Response to Amendment
Claim(s) 1-2, 4-9, 11-12 is/are rejected under 35 U.S.C. 103 as being unpatentable over EP (2421813).
EP ‘813 discloses In a first aspect, the present invention generally relates to a two-step process for the preparation of non-ionic surfactants, specifically, alcohol ethoxylates of the general structure (I):
R-(OCH.sub.2CH.sub.2)n-OH (I)
In a second aspect, the invention relates to alcohol ethoxylates of formula (I) made from the aforementioned process, wherein said alcohol ethoxylates have a narrow distribution range, low free alcohol content, and low ether/diacetal content.
In a third aspect, the invention relates to provide a process for preparing a low foaming, non-gelling anionic surfactant having the general formula (II):
R-(OCH.sub.2CH.sub.2)n-OSO.sub.3M (II)
In a fourth aspect, the invention relates to alkyl ether sulfates of formula (II), which possess low foam, non-gelling properties while retaining their surfactancy and penetrating power.
In a fifth aspect, the present invention relates to the use of alkyl ether sulphates of formula (III) as adjutants in agriculturally active formulations (0005-0011).
R'-x(OCH.sub.2CH.sub.2)-O-(CH.sub.2CH.sub.2O).sub.y-R' (III)
Thus, the quantity of ethylene oxide used in this stage is regulated to control the concentrate of the "surfactancy booster" in the final non-ionic product as needed to obtain its optimum performance in the designed application. For example, in certain embodiments, up to 2 moles of EO per mole of fatty alcohol (R-OH) could be used in this stage. In a preferred embodiment, the non-ionic surfactant resulting from the inventive process will include less than 8%, and even more preferably less than 5%, of the starting, unreacted alcohol (0015-0016; 0021-0023).
In another embodiment, the invention relates to an alkyl ether sulfate of the formula (II):
R-(OCH.sub.2CH.sub.2).sub.n-OSO.sub.3M (II)
where R is a straight, branched or cyclic chain, saturated or unsaturated alkyl group containing 6 - 11 carbon atoms and n is an integer of from 3- 6. In another embodiment, R is a branched alkyl group.
The ether sulfates of the present invention preferably comprise at least about 75% solids and up to and including about 25% water. To possess low foam, non-gelling properties while retaining their surfactancy and penetrating power, embodiments of ether sulfates in accordance with the invention preferably include, based on its solids, at least about 80%, and more preferably at least about 85% of alkyl ether sulfate homologs having from 1 to 2n ethylene oxide units in their hydrophilic group. Further, embodiments of the invention also include anionic surfactants comprising ether sulfates that include less than about 15%, and more preferably less than about 10% of alkyl ether sulfate homologs that have more than 2n ethylene oxide units in their hydrophilic group. The ether sulfates of the present invention also preferably include less than about 8%, and preferably less than about 5% of the non-ethoxylate alkyl sulfate (0033-0035).
EP ‘813 disclose the single component in the surfactant product and further suggest the broad nature of producing ethoxylated alcohols and sulfated alcohol ethoxylates having free alcohol contents as described.
With respect to the extraction or removing steps of either the ethoxylated fatty alcohol or the ethoxylated sulfate, the office treats the single component composition of the claims as a composition claim where the patentability is determined by the materials in admixture and proportions. The method or process of producing the composition or component suggest a product by process limitation but the composition or product controls. Therefore, the process limitations of the claims are considered obvious unless the product of the prior art is shown by applicant to be different when the process as claimed is applied.
“The Patent Office bears a lesser burden of proof in making out a case of prima facie obviousness for product-by-process claims because of their peculiar nature” than when a product is claimed in the conventional fashion. In re Fessmann, 489 F.2d 742, 744, 180 USPQ 324, 326 (CCPA 1974). Once the examiner provides a rationale tending to show that the claimed product appears to be the same or similar to that of the prior art, although produced by a different process, the burden shifts to applicant to come forward with evidence establishing an unobvious difference between the claimed product and the prior art product.
Claim(s) 1-2, 4-9, 11-12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Fox et al (2002/151449).
Fox et al disclose a cleaning composition comprising an ethoxylated fatty alcohol, surfactant, such as (iso)tridecyl alcohol ethoxylate, and specifically Iconal TDA-3 (020-021), 6%-21% EFA and 10-90% water (see examples II-III, V, IX, XI, XIN, XV, XVIII and XIX).
Fox et al discloses at least one cleaning composition comprising an ethoxylated fatty alcohol surfactant, such as (iso)tridecyl alcohol ethoxylate and between 10 to 90 wt.% of water; see the examples Il, Ill, V, IX, XI, XIN, XV, XVIII and XIX.
With respect to the “free alcohol” it is interpreted as the compound is named and the amount of free alcohol is an optional limitation. One skilled in the art in the absence of a showing to the contrary, would envision the alkoxylate surfactant of Fox et al as the same or similar compound in the absence of a showing to the contrary.
17. Fox et al disclose the single component in the surfactant product and further suggest the broad nature of producing ethoxylated alcohols and sulfated alcohol ethoxylates having free alcohol contents as described. The office bears a lessen burden when discloses the compounds and binary components of said invention but is silent with respect to the process of producing said product. Since the products are named and described, the process of producing the same is considered prima facie obvious.
18. “The Patent Office bears a lesser burden of proof in making out a case of prima facie obviousness for product-by-process claims because of their peculiar nature” than when a product is claimed in the conventional fashion. In re Fessmann, 489 F.2d 742, 744, 180 USPQ 324, 326 (CCPA 1974). Once the examiner provides a rationale tending to show that the claimed product appears to be the same or similar to that of the prior art, although produced by a different process, the burden shifts to applicant to come forward with evidence establishing an unobvious difference between the claimed product and the prior art product.
When the species is clearly named, the species claim is anticipated no matter how many other species are additionally named. Ex parte A, 17 USPQ2d 1716 (Bd. Pat. App. & Inter. 1990) See also In re Sivaramakrishnan, 673 F.2d 1383, 213USPQ 441 (CCPA 1982).
Response to Arguments
Applicant's arguments filed 5-26-2026 have been fully considered but they are not persuasive.
Applicant argues: that the presence of free glycol and/or diethylene glycol monosulfate sodium within the respective alcohol ethoxylates (fatty or sulfated) at a level pf 100 ppm or less. Figures 1-2 and 5 show the 1,4-dioxane formed (ppm) over time (weeks) in raw materials aged at ranging temperatures (30°-50°C). Sodium laureth-1 sulfate (SLE1S), sodium laureth-3 sulfate (SLE3S), and sodium trideceth-2 sulfate (ST2S) at varying active percentages were among the raw materials observed. Such data supports the finding that even raw fatty alcohol ethoxylates (i.e. Iconal TDA-3 surfactant taught in Fox) that initially show almost no amounts of 1,4-dioxane can still show formation of the undesirable byproduct over time. For example, Figure 9 experimentally validates that diethylene glycol monosulfate can spontaneously convert to 1,4-dioxane.
The examiner contends and respectfully disagrees since none of the examples are commensurate in scope with the claimed invention nor are any of the examples compared to the closest prior art of record, Fox et al.
Applicant argues that the amended claim 1 now expressly includes claim elements directed to the processing step of lowering (i.e. reducing) the free glycol content or the diethylene glycol monosulfate sodium content by post-formation extraction, as claimed. These limitations are supported by the specification and reflect the objective of the present application. See pages 8-13.
“EP '813 and Fox fail to teach or suggest all elements of the amended claims. As stated by the Board of Patent Appeals and Interferences in Ex parte Wada and Murphy, Appeal 2007-3722, BPAI (2008), and similarly stated in Fx Parte Khanolkar, Appeal 2012-004884, PTAB (2013)”
Again, applicant gas imported process limitations into independent claims 1, thereby creating a product by process claim. As stated above, a product by process claim is controlled by the product or composition, which in the aforementioned claim 1 is a single alkoxylated alcohol or alkoxylated sulfate. Once the examiner present a prima facie case of obviousness with respect to the product, the burden shifts to applicant to prove a different product is obtained through a different process. (see citation above.
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.
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/NECHOLUS OGDEN JR/Primary Examiner, Art Unit 1761
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