DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after 16 March 2013, is being examined under the first inventor to file provisions of the AIA .
Status of the Claims
Amendments to the Claims and Arguments/Remarks filed 20 November 2025, in response to the Office Correspondence dated 27 August 2025, are acknowledged.
The listing of Claims filed 20 November 2025, have been examined. Claims 1, 3-12, 14-18, and 20 are pending. Claims 1, 7, and 17 are amended and are supported by the originally-filed disclosure. Claims 2, 13, and 19 are canceled and no new claims have been added.
Response to Amendment
The Applicant amended claims 7 and 17 to replace trademarked terms with their corresponding chemical names. Accordingly, the rejection of claims 7 and 17 under 35 U.S.C. § 112(b) as being indefinite due to the use of trademarks is withdrawn.
Claim 19 has been cancelled and the limitations of the claim have been incorporated into instant claim 1, therefore previous rejection to instant claim 19 is considered moot. Regarding the other obviousness rejections under 35 U.S.C. § 103, the Examiner has fully considered Applicant’s arguments but finds them unpersuasive, for the reasons set forth below in the Response to Arguments. Thus, the rejections under 35 U.S.C. § 103 of claims 1, 3, 5, 8-12, and 14-18 as being obvious over Franklin (WO2007017119A2) in view of Clarkson (US4666710A); claims 1 and 4 as being obvious over Franklin (WO2007017119A2) in view of Clarkson (US4666710A) and Baker (EP2574327A1); claims 1, 6 and 7 as being obvious over Franklin (WO2007017119A2) in view of Clarkson (US4666710A) and Johansson (US6500412B1); and claims 1 and 20 as being obvious Franklin (WO2007017119A2) in view of Clarkson (US4666710A), Li (WO2019110290A1), and Hilliard (WO2018111664A1) are maintained.
Maintained Rejections
The following rejections are maintained from the previous Office Correspondence dated 27 August 2025, since the art which was previously cited continues to read on the amended/newly cited limitations.
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-AlIA 35 U.S.C. § 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AlA) 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.
Claims 1, 3, 5, 8-12, and 14-18 are rejected under 35 U.S.C. § 103 as being obvious over Franklin et al. (WO2007017119A2; published 15 February 2007), hereinafter referred to as Franklin, in view of Clarkson (US4666710A; published 19 May 1897).
Regarding instant claims 1, 3, 8-10, 14, and 16-18, Franklin teaches an anhydrous antiperspirant composition comprising 20-50% by weight of ethanol (claim 1), a cosmetic carrier as silicone oil (claim 15), and organic compounds selected from a group and (i) branched-chain fatty alcohol having from 16 to 24 carbon atoms (claim 1), including isostearyl alcohol (claim 9) which has a melting point lower than 37° C, benzoate esters or propoxylated linear fatty alcohols (claim 1), wherein, “The total amount of solubiliser [organic] oil present in the compositions of the invention is from 20 to 55%...” (page 11, lines 9-10). This range is within the instant claim 1 range and overlaps with the instant claim 8 and 14 ranges, in which expanding the 20-55% range of Franklin to include 10-20% and 55-60% would be a matter of routine optimization absent evidence showing unexpected results. Likewise, the 20-50% ethanol weight range disclosed by Franklin is encompassed within the instant claim 1 range and overlaps with the instant claim 10 and 18 ranges. Expanding the range disclosed by Franklin to include 5-20% and 50-60% would be a matter of routine optimization absent evidence showing unexpected results.
Franklin does not disclose the use of 4 to 30% of one or more saturated fatty acids as required by instant claim 1 or the more limited ranges of 4-20% and 5-15% of instant claims 9 and 16, respectively, but rather a 2-25% by weight of solubilized aluminum-containing antiperspirant active (Abstract). As such, Franklin also does not disclose compositions free from an antiperspirant active comprising aluminum, zirconium, or zinc, as required by instant claim 1.
However, Clarkson teaches the use of 30-80% ethanol and an active antiperspirant concentration range of 2-30% (claim 1). Clarkson also teaches in Example 3 that myristic acid, palmitic acid and isostearic acid can reduce mean sweat percentage beyond that of aluminum chlorhydrate, in which stearic acid is also considered suitable for the invention (claim 4). The use of fatty acids, including myristic acid, palmitic acid, and stearic acid, to reduce sweat supplies the teaching for the limitation of one or more specified saturated fatty acids (C14-26) as the antiperspirant active.
Thus, it would have been prima facie obvious to one of ordinary skill in the art prior to the instant effective filing date to try to substitute the fatty acids taught by Clarkson to reduce sweating as the active antiperspirant agent to the invention of Franklin for solubilized aluminum-containing antiperspirant at around the active same concentration range to generate a composition that is free from an antiperspirant active comprising aluminum, zirconium, or zinc, as required by instant claim 1. The active antiperspirant concentration range of 2-25% taught by Franklin and the 2-30% taught by Clarkson overlap with the instant claims 1, 9 and 16 ranges. The claimed sub-ranges (e.g., 10-60% organic compound, 4-20% fatty acid, 5-60% ethanol) are all contiguous with or overlapping ranges disclosed in Franklin and Clarkson. Optimizing these amounts within the broader, disclosed ranges to achieve desired viscosity, feel, or efficacy constitutes routine experimentation absent evidence of unexpected results (see In re Peterson, 315 F.3d 1325, 1330 (Fed. Cir. 2003)).
Selecting the specific fatty acids listed in instant claim 1 (myristic, palmitic, stearic, arachidic, 12-hydroxystearic) would have been obvious, as Clarkson explicitly teaches myristic, palmitic, and stearic acid, and arachidic acid (C20) and 12-hydroxystearic acid are structurally and functionally similar saturated/hydroxylated fatty acids known in the cosmetic arts for thickening/emollient properties. The melting point limitation for the organic compound of lower than 37°C is inherently met by the liquid oils disclosed by Franklin (e.g., volatile silicones, fatty alcohols like C18 isostearyl alcohol) and is a routine selection criterion for formulating topical compositions. A narrower selection of the <37°C limitation (i.e., instant claim 15 m.p. <20°C) is met by many common liquid cosmetic oils (e.g., isostearyl alcohol, certain esters) and selection of such is routine.
One would be motivated to make the changes to the invention of Franklin in view of Clarkson to address consumer desire for aluminum-free and more natural or “clean” products or to avoid plugging the sweat ducts. Fatty acids also add desirable function benefits to formulations such as imparting structurant/thickening properties, emulsification, opacification and application emollience. One would have a reasonable expectation of success of having some antiperspirant when making the change because the fatty acids, as taught by Clarkson, were known to improve sweat reduction.
Regarding instant claims 5 and 15, Franklin discloses the use of Finsolv TN® (C12-15 alkyl benzoate; Table 1) for the invention, which has a melting point of -16° C, thus teaching the limitations of instant claims 5 and 15.
Regarding instant claims 11 and 12, Franklin discloses the antiperspirant composition with a spray dispenser, roll-on dispenser, or porous head dispenser (claim 22) and wherein the composition is applied to the surface of the human body (claim 20), thus teaching the limitations of instant claims 11 and 12.
Claims 1 and 4 are rejected under 35 U.S.C. § 103 as being obvious over Franklin et al. (WO2007017119A2; published 15 February 2007), hereinafter referred to as Franklin, in view of Clarkson (US4666710A; published 19 May 1897) in further view of Baker et al. (EP2574327A1; published 03 April 2013), hereinafter referred to as Baker.
Franklin and Clarkson teach the limitations of instant claim 1 (as described above), from which instant claim 4 depends, however does not teach specific limitations of instant claim 4.
Baker teaches an antiperspirant composition comprising suitable oils having a HSP of 18.02 (MPa) 0.5 include hexadecane (¶[0055]) in the amount of <5% to >90% (¶[0050]- ¶[0051]), thus teaching the use of alkane with 7-20 carbons at the instant claimed 1 concentration range.
It would have been prima facie obvious to one of ordinary skill in the art prior to the instant effective filing date to use the selected alkanes in an antiperspirant composition such as the inventions of Franklin and Clarkson, as they were known in the art at that time to be use in formulation of antiperspirants.
Claims 1, 6 and 7 are rejected under 35 U.S.C. § 103 as being obvious over Franklin et al. (WO2007017119A2; published 15 February 2007), hereinafter referred to as Franklin, in view of Clarkson (US4666710A; published 19 May 1897) and in further view of Johansson and Brahms (US6500412B1; published 1 December 2002), hereinafter referred to as Johansson.
Franklin and Clarkson teach the limitations of instant claim 1 (as described above), from which instant claims 6 and 7 depend, however does not teach specific limitations of instant claims 6 and 7.
Regarding instant claims 6 and 7, Franklin does not disclose wherein the organic compounds meet the limitations of the claims. However, Johansson teaches the use of organic compounds as emollients in antiperspirant compositions used at 0.5-50 weight % (claim 11), including lauryl, oleyl and isostearyl alcohol (page 5, column 7, (d)), isopropyl myristate and isopropyl palmitate (page 5, column 7, (c)), glyceryl oleate and polysorbate 80 [TWEEN 80] (page 5, column 8, (j)). Thus, the range of use of organic compounds taught by Franklin overlaps with the instant claim 1 range of 5-91%. Expanding the range disclosed by Johansson to include 50-91% would be a matter of routine optimization absent evidence showing unexpected results.
It would have been prima facie obvious to one of ordinary skill in the art prior to the instant effective filing date to use the selected glyceryl esters, sorbitan esters or ethoxylated sorbitan esters in an antiperspirant composition such as the inventions of Franklin and Clarkson, as they were known in the art at that time to be use in formulation of antiperspirants. These esters are well-known, conventional emollients and solubilizers in cosmetic formulations. Their use in an antiperspirant composition of this type would be obvious, as the use of a known compound in a known composition for its known properties is prima facie obvious (see In re Kao, 639 F.3d 1057, 1070 (Fed. Cir. 2011)).
Claims 1 and 20 are rejected under 35 U.S.C. § 103 as being obvious over Franklin et al. (WO2007017119A2; published 15 February 2007), hereinafter referred to as Franklin, in view of Clarkson (US4666710A; published 19 May 1897) and in further view of Li et al. (WO2019110290A1; published 13 June 2019), hereinafter referred to as Li, and Hilliard et al. (WO2018111664A1; published 21 June 2018), hereinafter referred to as Hilliard.
Franklin and Clarkson teach the limitations of instant claim 1 (as described above), from which instant claim 20 depends, however does not teach specific limitations of instant claim 20.
Instant claim 20 recites that the anhydrous antiperspirant composition has a pH ranging from 2-9, however, pH is a property defined for aqueous systems and the claims expressly require the composition to be anhydrous. Wherein, the pH range of the composition disclosed by Franklin and Clarkson are not specified.
However, Li discloses “Antiperspirant actives are usually incorporated in compositions at low pH, in the range of 2 to 7.” (page 2, paragraph 2) and Hilliard discloses “The pH of the antiperspirant/deodorant composition of the present disclosure can be in the range of 7 to 11…” (¶[49]), thus teaching the instant claimed pH range as recognized in the art as used in antiperspirant composition.
It would have been prima facie obvious to one of ordinary skill in the art prior to the instant effective filing date to use a pH range know in the art for formulation of antiperspirants to the invention of Franklin and Clarkson.
Response to Arguments
Applicant Arguments/Remarks of the reply, filed 20 November 2025, have been fully considered.
Regarding the rejections under 35 U.S.C. § 103 of claims 1, 3, 5, 8-12, and 14-18 as being obvious over Franklin (WO2007017119A2) in view of Clarkson (US4666710A), the Applicant traverses all obviousness rejections over Franklin in view of Clarkson and further combinations, asserting lack of motivation, lack of reasonable expectation of success, and impermissible hindsight. The Examiner has fully considered Applicant’s arguments but finds them unpersuasive.
The Applicant argues that neither Franklin nor Clarkson teaches removal of aluminum-based antiperspirant salts and that aluminum salts are the “gold standard.” The Examiner's obviousness rationale does not suggest modifying Franklin to remove an active ingredient. Rather, the rationale is to substitute one recognized antiperspirant active (i.e., aluminum salt in Franklin) with another recognized antiperspirant agent (i.e., fatty acids per Clarkson's teaching of their efficacy) to achieve a known, the desired objective of an "aluminum-free" product. At the time of the invention, consumer demand for "clean," aluminum-free personal care products was a significant and well-known market trend, providing ample motivation for formulators to seek effective alternatives to traditional metal-based astringents (see MPEP § 2143.01). The Examiner maintains that the motivation to formulate aluminum-free antiperspirants is supported by general knowledge in the art at the time of the invention, including consumer preference and avoidance of duct plugging. Such motivations need not be explicitly stated in the references (see KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398 (2007)).
Clarkson provides the teaching that specific fatty acids (i.e., myristic, palmitic, isostearic) can enhance sweat reduction performance relative to aluminum chlorohydrate (Example 3), thereby identifying fatty acids as functionally effective antiperspirant agents which supplies the rationale for selecting them as a substitute active. A reference need not demonstrate complete substitution in an example to render substitution obvious (see In re Kerkhoven, 626 F.2d 846 (CCPA 1980)). Clarkson explicitly teaches fatty acids as sweat-reducing agents in ethanol-based systems, directly relevant to Franklin’s ethanol-rich anhydrous formulations.
The Applicant contends that Clarkson does not demonstrate efficacy in the complete absence of aluminum salts. However, Clarkson teaches fatty acids as contributors to antiperspirant efficacy (“can reduce mean sweat percentage beyond aluminum chlorohydrate" (col. 3, lines 20-25)). The comparative data shows compositions with fatty acid outperforming the control without fatty acid. This directly teaches that the fatty acids contribute a measurable, additional antiperspirant effect. Franklin teaches an anhydrous ethanol/oil vehicle suitable for delivering actives. The combination reasonably suggests that fatty acids may serve as the primary sweat-reducing agents. A reasonable expectation of success does not require certainty or experimental proof (see In re O’Farrell, 853 F.2d 894 (Fed. Cir. 1988)).
The fatty acid ranges of 4–30 wt%, ethanol ranges of 5–70 wt%, and organic compound ranges of 5–91 wt% overlap or are adjacent to those taught by Franklin and Clarkson. Selection of overlapping or slightly expanded ranges is prima facie obvious absent evidence of unexpected results (see In re Peterson, 315 F.3d 1325 (Fed. Cir. 2003)). A person of skill in the art, motivated to create an aluminum-free product, would reasonably investigate using these demonstrated sweat-reducing agents as the primary active, starting with the concentration ranges known for actives in the art (e.g., the 2-30% range taught by both Franklin and Clarkson). The claimed range of 4-30% is an obvious optimization of this known active range.
The Applicant's citation to In re Gorman and similar cases is misplaced. The Examiner's combination is not a hindsight-driven reconstruction using the claim as a blueprint. It is a forward-looking analysis based on a known formulation framework (i.e., Franklin's anhydrous ethanol-based carrier system), a known design need (i.e., aluminum-free antiperspirant), and a known class of alternative agents with demonstrated efficacy for the intended purpose (i.e., fatty acids per Clarkson). Combining these elements to meet a known market demand is precisely the type of "common sense" combination endorsed by KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007). The Applicant has not submitted comparative data demonstrating unexpected results across the full scope of the claims. Accordingly, the rejection of claims 1, 3, 5, 8-12, and 14-18 under 35 U.S.C. § 103 over Franklin in view of Clarkson is maintained.
Regarding the rejections under 35 U.S.C. § 103 of claims 1 and 4 as being obvious over Franklin (WO2007017119A2) in view of Clarkson (US4666710A) and Baker (EP2574327A1), Franklin and Clarkson are applied as above. Baker teaches that alkanes such as hexadecane (C16) are suitable oils for use in antiperspirant compositions (¶[0055]), and can be used in a broad range from <5% to >90% (¶[0050]-[0051]). The Applicant did not substantively address Baker’s teaching of alkanes (e.g., hexadecane) used across broad concentration ranges in antiperspirant compositions. Baker expressly teaches alkanes with carbon counts falling within the instant claims and suitable for anhydrous antiperspirant formulations. The combination merely applies known oils taught by Baker to the already-obvious Franklin/Clarkson system.
It would have been obvious to a person of skill in the art to select an alkane, like n-hexadecane, as the organic compound in the Franklin/Clarkson-based composition, as alkanes are known, conventional emollients and solvents in topical formulations. Baker provides evidence of their suitability in antiperspirants. The rejection is therefore maintained.
Regarding the rejections under 35 U.S.C. § 103 of claims 1, 6 and 7 as being obvious over Franklin (WO2007017119A2) in view of Clarkson (US4666710A) and Johansson (US6500412B1), although claims 7 and 17 were amended to remove trademarks, Johansson explicitly teaches the same chemical species now recited, including glyceryl esters and polysorbates, in antiperspirant compositions at overlapping concentrations. Amendment to generic terminology does not overcome the substantive teachings of Johansson.
Franklin and Clarkson are applied as above. Johansson teaches antiperspirant compositions containing various emollients, including isostearyl alcohol, isopropyl myristate, and sorbitan oleate (col. 7, (d); col. 7, (c); col. 8, (j)). Claim 17, which depends from claim 1, further limits the organic compound to specific examples such as isostearyl alcohol, isopropyl myristate, and sorbitan oleate. It would have been obvious to a person of skill in the art to select these specific, well-known emollients from Johansson for use in the obvious Franklin/Clarkson-based composition to provide desired sensory or formulation properties. Thus, the rejection is maintained.
Regarding the rejections under 35 U.S.C. § 103 of claims 1 and 20 as being obvious Franklin (WO2007017119A2) in view of Clarkson (US4666710A), Li (WO2019110290A1), and Hilliard (WO2018111664A1), the Applicant did not traverse this rejection substantively. Franklin and Clarkson are applied as above. Li teaches that antiperspirant actives are usually incorporated at a pH in the range of 2 to 7 (page 2, paragraph 2). Hilliard teaches antiperspirant compositions with a pH in the range of 7 to 11 (¶[49]). Claim 20, which depends from claim 1, adds a pH range of 2 to 9. This range simply aggregates the known, conventional pH ranges for formulating antiperspirant products as taught by Li and Hilliard. The cited references collectively teach antiperspirant compositions formulated across pH ranges overlapping pH 2-9. Adjusting and maintaining the pH of a cosmetic composition within a conventional and physiologically acceptable range is a routine, well-known step in formulation. The selection of a known pH range for antiperspirant stability and efficacy is an obvious design choice. No non-obviousness is imparted by this step; therefore, the rejection is maintained.
Conclusion
No claims are 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 (87 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.
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/RL Scotland/
Examiner, Art Unit 1615
/Robert A Wax/Supervisory Patent Examiner, Art Unit 1615