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 23 March 2026, in response to the Office Correspondence dated 23 October 2025, are acknowledged.
The listing of Claims filed 23 March 2026, have been examined. Claims 1-19 are pending. Claims 1-6, 8, 12-17 and 19 are amended and are supported by the originally-filed disclosure. No claims are canceled and no new claims have been added.
Information Disclosure Statement
The Information Disclosure Statement (IDS), filed 03 April 2026, is acknowledged and has been considered.
Response to Amendment
The applicant’s amendments addressing the informalities in claims 1, 2, 8, 14, and 16-19, and the typographical errors are acknowledged. The objections are hereby withdrawn for claims 1, 2, 8, 14, 16, 18, and 19. However, the claim 17 continues to recite “structurant” rather than “structuring agent” consistent with claim 1 and the objection to claim 17 is maintained. New grounds of objections to the claims have been made, necessitated by amendment, as outlined below.
The applicant has amended the base claim 1 to specify the specific taurate anionic surfactant as lauroyl taurate, or lauroyl taurate and lauroyl glycinate at 6-20%, with 6-22% of the specific zwitterionic surfactant cocamidopropyl betaine, any C6-C14 acid, alcohol, and/or amide, the specific structuring agent lauric acid, and an inorganic salt in combination with 30-85% water.
The scope of the claims is now more commensurate with the enablement of the instant disclosure, wherein practice of the claimed invention would not require as extensive undue experimentation by an artisan of ordinary skill in the art. Accordingly, the rejection under 35 U.S.C. § 112(a) for claims 12 and 14-19 is withdrawn. However, the amendment to base claim 1 introduces a new ground of rejection under 35 U.S.C. § 112(b), as set forth below.
The rejection of claims 14-19 under 35 U.S.C. § 112(b) is maintained for the reasons set forth below in the Response to Arguments. The previous objections under 35 U.S.C. § 112(d) regarding claim 8 is withdrawn in view of the amendment inserting “further comprises sodium benzoate”. The rejections of the claims under 35 U.S.C. § 103 are maintained, as the arguments presented are not persuasive, as outline below in the Response to Arguments.
In addition, the applicant has filed a terminal disclaimer over claims 1-10, 12 and 14 of co-pending U.S. Patent Application No. 18/572,036 and claims 1-4 and 6 of co-pending U.S. Patent Application No. 18/572,059. Accordingly, the provisional nonstatutory double patenting rejection of claims 1-19 is withdrawn as moot.
Maintained Rejections
The following rejections are maintained from the previous Office Correspondence dated 12 October 2025, since the art which was previously cited continues to read on the amended/newly cited limitations.
Claim Objections
Claim 17 is objected to because of the following informalities:
Claim 17 refers to the “the structurant”, whereas it should be referred to as “the structuring agent” to be consistent with the terminology used in claim 1 in which it ultimately depends. Appropriate correction is required.
Claim Rejections - 35 USC § 112(b)
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 Applicant regards as his invention.
Claims 14-19 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, regards as the invention.
Claim 14 is rejected for lacking clarity on what constitutes “recovered” in “recovering the end-use cleansing composition”. The term "recovered" in the claim introduces ambiguity as to the claimed feature, which is not further clarified in the Specification. Claims must distinctly set forth the subject matter regarded as the invention, and the scope of what is intended as “recovering the end-use cleansing composition” is unclear. See Halliburton Energy Servs., Inc. v. M-I LLC (Fed. Cir. 2007), which emphasized that claim language must provide reasonable certainty to the public.
To overcome this rejection, the Applicant should clarify and explicitly list all intended claim elements or replace "recovering" with a word that allays the ambiguity. Alternatively, the Applicant may amend the Specification to clearly define which elements are intended by “recovering”.
Dependent claims 15-19 are included in this rejection because they do not cure the defect noted above.
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.
Claims 1-19 are rejected under 35 U.S.C. § 103 as being unpatentable over Kiplinger et al. (WO2015179599A1; published 2015-11-26, hereinafter referred to as “Kiplinger”) in view of Macaulay et al. (US20050043194A1; published 2005-02-24, hereinafter referred to as “Macaulay”) and in further view of Gloor et al. (US5192462A; published 1993-03-09, hereinafter referred to as “Gloor”).
Kiplinger teaches a sulfate-free hydratable personal care composition (claim 1 and ¶[0065], Abstract) including an anionic surfactant (2% Sodium Cocoyl Glycinate), a zwitterionic surfactant (8% wt. Lauramidopropyl Betaine), a C6-C14 acid (Laurie [Lauric] Acid; C12), a structuring agent (PEG 150 Distearate), a preservative, fragrance and water, absent any isethionate or oil in Example 2 (¶[0080]). All of the formulations in Kiplinger’s examples (¶[0073]-[0091]) are isethionate and oil free, thus remaining so in an end-use composition such as a cleanser or shampoo (¶[0071]), which merely adds additional water to the hydratable concentrated surfactant composition.
Examples 4 and 5 use 71.2% and 71.0% water by weight, respectively (¶[0087]-[0091]), encompassed within the range of instant claim 1 and 9. Example formulations 1-5 have pH levels of 6.7, 6.8, 6.5, 6.4 and 6.98, respectively, and Example 2 and 5 formulations have viscosities of 2800 CPS and 2520 CPS, respectively (¶[0076]- [0091]), which are encompassed within the range of the instant claims. The end-use composition pH range when diluted with water would remain within the instant claim range, which is typical for the art and achieved through routine experimental formulation optimization as well as the claimed end-use composition viscosity range.
Regarding the instant claim 8 and 16 limitation requiring sodium benzoate, Kiplinger teaches the addition of preservatives (¶[0069]), wherein selecting the specific preservative known it the art to be as sodium benzoate commonly used in the formulation of personal care compositions (see instant Specification ¶[0073] of preferred preservatives) is obvious. It is recognized in that art that certain commonly used preservatives in personal care formulation are more suitable/compatible for use in formulations within specific pH ranges, however Applicant has not provided support indicating that the specific use of sodium benzoate over other commonly used preservatives in personal care formulations (e.g., other preservatives listed in the instant Specification ¶[0073]) would produce an unexpected result.
Kiplinger teaches wherein the invention further comprises one or more benefiting agents including resorcinol and the humectants castor oil, lanolin and propylene glycol esters (¶[0066]). Acceptable anionic surfactants include taurates, wherein commonly used sulfate free anionic surfactants that are suitable as the anionic surfactant component of the composition of the present invention includes the acyl taurate sodium methyl cocoyl taurate, which can be used in the alternative for the acyl glycinate sodium cocoyl glycinate (¶[0049]) used in the Example formulations 1-5 (¶[0076]- [0091]).
Kiplinger teaches an end-use cleansing composition comprising dilution in water (¶[0065]), wherein the invention is directed towards personal care compositions such as body washes, shampoos, hand soaps (¶[0002]) used as "cleansing compositions"-compositions aimed to the washing/cleaning, more typically a body-care application, including but not limited to body wash, shower gel, liquid hand soap, shampoo or the like (¶[0026]). Although Kiplinger does not explicitly describe a method comprising the steps of combining the hydratable concentrated surfactant composition with water, agitating and/or shearing the mixture, and recovering an end-use cleansing composition, such method steps obvious in view of the express disclosure that the composition is formulated for use as a shampoo or cleanser.
The claimed method differs from Kiplinger only in explicitly reciting the routine handling and conventional steps of dilution and agitation that would naturally occur when employing a body wash, shampoo or hand soap for cleansing with the composition. The art also recognizes that agitation or shear is required to disperse concentrated surfactants into water when use as compositions for cleansing. Thus, it would be obvious to one of ordinary skill in the art at the time the invention to combine a body wash, shampoo or hand soap with water during application to the skin or hair, followed by agitation during use, in order to prepare the end-use cleansing composition. The Applicant’s claimed steps (combining concentrate with water, mixing, recovering a cleanser) are the expected results of the known hydratable surfactant composition being used as intended (see In re Spada, 911 F.2d 705 (Fed. Cir. 1990)).
However, Kiplinger’s does not explicitly teach the range of anionic surfactant (3-20% wt.) required by the limitation of instant claim 2, rather teaches the use of a slightly lower level of 2% anionic surfactant in Example 2 (¶[0080]), nor the composition comprising 40-70% by weight water, as required by the limitation of instant claim 10.
Macaulay teaches single phase dilution thickening cleansing compositions with the use of the use of associative thickeners and anionic surfactant at a concentration range of 5-30% by wt. of the total composition (¶[0044]), thus overlapping and encompassing most of the instant claimed range. The combined teachings of Kiplinger and Macaulay would render the use of an anionic surfactant range of 2-30% wt. obvious, entirely encompassing the range of instant claim 2. The specific use level within the range disclosed by the prior art would be a matter of routine experimental optimization. Further, Macaulay teaches the use of water in the range of 45-95% by wt. of the total composition (claim 1), wherein the water in the example formulation is calculate to be 61% (¶[0107]), encompassed within the instant claim 10 range.
Kiplinger teaches the use of the structuring agent/associative thickener PEG 150 distearate (¶[0027]), however does not teach wherein the structuring agent comprises PEG150 pentaerythritol tetrastearate, as required by the limitations of instant claims 7 and 17.
Gloor teaches the use of the structuring agent PEG-150 pentaerythritol tetrastearate as a thickening agent for formulating shampoos (claim 6), thus it would be obvious to substitute a known structurally similar and functionally equivalent ester-based thickener such as the PEG-150 pentaerythritol tetrastearate taught by Gloor, for that of the PEG 150 distearate taught by Kiplinger. Moreover, Gloor provides the motivation to do so in that, “Specific viscosity modifying agents used in shampoo compositions have included PPG-5-Ceteth-20, and particularly, PEG 150 Distearate (aka. PEG 6000 Distearate), available from Witco. These agents distinguish themselves from other classes of cosmetic thickening agents by their low reactivity, low toxicity and usefulness over a broad pH range. These thickening agents are, however, linear in secondary structure and are able to fold over upon themselves thereby limiting their tendency to behave in a manner characteristic of long chain polymers. In addition, PEG 6000 Distearate is difficult to manufacture, often forming molecules having a different structure from batch to batch, i.e., containing free stearic acid, distearates and monostearates.” (Specification page 1, column 1, paragraph 5) and by the direct comparison of PEG 6000 Distearate [PEG 150 distearate] and PEG 150 pentaerythritol tetrastearate in Drawing Fig 2-4, showing superior viscosity enhancement/thickening efficiency with PEG 150 pentaerythritol tetrastearate.
Regarding the limitation of instant claims 12 and 14, wherein the viscosity of the concentrated surfactant composition increases when diluted with water, Kiplinger teaches thickening compositions using agents like PEG 150 distearate and fatty acids (¶[0027]) with the optional addition of one or more electrolytes (¶[0051]). Kiplinger does not explicitly teach that the composition increases viscosity upon dilution.
Macaulay expressly discloses liquid compositions which thicken upon dilution, using electrolyte and associative thickener (Abstract, claim 1, and background context in ¶[0004]-[0006]; Figure 3 and description thereof in ¶[0033]), which can include N-acyl methyl taurates as an anionic surfactant (¶[0045]) from 5-30% wt. the total composition (¶[0044]), overlapping with the instant claim 2 range.
Thus, 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 electrolyte and extended anionic surfactant range and water concentration range taught by Macaulay in the invention of Kiplinger for a concentrated surfactant composition that increases viscosity when diluted in water and also substitute the known structurant PEG-150 pentaerythritol tetrastearate (as taught by Gloor) for the similar PEG-150 distearate thickener used by Kiplinger. One of ordinary skill in this art would possess knowledge of surfactant chemistry, personal care formulation, and the functional properties of common ingredients like thickeners, preservatives, and skin benefit agents rendering all the claimed features obvious by combining Kiplinger with the dilution-thickening of Macaulay and substituting the structurant of Gloor in order to achieve conventional structuring and viscosity properties, as taught by the prior art. One would be motivated to do so with a reasonable expectation of success because it was known in the art to be used for the same purpose of developing thicken and structure surfactant-based shampoo or liquid soap compositions, providing desirable rheological properties and improved stability.
New Rejections
The following new rejections are made from the previous Office Correspondence dated 23 October 2025, as the Applicant's amendment necessitated the new grounds of rejection presented below based on the amended/newly cited limitations.
Claim Objections
Claim 13, 16, 18 and 19 are objected to because of the following informalities:
The amendment of claim 13 introduces the limitation of "no sulphate comprising surfactant", in which the meaning of such, using the British spelling, is clear, however the spelling is inconsistent with that of the base claim 1 (sulphate vs. sulfate), reciting "sulfate comprising surfactant". Thus, the claim terminology does not match. Applicant is advised to amend claim 13 to recite "sulfate" rather than “sulphate” for consistency throughout the claims.
Claims 16, 18 and 19 recite, "according to claim to 14", and thus contains an extraneous "to", a minor editing error, that should be corrected to read "according to claim 14".
Claim Rejections - 35 USC § 112(b)
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 Applicant regards as his invention.
Claims 1-19 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, regards as the invention.
Claim 1 recites “structuring agent comprising lauric acid” and claims 7 and 17 recites structuring agent/structurant comprising PEG150 pentaerythritol tetrastearate. The specification indicates lauric acid is a lamellar phase change agent (¶[0029]), and explicitly uses lauric acid as an example of a structuring agent in specification ¶[0082]. Thus, the specification supports the definition of lauric acid as a structuring agent wherein the use of “comprising” allows for the structuring agent to also include PEG150 pentaerythritol tetrastearate.
However, a lack of clarity arises. Example I of the specification (¶[0088]), which includes lauric acid (4.62%) alongside PEG150 pentaerythritol tetrastearate (VersathixTM), wherein both may contribute to structuring, yet there are no other C6-C14 acids, alcohols and/or amides in Example I besides lauric acid, as required by the limitation of claim 1. Thus, it is unclear whether lauric acid in claim 1 is intended to serve as both a C6-C14 acid under element (c) and as a structuring agent under element (e), creating overlapping and potentially contradictory limitations. This lack of clarity renders the scope of the claims uncertain. Claims must distinctly set forth the subject matter regarded as the invention (see Halliburton Energy Servs., Inc. v. M-I LLC (Fed. Cir. 2007), which emphasized that claim language must provide reasonable certainty to the public).
When referring to the specification for guidance, the term “structuring agent” (and the variant “structurant”) is not defined in the specification with sufficient particularity. The specification uses “structuring agent” and “thickening agent” and “structurant” interchangeably without clear demarcation. A person of ordinary skill would not know with reasonable certainty whether “structuring agent” is limited to materials that provide physical structure (e.g., crystalline networks) or includes any viscosity modifier. The applicant is advised to define “structuring agent” in the specification or to amend the claims to use consistent terminology. Yet, most important is the required clarification of the status of lauric acid.
If lauric acid is considered the structuring agent, claim 1 seems to also require an additional C6-C14 acid, alcohol and/or amide by separately reciting the elements as (c) and (d), whereas the specification indicates that lauric acid serves two roles simultaneously as element (c) and (d). The relationship between elements (c) and (d) is ambiguous and if lauric acid can serve both functions, it is unclear whether claim 1 requires a single amount of lauric acid to satisfy both elements or whether separate amounts are required. Appropriate correction is required to clarify this ambiguity. Dependent claims 2-19 are included in this rejection because they do not cure the defect noted above.
In addition, claim 13 is rejected as indefinite for reciting "comprises zwitterionic surfactant comprising a betaine". This is considered to be an inadvertent claim re-drafting error, wherein the term "a betaine" lacks antecedent basis from the newly amended claim 1, which now specifically recites "cocamidopropyl betaine" as a specific compound, not the generic class "a betaine". Correction to establish proper antecedent basis is required. However independent of the antecedent basis issue, this claim suffers from a lack of clarity, requiring the formal 112(b) rejection. Reciting "comprises zwitterionic surfactant comprising a betaine" creates a nested "comprising" clauses of unclear scope. It is ambiguous whether the betaine is in addition to the zwitterionic surfactant comprising cocamidopropyl betaine of claim 1 or is the same surfactant. A person of ordinary skill would not know with reasonable certainty what is claimed (see Interval Licensing LLC v. AOL, Inc., 766 F.3d 1364 (Fed. Cir. 2014).
If claim 13 is intended to refer to the zwitterionic surfactant comprising cocamidopropyl betaine of claim 1 (as interpreted by the examiner for examination of the claim), it is redundant, as this limitation has already been recited in claim 1 and should be removed from the claim. If this limitation in claim 13 is intended to further limit the composition of claim one to include a zwitterionic surfactant comprising a betaine in addition to the 6-22% requirement of instant claim 1, the claim should be amended with language clarifying that the new limitation is in addition to that of the requirement in claim 1. Appropriate correction is required.
Response to Arguments
Applicant Arguments/Remarks of the reply, filed 23 March 2-26, have been fully considered.
35 U.S.C. § 112(b) Rejection (claims 14-19)
The applicant has amended claim 14 maintaining “recovering” (no substantive change) and adding language characterizing the end-use composition. The claim now reads: “c) recovering the end-use cleansing composition, wherein the hydratable concentrated surfactant composition has a viscosity that increases after the addition of water…”. The applicant argues that “recovering” is clarified by examples and amended claim language. However, the term “recovering” as applied to “recovering the end-use cleansing composition” remains indefinite because it still lacks objective boundaries and may encompass passive formation, active processing, and mere existence after mixing.
The term “recovering” is ambiguous because it does not specify what is being done to obtain the end-use composition (e.g., does “recovering” mean collecting the mixture from the mixing vessel, allowing the mixture to settle, filtering or purifying the mixture, or simply completing the mixing step?). The claim does not specify a separation step, an isolation step, or endpoint of process.
The examples do not cure the claim ambiguity, wherein reliance on examples is insufficient where the claims themselves lack clarity (MPEP § 2173.05(e)). Even so, the specification (Examples section) states that concentrate and water are “combined and mixed with moderate agitation to obtain, make or recover” the end-use composition. This circular definition does not clarify the claimed step.
A person of ordinary skill would not know with reasonable certainty what act “recovering” requires. Accordingly, the rejection of claims 14-19 under § 112(b) is maintained. To overcome this rejection, the applicant is advised to replace “recovering” with a definite term such as “obtaining,” “collecting,” or “isolating,” or to delete the step entirely as superfluous (since the combination and agitation steps already produce the composition).
35 U.S.C. § 103 Rejection (claims 1-19)
The applicant argues that Kiplinger is merely directed to a ready to use wash composition and has nothing to do with a stable and hydratable concentrated surfactant composition. This argument is not persuasive. Kiplinger teaches compositions used in cleansing applications requiring dilution and more explicitly teaches hydratable compositions as, “In one embodiment, the personal care composition of the present invention comprises a surfactant component of the present invention in combination with additional water and/or one or more additional ingredients and suitable personal care compositions are made by diluting the composition with water and/or mixing a structured surfactant composition with additional ingredients.” (¶[0065]).
Kiplinger’s compositions in Examples 4 (¶[0087]) and 5 (¶[0090]) contain 71.2% and 71.0% water by weight, respectively, well within the applicant’s claimed range of 30-85% water. The fact that Kiplinger also contemplates direct use does not negate its teaching of a hydratable concentrated composition. A “ready-to-use” composition that is dilutable and water-containing (up to ~71%) is reasonably considered a concentrate within the meaning of the instant claim.
The applicant argues that Kiplinger’s Example 2 uses 2% anionic surfactant, “far removed” from the applicant’s 6-20% range. However, Kiplinger’s Examples 1-5 use 2-8% anionic surfactant (¶[0076]-[0091]). Macaulay teaches anionic surfactant concentrations of 5-30% by weight (¶[0044]). The combination of Kiplinger (2-8%) and Macaulay (5-30%) renders the range of 6-20% obvious as a matter of routine optimization. The applicant has provided no unexpected results or criticality showing that the 6-20% range produces properties not achievable at 2-5% or 21-30%. It would have been obvious to adjust the anionic surfactant level within the ranges taught by Macaulay. Adjusting the surfactant levels within taught ranges to that of instant claim 2 is routine optimization. Macaulay teaches anionic surfactant levels of 5-30% (¶[0044]), which encompasses the range of 7-14% of instant claim 3.
Kiplinger's examples are oil-free (¶[0073]-[0091]), isethionate-free, and sulfate-free (Examples 1-5). Kiplinger teaches resorcinol as a benefit agent (¶[0066]), humectants (¶[0066]), preservatives (¶[0069]), zwitterionic betaine surfactants (¶[0046]-[0051]), Examples 4 and 5 teach water content of 71.2% and 71.0% (¶[0087]-[0091]), viscosities overlapping with the applicant's ranges of 25-10,000 cps and 250-3,500 cps (¶[0088], [0091]), pH of 6.5-6.98 (¶[0076]-[0091]), and other listed agents are conventional additives in personal care compositions.
Macaulay teaches end-use viscosities up to 20,000 cps. Macaulay also teaches the property of viscosity increase upon dilution and explicitly teach dilution methods. Gloor provides motivation for the substitution of PEG 150 pentaerythritol tetrastearate for PEG 150 distearate. Evidentiary reference by Martine and Cazette (US20190060200A1; published 28 February 2019) teaches that sodium benzoate was a known and used species in the art of preservative for similar compositions (¶[0141]). Selecting sodium benzoate from the preservatives disclosed in Kiplinger (¶[0069]) is obvious. All claimed ranges for surfactant levels, water content, pH, and viscosity are either explicitly disclosed, or overlapping ranges, rendering them prima facie obvious.
The applicant argues that Kiplinger does not teach taurates alone or in combination with glycinates. However, Kiplinger explicitly lists taurates, including sodium methyl cocoyl taurate, as acceptable anionic surfactants and a mixture thereof sodium cocoyl glycinate, sodium lauryl glycinate, taurates, sodium methyl oleoyl taurate, or sodium methyl cocoyl taurate (¶[0049]). Kiplinger lists taurates as acceptable anionic surfactants (¶[0049]) and the evidentiary reference Meiring et al. (WO2020099036A1; published 22 May 2020) explicitly teaches that sodium methyl lauroyl taurate was known in the art at the time of the invention to be a species of the taurate anionic surfactant (Abstract) genus used in similar inventions. Selection of this known species is obvious. Similarly, evidentiary reference Maka et al. (US20170360672A1; published 21 December 2017) explicitly teaches that sodium lauroyl glycinate was known in the art at the time of the invention to be a species of the glycinate anionic surfactant (¶[0018]). Selection of this known species is obvious. The substitution of one known sulfate-free anionic surfactant of either taurate or glycinate for another known sulfate-free anionic surfactant taurate or glycinate is obvious absent evidence of unexpected properties. The applicant has provided no comparative data showing such. Kiplinger does not teach away the use of taurates, it explicitly includes taurates. Kiplinger permits variation in surfactant systems.
The applicant argues that utilizing a wash composition with water is not tantamount to hydrating a concentrate. However, Macaulay expressly discloses compositions that thicken upon dilution (Abstract, claim 1, ¶[0004]-[0006], Figure 3) and use of electrolytes and associative thickeners. Macaulay also teaches the use of N-acyl methyl taurates as anionic surfactants (¶[0045]) at concentrations of 5-30% (¶[0044]), overlapping the applicant’s range. Thus, the claimed behavior is expressly taught in the art. The combination of Kiplinger (sulfate-free, betaine-containing, lauric acid-containing composition) with Macaulay (dilution-thickening teaching) directly renders obvious the claimed composition that thickens upon dilution.
The applicant argues that Gloor cures none of the deficiencies because it merely describes esters of very high molecular weight polyethers. However, Gloor expressly teaches PEG 150 pentaerythritol tetrastearate as a thickening agent for shampoos (claim 6) and provides motivation for substitution for the structurally similar and functionally similar PEG-150 distearate (PEG 6000 distearate; the thickener used in Kiplinger) by criticizing PEG 150 distearate for batch inconsistency and inferior thickening efficiency (column 1, lines 41-55). One of ordinary skill would be motivated to substitute Gloor’s structurally and functionally similar, and superior thickener for Kiplinger’s PEG 150 distearate, motivated by improved performance, with a reasonable expectation of success. The applicant has provided no evidence of unexpected results from this substitution.
The applicant emphasizes the environmental benefits and suitability for refillable packaging. While laudable, these are secondary considerations that require evidence linking them to the specific claimed limitations. The applicant has provided no evidence that the claimed composition is superior to prior art compositions for refillable packaging, no evidence that consumers would find the claimed composition easier to dilute than prior art concentrates, no long-felt but unsolved need evidence, and no failure of others evidence. Without evidentiary support, these attorney arguments carry no weight in the obviousness analysis (see In re De Blauwe, 736 F.2d 699 (Fed. Cir. 1984)).
In addition, it is established in the art that taurate/glycinate systems exhibit salt-responsive rheology, betaine systems form mixed micelles, and fatty acids (e.g., lauric acid) act as co-structurants. Thus, optimizing chain length (C12 preferred), salt level, and surfactant ratios would have been routine experimentation. The claimed system represents predictable optimization of known surfactant-thickening systems.
Provisional Nonstatutory Double Patenting Rejection
The applicant has filed a terminal disclaimer over claims 1-10, 12 and 14 of co-pending U.S. Patent Application No. 18/572,036 and claims 1-4 and 6 of co-pending U.S. Patent Application No. 18/572,059. Accordingly, the provisional nonstatutory double patenting rejection of claims 1-19 is withdrawn as moot.
Conclusion
No claims are allowed.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to REBECCA L. SCOTLAND whose telephone number is (571) 272-2979. The examiner can normally be reached M-F 9:00 am to 5:00 pm EST.
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/RL Scotland/
Examiner, Art Unit 1615
/Robert A Wax/Supervisory Patent Examiner, Art Unit 1615
Prosecution Insights