Response to Amendment
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 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.
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) 1-9 is/are rejected under 35 U.S.C. 103 as being unpatentable over EP (3712238).
EP ‘238 disclose a process for making a fibrous water-soluble unit dose article containing laundry detergent powder which is an acid composition. EP ‘238 discloses finished pad (example. 1, fig.1, 5 and 6, paragraphs [0086], [0088]) comprising fibers 30 and particles 32 obtained by (a) obtaining laundry detergent base NaLAS particle/powder from Stepan, (b) contacting citrocoat particle to the detergent base particle NaLAS in a commingling operation 24, which is a mixer to form a laundry detergent particles 32, (c) transferring the laundry detergent particles 32 from the mixer/ commingling operation 24 to the particle receiver/storage vessel, (d) transferring the laundry detergent particles 32 from the particle receiver/storage vessel onto a belt feeder 41 or optionally a screw feeder through the air knife/streaming opening 42 to a commingled filaments 22/30. Finally a packaging operation 36 packs the fibrous structures into containers 34/fibrous water-soluble unit dose 60. The laundry detergent particles 32 of example 1 is obtained by mixing in a commingling _ operation 24: 8.389 of citrocoat, surfactants formulated into the particles (paragraphs . [0037], [0072]): from above Og and less than 1.60 g NaLAS particle, 0.119 of | miscellaneous and moisture. The citrocoat particles (NF5000) available from Jungbunzlauer (Basel, Switzerland) has, from general knowledge, the claimed particle size of claims 1 and 2 and provides storage stability due to its crystalline form. NaLAS in the particles 32, said particles comprise 14 wt% detersive NaLAS surfactant, 75 wt% of citric acid and 1 wt% of miscellaneous and moisture. The pH upon dilution in deionized water at 20°C to a concentration of 1g/l is implicitly from 2.0 to below 3.0 (in view of table 2 of present application, and paragraph [0085]). The steps (b), (c) and (d) are carried out at an environment relative humidity of greater than 40% to below 75% to maintain desirable level of processability by easily flow of articles while not absorbing a significant amount of atmospheric moisture such as an environment relative humidity of 45% (paragraph [0091], claim 1). EP 238 teaches that at relative humidity greater than 70% the citric acid particles agglomerate and form a paste that does not allow to create distinct active particles. In addition, hueing dye, 0.01-2 wt% of perfume, filler/carrier and 0.05-2 wt% of dye transfer inhibitor polymer (claim 13, paragraphs [0070], [0073], [0076], [0077] [0129]-[0120)) is described in EP ‘238 as providing the same advantages as in the present application.
EP ‘238 do not teach with sufficient specificity to anticipate the claims, However, the skilled ordinary artisan would have been motivated to combine the general knowledge and teachings posed in EP’ 238 to suggest the claimed invention given that the components and method of preparing are suggested as indicated above. Furthermore upon dilution is an obvious characteristics given that the components and pH within the range as claimed given the usage in detergent formulation upon which are diluted would have been obvious in the absence of unexpected results commensurate in scope with the claimed invention. See (0085).
[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).]
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claim 1, 3-7 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1-7 of copending Application No. 17/848,547 (reference application).
Although the claims at issue are not identical, they are not patentably distinct from each other because a similar composition of laundry detergent powder comprising of detersive anionic surfactant, citric acid of particular weight average particle size, perfume, polymer, hueing agent, and filler wherein upon dilution, the pH is in the range of from about 2.0 and about 4.0. Therefore, instant Claims 1, 3-7 are an obvious formulation in view of Claims 1-7 of copending Application No. 17/848,547. Where applicant voluntarily presents claims to the product and process, for example, in separate applications (i.e., no restriction requirement was made by the Office), and one of the applications issues as a patent, the remaining application may be rejected under the doctrine of obviousness-type double patenting, where appropriate (see MPEP § 804 - § 804.03), and applicant may overcome the rejection by the filing of a terminal disclaimer under 37 CFR 1.321(c) where appropriate. Similarly, if copending applications separately present product and process claims, provisional obviousness- type double patenting rejections should be made where appropriate. This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Response to Arguments
Applicant's arguments filed 10-15-2025 have been fully considered but they are not persuasive.
Applicant argues:
“Sivik et al. [0037] states that most alkylalkoxylated sulfates are formulated into the particle, i.e. the citrocoat particles include alkylalkoxylated sulfates within the citrocoat particles themselves. That is not the same as the claimed step of contacting citric acid particles (one set of particles) to a detergent base powder (another set of particles) in a mixer to form a laundry detergent powder, as claimed. Therefore, Sivik et al. fails to establish a prima facie case of obviousness against Claim 1.”
The examiner contends and respectfully disagrees as applicant’s claims are given their most broad and reasonable interpretation. Applicant’s arguments, relating to two sets of particles, are not part of the claimed process and therefore the argument are mere conclusory statements given little patentable weight. The steps, as claimed state a single component of citric acid and Sivik et al teach that component delivered to the base powder. Accordingly, the claim limitation is met and without evidence to the contrary, commensurate in scope with the claims, the invention is prima facie obvious in light of the teachings of Sivik et al.
See also In re Burhans, 154 F.2d 690, 69 USPQ 330 (CCPA 1946) (selection of any order of performing process steps is prima facie
obvious in the absence of new or unexpected results); In re Gibson, 39 F.2d 975, 5 USPQ 230 (CCPA 1930) (Selection of any order of mixing ingredients is prima facie obvious.)
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.
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.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
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