DETAILED ACTION
Applicants' arguments, filed 08/29/2025, have been fully considered. Rejections and/or objections not reiterated from previous office actions are hereby withdrawn. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application.
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 .
Priority
The instant application claims foreign priority to RU2020128107 filed 08/24/2020. The instant application is a 371 of PCT/RU2021/050275.
Claim Objections
Claim 8 is objected to because of the following informalities: grammar. Appropriate correction is required. The Examiner recommends changing “caused by burning hot food, injuring the oral cavity with a sharp object, chemical burn” to “caused by burning hot food, injuring the oral cavity with a sharp object, or chemical burn”
Claim Rejections - 35 USC § 112 Indefiniteness
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.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-3, 6-8, and 11-19 are 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 applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claims 1 and 15 recites the ratio “1:0.3-30” it is presently unclear if the intended range is 1:0.3 to 1:30, or if the range is 1:0.3 to 30:1 or if by the broadest reasonable interpretation, the intended range is 1: -29.7, or if there is another interpretation intended. A such the instant claim is indefinite and the depended claims 2-3, 6-8,11-14, and 16-19 are indefinite. For the purpose of claim interpretation, the range is being interpreted as 1:0.3 to 1:30.
Claims 15, 16, and 17 recite a “use: but fail to recite any active, positive steps delimiting how this use us actually practiced. Therefore, the claims are indefinite. See MPEP 2173.05(q). The Examiner clarifies, when a claim starts with the term “a use” or “the use” it is unclear if the claim is referring to a composition or a method, as such it is currently indefinite. The Examiner recommends changing the term “A use” or “The use” to “A method or “The composition” to clarify the metes and bounds of the claim. Additionally, the claim must have an active positive step delimiting how the use is practiced. For example, a toothpaste has ingredients that are mixed as an active positive step delimiting how it is manufactured. Another example is a toothpaste is applied to the oral cavity as an active positive step delimiting how it treats a patient.
Claim 15 recites “A use of the composition comprising an effective amount of aqueous and lipophilic CO2 extracts of aspen bark and at least one or more auxiliary substances for the treatment and/or prevention, wherein the quantitative ratio of aqueous and lipophilic CO2 extracts of aspen bark is 1:0.3- 30 by weight for the manufacture of a product for the treatment and/or prevention of the oral diseases.” The term “and at least one or more auxiliary substances for the treatment and/or prevention” is not followed by what the substances treat or prevent. As such, the metes and bounds of the claim are unclear and the claim is indefinite.
Claim Rejections - 35 USC § 112 Dependence
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 6 is 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. Claim 6 depends from claim 1. Claim 1 recites “wherein the quantitative ratio of aqueous and lipophilic CO2 extracts of aspen bark is 1:0.3- 30 by weight” which is being interpreted as 1:0.3 to 1:30. Claim 6 recites “The composition according to claim 1, wherein the quantitative ratio of aqueous and CO2 lipophilic extracts of aspen bark is 1:1, 2:1, 5:1, 10:1, or 20:1 by weight.”. The ratios 1:1 and 2:1 (1:0.5) fall within the range described in claim 1. However, 10:1 (1:0.1) and 20:1 (1:0.05) fall outside the range taught by claim 1. As such, it broadens the claim from which it depends rather than further limiting the claim from when it depends and is therefore indefinite. 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 11 is 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. Claim 11 depends from claim 1. Claim 1 recites “wherein the quantitative ratio of aqueous and lipophilic CO2 extracts of aspen bark is 1:0.3- 30 by weight” which is being interpreted as 1:0.3 to 1:30. Claim 11 recites an amount of aqueous extract as 2 and an amount of CO2 extract as 0.2, which would be 2:0.2 or 1:0.1 simplified. Which falls below the ratio taught by claim 1 broadening rather than further limiting the claim from which it depends. 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 12 is 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. Claim 12 depends from claim 1. Claim 1 recites “wherein the quantitative ratio of aqueous and lipophilic CO2 extracts of aspen bark is 1:0.3- 30 by weight” which is being interpreted as 1:0.3 to 1:30. Claim 12 recites an amount of aqueous extract as 3 and an amount of CO2 extract as 0.1, which would be 3:0.1 or 1:0.03 simplified. Which falls below the ratio taught by claim 1 broadening rather than further limiting the claim from which it depends. 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 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 1-3,6-8, and 13-17 are rejected under 35 U.S.C. 103 as being unpatentable over Non-Patent Literature No. 2 of the IDS filed 05/23/2023 (“ROCS JUNIOR Natural toothpaste for children 6-12 years old-effective and pleasant prevention of dental Diseases”, 2019).
ROCS toothpaste comprises double aspen bark extract which is both water and CO2 (lipophilic) extracts. ROCS further comprises flavors and xylitol. The document further recites that the toothpaste is used for the prevention of dental diseases, including gingivitis. With regards to instant claims 1, 6, and 15, it would have been prima facie obvious to one of ordinary skill in the art to have optimized the ratio of water and lipophilic aspen extract to provide the desired aspen extract solubility and safety. See MPEP 2144.05(II). With regards to instant claims 13 and 14, it would have been prima facie obvious to one of ordinary skill in the art to have optimized the strength of water and lipophilic aspen extracts to provide the desired aspen extract dilution. See MPEP 2144.05(II). The document further recites the use of toothpaste on erupting teeth, a sharp object injuring the oral cavity.
ROCS toothpaste differs from the instant claims in this rejection insofar as it does not teach the combination of the of the instantly recited components with sufficient specificity for anticipation. However, given the disclosure of each component individually, it would have been prima facie obvious to a person having ordinary skill in the art at a time prior to the filing of the present patent application and following the teachings of ROCS toothpaste to have selected and combined known components for their established functions with predictable results. MPEP §2143 and §2144.06(I).
Claims 18-19 are rejected under 35 U.S.C. 103 as being unpatentable over Non-Patent Literature No. 2 of the IDS filed 05/23/2023 (“ROCS JUNIOR Natural toothpaste for children 6-12 years old-effective and pleasant prevention of dental Diseases”, 2019) as applied to claims 1-3, 6-8, and 13-17 above, and further in view of Non-Patent Literature No. 3 of the IDS filed 05/23/2023 (Dental disease prevention, 2019).
ROCS toothpaste comprises double aspen bark extract which is both water and CO2 (lipophilic) extracts. ROCS further comprises flavors and xylitol. The document further recites that the toothpaste is used for the prevention of dental diseases, including gingivitis. The document further recites the use of toothpaste on erupting teeth, a sharp object injuring the oral cavity.
The ROCS toothpaste document differs from the instant invention insofar as it does not describe how long to brush the teeth for. The dental disease prevention document cures this deficit.
The dental disease prevention document recites that teeth brushing should be done on average from 3.5 to 4 minutes, which overlaps the instantly claimed range of 5 seconds to 5 minutes and 30 seconds to 5 minutes. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP§2144.05(I).
It would be obvious to have used the toothpaste of ROCS toothpaste in the methodology of dental disease prevention because ROCS teaches that a toothpaste is used for brushing teeth. See MPEP 2144.07.
Claims 11-12 are rejected under 35 U.S.C. 103 as being unpatentable over Non-Patent Literature No. 2 of the IDS filed 05/23/2023 (“ROCS JUNIOR Natural toothpaste for children 6-12 years old-effective and pleasant prevention of dental Diseases”, 2019) as applied to claims 1-3, 6-8, and 13-17 above, and further in view of Manasherov et al. (US Patent Application 20110117033A1) and Foreign Patent No. 3 (RU 241631C1 in the IDS filed 05/23/2023).
The teachings of the ROCS document are discussed above.
The teachings of the ROCS document differ from the instant claims insofar as they do not disclose the amounts of each component within the toothpaste. The teachings of Manasherov cure this deficit.
Manasherov teaches an oral care composition described in table 4 reproduced below;
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332
427
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.
Manasherov further teaches the use of moisturizing components including glycerin and sorbitol in an amount of 5% to 70% (Manasherov at claim 6). Manasherov teaches the use of xylitol as a sweetener (Manasherov at [0036]). Manasherov teaches calcium glycerophosphate (Manasherov at Table 4). Manasherov teaches the use of hydroxyethyl cellulose and xanthum gum in a range of 0.5 to 3% (Manasherov at claim 8). Manasherov teaches the use of surface-active components in a range of 0.5 to 3% (Manasherov at claim 3). Manasherov teaches the use of polysorbate-20, sodium lauryl sarcosinate, and alkylamidobetaine in a range of 0.5 to 3% (Manasherov at claim 9). Manasherov teaches the use of methylparaben, potassium sorbate, and sodium benzoate in a range of 0.01 to 0.5% (Manasherov at claim 11). Manasherov teaches the use of flavoring in a range of 0.1 to 0.3% (Manasherov at claim 3). Manasherov teaches the use of sodium saccharinate in a range of 0.1 to 0.3% (Manasherov at claim 10). Manasherov teaches the use of sodium saccharin in an amount of 0.2% and 0.05% (Manasherov at Table 2). Manasherov teaches the use of flavor in an amount of 0.6% and 1.2% (Manasherov at Table 1).
The teaching of Manasherov differ from the instant claims insofar as they do not specifically teach the use of aspen extract. The teaching of the ROCS document cures this deficit.
It would have been prima facie obvious to have combined the active ingredient of aspen extract to the oral care composition of Manasherov for the anticaries benefit taught in the ROCS document for the predictable result of an anticaries toothpaste. See MPEP 2144.06(I). See MPEP 2144.05 (II). See MPEP 2144 (II).
It would have been prima facie obvious to have optimized the amounts of the components used in the oral care composition of Manasherov to have the desired consistency and texture for an oral care composition. One would have an expectation of success because these components are used for their intended purpose in a toothpaste. See MPEP 2144.07.
The teachings of the ROCS document and Manasherov differ from the instant claims insofar as they do not disclose the use of isopropylmethylphenol (O-cumene-5-ol). The teachings of RU 241631C1 cure this deficit.
RU 241631C1 teaches the following oral care compositions;
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671
471
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;
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700
644
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;
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701
664
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;
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571
663
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;
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668
811
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;
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370
469
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;
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438
495
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;
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644
814
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. RU 241631C1 recites the use of plant extracts and active ingredients of plant origin (RU 241631C1 at claim 7). RU 241631C1 teaches the use of glycerin, sorbitol, and xylitol in a range of 5 to 70% (RU 241631C1 at page 4). RU 241631C1 teaches that water is used in a range of 0 to 70% (RU 241631C1 at page 4). RU 241631C1 teaches the use of thickeners including celluloses and xanthan gum in a range of 0.5 to 4% (RU 241631C1 at page 4). RU 241631C1 teaches the use of surfactants in a range of 0.01 to 10% (RU 241631C1 at pages 4 to 5). RU 241631C1 teaches the use of flavoring agents in a range of 0.1 to 1.5% (RU 241631C1 at page 5). RU 241631C1 teaches the use of isopropylmethylphenol at table 6 and 9. RU 241631C1 teaches the use of antibacterial agents include non-cationic antibacterial agents based on phenolic and bisphenolic compounds, for example, biosol (o-cymene-5-ol), and can be added in an amount of from 0.05 to 2.0% by weight (RU 241631C1 at page 3). RU 241631C1 teaches the use of sodium fluoride (RU 241631C1 at page 3). RU 241631C1 teaches the use of PEG 40 (RU 241631C1 at table 4).
The teaching of RU 241631C1 differ from the instant claims insofar as they do not specifically teach the use of aspen extract. The teaching of the ROCS document cures this deficit.
It would have been prima facie obvious to have combined the active plant ingredient of aspen extract with the active plant ingredient the oral care composition of RU 241631C1 for the anticaries benefit taught in the ROCS document for the predictable result of a toothpaste with an active plant ingredient. See MPEP 2144.06(I). See MPEP 2144.05 (II). See MPEP 2144 (II).
It would have been prima facie obvious to have optimized the amounts of the components used in the oral care composition of RU 241631C1 to have the desired consistency and texture for an oral care composition. One would have an expectation of success because these components are used for their intended purpose in a toothpaste or oral care composition. See MPEP 2144.07.
For the completeness of the record purely en arguendo.
Claims 1-3,6-8, and 11-19 are rejected under 35 U.S.C. 103 as being unpatentable over Non-Patent Literature No. 2 of the IDS filed 05/23/2023 (“ROCS JUNIOR Natural toothpaste for children 6-12 years old-effective and pleasant prevention of dental Diseases”, 2019), Manasherov et al. (US Patent Application 20110117033A1), Foreign Patent No. 3 (RU 241631C1 in the IDS filed 05/23/2023) and in further view of Modak (US Patent Application Publication 20140242198A1).
The teachings of ROCs, Manasherov and RU’631 are discussed above.
The combined teachings of ROCs, Manasherov, and RU’631 differ from the instant claims insofar as they do not explicitly teach a range of specifically aspen bark extract. The teachings of Modak cure this deficit.
Modak teaches from about 0.5% (w/w) to about 10% (w/w) botanical extract selected from the group consisting of wasabi extract, honeysuckle extract, cedar wood extract, aspen bark extract, willow bark extract, tobacco extract, and combinations thereof. Modak teaches the composition may be oral products such as mouth rinse, toothpaste, and dental floss coatings (Modak at [0131]). Modak further teaches the use of one or (preferably) more than one component selected from the group consisting of emollients, stabilizing agents, thickening agents, humectants, anti-inflammatory agents, antimicrobial agents, neutralizing agents, surfactants, water, silicone polymers, alcohols, and hydrogels, as well as additional components as may be known in the art (Modak at [0132]). Modak further teaches the use of sorbitol (Modak at [0135]), xanthan gum (Modak at [0135]), and sodium benzoate (Modak at [0046]).
The teachings of Modak differ insofar as they do not explicitly teach how the aspen bark is extracted. The teachings of ROCs cures this deficit.
It would be prima facie obvious to have combined the aspen bark extract of Modak with the plant extract of RU’631 for the predictable outcome of a toothpaste with a botanical extract. See MPEP 2144.06(I). One would have a reasonable expectation of success because both Modak and RU’631 teach the use of botanical extracts in toothpastes. One would be motivated to include the aspen bark extract in a toothpaste composition for the antimicrobial effects taught in Modak. See MPEP 2144.
Response to Arguments
Applicant's arguments filed 08/29/2025 have been fully considered but they are not persuasive.
With regards to the appendix including translations: Arguments presented by the applicant cannot take the place of evidence in the record. In re Schulze, 346 F.2d 600, 602, 145 USPQ 716, 718 (CCPA 1965). See MPEP 716.01(c). Additional Non-Patent Literature should be added through an Information Disclosure Statement with the original language document and the translation clearly demarked. Additional data and research not provided in English should be added through an affidavit or declaration in order to be considered of probative value. Objective evidence which must be factually supported by an appropriate affidavit or declaration to be of probative value includes evidence of unexpected results, commercial success, solution of a long-felt need, inoperability of the prior art, invention before the date of the reference, and allegations that the author(s) of the prior art derived the disclosed subject matter from the inventor or at least one joint inventor. See, for example, In re De Blauwe, 736 F.2d 699, 705, 222 USPQ 191, 196 (Fed. Cir. 1984). See MPEP 716.01(c).
With regards to the additional research: Objective evidence which must be factually supported by an appropriate affidavit or declaration to be of probative value includes evidence of unexpected results, commercial success, solution of a long-felt need, inoperability of the prior art, invention before the date of the reference, and allegations that the author(s) of the prior art derived the disclosed subject matter from the inventor or at least one joint inventor. See, for example, In re De Blauwe, 736 F.2d 699, 705, 222 USPQ 191, 196 (Fed. Cir. 1984). See MPEP 716.01(c). Additional data and research should be added through an affidavit or declaration in order to be considered of probative value.
Applicant argues that the ratio of aqueous to CO2 aspen bark extracts is critical and therefore the obviousness rejection should be withdrawn.
The Examiner does not agree. Firstly, the ratio of aqueous and lipophilic CO2 extracts is currently indefinite in the instant claims. Secondly, in order for a range to be deemed critical there must be evidence or data to support it in the instant specification or filed as an affidavit or declaration so as to be considered of probative value. Then the Applicant would need to explain the data highlighting the statistical and practical significance of the data. See MPEP 716.06 (b). Showing that the range above and below the “critical range” create a different outcome statistically and/or practically. Thirdly, the ROC toothpaste clearly shows that a toothpaste with aqueous and lipophilic CO2 aspen bark extract can be made and used. One of ordinary skill in the art would be able to optimize the extracts strengths and the amount used within the toothpaste to provide the desired concentration and strength. With regards to instant claims 1, 6, and 15, it would have been prima facie obvious to one of ordinary skill in the art to have optimized the ratio of water and lipophilic aspen extract to provide the desired aspen extract solubility and safety. See MPEP 2144.05(II). With regards to instant claims 13 and 14, it would have been prima facie obvious to one of ordinary skill in the art to have optimized the strength of water and lipophilic aspen extracts to provide the desired aspen extract dilution. See MPEP 2144.05(II). As such, Applicant’s arguments are not persuasive and the obviousness rejection stands.
Applicant argues that Manasherov does not teach the appropriate amounts of xylitol, sodium saccharinate, surface active component and flavor. Therefore, the obviousness rejection should be withdrawn. Applicant argues that RU 2416391C1 does not specifically teach the use of specific quality and quantity of preservatives and surface-active components.
The Examiner does not agree. In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Manasherov teaches the use of xylitol as a sweetener (Manasherov at [0036]). RU 241631C1 teaches the use of glycerin, sorbitol, and xylitol in a range of 5 to 70% (RU 241631C1 at page 4), which overlaps the instantly claimed range of 8 % and 15%. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP§2144.05(I). Manasherov teaches the use of sodium saccharin in an amount of 0.2% and 0.05% (Manasherov at Table 2). Manasherov teaches the use of flavor in an amount of 0.6% and 1.2% (Manasherov at Table 1). With regards to the surface-active components, it would have been prima facie obvious to have optimized the amounts of the components used in the oral care composition of Manasherov to have the desired consistency and texture for an oral care composition. One would have an expectation of success because these components are used for their intended purpose in a toothpaste. See MPEP 2144.07. With regards to preservatives Manasherov teaches the use of preservatives in a range of 0.01 to 0.5% (Manasherov at [0029]). RU 2416391C1 teaches the use of antibacterial agents like biosol (O-cymene-5-ol), which would preserve the composition, in a range of 0.05 to 2%, which overlaps the instantly claimed range of 0.05% and 0.08%. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP§2144.05(I). Both Manasherov and RU 2416391C1 describe preferred embodiments, however neither are limited by the disclosed examples. The patents are good for all they teach including general teachings and non-preferred embodiments. "The use of patents as references is not limited to what the patentees describe as their own inventions or to the problems with which they are concerned. They are part of the literature of the art, relevant for all they contain." In re Heck, 699 F.2d 1331, 1332-33, 216 USPQ 1038, 1039 (Fed. Cir. 1983). See MPEP 2123(I). Disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments. In re Susi, 440 F.2d 442, 169 USPQ 423 (CCPA 1971). See MPEP 2123 (II). Furthermore, while neither Manasherov nor RU 2416391C1 specifically teach aspen bark extract, the ROC toothpaste teaches a combination of aqueous and lipophilic CO2 aspen bark extract used in toothpaste. Manasherov and RU 2416391C1 do both teach ranges for actives. RU 2416391C1 teaches plant extracts in a range of 0.1 to 2%. (RU 2416391C1 at page 3). Manasherov teaches a complex of actives in a total range of 2 to 9%. These ranges overlap the instantly claimed amounts of aspen extracts. See also the rejection in view of Modak. As such, the Applicant’s arguments are not persuasive and the obviousness rejection stands.
Applicant argues that the combined prior art does not teach or suggest a successful solution and therefore the obviousness rejection should be withdrawn.
The Examiner does not agree. The ROCS toothpaste is a successful toothpaste with a combination of aqueous and lipophilic CO2 aspen bark extract. The amounts of the ingredients of the toothpaste are not taught which is where Manasherov and RU2416381C1 come in to teach what components are in toothpastes and in what general amounts. However, the ROC toothpaste clearly shows that a toothpaste with aqueous and lipophilic CO2 aspen bark extract can be made and used. As such, Applicant’s arguments are not persuasive and the obviousness rejection stands.
Conclusion
No claims are presently allowable.
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.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to AMANDA MICHELLE PETRITSCH whose telephone number is (571)272-6812. The examiner can normally be reached M-F 08:30-17:00 EST ALT Fridays.
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/AMANDA MICHELLE PETRITSCH/Examiner, Art Unit 1612
/SAHANA S KAUP/Supervisory Primary Examiner, Art Unit 1612