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 .
Priority
The instant application claims foreign priority to FR2013915 filed 12/22/2020. The instant application is a 371 of PCT/EP2021/087103 filed 12/21/2021.
Information Disclosure Statement
The information disclosure statement filed 06/20/2023 fails to comply with 37 CFR 1.98(a)(2), which requires a legible copy of each cited foreign patent document; each non-patent literature publication or that portion which caused it to be listed; and all other information or that portion which caused it to be listed. It has been placed in the application file, but the information referred to therein has not been considered.
The information disclosure statement (IDS) dated 07/03/2023 complies with provisions of 37 CFR 1.97, 1.98 and MPEP §609. Accordingly, it has been placed in the application file and the information therein has been considered as to the merits.
Claim Objections
Applicant is advised that should claim 3 be found allowable, claim 17 will be objected to under 37 CFR 1.75 as being a substantial duplicate thereof. 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 Interpretation
With regards to the term poured bulk density, the instant specification recites
“Conventionally, the magnesium oxide particles may have a poured bulk density which may be between 50 and 750 g/L, in particular between 80 and 750 g/L. The poured bulk density may be measured at 20°C on a 25 ml test tube in duplicate. The poured bulk density measurement is performed on a non-tapped sample. In other words, the poured bulk density is measured using a mass of sample in powder form, in a given volume, without any prior tapping. It may be reminded that the poured and tapped bulk densities are classically measured to characterize the powder flowability and are typical measurements to characterize powders, especially in the pharmaceutical field as attested by various pharmacopoeias and also in the cosmetic field. Generally, poured bulk density may be determined by pouring a sample of known mass into a graduated cylinder, and measuring the volume occupied. Tapped bulk density may be determined by measuring the volume occupied by the sample after it is subjected to a prescribed amplitude and frequency of tapping over a prescribed time period using a tapped density tester.
In the framework of the present invention, the following method may be used:
1. A glass cylinder is weighed empty (MO in g).
2. The powder is homogenized in its container by working it between the hands.
3. The glass cylinder is filled with the powder sample up to the 25 ml mark (VO in ml), passing the sample through a funnel, without bumping or tapping the cylinder. The glass cylinder is weighed (M1 in g).
The poured bulk density in g/cm3 corresponds to the following formula:
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The protocol is repeated at least twice or until the mean value is less than 5%. A mean value is given and a difference of 10% is considered as acceptable. Two different grades of magnesium oxide are thus distinguished according to the measured value of the poured bulk density, it being possible for both to be used in the context of the present invention. More particularly, a "light magnesium salt", in particular a "light-grade magnesium oxide", denotes particles of a magnesium salt, in particular of magnesium oxide, having a poured bulk density of greater than or equal to 50 g/L and less than 250 g/L, in particular greater than or equal to 70 g/L and less than or equal to 200 g/L, and even more particularly greater than or equal to 80 g/L and less than or equal to 150 g/L. In parallel, a "heavy magnesium salt", in particular a "heavy-grade magnesium oxide", which may be used in the context of the present invention, denotes particles of a magnesium salt having a poured bulk density of between 450 and 750 g/L, in particular between 500 and 700 g/L and even more particularly between 550 and 650 g/L.”
instant specification at pages 7-8. The instant specification further recites
“In the context of the present invention, the composition comprises at least 1% by weight of magnesium salt having a poured bulk density of greater than 450 g/L, relative to the total weight of the composition. This is referred to as a heavy-grade magnesium salt, as detailed hereinbelow. The inventors have in fact found, surprisingly, as illustrated in the examples that follow, that the use of a heavy-grade magnesium salt makes it possible to significantly reduce or even to eliminate visible and unaesthetic marks, notably white marks, following the application of the composition under the armpits and/or on clothing. It has moreover been found that the choice of such a heavy-grade magnesium salt in comparison with a light-grade magnesium salt generally makes it possible to obtain a less viscous composition and to obtain a finer film on application. In other words, the use of the heavy-grade magnesium salt is very advantageous in aqueous formulation. The reason for this is that such a heavy grade magnesium salt does not give rise to substantial viscosity in formulation, allowing its use at a very high concentration while at the same time remaining applicable, more particularly in presentation forms such as roll-ons or ball applicators.”
instant specification at page 6. The instant specification further speaks to components considered appropriate;
“Among the light-grade magnesium oxides, mention may notably be made of the magnesium oxides sold by the company UBE Industries under the names Ultra High Purity and Fine Magnesium Oxide 500A or the magnesium oxide sold by the company Dr. Paul Lohmann under the name Magnesium Oxide Extra Light.
Among the heavy-grade magnesium oxides that may be used in the context of the present invention, mention may notably be made of the magnesium oxides sold by the company Quaron/Magnesia or the company Dr. Paul Lohmann under the respective names Magnesia 23 and Magnesium Oxide Light. Mention may also be made in this respect of the magnesium oxide sold under the name Magnesia 22 by the company Dead Sea Bromine and Magnesium Oxide Heavy C46/124 by the company Dr. Paul Lohmann. As magnesium dihydroxide that may be used in the context of the present invention, mention may notably be made of the magnesium hydroxide sold by the company Dr. Paul Lohmann.”
instant specification at page 8.
Therefore, the Examiner is interpreting the magnesium oxides with appropriate poured bulk density to include magnesium oxides sold by the company Quaron/Magnesia or the company Dr. Paul Lohmann under the respective names Magnesia 23 and Magnesium Oxide Light. Mention may also be made in this respect of the magnesium oxide sold under the name Magnesia 22 by the company Dead Sea Bromine and Magnesium Oxide Heavy C46/124 by the company Dr. Paul Lohmann.
With regards to pentylene glycol, it should be noted that 1,2 pentanediol is another name for pentylene glycol. As such, instant claim 6 does not broaden the claim from which it depends, claim 1.
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 5 and 15-16 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.
A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 5 recites the broad recitation “a poured bulk density of greater than 450 g/L”, and the claim also recites “a poured bulk density for between 450 and 750 g/L” which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 15 recites the broad recitation “a poured bulk density of greater than 450 g/L”, and the claim also recites “a poured bulk density for between 550 and 650 g/L” which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
With regards to claim 16, it is currently unclear what property of the magnesium is between 2 and 20m2/g. Claim 16 recites “The composition according to claim 1, wherein the magnesium salt(s) with a poured bulk density of greater than 450 g/L between 2 and 20 m2/g”. Because the metes and bounds of the claim are unclear the claim is presently indefinite and will not be further examined in the prior art until further defined.
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.
A) Claims 1-10 and 13-19 are rejected under 35 U.S.C. 103 as being unpatentable over Niimi (US Patent Application Publication 20160143824A1).
Niimi recites a cosmetic composition comprising: (i) at least one oxide of an alkaline earth metal; (ii) at least one metal soap; and (iii) an aqueous phase (Niimi at claim 14). Niimi recites wherein the (i) at least one oxide of an alkaline earth metal is magnesium oxide or calcium oxide (Niimi at claim 15). Niimi recites wherein the amount of the (i) at least one oxide of an alkaline earth metal ranges from about 0.01% to about 10.0% by weight in relation to the total weight of the cosmetic composition (Niimi at claim 19). Niimi recites wherein the cosmetic composition is in the form of an emulsion, lotion, gel, or cream (Niimi at claim 22). Niimi recites method for providing a long-wear cosmetic effect comprising: applying a cosmetic composition to a keratinous material, said cosmetic composition comprising: (i) at least one oxide of an alkaline earth metal; (ii) at least one metal soap; and (iii) an aqueous phase (Niimi at claim 24). Niimi recites wherein the keratinous material comprises skin (Niimi at claim 25). Niimi teaches that the magnesium oxide used is magnesium oxide light: Dr. Paul Lohmann (Niimi at Table 1). Niimi teaches the use of an aqueous phase, wherein the water and pentylene glycol comprise from about 1% to about 80% of the composition (Niimi at [0044-0048]). Niimi teaches the use of fatty alcohols (Niimi at [0067-0092]). Niimi teaches that the composition may be a deodorant (Niimi at [0112]).
Niimi differs from the instant claims in this rejection insofar as it does not teach the combination of the instantly recited components with sufficient specificity for anticipation. Niimi teaches the components of the instant recited composition and uses each component of their established function in the art but does not explicitly combine the components together into a single embodiment or a preferred composition. However, given the disclosure of each component individually, it would have been prima facie obvious to a person having ordinary skill in the art at a time prior to the filing of the present patent application and following the teachings of Niimi to have selected and combined known components for their established functions with predictable results. MPEP §2143 and §2144.06(I).
Regarding instant claim 1, Niimi recites wherein the cosmetic composition is in the form of an emulsion, lotion, gel, or cream (Niimi at claim 22). Niimi teaches the use of an aqueous phase, wherein the water and pentylene glycol comprise from about 1% to about 80% of the composition (Niimi at [0044-0048]). Niimi recites a cosmetic composition comprising: (i) at least one oxide of an alkaline earth metal; (ii) at least one metal soap; and (iii) an aqueous phase (Niimi at claim 14). Niimi recites wherein the (i) at least one oxide of an alkaline earth metal is magnesium oxide or calcium oxide (Niimi at claim 15). Niimi recites wherein the amount of the (i) at least one oxide of an alkaline earth metal ranges from about 0.01% to about 10.0% by weight in relation to the total weight of the cosmetic composition (Niimi at claim 19), which overlaps the instantly claimed range of at least 1%. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP§2144.05(I). Niimi teaches that the magnesium oxide used is magnesium oxide light: Dr. Paul Lohmann (Niimi at Table 1).
Regarding instant claim 2, Niimi teaches that the magnesium oxide used is magnesium oxide light: Dr. Paul Lohmann (Niimi at Table 1).
Regarding instant claim 3, Niimi teaches that the magnesium oxide used is magnesium oxide light: Dr. Paul Lohmann (Niimi at Table 1).
Regarding instant claim 4, Niimi teaches that the magnesium oxide used is magnesium oxide light: Dr. Paul Lohmann (Niimi at Table 1). Niimi recites a cosmetic composition comprising: (i) at least one oxide of an alkaline earth metal; (ii) at least one metal soap; and (iii) an aqueous phase (Niimi at claim 14). Niimi recites wherein the (i) at least one oxide of an alkaline earth metal is magnesium oxide or calcium oxide (Niimi at claim 15). Niimi recites wherein the amount of the (i) at least one oxide of an alkaline earth metal ranges from about 0.01% to about 10.0% by weight in relation to the total weight of the cosmetic composition (Niimi at claim 19), which overlaps the instantly claimed range of from 1% to 6%. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP§2144.05(I).
Regarding instant claim 5, Niimi teaches that the magnesium oxide used is magnesium oxide light: Dr. Paul Lohmann (Niimi at Table 1).
Regarding instant claim 6, Niimi teaches that the magnesium oxide used is magnesium oxide light: Dr. Paul Lohmann (Niimi at Table 1).
Regarding instant claim 7, Niimi teaches the use of an aqueous phase, wherein the water and pentylene glycol comprise from about 1% to about 80% of the composition (Niimi at [0044-0048]), which overlaps the instantly claimed range of at most 40%. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP§2144.05(I).
Regarding instant claim 8, Niimi teaches the use of an aqueous phase, wherein the water and pentylene glycol comprise from about 1% to about 80% of the composition (Niimi at [0044-0048]).
Regarding instant claim 9, Niimi teaches the use of an aqueous phase, wherein the water and pentylene glycol comprise from about 1% to about 80% of the composition (Niimi at [0044-0048]), which overlaps the instantly claimed range of from 10% to 40%. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP§2144.05(I).
Regarding instant claim 10, Niimi teaches the use of an aqueous phase, wherein the water and pentylene glycol comprise from about 1% to about 80% of the composition (Niimi at [0044-0048]), which overlaps the instantly claimed range of at least 60%. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP§2144.05(I).
Regarding instant claim 13, Niimi recites method for providing a long-wear cosmetic effect comprising: applying a cosmetic composition to a keratinous material, said cosmetic composition comprising: (i) at least one oxide of an alkaline earth metal; (ii) at least one metal soap; and (iii) an aqueous phase (Niimi at claim 24). Niimi recites wherein the keratinous material comprises skin (Niimi at claim 25).
Regarding instant claim 14, Niimi teaches that the magnesium oxide used is magnesium oxide light: Dr. Paul Lohmann (Niimi at Table 1). Niimi recites a cosmetic composition comprising: (i) at least one oxide of an alkaline earth metal; (ii) at least one metal soap; and (iii) an aqueous phase (Niimi at claim 14). Niimi recites wherein the (i) at least one oxide of an alkaline earth metal is magnesium oxide or calcium oxide (Niimi at claim 15). Niimi recites wherein the amount of the (i) at least one oxide of an alkaline earth metal ranges from about 0.01% to about 10.0% by weight in relation to the total weight of the cosmetic composition (Niimi at claim 19), which overlaps the instantly claimed range of from 1% to 2%. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP§2144.05(I).
Regarding instant claim 15, Niimi teaches that the magnesium oxide used is magnesium oxide light: Dr. Paul Lohmann (Niimi at Table 1).
Regarding instant claim 16, Niimi teaches that the magnesium oxide used is magnesium oxide light: Dr. Paul Lohmann (Niimi at Table 1).
Regarding instant claim 17, Niimi teaches that the magnesium oxide used is magnesium oxide light: Dr. Paul Lohmann (Niimi at Table 1).
Regarding instant claim 18, Niimi teaches the use of an aqueous phase, wherein the water and pentylene glycol comprise from about 1% to about 80% of the composition (Niimi at [0044-0048]), which overlaps the instantly claimed range of from 15% to 25%. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP§2144.05(I).
Regarding instant claim 19, Niimi teaches the use of an aqueous phase, wherein the water and pentylene glycol comprise from about 1% to about 80% of the composition (Niimi at [0044-0048]), which overlaps the instantly claimed range of at least 75%. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP§2144.05(I).
B) Claims 1-19 are rejected under 35 U.S.C. 103 as being unpatentable over Niimi (US Patent Application Publication 20160143824A1) as applied to claims 1-10 and 13-19 above, and further in view of Howell (US Patent Application Publication 20130202546A1).
The teachings of Niimi are discussed above.
The teachings of Niimi differ from instant claim 11 insofar as while they teach fatty alcohols they don’t specifically teach cetyl alcohol. The teachings of Howell cure this deficit.
Howell teaches a cosmetic composition (Howell at abstract). Howell teaches the use of deodorants (Howell at [0087]), magnesium oxide and magnesium hydroxide (Howell at [0092]), pentylene glycol, water and cetyl alcohol (Howell at [0072]).
The teaching of Howell differ from instant claim 1 insofar as they do not teach the source of the magnesium oxide used. The teachings of Niimi cure this deficit.
It would have been prima facie obvious to one of ordinary skill in the art to have combined the cetyl alcohol with the water and pentylene glycol of Niimi as taught by Howell for the predictable result of a cosmetic composition vehicle. See MPEP 2144.06(I). It would have been obvious to have used cetyl alcohol because it is taught at a vehicle combined with water and pentylene glycol in Howell. See MPEP 2144.07.
Regarding instant claim 11, Howell teaches the use of deodorants (Howell at [0087]), magnesium oxide and magnesium hydroxide (Howell at [0092]), pentylene glycol, water and cetyl alcohol (Howell at [0072]).
Regarding instant claim 12, Howell teaches the use of deodorants (Howell at [0087]), magnesium oxide and magnesium hydroxide (Howell at [0092]), pentylene glycol, water and cetyl alcohol (Howell at [0072]).
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.
Claims 1-19 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-18 of copending Application No.18/258,494 in view of Niimi (US Patent Application Publication 20160143824A1) and Howell (US Patent Application Publication 20130202546A1). The instant claim recites A composition comprising: a gelled aqueous phase, at least 1% by weight of active material of magnesium salt(s) having a poured bulk density of greater than 450 g/L, relative to the total weight of the composition, and at least one glycol derivative, wherein the glycol derivative is selected from the group consisting of propylene glycol, butylene glycol and mixtures thereof.
The reference application recites a composition comprising at least: - an unmodified clay chosen from trioctahedral smectites, - a magnesium salt chosen from magnesium oxide, magnesium hydroxide and their mixtures, - an antisyneresis agent chosen from propylene glycol, 1,3-propanediol, natural polymers and their mixtures, and – water (reference application at claim 1). The reference application recites in which, when the antisyneresis agent is propylene glycol, 1,3-propanediol or their mixtures, it is present in an amount ranging from 1% to 60% by weight,with respect to the total weight of the composition; or when the antisyneresis agent is a natural polymer, it is present in an amount ranging from 0.05% to 10.00% by weight, with respect to the total weight of the composition (reference application at claim 15). The reference application recites in which the water is present in an amount ranging from 30% by weight to 98% (reference application at claim 16). The reference application recites which is of gel type (reference application at claim 17). The reference application recites cosmetic method comprising at least one stage which consists in applying, to the skin and/or head hair (reference application at claim 18). The reference application recites in which said magnesium salt is magnesium oxide (reference application at claim 8). The reference application recites in which said magnesium salt(s) is (are) present in an amount of between 0.5% and 10.0% (reference application at claim 9). The reference application recites in which said at least antisyneresis agent is chosen from propylene glycol, 1,3-propanediol, and their mixtures (reference application at claim 11).
The reference application differs from the instant claim1 insofar as they do not teach the source of the magnesium oxide used. The teachings of Niimi and Howell cure this deficit.
It would be prima facie obvious to one of ordinary skill in the art to have combined the magnesium oxide of Niimi with the magnesium oxide of the reference application for the predictable result of a composition comprising magnesium oxide, pentylene glycol and water. See MPEP 2144.06(I).
This is a provisional nonstatutory double patenting rejection.
Reference claims and prior art combine to produce a prima facie case of obviousness type non-statutory double patenting
Conclusion
No claims are presently allowable.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to AMANDA MICHELLE PETRITSCH whose telephone number is (571)272-6812. The examiner can normally be reached M-F 08:30-17:00 EST ALT Fridays.
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/AMANDA MICHELLE PETRITSCH/Examiner, Art Unit 1612
/SAHANA S KAUP/Supervisory Primary Examiner, Art Unit 1612