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 .
DETAILED ACTION
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 January 8, 2026 has been entered.
Claims 1-5, 8-23 and 26-40 are pending.
Claims 6, 7, 24 and 25 are cancelled.
Claims 1, 4, 13, 14, 19, 22, 29, 31 and 32 are currently amended.
Claims 1-5, 8-23 and 26-40 as filed on January 8, 2026 are under consideration.
This action is made FINAL.
Withdrawn Objections / Rejections
In view of the amendment of the claims, all previous claim objections are withdrawn, all previous claim rejections under 35 USC 112(b) are withdrawn, and all previous claim rejections under 35 USC 112(d) are withdrawn.
Applicant’s arguments 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 Rejections and/or objections not reiterated from previous office actions are hereby withdrawn.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 Objections
Claims 4, 19 and 29 are objected to because of the following informalities:
Claim 4 (a): this clause should end with a semi-colon consistent with previous versions of the claims and with the other clauses of this claim.
Claim 19: the valence number of M should presumably be 4 in view of the amendment to limit M to silicon which has a valence of 4 and consistent with the amendment of claim 1, not “3 4” as currently amended.
Claim 29: a comma should be inserted before clay.
Appropriate correction is required.
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 1-5, 8-23 and 26-40 are rejected under 35 U.S.C. 103 as being unpatentable over Cardoso et al. (US 2020/0330949, published October 2020, IDS reference filed April 28, 2023) in view of Dihora et al. (US 2011/0268778, published November 3, 2011, of record).
Cardoso teaches a population of capsules for the transfer and triggered release of benefit agents comprising an oil-based or water-based core comprising a benefit agent inclusive of perfume raw materials; and a shell surrounding the core, the shell comprising:
a substantially inorganic (meaning up to 10 wt% organic content as defined in paragraph [0040]) first shell component comprising:
a condensed layer comprising a condensation product of a precursor, and
a nanoparticle layer comprising inorganic nanoparticles, wherein the condensed layer is disposed between the core and the nanoparticle layer, and
an inorganic second shell component surrounding the first shell component, wherein the second shell component surrounds the nanoparticle layer, and wherein the precursor comprises at least one compound of Formula (I), as required by instant claims 2, 20,
(MvOzYn)w (Formula I)
where M is one or more of silicon, titanium and aluminum,
v is the valence number of M and is 3 or 4,
z is from 0.5 to 1.6,
each Y is independently selected from inter alia -OH and -OR2, wherein R2 is inter alia a C1 to C20 alkyl such as ethyl,
n is from 0.7 to (v−1), and
w is from 2 to 2000 (title; abstract; claims, in particular claims 1-3, 17, 18, 37, 38, 41; paragraphs [0001]-[0343], in particular [0001]).
The precursor may comprise at least one compound of Formula (II), as required by instant claims 3, 21,
(MvOzYnR1p)w (Formula II)
where M is one or more of silicon, titanium and aluminum,
v is the valence number of M and is 3 or 4,
z is from 0.5 to 1.6,
each Y is independently selected from inter alia OH and -OR2, wherein R2 is inter alia a C1 to C20 alkyl,
n is from 0 to (v−1),
each R1 is independently selected from inter alia C1 to C30 alkyl,
p is present in an amount up to pmax, and
w is from 2 to 2000; wherein pmax = 60 / [9*Mw(R1) + 8], wherein Mw(R1) is the molecular weight of the R1 group (claims 23, 45).
The capsules may have a mean volume weighted diameter of about 0.1 to 200 microns (claim 10; also claims 11-13, 22, 24, 31-34, 36), as required by instant claims 4, 22.
The compound of Formula (I) or/and Formula (II) may have a Polystyrene equivalent Weight Average Molecular Weight of about 700 to 30,000 Da (claims 14, 25; also claims 15, 16, 26, 27, 42-44, 47-49), as required by instant claims 5, 23.
The second shell component may comprise inter alia SiO2 (claims 8, 9, 30, 38, 39, 46), as required by instant claims 8, 12-14, 26, 30-32.
The inorganic nanoparticles may comprise inter alia SiO2 (claims 5-7, 28, 29, 40), as required by instant claims 9-11, 27-29.
Cardoso further teaches the capsules can be formulated into a consumer product further comprising inter alia xanthan gum (structurant), cationic cellulose materials (cationic polymer), one or more carriers inclusive of water, or/and silicone oils (conditioning agent) (paragraph [0088]), as required by instant claims 18, 36. The capsules have low shell permeability in surfactant-based matrices such as cleansers (paragraphs [0009], [0040], [0225]-[0228], [0235]). The capsules may be deposited on substrates such as hair (paragraph [0059]). Regarding the recitations of a hair care composition or a personal care composition, such recitations of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. See MPEP 2111.02.
Cardoso does not specifically teach about 5 to 99.5 wt% water as required by claims 15, 33.
Cardoso does not teach a viscosity of 1 to 1500 cp at 20 s-1 and 21 ºC as required by claims 16, 34.
Cardoso does not specifically teach about 0.1 to 10 wt% capsules as required by claims 17, 35.
Cardoso does not teach more than one phase as required by claim 37.
Cardoso does not teach a cleansing phase and a benefit phase as required by claim 38.
Cardoso does not teach the cleansing phase comprises inter alia surfactants as required by claim 39.
Cardoso does not teach the benefit phase comprises a benefit agent and at least one additional ingredient as required by claim 40.
These deficiencies are made up for in the teachings of Dihora.
Dihora teaches compositions comprising encapsulated benefit agents inclusive of perfume (title; abstract; claims, in particular 1, 4, 11, 18). The compositions may comprise inter alia structurants such as xanthan gum which impart to aqueous liquid compositions a high shear viscosity, at 20 s-1 and 21 ºC, of 50 to 3000 cp (claims 11, 14; paragraph [0107]), as required by instant claims 16, 34. The compositions may comprise less than about 80 wt% water (claims 15, 17; paragraph [0184]), as required by instant claims 15, 33. Dihora exemplifies a cleansing composition comprising a cleansing phase comprising inter alia sodium lauryl sulfate (surfactant) and a benefit phase comprising petrolatum (benefit agent), mineral oil and 10 wt% fragrance (benefit agent) microcapsules (paragraph [0326]), as required by instant claims 17, 35, 37-40. Dihora further teaches the compositions may comprise high melting point fatty compounds inclusive of fatty alcohols in amounts which provide conditioning benefits (paragraphs [0131]-[0314]).
Regarding claims 15, 33, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the surfactant-based compositions of Cardoso comprising the capsules of Cardoso and inter alia cationic cellulose materials or/and silicone oils to comprise less than about 80 wt% water as taught by Dihora because such quantities of water are suitable for compositions comprising encapsulated benefit agents. There would be a reasonable expectation of success because Cardoso expressly contemplates carriers inclusive of water.
Regarding claims 16, 34, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the surfactant-based compositions of Cardoso comprising the capsules of Cardoso and inter alia cationic cellulose materials or/and silicone oils to have a high shear viscosity, at 20 s-1 and 21 ºC, of 50 to 3000 cp as taught by Dihora because such viscosity is suitable for compositions comprising encapsulated benefit agents. There would be a reasonable expectation of success because Cardoso expressly contemplates ingredients inclusive of xanthan gum which Dihora teaches to impart this viscosity.
Regarding claims 17, 35, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the surfactant-based compositions of Cardoso comprising the capsules of Cardoso and inter alia cationic cellulose materials or/and silicone oils to comprise about 10 wt% of the capsules as taught by Dihora because this amount is suitable for compositions comprising encapsulated benefit agents. There would be a reasonable expectation of success because Cardoso does not delimit the quantity of capsules within the compositions.
Regarding claims 37-40, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the surfactant-based compositions of Cardoso comprising the capsules of Cardoso and inter alia cationic cellulose materials or/and silicone oils to comprise a cleansing phase comprising inter alia sodium lauryl sulfate (surfactant) and a benefit phase comprising petrolatum (benefit agent), mineral oil and the capsules as taught by Dihora because such is suitable for cleansing compositions comprising encapsulated benefit agents. There would be a reasonable expectation of success because Cardoso expressly contemplates formulation into consumer products.
Response to Arguments: Claim Rejections - 35 USC § 103
Applicant’s arguments have been fully considered but they are not persuasive.
Applicant’s statement that the silence of Dihora to inorganic capsules means there is nothing in the state of the art that inorganic capsules could be formulated into surfactant based products is unpersuasive because Cardoso clearly states the inorganic capsules thereof are suitable for “surfactant-based matrices” as set forth in the rejection.
Applicant’s maintained argument that prima facie obviousness has not been established because Applicant deems the “suitability” articulated in the rejections to fall significantly short of the requirements needed to show obviousness is unpersuasive because the actual rejections articulate “suitable for compositions comprising encapsulated benefit agents” and the actual legal standard post KSR clarifies combinations of prior art elements to be presumptively obvious absent evidence of an unpredictable result. See at least MPEP 2143.
Therefore, the rejections are properly maintained.
Conclusion
All claims are identical to or patentably indistinct from, or have unity of invention with claims in the application prior to the entry of the submission under 37 CFR 1.114 (that is, restriction (including a lack of unity of invention) would not be proper) and all claims could have been finally rejected on the grounds and art of record in the next Office action if they had been entered in the application prior to entry under 37 CFR 1.114. Accordingly, THIS ACTION IS MADE FINAL even though it is a first action after the filing of a request for continued examination and the submission under 37 CFR 1.114. See MPEP § 706.07(b). 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 ALISSA PROSSER whose telephone number is (571)272-5164. The examiner can normally be reached M - Th, 10 am - 6 pm.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, DAVID BLANCHARD can be reached on (571)272-0827. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ALISSA PROSSER/Examiner, Art Unit 1619
/DAVID J BLANCHARD/Supervisory Patent Examiner, Art Unit 1619