didecyl dimethyl ammonium chloride in an amount of between about 0.01-2% by weight (see [0011]; see instant claims 1). It is noted that the Albrights antimicrobial range overlaps with that of instant claims 2, 11 and 12. See MPEP 2144.05(I)(A). Albrights composition is to also comprise a preservative such as p-chloro-m-cresol (see [0126]; see instant claim 1) in an amount of 0.01-2% by weight (see [0132]; see instant claims 2, 11 and 12). The reference is silent regarding the presence of PHMB and/or bronopol so it is construed that the composition lacks both.
Albrights composition is to include a carrier such as water and/or ethanol (an alcohol) (see [0052]; see instant claims 4, 8 and 21) wherein the carrier is present in an amount of between 0-96.5% by weight (see [0054, 0055]; see instant claims 9-12 and 22). Manipulation of the amounts of water and ethanol in the final composition would be optimizable according to end users’ desires. See MPEP 2144.05(II)(A) which states that 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.
Albrights composition is to be in the form of a foam (see instant claim 18) and include a foam enhancing agents such as propylene glycol in an amount of between 0.05-4% by weight (see [0101, 0102]; see instant claim 5). Surfactants are to be included as well such as water-soluble amine oxide surfactants like dodecyldimethylamine oxide (i.e. lauramine oxide; see pubmed as evidence) (see [0059]; see instant claim 6) in an amount of between 0.5-8% by weight (see [0061]; see instant claims 7, 11 and 12).
The resulting composition would be expected to meet the European Chemicals Agency Biocidal Product Type 1 directive as the composition of the art overlaps with that claimed (see instant claim 13).
Methods of using the antimicrobial compositions are described wherein the composition is applied to the skin and/or surface so as to facilitate the reduction of microbial (e.g. E. coli, MRSA, etc.; see [0047]) or viral populations (see [0031]; see instant claims 14-16).
The only difference between Albright and the instant claims is that Albright does not teach the specific combination of components as claimed in a single embodiment, or with sufficient specificity to be anticipatory. The specific combination of features claimed is disclosed within the teaching of Albright, but ‘such ‘picking and choosing’ within several variable does not necessarily give rise to anticipation. Where, as here, the reference does not provide any explicit motivation to select this specific combination of variables, anticipation cannot be found. 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.” See MPEP 2141(I).
Therefore, the invention as a whole is prima facie obvious to one of ordinary skill in the art at the time the invention was filed, as evidenced by the references, especially in absence of evidence to the contrary.
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over Albright et al. (US 2019/0191704), evidenced by Pubmed (lauramine oxide), as applied to claims 1-16, 18, 21 and 22 above, and further in view of Taylor et al. (US 2008/0145390).
Albright fails to teach the method as being useful for inhibiting coronavirus.
Taylor teaches antimicrobial composition comprising various actives such as chlorhexidine, benzalkonium chloride and p-chloro-m-cresol (see [0150, 0160, 0169]) and that such formulations can be used in destroying viruses such as coronavirus (see [0063]; see instant claim 17). Thus, it would have been obvious to modify Albright’s method such that it be used in methods of inhibiting coronavirus with a reasonable expectation for success. See MPEP 2143(I)(A).
Therefore, the invention as a whole is prima facie obvious to one of ordinary skill in the art at the time the invention was filed, as evidenced by the references, especially in absence of evidence to the contrary.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KYLE A PURDY whose telephone number is (571)270-3504. The examiner can normally be reached from 9AM to 5PM.
If attempts to reach the examiner by telephone are unsuccessful, the examiner's supervisor, Bethany Barham, can be reached on 571-272-6175. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/KYLE A PURDY/Primary Examiner, Art Unit 1611
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