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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 2-18-2026 has been entered.
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 .
Claim Interpretation
The broadest interpretation of the cleansing composition claimed is interpreted as a water based cleansing composition comprising a glycolipd which is at least one rhamnolipid; at least one polymeric thickener such as algin or sclerotium; 60-98% water and devoid of cationic polymer.
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 4 and 15 are 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.
The aforementioned claims are confusing because they state that cationic polymer such as “sclerotium” are excluded from the very compositions from which they depend from. In fact, claim 15 depends from claim 14, which sole polymer would not be excluded in view of the claim language. Appropriate corrections are required.
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-, 3-21 is/are rejected under 35 U.S.C. 103 as being unpatentable over Allef et al (2014/0340992) is withdrawn.
Claim(s) 1, 4-22 is/are rejected under 35 U.S.C. 103 as being unpatentable over Allef et al (2014/0340992) in view of DE 102018220913.
The compositions according to the invention comprising water, at least one biosurfactant and at least one fatty acid, are characterized in that the fraction of the sum of all surfactants in the compositions according to the invention is from 0.1 to 30% by weight, preferably 1 to 25% by weight, preferably 2.5 to 20% by weight and particularly preferably 10 to 20% by weight, and that the fraction of fatty acids, based on the sum of fatty acids and surfactants, is from 0.01 to 20% by weight, preferably 0.1 to 15 and preferably from 1 to 10% by weight.
The fraction of biosurfactants in the compositions according to the invention is preferably from 0.1 to 30% by weight, based on the total composition (0024).
Within the context of the present invention, biosurfactants are understood as meaning all glycolipids produced by fermentation, including rhamnolipid (0025-0027).
Preferably, the composition according to the invention has, as surfactants which are not biosurfactants, surfactants with an anionic, amphoteric/ampholytic and/or zwitterionic structure. Typical examples of mild, i.e. particularly skin compatible, surfactants are fatty acid glutamates (0033).
Allef et al. further teach “[p]articularly preferred compositions are those in which exclusively thickeners are present which are based in part or completely, in particular completely, on renewable raw materials, such as... alginates” (Paragraph [0050)). invention comprises propylene glycol, urea, glycerol, essential oils, phenylethyl alcohol and/or ethanol. Preferably, the fraction of the sum of propylene glycol, urea, glycerol (glycerin), essential oils, phenylethyl alcohol and ethanol in the composition is from 0.01 to 15% by weight, preferably from 0.1 to 10% by weight. By using one or more of the specified substances it is possible to prevent or at least reduce an increase in the germ count (0046).
Allef et al. further teach the composition comprising disodium cocoyl glutamate (Table 22 and 54) at about 1.0% by weight.
Allef et al. further teach the composition comprising from 0.05% to 20% by weight of thickeners such as alginates, salt form of alginic, based on the composition (Paragraph [0047-0050]), thereby overlapping with the instantly claimed range.
As such, it would have been prima facie obvious for a person having ordinary skill in the art to modify the cleansing composition of Allef et al. to include a nature-based viscosity modifying polymer for a water-based system present at about 0.1% to 20% by weight. One would have been motivated to do so to provide a composition with the desired viscosity.
Allef et al. teach the composition of claim 1 and further teach the amount of rhamnolipid ranging from 0.5% by weight to 12.0% by weight (Tables 83 and 84), overlapping with the instantly claimed amount. Allef et al further teach the composition comprising from 0.05% to 20% thickeners such as alginates, based on the composition (Paragraph [0047-0050]), overlapping with the instantly claimed amount.
Allef et al. teach in Table 48 a cleansing composition comprising: a. Rhamnolipid b. - c. Disodium Cocoyl Glutamate d. Glycerin e. Water present at about 75.3% by weight as calculated by examiner. f. Lactic Acid As such, Allef et al. teach a composition comprising: at least one glycolipid comprising at least one rhamnolipid; at least one anionic surfactant; at least one humectant (glycerin); water present from about 75% to about 85% by weight of the composition; and a pH adjuster (lactic acid), and is essentially free of silicones, paraben, and sulfates. Accordingly, Allef et al is considered prima facie obvious to the claims and in the absence of unexpected results to the contrary, one skilled in the art would have been motivated to combine the components suggest the claimed invention.
With respect to claim 22, Allef et al do not teach sclerotium as a polymeric thickener alternative.
DE ‘913 discloses a skin cleanser composition comprising rhamnolipids in amounts form 0.1-3.0% (0010); acyl glutamates surfactants such as sodium stearoyl glutamate in amounts from 0.1 to 5% (0013); sclerotium as a biopolymer (0028) and water to balance as over 60%. Specifically, the examples show the rhamnolipid at (0039), adding to glutamates, sclerotium and water at B and G (0040).
One skilled in the art, in the absence of a showing to the contrary, would have been motivated to include sclerotium as a biopolymer in the personal cleansing composition of Allef et al in view of the teachings of DE ‘913 given that sclerotium is a known biopolymer utilized with rhamnolipids and glutamates similar to Allef et al which utilizes alginates for similar purposes of binding and are advantageous in analogous art (0028).
[W]hen a patent 'simply arranges old elements with each performing the same function it had been 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).]
Conclusion
Applicant's arguments filed 2-18-2026 have been fully considered but they are not persuasive.
Applicant argues that Allef teaches cationic polymers, which is excluded by the present claims.
The examiner contends and respectfully ascertains that the teaching of cationic polymer is not a required teaching and inclusion of said polymers but one where chosen could be included within the compositions.
Applicant argues that according to new claims 21, Allef requires oleic acid according to the benefits disclosed therein.
Again, the examiner contends that the oleic acid is one of many fatty acids suggested by Allef as utilized with the compositions in conjunction with a biosurfactant. The suggestion within the preferred embodiments, which suggest oleic acid with rhamnolipid biosurfactant, is noted but as stated above, the component is not required and one skilled in the art would look at the totality of the reference and teachings to provide a guidance of utilizing other thickening agents or fatty acids, which many are taught and suggested, given the absence of unexpected results to the contrary, commensurate in scope with the claimed invention.
A reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill the art, including nonpreferred embodiments. Merck & Co. v. Biocraft Laboratories, 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir.), cert. denied, 493 U.S. 975 (1989).
With respect to the results, purported as unexpected, in INV I, VAR I and VAR 8, the examiner contends that the showings are not commensurate in scope with the claims and therefore criticality cannot be established. Additional ingredients cited within the examples are not included within the comprehensive claims of the invention.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to NECHOLUS OGDEN JR whose telephone number is (571)272-1322. The examiner can normally be reached 8-4:30 EST M-F.
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/NECHOLUS OGDEN JR/Primary Examiner, Art Unit 1761