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, 14-16, 18, 21, 23, 24, 26-28, 30 and 31.
Applicants' arguments, filed 05/12/2026, 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 Rejections and/or objections not reiterated from previous office actions are hereby withdrawn.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, 14-16, 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 Wiesel is directed to a fundamentally different technology. Wiesel provides no teaching or guidance to the skilled artisan on how to modify a toothpaste formulation.
The Examiner does not find Applicant’s argument to be persuasive. Wiesel discloses in the abstract wherein the carrier is coated or impregnated with a paste, gel, or solution. Wiesel further discloses in column 6, lines 59-62 wherein the carrier is coated with a thickening agent. Therefore, since the carrier coating may be in the form of a paste and the carrier may be coated with a thickening agent, it would have been obvious to one of ordinary skill in the art that the thickening agent of Wiesel is suitable for a toothpaste formulation. As such, Applicant’s argument is unpersuasive.
Applicant argues that there is no motivation to select sodium stearate from Wiesel over silica dioxide or the many other thickeners already disclosed in Robinson.
The Examiner does not find Applicant’s argument to be persuasive. A reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art, including nonpreferred embodiments. See MPEP 2123. Thus, because Wiesel discloses sodium stearate as a suitable thickening agent, it would have been obvious to one of ordinary skill in the art to have used sodium stearate as the thickening agent over preferred and other thickening agents. Additionally, 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. Thus, it would have been obvious to one of ordinary skill in the art to have selected other thickening agents besides the ones disclosed by Robinson. This is further supported by Robinson disclosing in paragraph [0047] that the thickening agent is not limited to the ones disclosed. As such, Applicant’s argument is unpersuasive.
Applicant argues that both Robinson and Wiesel fail to consider a gelling agent in addition to a thickening agent.
The Examiner does not find Applicant’s argument to be persuasive. Applicant has not shown wherein the claimed gelling agent and thickening agent serve different functions. Also, Robinson discloses wherein the composition comprises at least one thickening agent. Therefore, since colloidal silica and sodium stearate are both known thickening agents, the combination of the two would have been obvious. Applicant has not shown wherein the combination is unexpected. As such, Applicant’s argument is unpersuasive.
Applicant argues that Robinson’s thickening agent range of about 0.01% to about 15% relates to different thickening agents such as colloidal silica, not fatty acid salts.
The Examiner does not find Applicant’s argument to be persuasive. Robinson discloses in paragraph [0047] wherein the thickening agent is not limited to the ones disclosed. Therefore, the amount of thickening agent disclosed by Robinson is not limited to the ones disclosed. As such, Applicant’s argument is unpersuasive.
Applicant argues that the Office has not articulated any reason why a person of ordinary skill in the art would select sodium stearate at the specific concentration range of 2-5% as a gelling agent in a high water oral care composition.
The Examiner does not find Applicant’s argument to be persuasive. As discussed in the rejection, Robinson discloses wherein the composition may comprise one or more thickening agents. Therefore, it would have been obvious to have incorporated sodium stearate into the composition of Robinson since it is a known thickening agent as taught by Wiesel. Robinson discloses wherein the one or more thickening agents are present in a total amount of about 0.01% to about 15%. Therefore, it would have been obvious to one of ordinary skill in the art to have incorporated sodium stearate in an amount within this range, which includes the claimed range. Applicant has not shown wherein the claimed range is advantageous. Therefore, Applicant’s argument is unpersuasive.
Applicant argues that the data described in the present application demonstrates that 2 to 5% sodium stearate increases viscosity and improves whitening performance.
The Examiner does not find Applicant’s argument to be persuasive. Wiesel teaches wherein sodium stearate is a thickening agent. Therefore, one of ordinary skill in the art would expect an increase in viscosity when increasing the amount of sodium stearate. Also, as evidenced by Gebreselassie et al. (US 2005/0008732, Jan. 13, 2005), stain removing agents have been used to remove staining to whiten and clean teeth and sodium stearate is a stain removing agent (¶ [0004]). Thus, one of ordinary skill in the art would expect an increase in whitening when increasing the amount of sodium stearate. Furthermore, Applicant has not shown any examples comprising sodium stearate outside of the 2 to 5% range. Thus, Applicant has not shown wherein the claimed range is unexpected. As such, Applicant’s argument is unpersuasive since Applicant has not shown wherein use of sodium stearate or the amount of sodium stearate is unexpected.
Conclusion
Claims 1, 10, 11, 14-16, 18, 21, 23, 24, 26-28, 30 and 31 are rejected.
No claims are allowed.
THIS ACTION IS MADE FINAL. 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 TRACY LIU whose telephone number is (571)270-5115. The examiner can normally be reached Mon-Fri 9 am - 5 pm.
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/TRACY LIU/Primary Examiner, Art Unit 1614
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