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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 1/23/2026 has been entered.
Status of the Claims
Claims 4, 7, 12, 13, 15, 17-22, 24-28, 43-45, 58-61, and 63 are pending and under current examination.
Withdrawn Claim Rejections
All rejections not reiterated have been withdrawn.
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.
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.
Claim 24 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 applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 24 recites the limitation “odor fighter”. There is no definition provided in the specification regarding what may qualify an additive to be an odor fighter, therefore it is impossible to discern what compounds may be encompassed by the term “odor fighter”.
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 4, 7, 12, 13, 15, 17, 18-22, 24-27, 58-61, and 63 are rejected under 35 U.S.C. 103 as being unpatentable over Doering (U.S. Patent Application No. 2014/0169856, publication date: 6/19/2014) in view of Thomas (U.S. Patent Application No. 2020/0397688, filing date 6/17/2020).
Determination of the scope and the content of the prior art
(MPEP §2141.01)
Regarding claim 4, Doering teaches an anhydrous soft solid antiperspirant composition that may contain silicone oils [0063]. Volatile silicone oils are suitable because they impart a pleasant skin feel with little staining of clothing [0065].
Regarding claims 7 and 12, Doering teaches that the composition may contain waxes [0104] and contains at least one fatty alcohol having 12 to 18 carbon atoms, such as stearyl alcohol [0011 and 0173]. With regards to the “structuring agent” limitations of instant claims 7 and 12, the prior art teaches the same fatty alcohol as claimed and therefore, the structuring agent properties are necessarily present; the Examiner directs attention to MPEP 2112.01 (II) which states: “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.”
Regarding claim 13, Doering teaches that the composition may contain silicas [0100]. With regards to the “suspension agent” limitations of instant claim 13, the prior art teaches the same silica as claimed and therefore, the suspension agent properties are necessarily present; the Examiner directs attention to MPEP 2112.01 (II) which states: “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.”
Regarding claim 15, Doering teaches that the composition may include modified corn, rice, and potato starch [0100], hydrophobed hectorites and bentonites [0105], aluminum starch octenylsuccinate [0173], and zeolites [0125]. With regards to the “wetness absorber” limitations of instant claim 15, the prior art teaches the same compounds as claimed and therefore, the wetness absorber properties are necessarily present; the Examiner directs attention to MPEP 2112.01 (II) which states: “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.”
Regarding claim 17, Doering teaches that the antiperspirant composition may contain at least one antiperspirant active ingredient [0019].
Regarding claim 18, Doering teaches that the antiperspirant active ingredient may be chosen from aluminum chlorohydrate [0022], aluminum sesquichlorohydrate, aluminum zirconium trichlorohydrex glycine, aluminum zirconium tetrachlorohydrex glycine, aluminum zirconium pentachlorohydrex glycine, and aluminum zirconium octachlorohydrex glycine [0024].
Regarding claims 19 and 20, Doering teaches that the antiperspirant composition may contain an odor absorber [0124].
Regarding claim 21, Doering teaches that the antiperspirant may contain at least one scent and/or at least one perfume oil [0120]. The perfume oils may include essential oils [0122].
Regarding claim 22, Doering teaches that the antiperspirant may contain an antioxidant such as tocopherol and derivatives thereof, including tocopheryl acetate [0133]
Regarding claim 24, Doering teaches that the antiperspirant may contain at least one deodorant active ingredient such as odor absorbers, deodorizing ion-exchangers, bacteriostatic substances, substances having a prebiotic effect and enzyme inhibitors [0124]. The composition may also contain a non-volatile non-silicone oil such as natural oils [0075] and an antimicrobial active ingredient [0127].
Regarding claim 25, Doering teaches that the antiperspirant active ingredient is included in an amount of from 3 to 35% by weight [0019]. The at least one scent and/or perfume oil may be present in a total amount of 0.01 to 10% by weight [0123].
Regarding claim 26, Doering teaches that the composition is anhydrous [0088].
Regarding claim 27, Doering teaches that the composition is a soft solid [0004].
Regarding claims 58 and 59, Doering teaches an anhydrous soft solid antiperspirant composition [0063].
Regarding claim 60, Doering teaches that soft solids are viscous compositions which have a creamy texture and which are pressed out through one or more openings of a dispensing device of the application before use [0003]. The Examiner considers the soft solid embraced by Doering to read on the “antiperspirant stick” limitation of the instant claim 60.
Regarding claim 61, Doering teaches the relevant limitations as described above.
Regarding claim 63, Doering teaches that a method for reducing or masking body odor, characterized in that the composition is applied to the skin in an effective amount using a suitable applicator [0141].
Ascertainment of the Difference Between Scope of the Prior Art and the Claims
(MPEP §2141.02)
Regarding claim 4, Doering does not teach that the antiperspirant composition is silicone-free or that it may contain isoamyl laurate or at least one additional emollient. However, this deficiency is cured by Thomas.
Thomas teaches a cosmetic composition comprising isoamyl laurate and ethylhexyl olivate [0008]. The composition is for use as a silicone replacement [0010] and is suitable for use in a personal care product [0049]. The composition provides silicone-like benefits in formulations while reducing or eliminating real or perceived health and environmental risks associated with silicones [0005]. The isoamyl laurate present in the composition is light and fast spreading and is able to absorb into the skin in a slower fashion, leaving a cushioned after-feel [0025]. Ethylhexyl olivate is an emollient that promotes higher skin hydration and increases flexibility, elasticity and suppleness of the skin. Skin feels softer and smoother [0023].
Regarding claim 61, Doering does not teach a hardness of the composition.
Finding of a Prima Facie Obviousness Rationale and Motivation
(MPEP §2142-2143)
Regarding claim 1, it would have been prima facie obvious to utilize the composition of Thomas in place of the silicone oils present in the antiperspirant of Doering. One of ordinary skill in the art of filing would have understood in view of Thomas that a composition comprising isoamyl laurate and ethylhexyl olivate may be used to replace silicone in personal care formulations. It would have been obvious to substitute the silicone oil present in the antiperspirant taught by Doering with the silicone replacement composition taught by Thomas. One of ordinary skill in the art of filing would have been motivated to substitute the silicone oil present in the antiperspirant taught by Doering in order to provide the same skin feel benefits while avoiding real or perceived health and environmental concerns associated with silicones. The artisan of ordinary skill in the art of filing would have had reasonable expectation of success because Thomas teaches that the compositions may be used in personal care formulations.
Regarding claim 61, Doering do not disclose the hardness properties as recited in claim 61. However, the invention as claimed is not structurally distinguishable from the disclosure of Doering in view of Thomas and therefore, the Examiner has a reasonable basis to believe that the properties claimed in the present invention are inherent in the composition taught by the prior art. Since the Patent and Trademark Office does not have the facilities for examining and comparing the claimed composition with that of the prior art, the burden of proof is shifted to the Applicants to show an unobvious distinction between the structural and functional characteristics of the claimed composition and the composition of the prior art; i.e., to prove that the properties are not inherent. See In re Best, 562 F.2d 1252, 195 U.S.P.Q. 430 (CCPA 197) and Ex parte Gray, USPQ 2d 1922 (PTO Bd. Pat. App. & Int.). As recited in MPEP §2112.01 (II): “Products of identical chemical composition cannot have mutually exclusive properties.” In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable.
Claim 28 is rejected under 35 U.S.C. 103 as being unpatentable over Doering (U.S. Patent Application No. 2014/0169856, publication date: 6/19/2014) in view of Thomas (U.S. Patent Application No. 2020/0397688, filing date 6/17/2020), as applied to claims 4, 7, 12, 13, 15, 17, 18-22, 24-27, 58-61, and 63 above, and further in view of Dove (How to Apply Deodorant, available 4/11/2017).
Determination of the scope and the content of the prior art
(MPEP §2141.01)
Doering, in view of Thomas, renders obvious the relevant limitations as described above. Doering also teaches that the composition is applied to the skin in an effective amount using a suitable applicator [0141].
Ascertainment of the Difference Between Scope of the Prior Art and the Claims
(MPEP §2141.02)
Doering does not teach that the composition may be applied to the underarm, under the feet, in the hands, intimate areas and/or under the breast. However, this deficiency is cured by Dove.
Dove teaches that a stick deodorant may be applied to the underarm (pg. 7).
Finding of a Prima Facie Obviousness Rationale and Motivation
(MPEP §2142-2143)
It would have been prima facie obvious to one of ordinary skill in the art of filing to apply the antiperspirant composition taught by Doering to the underarms. One would have understood in view of Dove that deodorant sticks may be applied to the underarms. It would have been obvious to apply the antiperspirant composition of Doering to the underarms. One of ordinary skill in the art of filing would have been motivated to adapt the composition of Doering for application to the underarms in order to utilize the composition to mask or reduce malodor in the underarms. The artisan of ordinary skill in the art of filing would have had reasonable expectation of success because Dove teaches that stick deodorants may be applied to the underarm.
Claims 43-45 are rejected under 35 U.S.C. 103 as being unpatentable over Cetti (U.S. Patent Application No. 2016/0089317, publication date: 3/31/2016, of record), as evidenced by INCI Decoder (Propylene Glycol, available 4/8/2017).
Determination of the scope and the content of the prior art
(MPEP §2141.01)
Regarding claims 43 and 44, Cetti teaches an antiperspirant and deodorant composition that can comprise a volatile silicone solvent [0013] or volatile or nonvolatile silicone emollients [0056]. The Examiner interprets the term “can comprise” in Cetti to encompass embodiments of the composition that do not contain silicone and therefore reads on the “silicone-free” limitation of the instant claim. Cetti teaches that, the composition may include propylene glycol [0056] as an emollient and that depending on the type of product form desired, the concentrations of emollients in the antiperspirant and deodorant composition can range from about 1%-95% by weight [0055]. INCI Decoder teaches that propylene glycol may also function as a humectant (pg. 1). The composition may contain from 0 to 30% by weight of structurants [0032]. Hydrogenated castor wax, paraffin wax, beeswax, and spermaceti wax may be present in an amount from 1 to 10% by weight [0109-0110]. The antiperspirant agent may be present in the composition from 1-25% by weight of the composition [0045]. The composition may also contain 0-30% of a structurant, residue masker, antimicrobial agents or mixtures thereof [0032] and from about 0% to about 12% by weight of perfume raw materials [0030]. The composition may contain solvent from about 0.1 to 99% by weight [0031]. The composition may also include emulsifiers [0123], antioxidants [0051], clay mineral powders such as bentonite [0121]. Clays and silicas may be present from about 5-35% by weight [0088]. Cetti also teaches that the solid structurant of the antiperspirant and deodorant composition may provide thickening properties to the composition [0087], the Examiner therefore considers the structurant taught by Cetti to read on the “thickener” limitation of the instant claims. With regards to the “wetness absorber” limitations of instant claims 43 and 44, the instant specification defines wetness absorber to include clays [00056 of instant specification]. The Examiner therefore considers the clays taught by Cetti to read on the wetness absorbers of the instant claims. With regards to the “additive(s)” limitations of instant claims 43 and 44, the instant specification defines additives to include antimicrobial agents [00019 of instant specification]. The Examiner therefore considers the antimicrobial agents embraced by Cetti to read on the “additive(s)” limitation of the instant claims.
Regarding claim 45, Cetti teaches that the antiperspirant and deodorant composition may be formulated as a cream [0008 and 0137].
Ascertainment of the Difference Between Scope of the Prior Art and the Claims
(MPEP §2141.02)
Regarding claims 43 and 44, Cetti does not teach a specific amount of emulsifier or antioxidant present in the composition. Cetti also does not teach an amount of wetness absorber that lies within the range embraced by the instant claims.
Finding of a Prima Facie Obviousness Rationale and Motivation
(MPEP §2142-2143)
Regarding claim 43, the weight percentage of emulsifier and antioxidant in the composition is clearly a result effective parameter that a person of ordinary skill in the art would routinely optimize. Optimization of parameters is a routine practice that would be obvious for a person of ordinary skill in the art to employ and would reasonably expect success. It would have been customary for an artisan of ordinary skill to determine the optimal weight percentage in order to best achieve the desired results as such would provide advantageous emulsification and antioxidant effect. It would have been prima facie obvious to one of ordinary skill in the art at the time of the invention to engage in routine experimentation to determine optimal or workable ranges that produce expected results. 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, 105 USPQ 233 (CCPA 1955). In the instant case, Cetti teaches that the adjunct materials such as emulsifiers are known for use in antiperspirant and deodorant compositions [0120] and that antioxidants may be present in the composition [0051]. The Examiner considers it prima facie obvious to optimize the weight percentage of emulsifiers and antioxidants present in the composition, absent unexpectedly superior properties of the claimed invention. In the instant case, one of ordinary skill in the art would have recognized that the amount of emulsifier and antioxidant present in the composition would have a direct effect on an emulsified formulation and antioxidant properties of the composition, respectively, and therefore be an optimizable variable.
Regarding the weight percentage of wetness absorbers as specified in claims 43 and 44, MPEP 2144.05 states:
Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. “[W]here 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).
Furthermore, Cetti teaches that clays and silicas may act as solid structurants that are known or are otherwise effective in providing suspending, gelling, viscosifying, solidifying, and/or thickening properties to the composition [0087]. The Applicants' specification provides no evidence that the selected weight percentage in claims 43 and 44 was not due to routine optimization and/or that the results should be considered unexpected compared to the prior art. Due to the role of the clays taught by Cetti in the structure of the final composition, it would have been prima facie obvious to a person of ordinary skill in the art at the time of the invention to combine these teachings and alter the weight percentage. One of ordinary skill in the art would have been motivated to change the weight percentage as this could be expected to be advantageous for achieving the desired structural consistency of the composition.
Response to Arguments
Applicant’s arguments with respect to the rejection of claims 4, 7, 12, 13, 15, 17, 18-21, 24-28, 58-61 and 63 under 35 U.S.C. 103 over Cetti, claim 22 under 35 U.S.C. 103 over Cetti and Cosmia, and claims 43-45 under 35 U.S.C. 103 over Cetti in view of Boyd 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.
Response to Affidavit
Applicant’s declaration filed 1/23/2026 has been fully considered but is not persuasive. This response is directed to those arguments not rendered moot by the new ground of rejection.
On page 1, Applicant argues that the use of isoamyl laurate combined with at least one additional emollient provides unexpected benefits to the antiperspirant and/or deodorant composition, including good spreadability, preventing wetness and ensuring efficient transport of aluminum salts to the epidermis to block sweat ducts. This is not found persuasive. Please refer to MPEP 716.02 (b) which details the burden on Applicant to establish that results in a side-by-side comparison to the closest prior art are unexpected and significant. Specifically, Applicant must establish that differences in results are in fact unexpected and unobvious and are of both practical and statistical significance. Additionally, evidence of unexpected properties must be commensurate in scope with the claims.
Differences in results are in fact unexpected and unobvious: The unexpected results are directed to good spreadability, wetness prevention, and efficient transport of aluminum salts to the epidermis. However, as described in the obviousness rejection above, Doering in view of Thomas teaches an antiperspirant composition that utilizes isoamyl laurate and ethylhexyl olivate as a silicone replacement. The isoamyl laurate present in the composition of Thomas is light and fast spreading and is able to absorb into the skin in a slower fashion, leaving a cushioned after-feel [0025]. Ethylhexyl olivate is an emollient that promotes higher skin hydration and increases flexibility, elasticity and suppleness of the skin. Skin feels softer and smoother [0023]. Therefore, the unexpected results are not unexpected or unobvious.
Differences are of both practical and statistical significance: The unexpected results amount to good spreadability, wetness prevention, and efficient transport of aluminum salts to the epidermis. Therefore, the differences are of practical significance. There is not numerical data or statistical analysis to support the unexpected results, therefore the differences are not of statistical significance.
Evidence of unexpected properties must be in commensurate scope with the claims: The evidence of unexpected properties in commensurate scope with the claims.
Additionally, no side-by-side comparison to the closest prior art is provided to establish unexpectedly superior performance. There is no nexus between the purportedly unexpected property and the differences between the instant invention, as claimed, and the closest prior art. Thus, the Applicant’s argument is not persuasive and the rejection is maintained.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ELIZABETH ANNE MEYERS whose telephone number is (571)272-2271. The examiner can normally be reached Monday-Friday 8am-5pm ET.
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ELIZABETH ANNE MEYERSExaminer, Art Unit 1617
/ALI SOROUSH/Supervisory Patent Examiner, Art Unit 1614
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