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 .
Applicants' arguments, filed January 15, 2026, 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 Rejections and/or objections not reiterated from previous office actions are hereby withdrawn.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.
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims
Claim Rejections - 35 USC § 102 – Anticipation (Maintained Rejection)
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
1) Claims 1-14 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Fusco (US 8603550).
Fusco discloses a topical, stable, self-preserving, antimicrobial, composition suitable for the treatment of a variety of dermal as well as subcutaneous conditions that includes as an active ingredient a quaternary ammonium compound, preferably benzethonium chloride (meeting instant claim 9), potentiated and synergized with menthyl lactate in a cationic carrier. Optionally, a phenoxyethanol preservative and chlorhexidine digluconate antibacterial agent (meeting instant claim 10) may be used to assist in enhancing the activity. The compositions kill a broad spectrum of gram-negative and gram-positive bacteria, fungus and yeasts. The compositions are used as first aid skin treatments and as skin sanitizers to help prevent bacterial contamination of minor cuts, scrapes and burns (col. 2, lines 20-40). The composition comprises 40 to 90% water (liquid carrier of instant claims 6-8), 1 to 10% cooling agent (instant claim 5) and 0.01 to 0.2% antimicrobial agent (col. 2, lines 50-65). The menthyl lactate is a cooling agent meeting the instant claims. Preservatives include essentials oil such as thyme oil (comprises thymol). The preferred preservative is phenoxyethanol. The composition kills bacteria, fungus and yeast, including Staphylococcus aureus, Pseudomonas aeruginosa, Escherichia coli, Aspergillus brasiliensis, and Candida albicans. The compositions may be formulated into deodorants, antiperspirants, cosmetic and pharmaceutical skin care preparations, meeting the method of fighting microorganisms for causing body odor. An example comprises 84.6% water, 1% chlorhexidine gluconate, 4.5% Frescolat ML (menthyl lactate, instant claim 5) and 0.7% phenoxyethanol (all w/w, EXAMPLE 4).
In regards to claims 14, the composition comprises the combination of the instant claims. Therefore, when applied to the skin, it would fight body odor.
Fusco anticipates the instant claims.
Response to Arguments
The rejection inadvertently stated 35 USC 103. However, as clear from the body of the rejection and the section rejection was under, the rejection is an anticipation rejection under 35 USC 102. This is supported by the end of the rejection where it states “Fusco anticipates the instant claims”. Also, although 14 was inadvertently omitted from the rejection line, the rejection specifically addresses claim 14.
In regards to Applicant’s arguments that the primary antimicrobial activity is attributed to the quaternary ammonium compound, the claims are drawn to a method of fighting microorganisms by applying a composition comprising at least one menthol derivative. The compositions of Fusco meet this limitation by disclosing an antimicrobial composition comprising menthyl lactate in an working amount of 4.5%, which falls withing the working amount recited by the instant claims. Therefore the menthyl lactate would inherently fight microorganism, whether this property was mention in the art or not. Further, the claims do not exclude other antimicrobial agent from being present. Therefore, Fusco meets the limitations of the instant claims and the rejection is maintained.
Conclusion
Claim 1-14 are rejected.
No claims allowed.
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 LEZAH ROBERTS whose telephone number is (571)272-1071. The examiner can normally be reached Monday-Friday 11:00-7:30.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sahana Kaup can be reached at 571-272-6897. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/LEZAH ROBERTS/ Primary Examiner, Art Unit 1612
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