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 . Claims included in the prosecution are claims 1, 10, 11, 13-16, 18, 21, 23, 24, 26-28, 30 and 31.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 12/05/2025 has been entered.
Applicants' arguments, filed 11/05/2025, 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 Rejections and/or objections not reiterated from previous office actions are hereby withdrawn.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.
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.
Claims 1, 10, 11, 13-16, 18, 21, 23, 24, 26-28, 30 and 31 are rejected under 35 U.S.C. 103 as being unpatentable over Robinson et al. (US 2006/0286044, Dec. 21, 2006) (hereinafter Robinson) in view of Wiesel (US 6,287,120, Sep. 11, 2001).
Robinson discloses an oral care composition (abstract). The composition may be a dentifrice for cleaning a hard surface within the oral cavity and comprise water and humectant each typically in an amount ranging from about 10% to about 80% by weight of the oral composition (¶ [0045]). Suitable humectants include glycerin (i.e., orally acceptable vehicle) (¶ [0055]). The composition may comprise one or more thickening agents present in a total amount of about 0.01% to about 15%. Any orally acceptable thickening agent can be used including colloidal silica (¶ [0047]). The composition may comprise an abrasive. Suitable abrasives include tricalcium phosphate. One or more abrasives are present in a total amount of about 5% to about 70% (¶ [0050]). The composition may further comprise a fluoride-providing agent (¶ [0025]). Suitable fluoride-providing agents include stannous fluoride (¶ [0026]). The fluoride-providing agent may be present from about 0.001% to about 3% by weight (¶ [0028]). The composition may comprise a surface active agent. Suitable surface active agents include anionic surfactants such as sodium lauryl sulfate and amphoteric surfactants such as cocoamidopropyl betaine. One or more surfactants are present in a total amount of about 0.01% to about 10% (¶ [0048]). The composition may have a pH of from about 6 to about 10 (¶ [0056]).
Robinson differs from the instant claims insofar as not disclosing wherein the composition comprises sodium stearate (i.e., gelling agent).
However, Wiesel discloses methods and apparatus for treating a person’s teeth (abstract). Sodium stearate is a thickening agent (col. 5, lines 63-66).
Generally, it is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use. See MPEP 2144.07. Robinson discloses wherein the composition comprises one or more thickening agents. Accordingly, it would have been obvious to one of ordinary skill in the art to have incorporated sodium stearate into the composition of Robinson since it is a known and effective thickening agent for oral care compositions as taught by Wiesel.
In regards to instant claim 21 reciting wherein the oral care composition is substantially free of fatty alcohols, Robinson does not disclose wherein the oral composition requires fatty alcohols in claim 1. Therefore, a composition free of fatty alcohols would have been obvious.
Response to Arguments
Applicant argues that the data described in the present application demonstrates that 2 to 5% sodium stearate increases viscosity and improves whitening performance. By manipulating the sodium stearate level within the range recited in the claims, the viscosity increased from 140,000 cPs to 550,000 cPs; and the whitening benefit also increased. This is indicated by an increase in L.
The Examiner does not find Applicant’s argument to be persuasive. Applicant has not explained why a viscosity between the range of 140,409 cPs (2% sodium stearate) and 550,504 cPs (5% sodium stearate) is advantageous such that the claimed range of 2%-5% sodium stearate would be unexpected. Also, although Table 7 of the instant specification discloses L*a*b numbers, it is not clear how the values presented in the table demonstrate enhanced whitening performance. Table 7 shows these values without explaining what the values mean and there are no comparative examples. Applicant has the burden of explaining proffered data. See MPEP 716.02(b). As such, Applicant’s argument is unpersuasive.
Conclusion
Claims 1, 10, 11, 13-16, 18, 21, 23, 24, 26-28, 30 and 31 are rejected.
No claims are allowed.
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/TRACY LIU/Primary Examiner, Art Unit 1614