DETAILED ACTION
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 .
Claims Status
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 07/06/2026 has been entered.
The Examiner further acknowledges the following:
Claims 12-13 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim.
Claims 1, 3-5, 7-11, 14-15 and 18 are under current examination.
Applicants' remarks and amendments 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 Rejections and/or objections not reiterated from previous office actions are hereby withdrawn.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
Claim 14 is objected under 37 CFR 1.75 as being a substantial duplicate of claim 4. When two claims in an application are duplicates or else are so close in content that they both cover the same thing, despite a slight difference in wording, it is proper after allowing one claim to object to the other as being a substantial duplicate of the allowed claim. See MPEP § 608.01(m).
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.
Claims 1, 3-5, 7-11, 14-15 and 18 are rejected under 35 U.S.C. 103 as being obvious over Moujahed et al. (United States patent Publication 2019/0350824) in view of Salomao et al. (WO2021/016683-filed 7/2019).
The applied reference to Salomao et al. has a common assignee with the instant application. Based upon the earlier effectively filed date of the reference, it constitutes prior art under 35 U.S.C. 102(a)(2).
This rejection under 35 U.S.C. 103 might be overcome by: (1) a showing under 37 CFR 1.130(a) that the subject matter disclosed in the reference was obtained directly or indirectly from the inventor or a joint inventor of this application and is thus not prior art in accordance with 35 U.S.C.102(b)(2)(A); (2) a showing under 37 CFR 1.130(b) of a prior public disclosure under 35 U.S.C. 102(b)(2)(B); or (3) a statement pursuant to 35 U.S.C. 102(b)(2)(C) establishing that, not later than the effective filing date of the claimed invention, the subject matter disclosed and the claimed invention were either owned by the same person or subject to an obligation of assignment to the same person or subject to a joint research agreement. See generally MPEP § 717.02.
Moujahed et al. teach anhydrous deodorant compositions comprising magnesium salt, a hydrocarbon based plant oil and at least one fatty acid ester, see paragraphs [0021]-[0025]. The magnesium salt includes magnesium oxide and can be present from 2-30% by weight, see paragraphs [068]-[0070]. The composition can comprise fatty alcohols including cetearyl alcohol (also known as cetostearyl alcohol- a C12-22 fatty alcohol), see paragraph [0197]. The anhydrous composition can comprise waxes of plant, animal, mineral and/or synthetic origin and are inclusive of cetearyl alcohol fatty alcohol and hydrogenated sunflower, see paragraphs [0185]-[0206]. Examples of hydrocarbon based plant oil include shea butter and rapeseed oil, see paragraphs [0072]-[0090]. The hydrocarbon based plant oils are added to reduce white marks after application, see paragraph [0073]. Moujahed et al. teach that the composition can comprise water absorbers including perlites, see paragraphs [0219]-[0246]. In preferred embodiments the composition is free of aluminum and its complexes, see paragraph [0339]. The composition can comprise hydrocarbon based oils in the alternative to silicone oil, thus the composition has embodiments which can utilize hydrocarbon based oils and does not contain a silicone oil, see paragraphs [00111]-[0129]. Moujahed et al. teach that the fatty wax substance of which includes fatty alcohols can be present from 1-30% by weight, see paragraph [0206].
Moujahed does not teach that the cetearyl alcohol can be present from 10-30% by weight or the presence of maize starch from 15-40% by weight with a ratio of magnesium salts to starch being less than or equal to 1.
Salomao et al. teach anhydrous antiperspirant compositions which comprise 1-40% by weight at least one active, wherein the active includes magnesium oxide, see claims 1 and 4 and 8. The composition can take a stick form, see claim 13. Cetearyl alcohol can be present from 12-40% by weight, see claim 2. The composition an further contain maize starch (also called zea mays corn starch) as a filler present from 0.1-20% by weight, see column 12, lines 7-11 and 19-23. The antiperspirant and deodorant compositions have good hardness properties and desirable sensorial perception with cetearyl alcohol, hydrogenated castor oil an active compound and emollient, see field of invention ad page 1, lines 5-12.
It would have been prima facie obvious to provide the cetearyl alcohol of Moujahed present at 12-40% by weight together with hydrogenated castor oil, emollient and magnesium oxide with maize starch filler present from 0.1-20% by weight in order to provide the antiperspirant with good hardness properties and sensorial perception of Moujahed’ s stick formulation. The amount of maize starch and cetearyl alcohol disclosed in Salomao overlaps and thus renders obvious the clamed ranges.
There would have been a reasonable expectation of success because Moujahed teaches stick compositions which comprise magnesium oxide and cetearyl alcohol .
Regarding the ratio of the magnesium oxide to maize starch filler, the magnesium oxide is taught to be present inclusive of 1-40% with maize starch filler rom 0.1-20% by weight. These amounts overlap ratios of 1 or less. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976).
Claims 1, 3-5, 7-11, 14-15 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Moujahed et al. (United States patent Publication 2019/0350824) in view of Malle et al. (United States Patent Publication 2017/0196781) and Banowski et al. (United States Patent Publication 2020/0170896).
Moujahed et al. teach anhydrous deodorant compositions comprising magnesium salt, a hydrocarbon based plant oil and at least one fatty acid ester, see paragraphs [0021]-[0025]. The magnesium salt includes magnesium oxide and can be present from 2-30% by weight, see paragraphs [068]-[0070]. The composition can comprise fatty alcohols including cetearyl alcohol (also known as cetostearyl alcohol- a C12-22 fatty alcohol), see paragraph [0197]. The anhydrous composition can comprise waxes of plant, animal, mineral and/or synthetic origin and are inclusive of cetearyl alcohol fatty alcohol and hydrogenated sunflower, see paragraphs [0185]-[0206]. Examples of hydrocarbon based plant oil include shea butter and rapeseed oil, see paragraphs [0072]-[0090]. The hydrocarbon based plant oils are added to reduce white marks after application, see paragraph [0073]. Moujahed et al. teach that the composition can comprise water absorbers including perlites, see paragraphs [0219]-[0246]. In preferred embodiments the composition is free of aluminum and its complexes, see paragraph [0339]. The composition can comprise hydrocarbon based oils in the alternative to silicone oil, thus the composition has embodiments which can utilize hydrocarbon based oils and does not contain a silicone oil, see paragraphs [00111]-[0129]. Moujahed et al. teach that the fatty wax substance of which includes fatty alcohols can be present from 1-30% by weight, see paragraph [0206].
Moujahed does not expressly teach that the cetearyl alcohol can be present from 10-30% by weight.
However, Malle et al. teach that structuring agents for solid anhydrous formulations stiffen the composition until a solid composition is obtained, see paragraphs [0001], [0047]. Preferred structuring agents include waxes such as cetylstearyl alcohol (aka cetostearyl alcohol or cetearyl alcohol) and they can be present from 4-60% by weight, see paragraph [0215]-[0217]. Malle et al. teach that stick formulations , and that compositions can comprise deodorants, see paragraphs [006] and [0343].
It would have been prima facie obvious to provide the cetearyl alcohol of Moujahed from 10-30% by weight in order to achieve the desired hardness of the cosmetic product of Moujahed because Malle et al. teach that such structuring agents function to help stiffen the product. There would have been a reasonable expectation of success because both Moujahed and Malle teach deodorant compositions and furthermore Moujahed et al. teach the presence of fatty compounds inclusive of cetearyl alcohol wherein the fatty compounds can be present from 1-30% by weight.
Moujahed and Malle do not expressly teach the presence of maize starch present from 15-40% by weight with a ratio of magnesium salts to starch being less than or equal to 1.
However, Banowski et al. teach anhydrous deodorant compositions which comprise water absorbing compounds such as perlites or Zea Mays corn starch (also known as maize starch), see paragraph [0067]. The water absorbing compound is preferably starch which can be present from 0-30% by weight, see paragraph [0074].
It would have been prima facie obvious to substitute the perlites in the anhydrous deodorant of Moujahed et al. for maize starch (corn starch) in amounts from 0-30% by weight.
One of ordinary skill in the art would have been motivated to do so because corn starch is taught as being a suitable water absorption compound and can be present from 0-30% by weight per the teachings of Banowski et al. The substitution of perlite water absorption compound for corn starch yields predictable results to one of ordinary skill in the art with imparting water absorption properties.
There would have been a reasonable expectation of success given both Moujahed et al. and Banowski et al. teach anhydrous deodorant compositions which contain water absorption compounds.
The combination of Moujahed et al. teaching 2-30% by weight magnesium oxide together with Banowski et al. teaching 0-30% by weight of corn starch overlaps and renders obvious the claimed range of magnesium salts from 5-25% by weight or 7-20% by weight, and starch from 15-40% by weight and a ratio inclusive of 1:1 as both Moujahed and Banowski have upper limits of 30% by weight and Banowski’ s range of 0-30% is inclusive of 2-30% by weight. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Response to remarks
Applicants argue that the presence of the fatty alcohol in an amount of from 10-30% by weight makes it possible to obtain a solid stick with satisfactory hardness and deposit with good sensory profile. Applicants point to the Declaration in which show that the presence of cetearyl alcohol makes it possible to obtain such solid sticks with required harness and depot with good sensory profile. Applicant argues that sticks without the cetearyl alcohol does not exhibit the required hardness or quantity deposited. Applicants point to example 2 in which solid compositions of the present invention packaged in plastic exhibit twice the harness of that packaged in cardboard while allowing for adequate deposition.
Examiner respectfully submits that the evidence relied upon should establish “that the differences in results are in fact unexpected and unobvious and of both statistical and practical significance.” Ex parte Gelles, 22 USPQ2d 1318, 1319 (Bd. Pat. App. & Inter. 1992). The Moujahed reference teaches that the fatty compound which include cetearyl alcohol, wherein such fatty compounds can be present from 1-30% by weight. Malle et al. teach that structuring agents for solid anhydrous formulations inclusive of deodorant sticks help stiffen the composition until a solid composition is obtained. Preferred structuring agents include waxes such as cetylstearyl alcohol and they can be present from 4-60% by weight. It would have been prima facie obvious to provide the cetearyl alcohol from 10-30% by weight in order to achieve the desired hardness of the cosmetic product of Moujahed because Malle et al. teach that such structuring agents function to help stiffen the product. All of the competent rebuttal evidence taken as a whole should be weighed against the evidence supporting the prima facie case. In re Piasecki, 745 F.2d 1468, 1472, 223 USPQ 785, 788 (Fed. Cir. 1984). See MPEP 716.01. Here, the prior art recognizes that structuring agents including cetylstearyl alcohol help to harden cosmetic stick formulations. Furthermore, an affidavit or declaration under 37 CFR 1.132 must compare the claimed subject matter with the closest prior art to be effective to rebut a prima facie case of obviousness. In re Burckel, 592 F.2d 1175, 201 USPQ 67 (CCPA 1979). Here, the Declaration compares a product which does not contain cetearyl alcohol with formulations that do, however the cited prior art (e.g. Moujahed) does already contain fatty alcohols such as cetostearyl alcohol as part of their cosmetic stick formulation.
37 CFR 1.132 Declaration
The examiner acknowledges receipt of the Declaration under 37 CFR 1.132 by Laure Daubersies filed on 07/06/2026.
The Declaration under 37 CFR 1.132 filed 13 April 2011 is insufficient to overcome the rejection of record because:
An affidavit or declaration under 37 CFR 1.132 must compare the claimed subject matter with the closest prior art to be effective to rebut a prima facie case of obviousness. In re Burckel, 592 F.2d 1175, 201 USPQ 67 (CCPA 1979). Here, the Declaration compares a product which does not contain cetearyl alcohol with formulations that do, however the cited prior art (Moujahed)) does already contain fatty alcohols such as cetostearyl alcohol as part of their cosmetic stick formulation. Examiner respectfully submits that the Moujahed refence teaches that the fatty compound which include cetearyl alcohol, wherein such fatty compounds can be present from 1-30% by weight. Malle et al. teach that structuring agents for solid anhydrous formulations inclusive of deodorant sticks help stiffen the composition until a solid composition is obtained. Preferred structuring agents include waxes such as cetylstearyl alcohol and they can be present from 4-60% by weight. It would have been prima facie obvious to provide the cetearyl alcohol from 10-30% by weight in order to achieve the desired hardness of the cosmetic product of Moujahed because Malle et al. teach that such structuring agents function to help stiffen the product. All of the competent rebuttal evidence taken as a whole should be weighed against the evidence supporting the prima facie case. In re Piasecki, 745 F.2d 1468, 1472, 223 USPQ 785, 788 (Fed. Cir. 1984). See MPEP 716.01. Here, the prior art recognizes that structuring agents including cetostearyl alcohol do help to harden cosmetic stick formulations.
Upon consideration of the facts taught by the prior art and the information submitted by the Affiant, the balance of evidence indicates that the prior art teaches the instantly claimed inventions.
Conclusion
Applicant’s arguments/remarks are considered unpersuasive. Currently, no claims are allowed and all claims are rejected.
Correspondence
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/SARAH ALAWADI/Primary Examiner, Art Unit 1619
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