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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 18 March 2026 has been entered.
Status of the Claims
Amendments to the Claims and Arguments/Remarks filed 18 March 2026, in response to the Office Correspondence dated 12 January 2026, are acknowledged.
The listing of Claims filed 18 March 2026, have been examined. Claims 1-3, 6-18, and 20-23 are pending. Claim 1 is amended and supported by the originally-filed disclosure. Claims 4, 5, 19 are canceled and new claims 20-23 have been added.
Information Disclosure Statement
The Information Disclosure Statement, filed 10 April 2026, is acknowledged and has been considered.
Response to Amendment
The Amendment and Remarks filed in response to the Final Office Action have been fully considered. The amendments to the claims have been entered for purposes of examination. However, as set forth below, the rejections under 35 U.S.C. § 103 are maintained, and new grounds of rejection are made with respect to newly added claims and newly introduced limitations.
Claim Objections
Claim 18 is objected to because of the following informalities:
Claim 18 is objected to for the use of “wetted bodily surface”, wherein the antecedent is “target body surface” and “bodily” is inconsistent. The applicant should replace “wetted bodily surface” with “wetted target body surface” for antecedent consistency.
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 16 and 17 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 16 is rejected as indefinite for reciting, “exhibits a synergistic conditioning benefit according to the Wet Hair ILS method”. The Wet Hair ILS method is described in ¶[0095]-[0107] of the specification, but the method produces multiple ratings including lather creaminess, lather combing, slippery feel, clean feel post rinse, and post rinse comb. The claim does not specify which rating or combination of ratings constitutes a “synergistic conditioning benefit”, nor does it define “synergistic” (e.g., greater than additive, unexpected relative to individual components). Accordingly, the claim fails to inform a person of ordinary skill in the art of the scope of the invention with reasonable certainty.
Claim 17 is rejected as indefinite because the claim recites “viscosity of less than about 4 Pa-s according to the Viscosity method.” The Viscosity method is described in ¶[0108] as using a cone and plate Brookfield® RS rheometer with cone C75-1 at 2 s⁻¹, 27° C at 3 minutes. However, the specification does not specify whether the measurement is taken after a particular aging period, whether the composition is diluted or used neat, or whether the composition is equilibrated to 27° C prior to measurement. Without such parameters, the scope of the viscosity limitation is uncertain.
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 1-3, 6-11, 15, 17, and 21-23 are rejected under 35 U.S.C. § 103 as being unpatentable over Parry and Stevenson (EP-2931237-B1; published 04 April 2018, hereinafter referred to as “Parry”) in view of Schelges and Tretyakova (US-20170071836-A1; published 16 March 2017, hereinafter referred to as “Schelges”) and in further view of Hayes (US-4999195-A; published 12 March 2008) and Song et al. (US-20190105247-A1; published 11 April 2019).
Parry teaches a personal care composition (¶[0001], and ¶[0025]) with glycolipid biosurfactant (sophorolipid/rhamnolipid) at 50-75% of total surfactant (claim 1, ¶[0003]), anionic surfactant (including fatty acyl isethionate; ¶[0015]-[0020], and ¶[0057]), amphoteric surfactant (including cocoamidopropyl betaine; ¶[0047]-[0048], and ¶[0058]), and carriers (water, emollients ¶[0096]-[0103]), that is substantially free of thickeners (thickeners are optional at 0% or 1-15%, wherein 1-2.9% is below a 3% threshold; ¶[0063], and ¶[0064]) with emphasis on replacing petrochemical surfactants like sulfates (¶[0002]). Parry teaches personal care personal wash compositions having a total combined surfactant level of 5-60 wt% (claim 8) and cosmetic compositions having a total combined surfactant level of 1-30 wt% (claim 9), rendering the 50-75% glycolipid biosurfactant of total surfactant (claim 1) a derived 2.5-45 wt% or 0.5-22.5 wt% of the total composition, respectively.
Schelges teaches a sulfate-free cleansing composition (claim 1) with a sophorolipid mixture wherein 40-80 wt% is in lactone form (remainder after 20-60 wt% acid form; HLB 2-7; ¶[0026]) and 20-60 wt% is acid form (HLB 15-20; ¶[0026]; resulting in a 1:4-4:1 weight ratio or 0.25-4.0, entirely encompassing a 1:3-3:1 weight ratio or 0.333-3.0, and a 1:1 weight ratio or 0.5), rhamnolipid with HLB 4-13 (¶[0022]), pH 7 (¶[0056]), free of thickeners (Abstract, claim 13).
Neither Parry nor Schelges explicitly disclose a total sophorolipid concentration of about 0.1-0.6 wt%. However, Hayes teaches a biosurfactant for personal care cleansing product use at a concentration ranging from 0.04-0.2 wt% (column 4, lines 44-46). In addition, Song further teaches a sulfate-free (¶[0022]) personal cleansing composition comprising from about 3-35 wt% anionic surfactant (claim 1; which may be isethionate, ¶[0024] and ¶[0034]), 3-15 wt% amphoteric surfactant (claim 1), 0.01-2 wt% cationic polymer (claim 1; including, polyquaternium-10, claim 5, ¶[0132], Tables 1, and 5-7), 0-1 wt% low inorganic salt, and an aqueous carrier (claim 1), wherein the composition is free of sarcosinates (implicitly, as they are not required in Table 1, Examples 1-6; Table 3, Examples 7-11; or Table 7, Examples 25 and 26). Song’s compositions may include non-sulfate-based surfactants that can be selected from anionic surfactants, amphoteric surfactants, zwitterionic surfactants, non-ionic surfactants, and combinations thereof (¶[0021]) with a total surfactant level of from about 6-50 wt% (¶[0025]) wherein specific anionic surfactants individually can comprise from about 2-22 wt% (¶[0027] and ¶[0033]; 2-20% in ¶[0029]).
The rhamnolipid surfactant limitation of instant claim 2 is taught by Parry (claim 2) and Schelges (¶[0022]; mono- and di-rhamnolipid mixture) . The rhamnolipid surfactant having an HLB of about 4-13 of instant claim 3 is taught by Schelges (¶[0022]; rhamnolipid R90 has an HLB of 10-12). The anionic surfactant comprising isethionate of instant claims 6 and 21 is taught by Parry (¶[0015]-[0020], and ¶[0057]) and Song (¶[0024], ¶[0032], and ¶[0034]).
The negative limitation of instant claim 7, wherein the composition is free of sarcosinate surfactants, is made obvious by Parry in which sarcosinates are optional (¶[0030]-[0032]), and thereby obvious to exclude, and by Song, wherein sarcosinates are not required and excluded in many embodiments of the invention (see Table 1, Examples 1-6; Table 3, Examples 7-11; or Table 7, Examples 25 and 26).
The amphoteric surfactant limination comprising lauramidopropyl betaine or cocamidopropyl betaine of instant claim 8 is taught by Parry (¶[0047], ¶[0048], and ¶[0058]). The pH limitation of about 5.5-7.2 of instant claim 9 and 6.8-7.2 of instant claim 11 are taught by Schelges (¶[0056]; pH 7). Regarding the limitation of instant claim 10, having a pH of about 5.5-5.8, one of ordinary skill in the art would possess the general knowledge that shampoo cleansing compositions are typically formulated at a pH of 5.0-6.5. In addition, Song, disclosing adjustable pH for intended use of the cleansing composition at about 3-9 or 4-8 (¶[0050]), further, Table 1, Examples 1-9 and Table 5, Examples 12-21 are adjusted to pH 6.0 (¶[0195]), wherein a pH of 6.0 reasonably encompasses “about” 5.5-5.8, in accordance with the instant specification definition of about as ± 20% (¶[0014]).
The cationic polymer limitation of instant claims 15 and 22 are taught by Parry ¶[0076]) and Song, specifically as polyquaternium-10 (¶[0056] and ¶[0132], see Example embodiments as well). The <4 Pa-s viscosity limitation of instant claim 17 is taught by Parry (¶[0006]; 250 to 100,000 mPas (cP) [0.25-100 Pa-s]) and the weight ratio of 1:1 of instant claim 23 is taught by Schelges (¶[0026]; 50:50 is within 20-60:40-80 range). In addition, an alleged synergistic conditioning benefit at a 1:1 ratio, even if true, does not overcome obviousness when the ratio itself is disclosed in the prior art. Discovering an optimum within a known range is the predictable result of routine optimization, not an inventive leap.
Thus, it would have been prima facie obvious to one of ordinary skill in the art prior to the instant effective filing date seeking to formulate a mild, sulfate-free, thickener-free personal care composition with improved conditioning to combine the teaches of Parry, Schelges, Hayes and Song.
Parry provides the core formulation of a sulfate-free composition with isethionate anionic surfactant, betaine amphoteric surfactant, and optional sophorolipid/rhamnolipid biosurfactants, wherein thickeners can be omitted as they are optional. Schelges provides the specific HLB mixture, wherein a person of ordinary skill in the art would look to Schelges for guidance on which sophorolipids to use because it is directed to the same field of sulfate-free cleansing compositions. Schelges explicitly teaches that a mixture of acid form (HLB 15-20) and lactone form (HLB 2-7) sophorolipids is preferred (¶[0026]). The expressed preference for a mixture of acid and lactone forms provides a direct motivation to combine Schelges specific teachings with Parry’s broader teaching of sophorolipids.
Hayes teaches low total biosurfactant levels, wherein a person of ordinary skill in the art seeking to minimize surfactant concentration (e.g., to reduce cost or irritation) would look to Hayes, which specifically teaches biosurfactants (including sophorolipids) incorporated in personal care cleansing products at 0.04-0.2 wt%. The claimed range of about 0.1-0.6 wt%, overlaps and is adjacent to the range taught by Hayes, and Song supports the use of incorporating more the 0.2 wt% taught by Hayes, wherein anionic surfactants can be used at higher levels (e.g., 2 wt%) in cleansing compositions. The derived glycolipid biosurfactant level taught by Parry can be from 0.5-0.72 wt% in cosmetic compositions based on the total weight of the composition. Thus, the instant claimed range of about 0.1-0.6 wt% total sophorolipid surfactant is a predictable optimization of this disclosed range.
Song teaches the sulfate-free, low-salt, cationic-polymer-containing formulation platform, wherein a person of ordinary skill in the art would be motivated to incorporate the sulfate-free, low-inorganic-salt surfactant system of Song because it explicitly addresses the stability and performance challenges of sulfate-free formulations. Song also teaches that polyquaternium-10 is a suitable cationic polymer and that the composition can be free of sarcosinates (as sarcosinates are not required for many of the inventive example embodiments).
The combination is a simple aggregation of known elements, each reference teaches a piece of the instant claimed formulation, and the combination does not change the function of each component. Combining known elements according to known methods to yield predictable results is prima facie obvious (see KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007)). A person of ordinary skill in the art would have had a reasonable expectation of success in combining these teachings because all of the prior art references are in the same field directed towards sulfate-free personal care cleansing compositions and use compatible ingredients. Sophorolipids are known to be compatible with anionic and amphoteric surfactants (Parry ¶[0003]; Schelges ¶[0026]).
The claimed total sophorolipid amount of about 0.1-0.6 wt% is simply a lower concentration, in which lower concentrations are already disclosed by Hayes (0.04-0.2 wt%), wherein Parry’s level of biosurfactant at 50-75% of the total surfactant can be formulated at low absolute levels relative to the total composition in line with the higher end of the claimed range. Reducing the concentration of a known ingredient to its minimal effective amount is routine optimization, not an inventive step (see In re Peterson, 315 F.3d 1325, 1330 (Fed. Cir. 2003)). While Schelges teaches a preference of less than 0.5 wt% additional surfactant, it does not criticize, discredit, or otherwise discourage the claimed combination (see In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004)).
The HLB mixture is expressly taught by Schelges as a preferred embodiment (¶[0026]), and the claimed weight ratio range of 1:3 to 3:1 falls squarely within Schelges’ disclosed range (40:60 to 80:20). Selecting a ratio within a disclosed range is routine optimization (see In re Geisler, 116 F.3d 1465, 1469 (Fed. Cir. 1997)) and selecting a sub-range or optimum value is prima facie obvious (see In re Peterson, 315 F.3d 1325, 1330 (Fed. Cir. 2003) and In re Aller, 220 F.2d 454, 456 (CCPA 1955)). The negative limitations of substantially free of thickeners, sulfate surfactants, and sarcosinates are all taught as optional or excluded in the prior art (Parry, ¶[0063]; Schelges, Abstract; Song, claim 1). Excluding optional components is obvious when there is no reason to include them (see In re Kubin, 561 F.3d 1351, 1359 (Fed. Cir. 2009)).
Claims 1, 12-14, 16, and 18 are rejected under 35 U.S.C. § 103 as being unpatentable over Parry and Stevenson (EP-2931237-B1; published 04 April 2018, hereinafter referred to as “Parry”) in view of Schelges and Tretyakova (US-20170071836-A1; published 16 March 2017, hereinafter referred to as “Schelges”) and in further view of Hayes (US-4999195-A; published 12 March 2008), Song et al. (US-20190105247-A1; published 11 April 2019) and Hutton (WO-2018071353-A1; published 19 April 2018).
Parry, Schelges, Hayes and Song teach the limitations of instant claim 1, as described above, from which instant claims 12-14, 16, and 18 depend, however they do not teach the specific limitations of instant claims 12-14, 16, and 18.
Regarding instant claim 12-14, Parry teaches that inclusion of longer chain fatty acyl isethionate surfactants and fatty acids can typically form insoluble surfactant/fatty acid crystals in water at ambient temperatures (¶[0019]). Additionally, “A preferred anionic-amphoteric surfactant combination is acyl isethionate and amphoteric is betaine such as cocoamidoalkylbetaine.” (¶[0058]) wherein, the anionic acyl isethionate surfactant is preferably used at 1-20% by weight and amphoteric/zwitterionic betaine surfactant at 0.1 to 20% by weight (¶[0057]), and “The composition may also comprise internal lamellar phase-inducing structurants. Such structurants include C8-C24 unsaturated and/or branched liquid fatty acid or esters thereof; C8-C24 unsaturated and/or branched liquid alcohol or ether thereof; and/or C5 to C9 fatty acids wherein those structuring have MP below 25 DEG C. When present, structurants may comprise 0.1 to 25% by weight, preferably 1 to 15% weight of composition.” (¶[0061]-[0062]). Thus, a dispersed lamellar gel networks would form by self-assembly when fatty alcohols are combined with surfactants in aqueous solutions, wherein the fatty alcohols form liquid crystal structures dispersed in the broader gel network, as known it the art at the time of the invention as evidence by Hutton.
Hutton teaches a personal care composition substantially free of sulfated surfactants including a dispersed gel network containing about 0.05% or more by weight of the total composition of one or more fatty alcohols, about 0.01% or more by weight of the total composition of a gel network surfactant selected from anionic surfactants, cationic surfactants, amphoteric surfactants, zwitterionic surfactants, non-ionic surfactants, and mixtures thereof, a second surfactant selected from anionic surfactants, cationic surfactants, amphoteric surfactants, zwitterionic surfactants, non-ionic surfactants in a liquid carrier (including an isethionate or betaine, or a mixture thereof), and water (claims 1 and 2), encompassing the limitations of instant claims 12-14. Hutton also teaches the use of polyquaternium-10 as a conditioning polymer in sulfate-free cleansing compositions with dispersed gel networks (page 20, lines 7-10).
Regarding instant claim 16, Parry does not teach wherein the composition exhibits a synergistic conditioning benefit according to the Wet Hair ILS method. Hutton teaches in FIG.1 (as described in the last two paragraphs on page 44 and page 45, lines 1-8 and depicted on page 52) improved cleansing and conditioning benefits (i.e., body) of the inventive example 1 as to that of comparative example 1 and improved conditioning benefits (i.e., manageability) as to that of comparative example 2 (wherein, conditioning benefits know in the art at the time of the invention are outlined on page 23, lines 15-17). Thus, the when the ingredients of the composition taught by Hutton, of a similar personal care composition substantially free of sulfated surfactants including a dispersed gel network, were combined, enhanced conditioning and cleansing benefits are shown to that of compositions without the combination of ingredient [synergistic conditioning benefit] according to other methods known in the art using the general concept of applying hair products to wet hair followed by measuring cleansing and conditioning benefits.
In addition, Hutton teaches, “The concentration of a conditioning agent in a personal care composition can be sufficient to provide the desired conditioning benefits. Such concentrations can vary with the conditioning agent, the conditioning performance desired, the average size of the conditioning agent particles, the type and concentration of other components, and other like factors. For example, inclusion of a cationic polymer to form a coacervate can improve the deposition of a conditioning agent. Optimization of conditioning agent concentration is generally known in the art.” (page 23, line 30- page 24, line 4), thus indicating that adding conditioning agents in a manner in order to add or optimize desired conditioning benefits of formulations is known in the art as a matter routine formulation and optimization by routine experimentation.
Regarding instant claim 18, Parry does not explicitly teach the limitations of instant claim 18. Hutton teaches a similar personal care composition substantially free of sulfated surfactants including a dispersed gel network, as discussed previously, and a method of use as, “In certain embodiments, a method for treating the hair or skin can include the steps of: (a) wetting the hair or skin with water; (b) applying an effective amount of the personal care composition to the hair or skin, and (c) rinsing the applied areas of skin or hair with water.” (page 39, lines 17-19) and “The personal care compositions described herein can be used in a conventional manner for cleansing and conditioning of hair or skin. Generally, a method of treating hair or skin can include applying the personal care composition to the hair or skin. For example, an effective amount of the personal care composition can be applied to the hair or skin, which has been wetted with water, and then the composition can be rinsed off. Effective amounts can generally range from about 1 g to about 50 g in certain embodiments, and from about 1 g to about 20 g in certain embodiments. Application to the hair typically includes working the composition through the hair such that most or all of the hair is contacted with the composition.” (page 39, lines 9-16), wherein working the composition on the wetted bodily surface to produce a lather is an obvious embodiment of use “in a conventional manner for cleansing”.
Thus, Parry teaches lamellar phase formation with fatty acids/alcohols (¶[0019], [0061]-[0062]). Hutton expressly teaches the dispersed gel network in sulfate-free personal care with fatty alcohol, gel network surfactant, liquid carrier (claims 1 and 2), fatty alcohol in form of liquid crystal drops wherein the gel network forms liquid crystalline structures, 0.05 wt% fatty alcohol, and 0.01 wt% gel network surfactant (claims 1 and 2), improved conditioning benefits in sulfate-free gel network compositions wherein synergistic conditioning benefit per Wet Hair ILS method is an inherent result of combination, and the method of use including, wetting, applying 1-50g, working, and rinsing.
It would have been prima facie obvious to one of ordinary skill in the art prior to the instant effective filing date to add the gel network Hutton to the invention of Parry in view of Schelges, Hayes, and Song to improve conditioning and rheology, and synergistic conditioning and cleansing benefit efficacy testing for formulations and use instructions taught by Hutton. One would be motivated to do so with a reasonable expectation of success to make a change, because these modifications were known in the art for the same purposes.
Claim 20 is rejected under 35 U.S.C. § 103 as being unpatentable over Parry and Stevenson (EP-2931237-B1; published 04 April 2018, hereinafter referred to as “Parry”) in view of Schelges and Tretyakova (US-20170071836-A1; published 16 March 2017, hereinafter referred to as “Schelges”) and in further view of Hayes (US-4999195-A; published 12 March 2008), Song et al. (US-20190105247-A1; published 11 April 2019), Cruz et al. (US-20210299020-A1; published 30 September 2021, hereinafter referred to as “Cruz”) and Cochran et al. (US-20190105246-A1; published 11 April 2019, hereinafter referred to as “Cochran”).
Parry, Schelges, Hayes and Song teach all the limitations of instant claim 20, as described above, however they do not explicitly teach the specific limitation where composition is free of lactylate surfactants.
Cruz teaches personal care compositions comprising a sulfate-free surfactant system (Abstract), wherein the anionic surfactant may be an isethionate rather than a lactylate (¶[0009], ¶[0050], claim 45). Thus, lactylates are one optional anionic surfactant among many, not a requirement. Further, Cochran teaches personal cleansing compositions substantially free of sulfate containing surfactants having an anionic surfactant, amphoteric surfactant, cationic polymer, and aqueous carrier (Abstract), wherein no lactylate surfactants are required in working example of a sulfate-free cleansing composition omitting lactylates (¶[0178], Table 1, Inventive Examples 1-8).
Thus, the negative instant limitation of “free of lactylate surfactants” is rendered obvious by prior art compositions that achieve the same function without lactylates. Therefore, it would have been prima facie obvious to one of ordinary skill in the art prior to the instant effective filing date to exclude lactylate surfactants in personal care cleansing compositions that are substantially free of sulfate containing surfactants because they are taught as optional or are absent in the prior art as evidence by Cruz and Cochran. Excluding a component that is not required is obvious when there is no reason to include it (see In re Kubin, 561 F.3d 1351, 1359 (Fed. Cir. 2009) and In re Mulder, 716 F.2d 1399, 1404 (Fed. Cir. 1983), wherein demonstration of functional working examples without a feature supports obviousness of omitting it). A person of ordinary skill in the art would have been motivated to omit lactylates to simplify formulations, reduce costs, or avoid potential compatibility issues, with a reasonable expectation of success given the existence of functional lactylate-free compositions.
Response to Arguments
Applicant Arguments/Remarks of the reply, filed 18 March 2026, have been fully considered. The amendments to claims 1 and the addition of new claims 20-23 are acknowledged, however, the arguments presented fail to overcome the outstanding rejections, and new rejections are hereby made as set forth above.
The applicant argues that neither Parry nor Schelges teaches a personal care composition having a mixture of a high HLB sophorolipid and low HLB sophorolipid and wherein a total amount of the first sophorolipid and the second sophorolipid is about 0.1 wt% to about 0.6 wt%, as amended. The applicant further argues that Schelges teaches away from combination with Parry because Schelges limits additional surfactants to less than 0.5 wt.%. These arguments are not persuasive.
The examiner acknowledges that neither Parry nor Schelges expressly recites the specific range of about 0.1-0.6 wt.% for combined sophorolipids, however, this argument is not persuasive, as this range is merely a narrow optimization of a broader disclosed range. Schelges teaches sophorolipid concentrations of 1-50 wt.% (¶[0038]), and Parry teaches glycolipid biosurfactants at levels from 50-75% of total surfactant (claim 1), wherein the total combined surfactant level of the composition is 5-60 wt% (claim 8) and cosmetic compositions having a total combined surfactant level of 1-30 wt% (claim 9), rendering the 50-75% glycolipid biosurfactant of total surfactant a derived 2.5-45 wt% or 0.5-22.5 wt% of the total composition, respectively. A person of ordinary skill in the art would recognize that surfactant concentration is a result-effective variable affecting foaming, mildness, viscosity, and conditioning and optimization of result-effective variables is considered obvious (see In re Aller, 220 F.2d 454 (CCPA 1955) and MPEP § 2144.05).
One of ordinary skill in the art, seeking to reduce irritation, optimize formulation mildness, or reduce cost, would have been motivated to lower biosurfactant levels to the minimal effective concentration, particularly in view of Parry’s emphasis on balancing surfactant systems and reducing harshness. Further, Parry teaches that biosurfactants are used as part of a multi-surfactant system, implying that individual surfactant components may be present at relatively low levels within the overall formulation. Reducing biosurfactant concentration to lower levels (e.g., the instant claimed range of 0.1-0.6 wt.%) is an obvious, predictable reduction of the prior art concentrations, as lower amounts of surfactant are routinely explored in formulation optimization to achieve minimal effective levels required for cleansing. Accordingly, the claimed range represents an obvious sub-range derived from routine optimization, absent evidence of criticality (see In re Peterson, 315 F.3d 1325, 1330 (Fed. Cir. 2003).
The applicant argues that Schelges discourages inclusion of additional surfactants beyond biosurfactant and lactylate. This argument is not persuasive. A reference teaches away when it criticizes, discredits, or otherwise discourages investigation into a particular combination (see In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004)). Schelges does not criticize or disparage the use of additional surfactants beyond biosurfactants and acyl lactylates. Rather, Schelges states that in preferred embodiments, the composition contains less than 0.5 wt.% further surfactant (¶[0043]) and does not exclude amphoteric surfactants. This is a preference, not a prohibition. A mere preference for a particular feature does not constitute a teaching away from its opposite (see In re Mouttet, 686 F.3d 1322, 1334 (Fed. Cir. 2012) and MPEP § 2145).
Moreover, Parry explicitly teaches the combination of synthetic anionic surfactants (including isethionates) and amphoteric surfactants with glycolipid biosurfactants. A person of ordinary skill would thus be motivated to combine the sophorolipid mixture teachings of Schelges with the broader surfactant framework of Parry to achieve predictable formulation benefits, as both references are directed to sulfate-free, mild cleansing compositions. The combination is neither contradictory nor unpredictable.
The applicant contends that Schelges does not teach two distinct sophorolipids with HLB 2-7 and 15-20, and a ratio of 1:3 to 3:1. This argument is not persuasive or factually correct. Schelges explicitly teaches mixtures of lactone (low HLB ~2-7) and acid form (high HLB ~15-20) sophorolipids (¶[0026]). The disclosed proportions 20-60% acid form and 40-80% lactone form correspond to ratios spanning 4:1 to 2:3, which overlaps and encompasses the claimed range of 1:3 to 3:1. Further selecting a 1:1 ratio (50:50) from within that range is a routine optimization. Under In re Peterson, 315 F.3d 1325 (Fed. Cir. 2003), a prima facie case of obviousness exists when the claimed range overlaps with or is encompassed by a prior art range. Therefore, the ratio limitation remains obvious.
The applicant’s reliance on alleged synergistic conditioning benefits at a 1:1 ratio is unpersuasive. First, the data presented compares formulations that differ in multiple variables (e.g., presence of rhamnolipids, cationic polymers), not solely sophorolipid ratio. Second, even if a peak performance is observed at 1:1, that is precisely what routine optimization teaches that one varies a parameter within a known range and measures the result. The Federal Circuit has consistently held that discovering an optimum value within a known range is obvious as a matter of law (see In re Aller, 220 F.2d 454, 456 (CCPA 1955). The applicant has not provided comparative data against the closest prior art composition of Schelges or Parry to demonstrate unexpectedness.
The applicant summarily argues that Hutton fails to correct the deficiencies of Parry and Schelges without substantive explanation. This assertion does not traverse the rejection. As detailed in the Final Office Action, Hutton teaches the dispersed gel network limitation of claims 12-14 (e.g., fatty alcohols, gel network surfactants, liquid crystal drops), the method of use steps of instant claim 18 and renders the synergistic conditioning benefit testing methodology obvious. One of ordinary skill would have been motivated to incorporate Hutton’s gel network technology into the compositions of Parry and Schelges to improve conditioning and rheology. This combination of known elements for their predictable purposes is squarely within the scope of prima facie obviousness.
The applicant also alleges hindsight reconstruction. The rejection is based on explicit disclosures in Schelges (HLB mixture), explicit disclosures in Parry (multi-surfactant systems), and well-established formulation principles. The combination is supported by shared objectives (mild, sulfate-free cleansing), overlapping compositions, predictable behavior of surfactant systems. Accordingly, the rejection is based on articulated reasoning with rational underpinning (see KSR v. Teleflex, 550 U.S. 398 (2007)), not hindsight. The newly added limitation of 0.1-0.6 wt.% sophorolipid is an obvious optimization, the HLB mixture and ratio remain explicitly taught by Schelges, and exclusion of sulfate surfactants and thickeners remains obvious in view of the prior art references. The applicant’s arguments do not overcome Hutton’s explicit teaching of gel networks, predictable conditioning improvements, and conventional use methods.
Rejection of Claims 20–23 Under 35 U.S.C. § 103 Over Parry in View of Schelges and Further in View of Applicant’s Own Admissions
New claim 20 differs from previously rejected claim 1 primarily by omitting the total sophorolipid amount range (0.1-0.6 wt.%) and by adding the negative limitation free of lactylate surfactants. The exclusion of lactylate surfactants does not render the claim patentable because lactylate surfactants are merely an optional component that can be excluded without altering the composition’s essential properties. Selecting among known surfactants is routine formulation practice (see In re Dailey, 357 F.2d 669). In addition, the specification does not identify any criticality to excluding lactylates.
Claims 21 and 23 are obvious as isethionate is explicitly taught by Parry, with claim 23 merely selecting a 1:1 ratio already disclosed by Schelges. Claim 22 recites a cationic polymer, specifically as polyquaternium-10. Neither Parry nor Schelges explicitly name polyquaternium-10, but both teach the inclusion of cationic polymers. Song expressly teaches the use of polyquaternium-10 as a conditioning polymer in sulfate-free cleansing compositions and Hutton with dispersed gel networks (page 20, lines 7-10). It would have been obvious to select polyquaternium-10, a well-known cationic conditioning polymer, for incorporation into the compositions of Parry and Schelges to enhance conditioning. Accordingly, claims 20-23 are rejected under §103.
Conclusion
No claims are allowed.
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/RL Scotland/
Examiner, Art Unit 1615
/Robert A Wax/Supervisory Patent Examiner, Art Unit 1615
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