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 1-10, 16-20 and 28-32 are pending. Claims 11-15, 21-27 and 33-40 are canceled. Claims 1-5, 7-10, 16, 18, 20, 28, 30 and 32 are amended.
Previous Rejections
Rejections and/or objections not reiterated from previous office actions are hereby withdrawn as are those rejections and/or objections expressly stated to be withdrawn.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.
Rejections Withdrawn
Claim Rejections - 35 USC §112(b)
In light of the amendments the rejection of claims 5, 7, 8, 10, 18, 20, 30, and 32 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or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention is withdrawn.
Claim Rejections - 35 USC § 103
In light of the amendments the rejection of claims 1-10, 16-20 and 28-32 under 35 U.S.C. 103 as being unpatentable over Emmerling et al. WO 2006/063726 (6/22/2006) in view of Banowski et al. WO 2009/083547 (7/9/2009) and Deckner et al. https://www.ulprospector.com/knowledge/4757/pcc-silicones-wow-factor-formulations-part-1-fluids/ (7/29/2016) (“Silicones”) as evidenced by the specification is withdrawn.
New Rejections
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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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 1-10, 16-20 and 28-32 are rejected under 35 U.S.C. 103 as being unpatentable over Emmerling et al. WO 2006/063726 (6/22/2006) in view of Banowski et al. WO 2009/083547 (7/9/2009) and Deckner et al. https://www.ulprospector.com/knowledge/4757/pcc-silicones-wow-factor-formulations-part-1-fluids/ (7/29/2016) (“Silicones”) and Steiling et al. Skin Exposure to deodorants/antiperspiratnts in aerosol form Food and Chemical Toxicology 50(6), pp 2206-15 (2012) as evidenced by the specification.
Emmerling et al. (Emmerling) teaches antiperspirant and/or deodorant cosmetic compositions which comprise a water-in-oil emulsion having at least one antiperspirant or deodorant ingredient, at least one propellant and an aerosol dispenser. (See Abstract). Emmerling teaches that it is a storage stable emulsion spray product. In the oil phase Emmerling describes isododecane as a preferred oil component. Isododecane is called for in instant claims 2 and 29. Isododecane corresponds to the formula in claims 1 and 28. The isododecane is present in an amount of about 5 to 50 wt%. 5 to 50 wt% overlaps with the from about 25 to about 35 wt% called for in instant claims 3 and 30. 5 to 50 wt% overlaps with the from 15 to 60 wt% called for in instant claims 1 and 28. 5 to 50 wt% overlaps with the from 29.9% to 32.7 wt% called for in instant claims 4 and 5.
Emmerling teaches that silicates serve as odor absorbers which can also advantageously support the rheological properties of its water-in-oil emulsions. Particularly advantageous silicates in its invention include hectorite. (See page 7).
Further particularly preferred components in the composition include dimethiconol. Emmerling teaches that it has been found surprisingly that the addition of a dimethiconol improves the spray pattern of the emulsion spray and prevents the spray device from clogging for longer periods of time.
Emmerling teaches that some of the most particularly preferred dimethiconols are dissolved as a solution in a dimethicone. One such dimethiconol is Wacker-Belsil DM 3096. (See page 1). A dimethiconol dissolved as a solution in a dimethicone is a blend of a dimethicone and a dimethiconol as called for in instant claims 1, 16 and 28.
Wacker-Belsil DM 3096 has a viscosity of 6,000 mPa.s at 25 ˚C as evidenced by the instant specification at [0050] in Example 2. 6,000 mPa.s at 25 ˚C = 6,000 cP which is called for in instant claims 6 and 31. Emmerling teaches preferred total amounts of dimethiconol of from 0.2 to 0.5 % by weight. (See page 7).
Emmerling teaches that preferred oil components include isopropyl palmitate. (See page 3). Isopropyl palmitate is called for in instant claim 9. Emmerling’s compositions are cyclomethicone free as called for in instant claim 8.
Emmerling teaches hectorite but does not teach stearalkonium hectorite. Emmerling teaches the silicone gum blend Wacker-Belsil DM 3096 but does not teach the approximate amount of dimethiconol or dimethicone. Emmerling does not teach a spray area of 87 cm2. These deficiencies are made up with the teachings of Banowski et al. and Silicones and Steiling et al.
Banowski et al. (Banowski) teaches antiperspirant compositions for personal hygiene formulated as a suspension or solution that can be sprayed using a propellant, containing at least one antiperspirant substance, at least one oil, which is liquid under normal conditions as the carrier, 0 to 3% of free water, based on the weight of the composition and at least one organosiloxane-oxyalkylene copolymer. (See Abstract).
Banowski teaches that its preferred compositions contain at least one lipophilic thickener that is selected from hydrophobized clay minerals among other thickeners such as fumed silicas. Banowski teaches that hydrophobic clay minerals are particularly preferred. Banowski teaches that particularly suitable thickeners include disteardimonium hectorite. (See page 15).
Silicones teaches that typically, less than 100,000 cSt fluids are referred to as gums and are used in shampoos and conditioners. The most efficient feel-modifying, tack reducing silicones are gum blends comprised of 85 to 90 percent of a low viscosity carrier and 10 to 15 percent gum. Carriers used include dimethicone and cyclopentasiloxane. (See paragraph 6 in Silicones on page 1).
As mentioned previously, Emmerling teaches preferred total amounts of dimethiconol of from 0.2 to 0.5 % by weight. The Wacker-Belsil DM 3096 is a blend of dimethiconol in dimethicone but the exact ratio of dimethiconol to dimethicone is unknown because this is a proprietary blend. However, the viscosity is known to be 6,000 mPa.s at 25 ˚C. As taught by Silicones, typically, less than 100,000 cSt fluids are comprised of 85 to 90 percent of a low viscosity carrier such as dimethicone and 10 to 15 percent gum (higher viscosity silicones such as dimethiconol).
Even with a ratio of 85 to 90 percent of a low viscosity carrier such as dimethicone and 10 to 15 percent dimethiconol, the amount of dimethicone would be 4.5 wt% and would thus be well below the 16% limit required by instant claim 16. Additionally, the total amount of the silicone blend would be 5.0 % (0.5% dimethiconol + 4.5% dimethicone = 5%). 5% silicone gum blend falls within the about 6 to about 10% called for in instant claim 7. 5% silicone gum blend falls within the 5 to 10% called for in instant claim 16 and the 3 to 8% called for in claim 32.
Steiling researched how personal care aerosol mists disperse under typical consumer usage and concluded that with an application distance of roughly 10 cm, the average surface area of skin covered by a standard underarm deodorant or body spray is 105 cm2. (See Abstract). Steiling teaches that it well would be no more than routine experimentation and well within the skill of the ordinarily skilled artisan to experiment to determine the optimal average surface area as called for in claims 3 and 4.
Steiling also teaches that the amount used is also a parameter that can be controlled by the operator and it would be no more than routine experimentation and well within the skill of the ordinarily skilled artisan to experiment to determine the optimal concentrate deposited as called for in claims 3 and 5.
It would be prima facie obvious before the earliest effective filing date for one of ordinary skill in the art making the Emmerling water in oil emulsion composition of 5 to 50 wt% isododecane, isopropyl palmitate and Wacker-Belsil DM 3096 to have the hectorite be disteardimonium hectorite in order to have an effective lipophilic thickener as taught by Banowski that can also absorb odor as taught by Emmerling.
It would be prima facie obvious before the earliest effective filing date for one of ordinary skill in the art making the Emmerling water in oil emulsion composition of 5 to 50 wt% isododecane, isopropyl palmitate and Wacker-Belsil DM 3096 to have the amount of Wacker-Belsil DM 3096 be 5% in order to have an efficient feel-modifying, tack reducing silicone as taught by Silicones that has dimethiconol present in an amount of 0.2 to 0.5 % by weight as taught by Emmerling.
It would be prima facie obvious before the earliest effective filing date for one of ordinary skill in the art making the Emmerling water in oil emulsion composition of 5 to 50 wt% isododecane, isopropyl palmitate and Wacker-Belsil DM 3096 to manipulate the application of the composition to have the optimal average spray area and the optimal deposition of concentrate in light of Steiling’s teaching of the average surface area of skin covered by a standard underarm deodorant or body spray and the average amount deposited by the typical consumer during realistic application situations.
Response to Arguments
Applicants comments of March 23, 2026 have been considered carefully and are found to be partly persuasive and partly unpersuasive.
Applicants note the amendments to the claims and where support for the amendments can be found.
Applicants assert that the amendments to the claims address the indefiniteness rejections and the Office agrees. These rejections have been withdrawn above.
Applicants argue that Emmerling fails to teach Applicants independent claims as a whole because Emmerling does not use isododecane, hectorite and dimethiconols in any of its specific formulations. Applicants argue that Banowski and Deckner fail to remedy this deficiency because they too fail to teach Applicants claims as a whole.
Therefore, the claims are not obvious over the cited references according to Applicant because of a failure to locate a formulation in Emmerling as a starting point and failing to provide a motivation to modify the Emmerling formulation with the teachings of Banowski and Deckner.
Applicants also assert that the cited references fail to teach the unexpected results of the claimed invention. The exemplary inventive compositions in Table 3 provide unexpected improvements in spray area, concentrate deposited and average spray droplet particle size without the need to a cyclomethicone.
Applicants’ arguments have been carefully considered and are found to be mostly unpersuasive. Applicants arguments Emmerling fails to teach Applicants independent claims as a whole because Emmerling does not use isododecane, hectorite and dimethiconols in any of its specific formulations is not found to be persuasive because the teachings of the reference is not limited to its Examples alone. The prior art is prior art for all that it teaches and teachings do not need to be exemplified in order to instruct the ordinarily skilled artisan. Similarly, Banowski and Deckner are prior art for all that they teach and their teachings are not limited to their examples and exemplified embodiments. Furthermore, Applicants conclusively state that there is no motivation to modify Emmerling with the teachings of Banowski and Deckner but fail to address the motivations set forth in the obviousness rejection at all. Respectfully, this is unpersuasive.
As described in the rejections above, it would be prima facie obvious before the earliest effective filing date for one of ordinary skill in the art making the Emmerling water in oil emulsion composition of 5 to 50 wt% isododecane, isopropyl palmitate and Wacker-Belsil DM 3096 to have the hectorite be disteardimonium hectorite in order to have an effective lipophilic thickener as taught by Banowski that can also absorb odor as taught by Emmerling.
It would be prima facie obvious before the earliest effective filing date for one of ordinary skill in the art making the Emmerling water in oil emulsion composition of 5 to 50 wt% isododecane, isopropyl palmitate and Wacker-Belsil DM 3096 to have the amount of Wacker-Belsil DM 3096 be 5% in order to have an efficient feel-modifying, tack reducing silicone as taught by Silicones that has dimethiconol present in an amount of 0.2 to 0.5 % by weight as taught by Emmerling.
It would be prima facie obvious before the earliest effective filing date for one of ordinary skill in the art making the Emmerling water in oil emulsion composition of 5 to 50 wt% isododecane, isopropyl palmitate and Wacker-Belsil DM 3096 to manipulate the application of the composition to have the optimal average spray area and the optimal deposition of concentrate in light of Steiling’s teaching of the average surface area of skin covered by a standard underarm deodorant or body spray and the average amount deposited by the typical consumer during realistic application situations.
Applicants assertion of unexpected results is also found to be unpersuasive. The unexpected results are suggested by the prior art. Further particularly preferred components in the composition include dimethiconol. Emmerling teaches that it has been found surprisingly that the addition of a dimethiconol improves the spray pattern of the emulsion spray and prevents the spray device from clogging for longer periods of time. Thus Emmerling suggests optimal spray pattern or area and better deposition in that clogs are prevented and better administration and delivery of spray is achieved. Thus, Applicants unexpected results appear to be more expected than unexpected and the benefits of demethiconol are suggested by the prior art itself.
Conclusion
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 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SARAH CHICKOS whose telephone number is (571)270-3884. The examiner can normally be reached on M-F 9-6.
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SARAH CHICKOS
Examiner
Art Unit 1619
/DAVID J BLANCHARD/Supervisory Patent Examiner, Art Unit 1619
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