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 .
Status of Claims
Claims 1-11 and 14-20 are pending and under examination in this office action.
Response to Argument and Amendment
Claim Objections
Claim 1 is objected to because of the following informalities: The claim identifier should be previously amended or identify where the amendment is done. Appropriate correction is required.
Claim 16 is canceled. Claim 17 depends on claim 16. Appropriate correction is required.
Maintained 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.
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.
Claim(s) 1-11 and 14-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Savage et al. (WO2013/033833) in view of Dobson et al. (US 3499961) and Akhlaghi et al. (US 20170128577) and Wahston (DK 3226827T3) and further in view of Neudahl (Chemist corner , 2012) and as evidenced by Devlieghere et al. (Packaging technology and Science 13(3);117-121)
With regards to instant claim 1, Savage teaches a liquid/lotion/cream composition (see 0007 and as required by instant claim 8) for topical application (see 0017) comprising a nanocrystalline cellulose (see abstract) with a length in the range of from about 50 nm to about 1000 nm and a diameter (see 0029 and as required by instant claims 4 and 15) and a diameter from 2 nm to about 50 nm (see 0030) in a cosmetically acceptable carrier i.e., water or oil (see 0007), wherein the nanocrystalline cellulose comprises a hydroxy groups (see abstract) and the composition comprises at least 2% of the nanocrystalline cellulose (see abstract, 0035 and as required by instant claims 5 and 15). Thus is within reason that the molarity, is lower than 0.016 (as required by instant claim 2) and the ionic strength ranges from 0-0.012 (as required by instant claim 18-19) because the same active agents are used and therefore have the same property. As stated in the MPEP 2112.01 "products of identical chemical composition cannot have mutually exclusive properties." A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990),
“Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical
processes, a prima facie case of either anticipation or obviousness has been established.
In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not."
However Savage fails to teach the cellulose is negatively charge.
Dobson teaches an antiperspirant composition comprising metallic salts (see col. 1, lines 15+), wherein the metal salts are as further limited by instant claim 14, an aluminum salt (see col. 1, lines 15+ as required by instant claims 17) in a cosmetically acceptable carrier (see claim 1). It is obvious that an antiperspirant would be use underarm (as required by instant claim 10-11, see Example 7, col. 4, lines 21+), wherein the form maybe a cream/lotion and can also comprise a propellant (see col. 2, lines 10+, as required by instant claims 8-9).Additionally teaches the composition comprises a perfume (i.e., fragrance, as required by instant claim 6) and also teaches the inclusion of antibacterial (see Example 7) i.e., hexamethylenetetramine. The art recognizes hexamethylenetetramine as a antimicrobial (as required by instant claim 7) agent as evidenced by Devlieghere et al. hexamethylenetetramine is an antimicrobial agent (see article).
Akhlaghi teaches the use of nanocrystalline cellulose in cosmetics, wherein the nanocrystalline cellulose is used in cosmetics (see 0007) and is negatively charge (see 0030, as required by instant claim 3) for topical application (see 0038).
Wahston teaches with regards to instant claim 1, teaches a cationic non-metal species in deodorants, therefore it is reasonable that one of ordinary skill in the art would be motivated to substitute the aluminium for a non-cationic metal.
Chemist corner teaches a solid deodorant a stick with no metal ions (see entire article, as required by instant claims 1 and 21). Note that claim 8 recites a solid form)
It would have been obvious to one of ordinary skill in the art to substitute the nanocrystalline cellulose of Savage with that of Akhlaghi with a reasonable expectation of success as it is known in the art that nanocrystalline cellulose are used in the cosmetic art. Therefore the Savage composition of aqueous antiperspirant intrinsically can modify the Dodson by substituting the metal with a non-metal deodorant as taught by Wahston and Neudahl (chemist corner, with a reasonable expectation of success One would have been motivated to combine these references and make the modification because they are drawn to same technical fields (constituted with same ingredients and share common utilities, and pertinent to the problem which applicant concerns about. MPEP 2141.01(a).
Therefore the combination of the references would have resulted in the instant claimed invention with a reasonable expectation of success.
Applicant argues that a) "Savage teaches a liquid/lotion/cream composition... for topical application... comprising a nanocrystalline cellulose...with a length in the range of from about 50 nm to about 1000 nm and a diameter...from 2 nm to about 50 nm... in a cosmetically acceptable carrier...wherein the nanocrystalline cellulose comprises a hydroxy groups... and the composition comprises at least 2% of the nanocrystalline cellulose" (see page 3 of OA 5/25)” and that Examiner has not made a prima facie case.
In response this is found not persuasive because the introduction of Akhlaghi is for its teaching the use of nanocrystalline cellulose in cosmetics in the form of a liquid as cosmetic additives (see 0036-37) for topical application since antiperspirant is topically applied. Therefore the use of negatively charged NCC in an antiperspirant is well within the purview of the skilled artisan to use. Applicant’s argument is found unpersuasive.
b) Applicant argues that the claims as amended is metal free and that Dobson teaches the use of aluminium.
In response, The added reference cures the deficit as non-metal cations are not part of the deodorant. However, claim 17 of the instant recites the use of metal ions.The rejection have been amended as necessitated by the amendment to the claims.
No claims are allowed.
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 extension fee 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 date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SHIRLEY V GEMBEH whose telephone number is (571)272-8504. The examiner can normally be reached M-F 9am-6pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Robert A. Wax can be reached at 571-272-0623. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/SHIRLEY V GEMBEH/Primary Examiner, Art Unit 1615 9/12/25