Response to Amendment
Claim Interpretation
The claims are interpreted as a cleansing bar with components a) 10-25% of a sulfate b) sulfonate c) polyglyceryl ester d) conditioning polymer(s) and a density of o.5 to 1.5. The dependent claims expand on the meaning of each component with no specific conditioning polymer being called out of the Markush group.
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.
Claims 1-17 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 is withdraw.
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.
Claim(s) 1-17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Dai et al (20170172892) in view of Woehrmann et al (10,583,072).
Dai et al disclose cleansing bar comprising a non-soap anionic surfactant, a hydrophobic binder, and a water-soluble bar hardener. The cleansing bars further comprise a polyglycerol ester having a peak melting point of about 40° C. or less and have a pH less of about 8 or less. Surprisingly, incorporation of the polyglycerol ester into these relatively low pH cleansing bars results in a mild cleansing bar composition that is easily processed and provides better lathering than previously thought would be possible (0008). With respect to the non-soap anionic surfactants, they include: acyl isethionates, e.g. Sodium Cocoyl Isethionate; alkyl sulfosuccinates, e.g. Disodium Lauryl Sulfosuccinate; α-sulfo fatty acid esters, e.g. Sodium Methyl 2-Sulfolaurate; α-sulfo fatty acids, e.g. Disodium 2-Sulfolaurate; alkyl glyceryl ether sulfonates, e.g. Sodium Cocoglyceryl Ether Sulfonate; alkyl sulfates, e.g. Sodium Coco-Sulfate, and combinations of two or more thereof. Especially preferred are acyl isethionates. In certain preferred embodiments the acyl isethionate is Sodium Cocoyl Isethionate (0043) and wherein said amounts of anionic surfactants in mixtures are suggested by Dai et al to include 30 weight percent or more to about 70 weight percent or less of total non-soap anionic surfactants, based on total weight of cleansing bar (0043). Polyglyceryl ester according to certain embodiments, the PGE.sub.≦40 is used in a concentration from about 0.1% or greater to about 25% by weight in the composition (045-0052); and humectants include polyols such as glycerin, propylene glycol, and sorbitol are present in an amount of from about 0 percent to about 30 percent, such as 0 percent to about 10 percent (0089). Dai et al disclose examples of suitable conditioning agents include cationic or amphoteric water-soluble polymers and proteins. Examples of suitable cationic or amphoteric water-soluble polymers include Polyquaterniums, such as Polyquaternium-7, -10, -39, or -67, Guar Hydroxypropyltrimonium Chloride, and Cassia Hydroxypropyltrimonium Chloride. The conditioning agent may be present in an amount of from about 0 percent to about 5 percent, such as 0 percent to about 1 percent (0090).
Dai et al disclose all of the instantly required components of the composition bar as claimed. However, Dai et al do not teach with sufficient specificity to anticipate the claimed invention. Accordingly, non-preferred embodiments to the skilled artisan in the absence of criticality to the contrary, would have been motivation to combine the known ingredients of a polyglyceryl ester, anionic sulfate and isethionate, conditioning polymer(s) and adjunct ingredients in bar. Dai et al teach each of those ingredients within the four corners of the reference within the claimed proportions, and in the absence of a showing to the contrary commensurate in scope with the claimed invention, one skilled in the art would have the expectation and motivation to suggest the claimed invention given the teachings of Dai et al.
Dai et al is silent with respect to the lower amount claimed of the sulfate surfactant. The examiner contends that the anionic surfactant mixture as a whole is from 30% which is close enough to optimize in the absence of a showing to the contrary.
Woehrmann et al discloses a cosmetic product comprising a cosmetic stick useful for cleansing skin composition that comprises one or more fatty acids and/or salts thereof, 8% to about 25% by weight of one or more anionic surfactants selected from one or more of alkyl sulfates and alkyl ether sulfate and alkyl benzenesulfonates, and glycerol as well as an application container which contains the stick composition (abstract; col. 4, lines 64-67).
It would have been obvious to the skill artisan to optimize the amount of sulfate anionic surfactant in Dai et al to encompass 10-25% sulfate anionic surfactants as amended given that Woehrmann et al teaches the lower amounts as well known in solid skin cleansing compositions for similar purposes utilizing anionic surfactants for surface tension lowering as their intended use and purpose, absent a showing to the contrary.
[W]hen a patent 'simply arranges old elements with each performing the same function it had known to perform' and yields no more than one would expect from such an arrangement, the combination is obvious.
“The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages” Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382; In re Hoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969) Merck & Co. Inc. v. Biocraft Laboratories Inc., 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir.), cert. denied, 493 U.S. 975 (1989); In re Kulling, 897 F.2d 1147, 14 USPQ2d 1056 (Fed. Cir. 1990); and In re Geisler, 116 F.3d 1465, 43 USPQ2d 1362 (Fed. Cir. 1997).
With respect to the density of the solid composition being from o.5 to 1.5, the examiner acquiesces that Dai et al is silent with respect to the measurement assumes that density is measured in g/cm3. Woehrmann et al is relied upon as set forth above and suggests solid compositions having a density of 1.o to 1.1 g/cm3 (col. 7, lines 66-col. 8, line 2).
It would have been obvious to the skilled artisan to produce a personal cleansing bar of Dai et al to encompass a density of 1.0 g/cm3 in light of the teachings and suggestions of Woehrmann et al. Woehrmann et al teaches that a density of 1.o g/cm3 enables the bar to have “pleasant application properties” which would benefit the bars of Dai et al to comprise for commercial success and application of the user. Accordingly, in the absence of a showing to the contrary, commensurate in scope with the claimed invention, one skilled would be motivated to produce said bars of Dai et al with said density of 1.0 g/cm3 as claimed for the special properties it enables the user.
As stated in KSR Int'l Co., v. Teleflex, Inc., 550 U.S. 398, 418 (2007):
"[A]nalysis [of whether the subject matter of a claimwould have been prima facie obvious] need not seek out preciseteachings directed to the specific subject matter of thechallenged claim, for a court can take account of the inferencesand creative steps that a person of ordinary skill in the artwould employ."
Response to Arguments
Applicants’ arguments filed 7-6-2026 have been fully considered but they are not persuasive.
Applicant argues that the Mass Density of 1g/cm3 is not the same measurement for RD of 1, “although the measurements may be similar…..are not interchangeable.”
The examiner contends that applicant has not rebutted the prima facie case of obviousness suggested by Dai et al in view of Woehrmann et al. The density measurements are similar, and the skilled artisan would look to the pleasant application properties for commercial success. In the absence of a showing to the contrary, commensurate in scope with the claimed invention, one skilled in the art would provide the solid compositions of Dai with the density of 1 for its intended purpose. Again, applicant provides no guidance as to the exact measurement of density and the skilled artisan would incorporate similar measurements with the expectations of producing bars with properties associated with better application properties.
[W]hen a patent 'simply arranges old elements with each performing the same function it had known to perform' and yields no more than one would expect from such an arrangement, the combination is obvious. [KSR Int'l Co. v.Teleflex Inc., 550 U.S. at 418 (quoting Sakraida v. Ag Pro, Inc., 425 U.S. 273,282 (1976).]
“[T]he discovery of a previously unappreciated property of a prior art composition, or of a scientific explanation for the prior art’s functioning, does not render the old composition patentably new to the discoverer.” Atlas Powder Co. v. Ireco Inc., 190 F.3d 1342, 1347, 51 USPQ2d 1943, 1947 (Fed. Cir. 1999). Thus, the claiming of a new use, new function or unknown property, which is inherently present in the prior art does not necessarily make the claim patentable. In re Best, 562 F.2d 1252, 1254, 195 USPQ 430, 433 (CCPA 1977).
Conclusion
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.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Angela Brown-Pettigrew can be reached at 571-272-1498. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/NECHOLUS OGDEN JR/Primary Examiner, Art Unit 1761
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