Response to Amendment
Claim Rejections - 35 USC § 102
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 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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
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) 1-7, 9-15, 17-18 is/are rejected under 35 U.S.C. 102(a1) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over Schuch et al (20150315123) is withdrawn.
Claim(s) 1-5, 7, 12-14 and 18 is/are rejected under 35 U.S.C. 102(a2) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over Pesaro et al (2022/0105016) is withdrawn.
Claim(s) 2 is/are rejected under 35 U.S.C. 103 as being unpatentable over Pesaro et al (2022/0105016) is withdrawn.
Claim(s) 1-5 and 7-18 is/are rejected under 35 U.S.C. 102(a1) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over Dong et al (2009/0227482).
Dong et al exemplifies the invention at EX.F:
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Specifically, the preferred betaine AMPHOSOL HCG, is specified and exemplified as applicant’s preferred betaine in proportions, fatty acid such as myristic acid, salts such as additional anionic surfactants ALPHA-STEP, adjunct ingredients such glidant and soybean oil emollients and balance of water in amounts up to 70% are suggested in runs 24, 27 and 28.
As these examples suggest the claimed invention they are considered anticipatory.
In the alternative the fatty acid is exemplified at 2% but said optional skin conditioning ingredients are well established to be from 0%, being optional to 25% (0043).
Therefore, the skilled artisan would have envisioned the claims as obvious to comprise a data point of 1% given the specific teachings and optimizations within the skilled artisan as low levels of skin conditioning agents such as fatty acids are employed for their intended purpose and are well envisioned from 0.05-1% as suggested by Dong et al.
Response to Arguments
Applicant’s arguments with respect to claim(s) 1-5, 7-18 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
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.
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