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 .
Information Disclosure Statement
Receipt is acknowledged of the Information Disclosure Statement filed on 01/23/2024. The Examiner has considered the reference cited therein to the extent that each is a proper citation. Please see attached USPTO form.
Election/Restrictions
Applicant's election of Group 1 (claims 1-8) without traverse in the reply filed on 04/03/2026 is acknowledged.
Claims 9-15 are withdrawn from consideration from further consideration pursuant to 37 CFR 1.142(b), as being withdrawn to a non-elected invention, and non-elected species of the invention, there being no allowable generic or linking claims.
Claims 1-8 are under examination and the requirement for restriction is 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.
Claims 4 and 8 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 (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
With regards to claim 4, the phrase "preferably" in line 4 renders the claims indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d). For the purpose of compact prosecution, claim 4 will be interpreted as a microcapsule shell having a biodegradation rate of at least 20% within 60 days according to OECD301F.
With regards to claim 8, the phrase "preferably" in line 2 renders the claims indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d). For the purpose of compact prosecution, claim 8 will be interpreted as a consumer product comprising of the core-shell microcapsule slurry.
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.
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 1-2, 4-8 are rejected under 35 U.S.C. 103 as being unpatentable over Akeroyd et. al (WO2020131879A2) hereinafter Akeroyd.
Akeroyd discloses a core-shell microcapsule composition and methods for preparing said composition (see Abstract). With regard to claims 1 and 5-6, Akeroyd teaches the preparation of a microcapsule slurry where Microcapsule 1 is dispersed in water (see [00139]). Microcapsule 1 further comprises of a core with 77.4 wt% fragrance, and a microcapsule wall with 1.25 wt% polyisocyanate, and 4 wt% pea protein isolate (see [00139]; see also Table 1). The microcapsule was prepared by adding the aqueous phase comprising of the protein to an oil solution comprising of the polyisocynate and the fragrance, followed by curing the oil-water emulsion at 55 ° C for 2 hours (see [00139]).
Although the self-condensation of the polyisocyanate is not explicitly recited, the method of preparing core-shell Microcapsule 1 in Akeroyd is equivalent to the method of preparation recited in the instant specification (see Applicant Specification [0052]; see also Akeroyd [00139]). The presence of gum Arabic as a hydrocolloid is not specifically disclosed in this embodiment. However, Akeroyd does teach the use of gum Arabic as an encapsulating polymer in microcapsule formation (see [0068]). It would be obvious to a person with ordinary skill in the art before the effective filing date to use gum Arabic in the aqueous phase to prepare the microcapsule slurry for the benefit of encapsulation for overall fragrance character purposes, and long-lasting fragrance delivery (see [0077]).
Please note, claim 1 is a product by process claim because of the “shell of the microcapsule is formed by the self-condensation of a polyisocyanate” in lines 3-4 and “gum Arabic added to an aqueous phase before an emulsification step during the formation of the slurry” in lines 7-8. Any difference imparted by the product by process limitations would have been obvious to one having ordinary skill in the art at the time the invention was made because where the examiner has found a substantially similar product as in the applied prior art, the burden of proof is shifted to the applicant to establish that their product is patentably distinct, not the examiner to show the same process of making, see In re Brown, 173 USPQ 685 and In re Fessmann, 180 USPQ 324.
With regard to claim 2, Akeroyd teaches the use of adjunct materials such as density modifiers, viscosity modifiers (rheology modifiers), stabilizers among others in the microcapsules or outside the capsules in the delivery system (see [0079]).
With regards to claim 4, Akeroyd teaches the microcapsule to be biodegradable if it has a biodegradation rate of 60% according to the OECD310 after 60 days (see [0035]). It would have been obvious to a person with ordinary skill in the art before the effective filing date to reasonably assume the biodegradable microcapsules taught by Akeroyd had at least a 60% biodegradation rate after 60 days.
With regards to claim 7, the microcapsule slurry in Example 1 does not comprise of non-encapsulated free fragrance (see [00139]). Akeroyd also teaches the viscosity of the microcapsule compositions of this invention to be less than 3000 cP at a shear rate of 21 s−1 and a temperature of 25° C (see [00115]).
With regards to claim 8, Akeroyd teaches the use of the microcapsule composition to various consumer products such as fabric softener and liquid detergent (see Table 12 [00614]).
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Akeroyd (WO2020131879A2) as applied to claims 1-8 above further in view of Dihora et. al (US20170360676A1) hereinafter Dihora.
The teachings of Akeroyd are recited above. With regards to claim 3, Akeroyd generally teaches the use of chemically modified starches, hydrolyzed starches, and gums as suitable spray dry carriers in the invention but fails to explicitly disclose the use of xanthan gum (see [00101]). Akeroyd cites Dihora’s invention as an exemplary biodegradable polysaccharide delivery particle system (see [0005]). Dihora teaches controlled release core-shell particles comprising 21-64 wt% polysaccharides and 10-70 wt% of a hydrophobic active ingredient (see Abstract). Dihora further teaches a preferably polysaccharides to be xanthan gum (see [0085]).
It would have been obvious to one with ordinary skill in the art before the effective filing date to use xanthan gum as the polysaccharide modifier in Microcapsule 1 slurry of Akeroyd for the benefit of having emulsifying and emulsion stabilizing capacity (see [0085]).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SHREYA PAUL whose telephone number is (571)272-1551. The examiner can normally be reached M-F: 7:30am-5:00pm.
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) 272-2817. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/SP/Patent Examiner, Art Unit 1761
/ANGELA C BROWN-PETTIGREW/Supervisory Patent Examiner, Art Unit 1761
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