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 .
In view of applicant’s argument (see under sections (b) and (c) on pg.8-11 of applicant’s REMAKRS filed on April 28, 2026) that there would be no motivation to combine Wegner (EP’821) with Mathur (WO’541) and Dalea (KAMA AYURVEDA, an internet article published on September 25, 2020) to arrive at instant composition comprising 7.5 wt.% or more of at least one sensation modifying agent, previous 103 rejections over Wegner et al (EP 3 058 821 B1) in view of Mathur et al (WO 2014/201541 A1) and Dalela (“16 Incredible Benefits of Peppermint Oil for Skin, Hair & Health”, KAMA AYURVEDA, an internet article published on 09/25/2020) are hereby withdrawn. Thus, applicant’s argument with respect to the previous 103 rejections is now moot.
Due to newly cited prior arts, the following rejections are made non-final.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim(s) 1, 3, 4, 6-11, 14-20 and 23 are rejected under 35 U.S.C. 103 as being unpatentable over Copeland et al (US 2015/0258003 A1) in view of Wegner et al (EP 3 058 821 B1) (with (i) Martinez et al (US 2019/0008736 A1) which is being cited here merely to support the Examiner’s assertion that sodium gluconate is a chelating agent; (ii) Alimi (US 2019/0099336 A1) which is being cited here merely to support the Examiner’s assertion that PEG-12 dimethicone and PEG-8 dimethicone are surfactants; (iii) Klofta et al (US 2003/0077307 A1) and Skarmoutsou et al (US 2020/0016779 A1) which are being cited here merely to support the Examiner’s assertion that Avena Sativa (oat) extract (avenanthramide) is known as a skin-soothing agent).
Copeland teaches (abstract and [0019]) hand sanitizing (handwash) compositions that may be formulated as a foamable composition and provide excellent antimicrobial efficacy and skin conditioning benefits. Such composition comprises (see claims 1-2): (based upon the total weight of the composition) about 10-98 wt.% (or about 50-98 wt.%) of at least one C1-6 alcohol; at least one phytochemical with anti-inflammatory properties; at least one enzyme or coenzyme that aids in the formation of the stratum corneum; and at least one deposition enhancer (polyolprepolymer-2, polyolprepolymer-14 or polyolprepolymer-15).
Specifically, in Example 41 (see Table 8), Copeland teaches a handwash composition containing 70 wt.% ethanol, water, isopropyl alcohol, PEG-12 dimethicone (Copeland’s silicone glycol – see [0081] and [0083]), caprylyl glycol (a skin conditioner – see [0088]-[0090]), glycerin (a humectant – see [0067])), PEG-33 (a humectant – see [0068]), PEG-14 (a humectant – see [0068]), PEG-8 dimethicone (Copeland’s silicone glycol), niacinamide (Copeland’s stratum corneum formation enhancer – see [0046]), sodium lactate (a lactate salt which is a humectant – see [0066]-[0067]), sodium gluconate (a chelating agent as evidenced by Martinez et al ([0087]), which is being used as Copeland’s deposition enhancer (see [0057]), Avena Sativa (Oat) extract (avenanthramide – Copeland’s phytochemical having anti-inflammatory properties – see [0027] and [0029]), potassium sorbate (a preservative – see [0029]) and PPG-12/SMDI copolymer (a deposition enhancer – see [0059]).
With respect to instant (i) a short-chain alcohol or mixtures thereof in an amount in the range of 35.0% to 60.0% by weight of the total composition, although Copeland’s handwash composition of Example 41 contains 70 wt.% ethanol, as already discussed above, Copeland gives a general teaching that its inventive handwash composition can contain C1-6 alcohol in the amount of about 10-98 wt.% or about 50-98 wt.%. It would have been obvious to one skilled in the art to use ethanol (or use ethanol and isopropyl alcohol together) in the amount that ranges from about 10 to 98 wt.% or from about 50 to 98 wt.% in Copeland’s Example 41 composition with a reasonable expectation of success. Either of these ranges for the amount of C1-6 alcohol as taught by Copeland overlaps with instant range (35.0 wt.% - 60.0 wt.%) for the amount of the short-chain alcohol or mixtures thereof, thus rendering instant range prima facie obvious. In the case “where the [claimed] ranges overlap or lie inside ranges disclosed by the prior art,” a prima facie case of obviousness would exist which may be overcome by a showing of unexpected results, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976). Thus, Copeland’s teaching renders obvious instant component (i).
With respect to instant (iii) 7.5 wt.% or more of at least one sensation modifying agent, as shown above, Copeland’s Avena Sativa (Oat) extract (avenanthramide) included in its Example 41 composition is being used as its phytochemical having anti-inflammatory properties. Furthermore, as evidenced by Klofta et al (see [0079]) and Skarmoutsou e al ([0075]), Avena Sativa (oat) extract (avenanthramide) is known as a skin-soothing agent. Thus, Copeland’s Avena Sativa extract used in its Example 41 composition teaches instant sensation modifying agent and instant soothing agent. As to instant range 7.5 wt.% or more for the amount of the at least one sensation modifying agent, Copeland teaches (claim 4 and [0032]) that its phytochemical having anti-inflammatory properties can be present in the amount of up to about 10 wt.% based on the total weight of the composition. It would have been obvious to one skilled in the art to use Avena Sativa (Oat) extract in the amount of up to about 10 wt.% in Copeland’s Example 41 composition with a reasonable expectation of success. The range up to about 10 wt.% for the amount of Avena Sativa (Oat) extract (avenanthramide) overlaps with instant range 7.5 wt.% or more for the amount of at least one sensation modifying agent, thus rendering instant range prima facie obvious. In re Wertheim, supra. Thus, Copeland’s teaching renders obvious instant component (iii).
PEG-12 dimethicone and PEG-8 dimethicone, which are used in Copeland’s Example 41, are silicone surfactants, as evidenced by Alimi ([0044]), and Copeland’s Example 41 composition does not contain any surfactant other than PEG-12 dimethicone and PEG-8 dimethicone. Thus, Copeland teaches instant limitation “wherein the foamable composition only contains a dimethicone-based surfactant”.
With respect to instant limitation “wherein the total amount of dimethicone-based surfactant in the composition is from about 1.0% to about 10.0% by weight of the total composition”, Copeland teaches ([0085]) that its silicone glycols (such as PEG-12 dimethicone and PEG-8 dimethicone that are used in its Example 41 composition) are present in the composition in the amount of about 0.0002 – about 4 wt.%. Such range overlaps with instant range about 1.0 wt. % to about 10.0 wt.% for the total amount of dimethicone-based surfactant, thus rendering instant range prima facie obvious. In re Wertheim, supra. Thus, Copeland teaches or renders instant limitation as to the total amount of dimethicone-based surfactant being from about 1.0 – 10.0 wt.%.
With respect to instant “foamable” composition and “wherein the composition foams when combined with air and dispensed through a dispenser pump”, first of all, as already pointed out above, Copeland teaches that its inventive handwash composition can be formulated into a foamable composition. Secondly, Wegner teaches that PEG-8 and PEG-12 linear dimethicone surfactants are more effective at generating foam than dimethicone surfactants with the same PEG chain length but a different polymer architecture (see [0004]). Since Copeland teaches that its handwash composition can be formulated into a foamable composition, it would have been obvious to one skilled in the art to use PEG-12 linear dimethicone (instant (ii) first dimethicone-based surfactant) and PEG-8 liner dimethicone (instant (v) second dimethicone-based surfactant) as Copeland’s PEG-8 and PEG-12 dimethicones in Copeland’s Example 41 composition so as to make the composition foamable. Furthermore, since Copeland in view of Wegner teaches or renders obvious instant formable composition containing all of instant components (i)-(v) of claim 1, such composition would inherently foam when combined with air and dispensed through a dispenser pump as instantly recited. Thus, Copeland in view of Wegner teaches instant preamble “[a] foamable composition” and instant limitation “wherein the composition foams when combined with air and dispensed through a dispenser pump”.
Thus, Copeland in view of Wegner renders obvious instant claims 1, 3, 10, 17 and 19.
With respect to instant claim 4, as already discussed above, Copeland gives a general teaching that its inventive handwash composition can contain C1-6 alcohol in the amount of about 10-98 wt.% or about 50-98 wt.%. Either of these ranges for the amount of C1-6 alcohol as taught by Copeland overlaps with instant range (35.0 wt.% - 50.0 wt.%) for the amount of the short-chain alcohol or mixtures thereof, thus rendering instant range prima facie obvious. In re Wertheim, supra. Thus, Copeland in view of Wegner renders obvious instant claim 4.
With respect to instant claims 6 and 7, the Examiner established above that it would be obvious to one skilled in the art to use PEG-12 linear dimethicone (instant (ii) first dimethicone-based surfactant) and PEG-8 linear dimethicone (instant (v) second dimethicone-based surfactant) as Copeland’s PEG-8 and PEG-12 dimethicones in Copeland’s Example 41 composition so as to make the composition foamable. As evidenced by Wegner (claim 1), the PEG-8 linear and PEG-12 linear dimethicones have the following general formula
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621
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wherein R = CH3, m = 4-20, y = 1-5 and n = 8 or 12. Since the formula for the PEG-8 and PEG-12 linear dimethicones has PEG groups on both ends of the dimethicone molecule, PEG-8 and PEG-12 linear dimethicones represent instant bis-PEG-8 dimethicone (instant second dimethicone-based surfactant of claim 7) and instant bis-PEG-12 dimethicone (instant first dimethicone-based surfactant of claim 7). Thus, Copeland in view of Wegner renders obvious instant claims 6 and 7.
With respect to instant claims 8 and 9, as already discussed above, Copeland teaches that silicone glycols (such as PEG-12 dimethicone and PEG-8 dimethicone used in its Example 41 composition) are present in its composition in the amount of about 0.0002 – about 4 wt.%. Such range overlaps with instant range of claim 9 about 2.0 wt. % to about 10.0 wt.% for the (total) amount of the first and second dimethicone-based surfactants, thus rendering instant range prima facie obvious. In re Wertheim, supra. With respect to instant limitation of claim 8 as to the second dimethicone-based surfactant being present in an amount of at least 0.1 wt.% of the total composition, assuming that PEG-12 linear dimethicone and PEG-8 linear dimethicone are used in equal amounts, this gives the amount for the PEG-8 linear dimethicone (instant second dimethicone-based surfactant) to be about 0.0001 – about 2 wt.%. Such range overlaps with instant range of claim 8 at least 0.1 wt.% for the amount of the second dimethicone-based surfactant, thus rendering instant range prima facie obvious. In re Wertheim, supra. Alternatively, under the general teaching given by Copeland (i.e., its silicon glycols (such as PEG-12 dimethicone and PEG-8 dimethicone used in its Example 41 composition) are to be present in the amount of about 0.0002 – about 4 wt.%), instant range of claim 8 at least 0.1 wt.% for the amount of the second dimethicone-based surfactant (PEG-8 linear dimethicone) would have been obvious to one skilled in the art before the effective filing date of the claimed invention since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233. Thus, Copeland in view of Wegner renders obvious instant claims 8 and 9.
With respect to instant claim 11, as already discussed above, Copeland’s Example 41 composition contains Avena Sativa (Oat) extract (avenanthramide) (instant soothing agent of claim 10) as its phytochemical having anti-inflammatory properties. Furthermore, Copeland teaches ([0027]) the equivalence of avenanthramide (used in its Example 41 composition) and capsaicin, both as phytochemicals having anti-inflammatory properties that can suitably be used in its inventive composition. Thus, it would have been obvious to one skilled in the art to use capsaicin instead of avenanthramide (Avena Sativa (Oat) extract) in Copeland’s Example 41 composition with a reasonable expectation of success. Thus, Copeland in view of Wegner renders obvious instant claim 11.
With respect to instant claims 14-16, as shown above, Copeland’s Example 41 composition shown above contains glycerin (as a humectant), which teaches instant additive of claim 14. Copeland further teaches ([0066]-[0067]) the equivalence of glycerin (used in its Example 41 composition) and propylene glycol, both as humectants that can suitably be used in its composition. Thus, it would be obvious to one skilled in the art to use propylene glycol (instant additive of claims 14 and 15) instead of glycerin in Copeland’s Example 41 composition with a reasonable expectation of success. Furthermore, Copeland teaches ([0069]-[0070]) that humectant(s) can be used in its composition in the amount of from about 0.001 wt.% to about 20 wt.%. Such range overlaps with instant range of claim 16 equal to or less than 5.0 wt.% for the amount of the additive, thus rendering instant range prima facie obvious. Alternatively, under the general teaching given by Copeland (i.e., humectant(s) can be used in its composition in the amount of from about 0.001 wt.% to about 20 wt.%), instant range equal to or less than 5.0 wt.% for the amount of the additive would have been obvious to one skilled in the art before the effective filing date of the claimed invention since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, supra. Thus, Copeland in view of Wegner renders obvious instant claims 14-16.
With respect to instant claims 18 and 20, the Examiner established above (while addressing instant claims 1, 17 and 19) that it would have been obvious to one skilled in the art to use PEG-12 linear dimethicone (instant (ii) first dimethicone-based surfactant) and PEG-8 liner dimethicone (instant (v) second dimethicone-based surfactant) as Copeland’s PEG-8 and PEG-12 dimethicones in Copeland’s Example 41 composition so as to make the composition foamable. As also discussed above, Copeland teaches that silicone glycols (such as PEG-12 dimethicone and PEG-8 dimethicone used in its Example 41 composition) are present in its composition in the amount of about 0.0002 – about 4 wt.%. With respect to instant claim 18, assuming that PEG-12 linear dimethicone and PEG-8 linear dimethicone are used in equal amounts, this gives the amount for the PEG-8 linear dimethicone (instant second dimethicone-based surfactant) to be about 0.0001 – about 2 wt.%. Such range overlaps with instant range of claim 18 (at least 0.1 wt.%) for the amount of the second dimethicone-based surfactant, thus rendering instant range prima facie obvious. In re Wertheim, supra. Alternatively, under the general teaching given by Copeland (i.e., its silicon glycols (such as PEG-12 dimethicone and PEG-8 dimethicone used in its Example 41 composition) are to be present in the amount of about 0.0002 – about 4 wt.%), instant range of claim 18 (at least 0.1 wt.%) for the amount of the second dimethicone-based surfactant (PEG-8 linear dimethicone) would have been obvious to one skilled in the art before the effective filing date of the claimed invention since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, supra. Thus, Copeland in view of Wegner renders obvious instant claim 18. With respect to instant claim 20, since Copeland gives a general teaching that silicone glycols (such as PEG-12 linear dimethicone and PEG-8 linear dimethicone that are to be used in its Example 41 composition) should be present in its composition in the (total) amount of about 0.0002 – about 4 wt.%, under such general guideline given by Copeland, instant range for the weight ratio of the bis-PEG-12 dimethicone (PEG-12 linear dimethicone) to the bis-PEG-8 dimethicone (PEG-8 linear dimethicone) would have been obvious to one skilled in the art before the effective filing date of the claimed invention since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, supra. Alternatively, assuming that PEG-12 linear dimethicone and PEG-8 linear dimethicone are used in equal amounts, this would give the weight ratio of bis-PEG-12 Dimethicone to bis-PEG-8 Dimethicone to be 1, thus teaching instant range of 1.0-3.5. Thus, Copeland in view of Wegner renders obvious instant claim 20.
With respect to instant claim 23, for the reasons explained above, Copeland in view of Wegner teaches instant components (i)-(v) of instant claim 1. Copeland further teaches ([0131]) that its dispensable composition may be prepared by simply mixing the components together and the order of addition is not particularly limited, but may advantageously be selected based upon the solubility of various ingredients in water and/or alcohol. Under such general guideline given by Copeland, working out instant steps (i)-(iv) would be within the realm of one of ordinary skill in the art. Thus, Copeland in view of Wegner renders obvious instant claim 23.
Claim(s) 12 and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Copeland et al (US 2015/0258003 A1) in view of Wegner et al (EP 3 058 821 B1) as applied to claim 1 above, and further in view of Nakagawa et al (5,352,437), Davis (US 2018/0028438 A1) and Herrmann et al (US 2020/0188290 A1).
With respect to instant claims 12 and 13, as already discussed above, Copeland teaches the use of a phytochemical having anti-inflammatory properties, such as Avena Sativa (Oat) extract or capsaicin, in the amount of up to about 10 wt.% based on the total weight of the composition. As evidenced by Nakagawa et al (col.3, lines 14-15, lines 24-26) and Davis ([0240]), it is known in the art that capsaicin and menthol are equivalently or interchangeably used as anti-inflammatory agents. As also evidenced by Herrmann et al ([0102]), it is known in the art that oat extract and menthol are equivalently or interchangeably used as a skin soothing agent. It would have been obvious to use up to about 10 wt.% of menthol (instant at least one sensation modifying agent of claim 12) as Copeland’s phytochemical having anti-inflammatory properties in Copeland’s Example 41 composition with a reasonable expectation of providing anti-inflammatory effect and skin soothing effect. The range up to about 10 wt.% (as taught by Copeland) overlaps with instant range 7.5 – 16.0 wt.% for the amount of the at least one sensation modifying agent, thus rendering instant range prima facie obvious. In re Wertheim, supra. Thus, Copeland in view of Wegner, and further in view of Nakagawa, Davis and Herrmann renders obvious instant claims 12 and 13.
Claim(s) 21 and 22 are rejected under 35 U.S.C. 103 as being unpatentable over Copeland et al (US 2015/0258003 A1) in view of Asmus et al (US 2007/0138439 A1), Wegner et al (EP 3 058 821 B1), Nakagawa et al (5,352,437), Davis (US 2018/0028438 A1) and Herrmann et al (US 2020/0188290 A1).
With respect to instant component (i) of claim 21, the Examiner already established above that under Copeland’s teaching, it would have been obvious to one skilled in the art to use ethanol in the amount that ranges from about 10 to 98 wt.% or from about 50 to 98 wt.% in Copeland’s Example 41 composition. Copeland odes not expressly state that its ethanol is SD-alcohol (specially denatured alcohol). However, as evidenced y Asmus ([0002]), ethanol is often used in formulations of sanitizing composition for its antimicrobial properties, and because such products are not intended to be ingested, the ethanol used in such products is typically denatured so that it is rendered undrinkable. It would have been obvious to one skilled in the art to use about 10-98 wt.% (or about 50-98 wt.%) of denatured ethanol (SD-ethanol) to make it undrinkable according to a typical practice in the art. Copeland’s range about 10-98 wt.% (or about 50-98 wt.%) overlaps with instant range 35.0-65.0 wt.% for the amount of the SD-alcohol, thus rendering instant range prima facie obvious. In re Wertheim, supra. Thus, Copeland in view of Asmus renders obvious instant component (i). With respect to instant components (ii) and (iv) of claim 21, the Examiner already established above that under the teachings of Copeland in view of Wegner, it would have been obvious to one skilled in the art to use PEG-12 linear dimethicone (instant dimethicone surfactant) and PEG-8 liner dimethicone (instant second dimethicone surfactant) as Copeland’s PEG-8 and PEG-12 dimethicones in Copeland’s Example 41 composition so as to make the composition foamable. As also discussed above, Copeland teaches that silicone glycols (such as PEG-12 linear dimethicone and PEG-8 linear dimethicone that are to be used in its Example 41 composition) should be present in its composition in the amount of about 0.0002 – about 4 wt.%. Assuming that PEG-12 linear dimethicone and PEG-8 linear dimethicone are used in equal amounts, this gives each amount for the PEG-12 linear dimethicone and PEG-8 linear dimethicone to be about 0.0001 – about 2 wt.%. Such range overlaps with instant range 1.0 – 10.0 wt.% for the amount of instant dimethicone surfactant (PEG-12 linear dimethicone) and instant range 0.5-6.0 wt.% for the amount of instant second dimethicone surfactant (PEG-8 linear dimethicone), thus rendering instant ranges prima facie obvious. In re Wertheim, supra. Alternatively, under the general teaching given by Copeland (i.e., its silicon glycols (such as PEG-12 dimethicone and PEG-8 dimethicone used in its Example 41 composition) are to be present in the amount of about 0.0002 – about 4 wt.%), instant ranges for the amounts of the dimethicone surfactant (PEG-12 linear dimethicone) and the second dimethicone surfactant (PEG-8 linear dimethicone) would have been obvious to one skilled in the art before the effective filing date of the claimed invention since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, supra. Thus, Copeland in view of Wegner renders obvious instant components (ii) and (iv) of claim 21. With respect to instant component (iii) of claim 21, as discussed above, Copeland teaches the use of a phytochemical having anti-inflammatory properties, such as Avena Sativa (Oat) extract or capsaicin, in the amount of up to about 10 wt.% based on the total weight of the composition. As evidenced by Nakagawa et al (col.3, lines 14-15, lines 24-26) and Davis ([0240]), it is known in the art that capsaicin and menthol are equivalently or interchangeably used as anti-inflammatory agents. As also evidenced by Herrmann et al ([0102]), it is known in the art that oat extract and menthol are equivalently or interchangeably used as a skin soothing agent. It would have been obvious to use up to about 10 wt.% of menthol as Copeland’s phytochemical having anti-inflammatory properties in Copeland’s Example 41 composition with a reasonable expectation of providing anti-inflammatory effect and skin soothing effect. The range up to about 10 wt.% (as taught by Copeland) overlaps with instant range 7.5 – 16.0 wt.% for the amount of the menthol, thus rendering instant range prima facie obvious. In re Wertheim, supra. Thus, Copeland in view of Nakagawa, Davis and Herrmann renders obvious instant component (iii). Copeland’s Example 41 composition contains instant component (v) water of claim 21. With respect to instant component (vi) of claim 21, as discussed above, Copeland’s Example 41 composition shown above contains glycerin (as a humectant), which teaches instant additive. Furthermore, Copeland teaches ([0069]-[0070]) that humectant(s) can be used in its composition in the amount of from about 0.001 wt.% to about 20 wt.%. Such range overlaps with instant range (0.5-5.0 wt.%) claim 21 for the amount of the additive, thus rendering instant range prima facie obvious. In re Wertheim, supra. Alternatively, under the general teaching given by Copeland (i.e., humectant(s) can be used in its composition in the amount of from about 0.001 wt.% to about 20 wt.%), instant range (0.5-5.0 wt.%) for the amount of the additive would have been obvious to one skilled in the art before the effective filing date of the claimed invention since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, supra. Thus, Copeland teaches or renders obvious instant component (vi) of claim 21. As already pointed out above, Copeland’s Example 41 composition does not contain any surfactant other than PEG-12 dimethicone and PEG-8 dimethicone. Thus, Copeland teaches instant limitation “wherein the foam composition only contains a dimethicone-based surfactant” of claim 21. Lastly, since Copeland in view of Asmus, Wegner, Nakagawa, Davis and Herrmann teaches or renders obvious all of instant components (i)-(vi), such composition would inherently foam when combined with air and dispensed through a dispenser pump as instantly recited in claim 21.
Thus, Copeland in view of Asmus, Wegner, Nakagawa, Davis and Herrmann renders obvious instant claim 21.
With respect to instant component (i) of claim 22, the Examiner already established above that under Copeland’s teaching, it would have been obvious to one skilled in the art to use ethanol in the amount that ranges from about 10 to 98 wt.% or from about 50 to 98 wt.% in Copeland’s Example 41 composition. Copeland odes not expressly state that its ethanol is SD-alcohol (specially denatured alcohol). However, as evidenced by Asmus ([0002]), ethanol is often used in formulations of sanitizing composition for its antimicrobial properties, and because such products are not intended to be ingested, the ethanol used in such products is typically denatured so that it is rendered undrinkable. It would have been obvious to one skilled in the art to use about 10-98 wt.% (or about 50-98 wt.%) of denatured ethanol (SD-ethanol) to make it undrinkable according to a typical practice in the art. Copeland’s range about 10-98 wt.% (or about 50-98 wt.%) overlaps with instant range 45.0-65.0 wt.% for the amount of the SD-alcohol, thus rendering instant range prima facie obvious. In re Wertheim, supra. Thus, Copeland in view of Asmus renders obvious instant component (i) of claim 22. With respect to instant components (ii) and (iii) of claim 22, the Examiner already established above that under the teachings of Copeland in view of Wegner, it would have been obvious to one skilled in the art to use PEG-12 linear dimethicone (instant bis-PEG-12 dimethicone) and PEG-8 liner dimethicone (instant bis-PEG-8 dimethicone) as Copeland’s PEG-8 and PEG-12 dimethicones in Copeland’s Example 41 composition so as to make the composition foamable. Furthermore, Copeland teaches ([0085]) that silicone glycols (such as PEG-12 linear dimethicone and PEG-8 linear dimethicone that are to be used in its Example 41 composition) can be present in its composition in the amount of at least about 0.002 wt.% or at least about 0.05 wt.%. Assuming that PEG-12 linear dimethicone and PEG-8 linear dimethicone are used in equal amounts, this gives each amount for the PEG-12 linear dimethicone and PEG-8 linear dimethicone to be at least about 0.001 wt.% or at least about 0.025 wt.%. Either of these ranges overlaps with instant range 1.5-4.0 wt.% for the amount of bis-PEG-12 dimethicone and with instant range 3.5-6.0 wt.% for the amount of bis-PEG-8 dimethicone, thus rendering instant ranges prima facie obvious. In re Wertheim, supra. Alternatively, under the general teaching given by Copeland (i.e., its silicon glycols (such as PEG-12 dimethicone and PEG-8 dimethicone used in its Example 41 composition) can be present in the amount of at least about 0.002 wt.% or at least about 0.05 wt.%), instant ranges for the amount of bis-PEG-12 dimethicone and bis-PEG-8 dimethicone would have been obvious to one skilled in the art before the effective filing date of the claimed invention since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, supra. Thus, Copeland in view of Wegner renders obvious instant components (ii) and (iii) of claim 22. With respect to instant component (iv) of claim 22, as discussed above, Copeland teaches the use of a phytochemical having anti-inflammatory properties, such as Avena Sativa (Oat) extract or capsaicin, in the amount of up to about 10 wt.% based on the total weight of the composition. As evidenced by Nakagawa et al (col.3, lines 14-15, lines 24-26) and Davis ([0240]), it is known in the art that capsaicin and menthol are equivalently or interchangeably used as anti-inflammatory agents. As also evidenced by Herrmann et al ([0102]), it is known in the art that oat extract and menthol are equivalently or interchangeably used as a skin soothing agent. It would have been obvious to use up to about 10 wt.% of menthol as Copeland’s phytochemical having anti-inflammatory properties in Copeland’s Example 41 composition with a reasonable expectation of providing anti-inflammatory effect and skin soothing effect. The range up to about 10 wt.% (as taught by Copeland) overlaps with instant range 7.5 – 16.0 wt.% for the amount of the menthol, thus rendering instant range prima facie obvious. In re Wertheim, supra. Thus, Copeland in view of Nakagawa, Davis and Herrmann renders obvious instant component (iv). Copeland’s Example 41 composition contains instant component (v) water of claim 22. With respect to instant component (vi) of claim 22, as discussed above, Copeland’s Example 41 composition shown above contains glycerin (as a humectant), which teaches instant additive. Furthermore, Copeland teaches ([0069]-[0070]) that humectant(s) can be used in its composition in the amount of from about 0.001 wt.% to about 20 wt.%. Such range overlaps with instant range (0.5-5.0 wt.%) claim 22 for the amount of the additive, thus rendering instant range prima facie obvious. In re Wertheim, supra. Alternatively, under the general teaching given by Copeland (i.e., humectant(s) can be used in its composition in the amount of from about 0.001 wt.% to about 20 wt.%), instant range (0.5-5.0 wt.%) for the amount of the additive would have been obvious to one skilled in the art before the effective filing date of the claimed invention since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, supra. Thus, Copeland teaches or renders obvious instant component (vi) of claim 22. As already pointed out above, Copeland’s Example 41 composition does not contain any surfactant other than PEG-12 dimethicone and PEG-8 dimethicone. Thus, Copeland teaches instant limitation “wherein the foam composition only contains a dimethicone surfactant” of claim 22. Lastly, since Copeland in view of Asmus, Wegner, Nakagawa, Davis and Herrmann teaches or renders obvious all of instant components (i)-(vi), such composition would inherently foam when combined with air and dispensed through a dispenser pump as instantly recited in claim 22.
Thus, Copeland in view of Asmus, Wegner, Nakagawa, Davis and Herrmann renders obvious instant claim 22.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SIN J. LEE whose telephone number is (571)272-1333. The examiner can normally be reached on M-F 9 am-5:30pm.
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/SIN J LEE/
Primary Examiner, Art Unit 1613
July 16, 2026
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