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 .
Election/Restrictions
Applicant’s election without traverse of Group I (claims 1-19) in the reply filed on June 6, 2026 is acknowledged. Claims 20-39 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. The requirement is deemed proper and is therefore made FINAL.
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.
Claim 18 is 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.
Regarding claim 18, the phrase “hydrophobic agents including waxes, silicones and hydrocarbons;” renders the claim indefinite because it is unclear if the scope of the claim includes other hydrophobic agents not listed. The examiner suggests either amending to “hydrophobic agents;” or “waxes; silicones; hydrocarbons;”
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.
Claim(s) 1-2, 4-12, 14-15 and 18-19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Burdick et al (WO 99/25313) in view of Hessefort et al (US 2009/0069522).
Regarding claim 1, 11 and 15, Burdick teaches a fluidized polymer suspension (Abstract) which incorporates: 10 to 65 % by weight (page 4, lines 20-25) of a cationic polysaccharide such as a hydroxyethyl cellulose (cellulose ether) (page 3-4). Burdick teaches that the cationic polysaccharide acts as a thickener (page 8, lines 1-2) and therefore, the composition is a rheology modifier.
Burdick teaches that this composition is used for personal care products (page 1).
Burdick teaches that additives can be added to the composition (page 8), however fails to teach the addition of the acrylamide polymer.
Hessefort teaches a personal care product ([0005]) which incorporates 0.01 to 40 % by weight ([0029]) of a polyacrylamide ([0018]).
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the polyacrylamide of Hessefort as an additive of the suspension of Burdick. One would have been motivated to do so in order to receive the expected benefit of having a personal care product with great wetting behavior (Hessefort, Examples).
Regarding claims 2 and 4-5, modified Burdick teaches that the polyacrylamide is an anionic (Hessefort, [0019]) copolymer (Hessefort, [0020]) which incorporates a monomer such as acrylic acid (Hessefort, [0029]).
Regarding claim 6-9, modified Burdick teaches that the weight average molecular weight of the polyacrylamide ranges from 10,000 to 10 million (Hessefort, [0020]).
Regarding claims 10 and 12, Burdick teaches that the cellulose ether is cationic hydroxyethyl cellulose (page 3, last line) which is non-glyoxal treated.
Regarding claim 14, Burdick teaches that the cellulose ether is in a fluidized polymer suspension form (page 6, lines 1-5).
Regarding claim 18, Burdick teaches that the composition can further comprise surfactants and preservatives (page 8, lines 5-12).
Regarding claim 19, Burdick teaches that the composition is a liquid blend (page 5, lines 10-20).
Claim(s) 13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Burdick et al (WO 99/25313) in view of Hessefort et al (US 2009/0069522) and Bhargava et al (US 2013/0233205).
The discussion regarding Burdick and Hessefort in paragraph 6 above is incorporated here by reference.
Regarding claim 13, Burdick teaches that the cellulose ester can be a hydroxyethyl cellulose (page 3, last paragraph), however fails to teach that it is glyoxal treated.
Bhargava teaches a glyoxalated cellulose ether ([0026]) which can be a hydroxyethyl cellulose ([0024]). This is for use in personal care formulations ([0002]).
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to have the hydroxyethyl cellulose of Burdick be glyoxalated as taught by Bhargava. One would have been motivated to do so in order to receive the expected benefit of creating smooth, lump free solutions (Bhargava, [0002]).
Claim(s) 16-17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Burdick et al (WO 99/25313) in view of Hessefort et al (US 2009/0069522) and Sau (US 2002/0006985).
The discussion regarding Burdick and Hessefort in paragraph 6 above is incorporated here by reference.
Regarding claims 16-17, Burdick teaches that various additives can be incorporated into the composition (page 8); however, it fails to teach the inclusion of an associative polymer.
Sau teaches personal care products which include hydroxyethyl cellulose ([0005]) and also incorporates a polyacetal-polyether polymer (Abstract).
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to use the polyacetal-polyether polymer of Sau as an additive of Burdick. One would have been motivated to do so in order to receive the expected benefit of improving process, handling and flow of the composition (Sau, [0004]).
Claim(s) 1-3 is/are rejected under 35 U.S.C. 103 as being unpatentable over Burdick et al (WO 99/25313) in view of Postma et al (US 2019/0270064).
Regarding claim 1-3, Burdick teaches a fluidized polymer suspension (Abstract) which incorporates:
10 to 65 % by weight (page 4, lines 20-25) of a cationic polysaccharide such as a hydroxyethyl cellulose (cellulose ether) (page 3-4). Burdick teaches that the cationic polysaccharide acts as a thickener (page 8, lines 1-2) and therefore, the composition is a rheology modifier.
Burdick teaches that this composition is used for personal care products (page 1).
Burdick teaches that additives can be added to the composition (page 8), however fails to teach the addition of the acrylamide polymer.
Postma teaches a composition which is used for personal care products (page 26) which incorporates 0.01 to 20 % by weight ([0048]) of a cationic acrylamide copolymer ([0045]).
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to use the cationic acrylamide copolymer of Postma as an additive of Burdick. One would have been motivated to do so in order to receive the expected benefit of controlling the viscosity of the composition (Postma, [0045]).
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 and 14 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 14 of copending Application No. 18/278,548 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because they both recite a rheology modifier comprising a blend of an acrylamide polymer and a cellulose ether in a fluidized polymer suspension form.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DORIS L LEE whose telephone number is (571)270-3872. The examiner can normally be reached M-F 8 am - 5 pm.
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, Arrie Lanee Reuther can be reached at 571-270-7026. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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DORIS L. LEE
Primary Examiner
Art Unit 1764
/DORIS L LEE/Primary Examiner, Art Unit 1764
Prosecution Insights