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 .
Status of Claims
Amendment filed on 05/06/2026 is acknowledged.
Claims 1, 5, 15, and 18 are amended. Claim 21 is new.
Claims 8-9 and 11-14 remain cancelled. Claim 4 is now cancelled.
Claims 1-3, 5-7, 10, and 15-21 are pending and being examined on the merits herein.
Priority
The instant application 18299864, filed on 04/13/2023, claims foreign priority to China PCT/CN2022086854, filed on 04/14/2022.
Withdrawn Objections/Rejections
All previous claim Objection(s) / Rejection(s) as set forth in the previous Office action (mailed 02/06/2025) that are not repeated and/or maintained in the instant Office action are withdrawn, in light of applicant’s amendment and remark filed on 05/06/2026.
Claim Objection
Claim 1 is objected to because of the following informalities:
The phrase “wherein the composition is free of alkyl sulfate or alkyl ether sulfate type of surfactants” is recommended to move to the location after f) together with other “wherein …” limitations.
Appropriate correction is required.
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 1-3, 5-7, 10, and 15-20 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.
Claim 1 recites “b) … wherein R is a saturated or unsaturated, straight or branched or alkenyl …”. It is unclear what R really represents because saturated or unsaturated, straight or branched are supposed to be characteristic descriptions of a substituent as R, while the substituent R is not disclosed; and the phrase “or alkenyl” as an alternative or “straight or branched” does not make sense. The limitation is interpreted as R is a saturated or unsaturated, straight or branched alkyl chain, in light of instant specification.
Claims 2-3, 5-7, and 10-21 are rejected accordingly because they directly or indirectly depend upon claim 1 and do not clarify the issue addressed above in claim 1.
Claim Interpretation
The term "about" in claim 1 and claim 18 is interpreted as having its ordinary and customary meaning to a POSITA as "approximately" (see MPEP 2111.01 IV A).
Examiner notes that acronyms in the claims, MEA is monoethanolamine, TEA is triethanolamine, and PEG is polyethylene glycol, according to applicant’s remark in record of 08/11/2025.
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, 5-7, 10, 15-18 and 21 are rejected under 35 U.S.C. 103 as being unpatentable over He XJ (CN107822945, 03/23/2018, IDS of 07/03/2023; translation relied upon below, in record of 05/12/2025) as evidenced by Chemical Book (Sodium cocoyl isethionate, 01/06/2020, in record of 05/12/2025) and PubChem (Sodium lauroyl sarcosinate, 06/23/2026, PTO-892), in view of Dodd et al. (CA2445283, 01/22/2013, in record of 02/06/2026) and Sutcliffe et al. (US20190000761, 01/03/2019).
He XJ throughout the reference discloses a natural yeast composition for personal cleaning like facial cleansers, makeup removal, shampoos, shower gels, etc. (e.g., [0052]; [0081], [0093]).
Regarding instant claims 1-3, 5, 7, 16, 18 and 21, He XJ teaches a shower gel composition [0093] comprising 1.0 % sodium cocoyl isethionate (corresponding to fatty acyl isethionate in instant claims 1a), 3 and 21, overlapping with about 0.1% to about 5% amount range in instant claim 1a), 5.0% sodium lauroyl sarcosinate (corresponding to instant claims 1b), 5 and 21, overlapping with amount range of from about 0.1% to about 10% in instant claim 1b); corresponding to formula (II) in claim 1b) wherein M+ as sodium cation, R as C11 alkyl chain as evidenced by PubChem), 3.0% cocamide methyl MEA (corresponding to fatty alkanolamide in instant claim 1c), overlapping with amount from about 0.05% to about 2.0% in instant claim 1c), 6.0% sodium lauroamphoacetate, 1.5% PEG-120 methyl glucose dioleate (corresponding to hydrophobically modified ethoxylated methyl glucoside in instant claim 1d), overlapping with amount from about 0.01% to about 2.0% in instant claim 1d), 0.3% benzyl alcohol (corresponding to preservative in instant claim 1e)), 0.25% fragrance (corresponding to instant claims 1f) and falling within fragrance range in instant claim 7), and the composition is free of alkyl sulfate or alkyl ether sulfate type of surfactants (corresponding to instant claim 1) and free of direct dyes, oxidative dyes, parabens, or mixtures thereof (corresponding to instant claim 16). All the ingredient weight amounts in He XJ as shown overlapping with the ranges in instant claims.
He XJ indicates that the composition pH is adjusted to 5.0-5.5 or pH 4.0-9.0 for later use (Claims 7 and 9) (overlapping with pH from about 5.5 to about 7 in instant claim 1). Based on cocamide methyl MEA amount (3.0%) and PEG-120 methyl glucose dioleate (1.5%), the ratio of fatty alkanolamide to the hydrophobically modified ethoxylated methyl glucoside in He XJ’s cleansing composition is 3.0 :1.5 = 2 : 1, corresponding to the ratio ranges in instant claims 1 and 18.
Regarding claim 1 limitation of “wormlike micelle structures comprising fatty acyl isethionate surfactant”:
As discussed above, the shower gel composition in He XJ [0093] comprises 5.0% sodium lauroyl sarcosinate (corresponding to about 0.1% to about 10% fatty acyl sarcosinate in instant claims 1b), 3.0% cocamide methyl MEA (corresponding to from about 0.05% to about 5% of non-ionic surfactant fatty alkanolamide in instant claim 1c), and 1.5% PEG-120 methyl glucose dioleate (corresponding to about 0.01% to about 2.0% of hydrophobically modified ethoxylated methyl glucoside in instant claim 1d), the components of cocamide methyl MEA, sodium lauroyl sarcosinate, and PEG-120 methyl glucose dioleate with amounts falling within the instantly claimed ranges would interact the same way as the components in instant composition, by elongating from spherical micelle to wormlike micelle made of the sodium cocoyl isethionate (as fatty acyl isethionate surfactant) and sodium lauroyl sarcosinate (as fatty acyl sarcosinate) in the composition, as evidenced by instant specification (Pg. 13, lines 18-21).
MPEP 2112.01.II states "[p]roducts of identical chemical composition cannot have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable, as indicated in MPEP 2112.01.II. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. Id. (Applicant argued that the claimed composition was a pressure sensitive adhesive containing a tacky polymer while the product of the reference was hard and abrasion resistant. "The Board correctly found that the virtual identity of monomers and procedures sufficed to support a prima facie case of unpatentability of Spada’s polymer latexes for lack of novelty."). For this instance, the wormlike micelle structures of sodium cocoyl isethionate surfactant and sodium lauroyl sarcosinate, which would necessarily present in prior art because prior art teaches the identical chemical composition as instantly claimed.
MPEP 2145 II. states that “prima facie obviousness is not rebutted by merely recognizing additional advantages or latent properties present but not recognized in the prior art”, see In re Baxter Travenol Labs., 952 F.2d 388, 21 USPQ2d 1281 (Fed. Cir. 1991) (Appellant argued that the presence of DEHP as the plasticizer in a blood collection bag unexpectedly suppressed hemolysis and therefore rebutted any prima facie showing of obviousness. However, the closest prior art utilizing a DEHP plasticized blood collection bag inherently achieved same result, although this fact was unknown in the prior art.). For this case, the wormlike micelle structures of sodium cocoyl isethionate surfactant and sodium lauroyl sarcosinate, must necessarily present but not recognized in the prior art.
Regarding claim 1 limitation “after 3 weeks at 60 C the composition is phase stable and has a viscosity greater than or equal to 4 Pa.s”:
He XJ teaches that the cosmetic daily chemical product is a more natural, purer, safer, more lasting and stable, and more practical than existing products (e.g., [0004]; [0007]); the composition ingredients are stable and have good compatibility with the skin to help brighten the skin tone, fight skin inflammation and soothe and promote cell repair [0051]; the composition can be made into products, e.g., facial cleansers, makeup removers, shampoos, etc., with different dosage forms that are more natural, having a higher safety factor, longer lasting stability [0052]. It is inevitable that the product of He XJ is phase stable with good viscosity as a longer lasting stable cosmetic daily chemical product.
He XJ teaches the gel composition [0093] comprises substantially identical ingredients with overlapping pH ranges (Claims 7 and 9) as in instant claim 1, and the wormlike micelle structures of sodium cocoyl isethionate and sodium lauroyl sarcosinate would present in prior art as established in discussion above, as a result, the cocamide methyl MEA (as fatty alkanolamide) and PEG-120 methyl glucose dioleate (as hydrophobically modified ethoxylated methyl glucoside) would improve the phase stability of the personal cleansing composition, and could build the personal cleansing composition at the desired and consistent viscosity, as evidenced by instant specification (Pg. 13, lines 14-18).
MPEP 2112.01.II states "[p]roducts of identical chemical composition cannot have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable, as indicated in MPEP 2112.01.II. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. Id. (Applicant argued that the claimed composition was a pressure sensitive adhesive containing a tacky polymer while the product of the reference was hard and abrasion resistant. "The Board correctly found that the virtual identity of monomers and procedures sufficed to support a prima facie case of unpatentability of Spada’s polymer latexes for lack of novelty."). For this instance, the viscosity and phase stability, as properties of the composition, would necessarily present in prior art or be capable of being achieved, because prior art teaches the substantially identical chemical composition as instantly claimed.
Regarding instant claim 2, He XJ teaches sodium cocoyl isethionate and sodium lauroyl sarcosinate in the shower gel formulation [0093] as discussed above. As evidenced by Chemical Book, sodium cocoyl isethionate fits general formula (I) in instant claim 2, as R1 is saturated straight alkyl chain, R2 and R3 are H, and M+ is Na+.
Regarding instant claims 6, He XJ also exemplifies electrolyte in various compositions, such as 0.55% sodium chloride in a makeup remover [0085-0086], 0.8% sodium chloride in a natural yeast shampoo composition [0087-0088] (corresponding to instant claim 6 with overlapping amounts).
Regarding instant claim 17, He XJ indicates that the processing process of the natural yeast composition can improve stability, optimize product odor, increase product efficacy value, and reduce the use of additive (e.g., [0048]; [0052]).
He XJ does not teach weight ratio range close to from about 7 : 1 to about 10 : 1 of the fatty alkanolamide to hydrophobically modified ethoxylated methyl glucoside as recited in instant claim 1, or about 8 : 1 to about 9 : 1 in the instant claim 18. He XJ does not teach the preservative is chosen from sodium metabisulfite, sodium sulfite, sodium hydrosulfite, potassium sulfite, sodium bisulfite, potassium bisulfite and mixtures thereof as recited in instant claim 1e), He XJ does not teach the specific species of hydrophobically modified ethoxylated methyl glucoside as recited in instant claim 10, and He XJ also fails to teach a zwitterionic surfactant comprising an alkyl betaine and/or an alkyl amidopropyl betaine in the composition as recited in instant claim 15 or zwitterionic surfactant cocamidopropyl betaine as in instant claim 21.
Dodd throughout the reference teaches shaving compositions comprising water, cleansing or conditioning agent for hair or skin, and water soluble polymers to increase lubricity and enhance shaving performance (e.g., Abstract).
Dodd teaches suitable non-ionic surfactants include fatty alkanolamides such as lauramide DEA and cocamide MEA (e.g., Pg. 7, Line 31), and exemplifies in using cocamide MEA and cocamidopropyl betaine at 3% in Examples 3 and 5 (Pg. 12, top) (corresponding to component in instant claims 15 and 21). MPEP 2112.01.II states "[p]roducts of identical chemical composition cannot have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable, as indicated in MPEP 2112.01.II. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. Id. (Applicant argued that the claimed composition was a pressure sensitive adhesive containing a tacky polymer while the product of the reference was hard and abrasion resistant. "The Board correctly found that the virtual identity of monomers and procedures sufficed to support a prima facie case of unpatentability of Spada’s polymer latexes for lack of novelty."). For this instance, Hsu teaches the same compound cocamidopropyl betaine, being zwitterionic surfactant is the property of compound that would necessarily present in prior art.
Dodd teaches in Examples 10-14 using cocamide MEA at 1.44% (or lauramide DEA at 1.44%) with PEG-20 methyl glucose sesquisterate (corresponding to instant claim 10) at 0.24% in the self-foaming shave gel (Examples 10-14, Pg. 13, Line 19 -Pg. 14, Line 9), resulting in the weight ratio 1.44 : 0.24 = 6 : 1; if the percentage numbers are rounded to one decimal digit resulting in 1.4% : 0.2 % = 7 : 1. In light of claim interpretation, the term "about" is interpreted as having its ordinary and customary meaning to a POSITA as "approximately" (see MPEP 2111.01 IV A), i.e. in general, within a range of plus or minus 10%. With plus or minus 10% as conventionally interpreted as “about”, the claimed ratio range from about 7 : 1 to about 10 : 1 as recited in instant claim 1 results in the range as 6.3 : 1 to 11 : 1 (can be rounded to 6 : 1). The weight ratio range from about 8: 1 to about 9 : 1 in instant claim 18 results in the range as 7.2 : 1 to 9.9 : 1 (can be rounded to 7 : 1 to 10 : 1). Therefore, Dodd teaches the corresponding weight ratio range at least very close to or overlapping with the instantly claimed ranges in instant claims 1 and 18.
Sutcliffe throughout the reference teaches an anti-acne nanoemulsion composition comprising surfactant reagents (Abstract) in a topical form including shampoo and cleanser [0017].
Sutcliffe teaches suitable preservatives including benzyl alcohol, sodium metabisulphite (same as metabisulfite), and many others [0079] (corresponding to instant claim 1e)), suitable surfactants such as polyoxyethylene stearate or distearate, polyoxyethylene fatty ethers, and PEG-20 methylglucose sesquistearate among many others [0069] (corresponding to instant claim 10). Sutcliffe lists many suitable zwitterionic surfactants for the composition including alkyl betaine [0073] (corresponding to instant claim 15).
It would have been prima facie obvious for one with ordinary skills in the art prior to the filing date to incorporate weight ratios of specific ingredients, suitable alternative surfactants including cocamidopropyl betaine, PEG-20 methylglucose sesquistearate, and preservatives taught by Dodd and Sutcliffe into the composition of He XJ to arrive at instant invention. Because He XJ already shows the formulation comprising more fatty alkanolamide as cocamide methyl MEA amount (3.0%) than hydrophobically modified ethoxylated methyl glucoside as PEG-120 methyl glucose dioleate (1.5%) at weight ratio 2 : 1, while Dodd shows the in the lubricity and performance enhanced formulation with higher weight ratio close to 7 : 1, it would have motivated artisans in the field to increase the weight ratio close to that of Dodd in the formulation to achieve the desirable properties as demonstrated in the lubricity and performance enhanced formulation of Dodd. This renders obviousness as “use of known technique to improve similar devices (methods, or products) in the same way” or as “applying a known technique to a known device (method, or product) ready for improvement to yield predictable results”. See MPEP §2143. (I)(C) and (I)(D). Moreover, It is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use (MPEP §2144.07). See Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945).
Selecting alternative compounds and reagents are routine experimentation for scientists or artisans in the field to optimize compositions. It is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use (MPEP §2144.07). See Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945). For this instance, He XJ already taught preservative and co-surfactants are suitable for the cleansing composition, while Sutcliffe teaches many surfactants including PEG-20 methyl glucose sequistearate, zwitterionic surfactants and preservatives for cleansing composition. It is well settled that it is a matter of obviousness for one of ordinary skill in the art to select a particular component from among many disclosed by the prior art as long as it is taught that the selection will result in the disclosed effect. Merck & Co., Inc. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989); In re Corkill, 771 F.2d 1496, 1500 (Fed. Cir. 1985).
In light of claim interpretation, “after 3 weeks at 60 C the composition is phase stable and has a viscosity greater than or equal to 4 Pa.s.” is the property or “intended use” of the composition, which has been taught by prior art, and such property or intended use would necessarily present, or capable of being achieved of such intended use by prior art.
Moreover, MPEP 2145 II. states that “prima facie obviousness is not rebutted by merely recognizing additional advantages or latent properties present but not recognized in the prior art”, see In re Baxter Travenol Labs., 952 F.2d 388, 21 USPQ2d 1281 (Fed. Cir. 1991) (Appellant argued that the presence of DEHP as the plasticizer in a blood collection bag unexpectedly suppressed hemolysis and therefore rebutted any prima facie showing of obviousness. However, the closest prior art utilizing a DEHP plasticized blood collection bag inherently achieved same result, although this fact was unknown in the prior art.). For this instance, the wormlike micelle structures comprising acyl isethionate surfactant or phase stability with defined viscosity would necessarily present or capable of being achieved in prior art composition comprising same ingredients; similar to the viscosity and stability of the composition, with the same ingredients taught by prior art, these properties would be capable of being achieved.
Differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). For this case, there is no evidence of this claimed range 7:1 to 10:1 is critical, as evidenced by range from 2:1 to 12:1 is indicated in instant spec. (Pg. 14, lines 28-29). MPEP §2144.05(I) states that “A prima facie case of obviousness typically exists when the ranges of a claimed composition overlap the ranges disclosed in the prior art.” See In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003). For this instance, the ratio of cocamide MEA and PEG-120 methyl glucose dioleate is close to or overlaps with that in prior art, and all the other ingredient amounts, e.g., the fatty acyl isethionate surfactant amount, co-surfactant amount, non-ionic surfactant amount, hydrophobically modified ethoxylated methyl glucoside amount, preservative amount, pH, fatty acyl sarcosinate amount, electrolyte amount, fragrance amount, overlap with those ranges taught by prior art as discussed above.
Moreover, “[i]t would have been prima facie obvious for one of ordinary skill in the art to optimize additive amount through nothing more than “routine experimentation,” because of a reasonable expectation of success resulting from the optimization for desirable features of intended use of the composition (MPEP §2144.05 (II)). See Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382; In re Hoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969). Since combined prior art teaches all the ingredients as instantly claimed, constitutes properties including natural, higher safety factor, and longer-lasting stability, and can be made into various forms (e.g., [0052]), it would be routine and motivated for scientists in the field to experiment viscosity or change composition forms. Moreover, the viscosity, stability, or wormlike micelle structures are properties or intended use of the material or composition since they do not materially contribute to the composition. Since prior art teaches the materials and the composition, the properties or intended use would necessarily present in prior art, or would be capable of being achieved.
Claim 19-20 are rejected under 35 U.S.C. 103 as being unpatentable over He XJ (CN107822945, 03/23/2018, IDS of 07/03/2023; translation relied upon below, in record of 05/12/2025) as evidenced by Chemical Book (Sodium cocoyl isethionate, 01/06/2020, in record of 05/12/2025) and PubChem (Sodium lauroyl sarcosinate, 06/23/2026, PTO-892), in view of Dodd et al. (CA2445283, 01/22/2013, in record of 02/06/2026) and Sutcliffe et al. (US20190000761, 01/03/2019), as applied to claims 1-3, 5-7, 10, and 15-18 above, and further in view of Ishikawa et al. (US4835092, 05/30/1989) and Hsu et al. (US20200283555, 09/10/2020, IDS of 07/03/2023).
Combined He XJ, Dodd and Sutcliffe teaching teaches a personal cleansing composition comprising a surfactant system free of alkyl sulfate or alkyl ether sulfate type of surfactants, comprising 1.0 % fatty acyl isethionate surfactant as sodium cocoyl isethionate, 3.0% fatty alkanolamide as cocamide methyl MEA, 6.0% co-surfactant as sodium lauroamphoacetate, 1.5% hydrophobically modified ethoxylated methyl glucoside as PEG-120 methyl glucose dioleate, 0.3% preservative as benzyl alcohol, 5.0% sodium lauroyl sarcosinate, 0.25% fragrance (He XJ); and also teaches that the preservative can be sodium metabisulphite instead of benzyl alcohol (Sutcliffe), and the fatty alkanolamide can be 1.44% cocamide methyl MEA or 1.44% lauramide DEA while with 0.24% of PEG-20 methyl glucose sesquistearate as the hydrophobically modified ethoxylated methyl glucoside in the cleansing formulation, reaching the weight ratio 7 : 1 of these two specific ingredients in the formulation (Dodd), with composition pH adjusted to 5.0-5.5 or pH 4.0-9.0 for later use (He XJ), as presented above in great detail and incorporated herein.
He XJ, Dodd and Sutcliffe combined teaching does not teach preservative as sodium bisulfite as recited in instant claim 19, or hydrophobically modified ethoxylated methyl glucoside as PEG-120 glucose trioleate as recited in instant claim 20.
Regarding instant claim 19, Ishikawa throughout the reference teaches a method for processing a silver halide color photographic material using a color developer containing a chelating agent in the absence of benzyl alcohol as preservative (e.g., Title; Abstract). Ishikawa specifies that the color-developing solution contains as a preservative a sulfite such as sodium sulfite, potassium sulfite, sodium bisulfite, potassium bisulfite, sodium metabisulfite, and potassium metabisulfite, or a carbonyl sulfite addition product (e.g., Col. 7, lines 18-21; Col. 10, lines 7-13).
Regarding instant claims 20, Hsu directs to alkali-swellable emulsion polymers useful as rheology modifiers for thickening aqueous surfactant containing compositions (Abstract). Hsu teaches nonionic surfactants including but not limited to hydrophobically modified alkoxylated methyl glucosides, such as PEG-120 methyl glucose dioleate, PEG-120 methyl glucose trioleate (corresponding to instant claim 20), and PEG-20 methyl glucose sesquistearate (e.g., [0120]). Hsu also teaches sulfate-free amphoteric surfactant cocamidopropyl betaine, suitable for the composition (e.g., [0127]-[0128]).
It would have been prima facie obvious for a person having ordinary skills in the art prior to filing date to substitute the preservative of benzyl alcohol taught by He XJ with sodium bisulfite taught by Ishikawa, or implement PEG-120 methyl glucose trioleate taught by Hsu as hydrophobically modified ethoxylated methyl glucoside, based on its recognized suitability for its intended use (MPEP §2144.07). See Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945). Ishikawa points out that benzyl alcohol as an ordinary preservative has disadvantages, e.g., with compounds in the composition cannot fully avoid production of a stain in a short processing time (Col. 2, lines 9-15), and various preservatives or chelating agents have been proposed to improve stability of a color-developing solution (Col. 1, lines 51-53) including sodium bisulfite. This renders obviousness as “use of known technique to improve similar devices (methods, or products) in the same way” or as “applying a known technique to a known device (method, or product) ready for improvement to yield predictable results”. See MPEP §2143. (I)(C) and (I)(D).
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 1-3, 5-7, 10, 15-21 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over at least claims 1, 6-10, 13-15, and 17 of copending Application US18429884 (hereafter US’884), filed on 02/01/2024 (hereafter US’884), in view of He XJ (CN107822945, 03/23/2018, IDS of 07/03/2023; translation relied upon below, in record of 05/12/2025), Dodd et al. (CA2445283, 01/22/2013, in record of 02/06/2026), Sutcliffe et al. (US20190000761, 01/03/2019), Ishikawa et al. (US4835092, 05/30/1989) and Hsu et al. (US20200283555, 09/10/2020, IDS of 07/03/2023). Although the claims at issue are not identical, they are not patentably distinct from each other.
US’884 recites a personal cleansing composition comprising:
a) a surfactant system wherein the surfactant system comprises:
(i) from about 1.75% to about 2.75%, of a fatty acyl isethionate surfactant by weight of the composition (corresponding to instant claims 1a));
(ii) from about 1.75% to about 3.0%, of a fatty acyl sarcosinate surfactant by weight of the composition (overlapping with instant claim 1b);
(iii) from about 7.75% to about 9.75%, of a zwitterionic surfactant by weight of composition, wherein the zwitterionic surfactant comprises a betaine (corresponding to instant claim 15);
b) wherein the pH is from about 5.5 to about 7 (same as instant claim 1); and
c) wherein the composition is substantially free of from alkyl sulfate and alkyl ether sulfate type of surfactants (claim 1) (same as that in instant claim 1).
US’884 recites about 0.01% to about 1.0% a preservative in the composition (claim 15) (corresponding to instant claim 1e)).
US’884 recites the general formula (I) of fatty acyl isethionate surfactant (claim 6) as seen in instant claim 2, and fatty acyl isethionate surfactant is chosen from sodium lauroyl isethionate, sodium lauroyl methyl isethionate, sodium oleoyl isethionate, sodium oleoyl methyl isethionate, sodium stearoyl isethionate, sodium stearoyl methyl isethionate, sodium myristoyl isethionate, sodium myristoyl methyl isethionate, sodium palmitoyl isethionate, sodium palmitoyl methyl isethionate, sodium cocoyl isethionate, sodium cocoyl methyl isethionate, a blend of stearic acid and sodium cocoyl isethionate, ammonium cocoyl isethionate, ammonium cocoyl methyl isethionate, or mixtures thereof (claim 7) (corresponding to instant claims 3 and 21). US’884 also recites fatty acyl sarcosinate surfactant general formula II (claim 8) (corresponding to instant claim 1 formula (II), and fatty acyl sarcosinate surfactant is chosen from sodium lauroyl sarcosinate, sodium cocoyl sarcosinate, sodium myristoyl sarcosinate, TEA-cocoyl sarcosinate, ammonium cocoyl sarcosinate, ammonium lauroyl sarcosinate, dimer dilinoleyl bis-lauroyl glutamate/lauroyl sarcosinate, lauroyl sarcosinate, isopropyl lauroyl sarcosinate, potassium cocoyl sarcosinate, potassium lauroyl sarcosinate, sodium oleoyl sarcosinate, sodium palmitoyl sarcosinate, TEA-lauroyl sarcosinate, TEA-oleoyl sarcosinate, TEA-palm kernel sarcosinate, or mixtures thereof (claim 9) (corresponding to instant claims 5 and 21), betaine chosen from cocamidopropyl betaine, lauramidopropyl betaine, coco betaine or mixtures thereof (claim 10) (corresponding to instant claims 15 and 21).
US’884 further recites about 0.05% to about 5% of an electrolyte in the composition, chosen from m sodium or potassium citrate, calcium chloride, calcium bromide, zinc chloride, barium chloride, calcium nitrate, potassium chloride, sodium chloride, potassium iodide, sodium bromide, ammonium bromide, sodium sulfate, or mixtures thereof (claim 13) (corresponding to instant claim 6), and about 0.01% to 2% of a fragrance (claim 14)(corresponding to instant claim 7). US’884 indicates a method of increasing stability of a personal cleansing composition comprising the step of forming a personal cleansing composition (claim 17) (corresponding to instant claim 17). The composition as seen is free of direct dyes, oxidative dyes, parabens, or mixtures thereof (corresponding to instant claim 16).
US’884 does not recite a hydrophobically modified ethoxylated methyl glucoside species in the composition as recited in instant claim 1, 10, and 20. US’884 does not recite species of fatty alkanolamide as recited in instant claim 1. US’884 does not recite alkanolamide to the hydrophobically modified ethoxylated methyl glucoside ratio as recited in instant claims 1 and 18. US’884 also does not specify the preservative is chosen from the species as recited in instant claims 1 and 19.
As discussed above in greater detail, He XJ, Dodd, Sutcliffe, Ishikawa, and Hsu combined teaching teach a cleansing composition comprising all components showing in instant claim 1, and also exemplifies fatty alkanolamide and hydrophobically modified ethoxylated methyl glucoside species with a weight ratio close to instantly claimed ranges, as well as specific preservative or PEG-120 methyl glucose trioleate as recited in instant claims.
It would be obvious to incorporate the species of desirable components from teachings of He XJ, Dodd, Sutcliffe, Ishikawa, and Hsu into the composition of US’884 to arrive at instant invention. It is well settled that it is a matter of obviousness for one of ordinary skill in the art to select a particular component from among many disclosed by the prior art as long as it is taught that the selection will result in the disclosed effect. Merck & Co., Inc. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989); In re Corkill, 771 F.2d 1496, 1500 (Fed. Cir. 1985).
Differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). For this instance, both US’884 and prior art teach overlapping ranges of those in instant claims as discussed above. Even if a ratio of the fatty alkanolamide to the hydrophobically modified ethoxylated methyl glucoside does not overlap with what is taught in prior art, there is no evidence such a range is critical because a range of about 2 to about 12 is implemented in instant specification, which overlaps with that taught in prior art. Further, the viscosity of the composition is interpreted as property or “intended use” of the composition and does not provide structural limitation to the composition, in light of the claim interpretation as presented above. “[i]t would have been prima facie obvious for one of ordinary skill in the art to optimize additive amount through nothing more than “routine experimentation,” because of a reasonable expectation of success resulting from the optimization for desirable features of intended use of the composition (MPEP §2144.05 (II)). See Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382; In re Hoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969).
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1-3, 5-7, 10, 15-21 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over at least claims 1-3, 6-9, and 12-14 of copending Application US18782827 (hereafter US’827, filed on 07/24/2024), in view of in view of He XJ (CN107822945, 03/23/2018, IDS of 07/03/2023; translation relied upon below, in record of 05/12/2025), Dodd et al. (CA2445283, 01/22/2013, in record of 02/06/2026), Sutcliffe et al. (US20190000761, 01/03/2019), Ishikawa et al. (US4835092, 05/30/1989) and Hsu et al. (US20200283555, 09/10/2020, IDS of 07/03/2023), as evidenced by Chemical Book (Sodium cocoyl isethionate, 01/06/2020, in record of 05/12/2025). Although the claims at issue are not identical, they are not patentably distinct from each other.
US’827 recites a personal cleansing composition comprising a surfactant system wherein the surfactant system comprises from about 1.75% to about 15%, of an acyl isethionate surfactant by weight of the composition, with composition pH from about 5.5 to about 7, and the composition is free of alkyl sulfate and alkyl ether sulfate type of surfactants (Claim 1) (corresponding to components of instant claim 1 with overlapping ranges of amount and pH).
US’827 further recites species of acyl isethionate surfactant (Claim 6) (corresponding to instant claims 3 and 21), US’827 recites fatty acyl sarcosinate formula (I) (Claim 7), corresponding to instant claim 1 formula (II). US’827 recites about 1.75% to about 10%, or 1.75% to about 4.0% of a fatty acyl sarcosinate surfactant in claims 2 and 3 respectively (corresponding to amount in instant claim 1), fatty acyl sarcosinate species (Claim 8) (corresponding to instant claims 5 and 21), betaine selected from the group including cocamidopropyl betaine (claim 9) (corresponding to instant claim 21), and from about 3% to about 20% of a zwitterionic surfactant (corresponding to instant claim 15), a preservative in the composition (claim 15) and its amount from about 0.01% to about 1.0% (Claim 14) (corresponding to instant claim 1).
US’827 further recites about 0.05% to about 5% of an electrolyte in the composition, chosen from compound species including sodium citrate, potassium citrate, etc. (claim 13) (corresponding to instant claim 6), and about 0.01% to 2% of a fragrance (claim 13)(corresponding to instant claim 7). The composition as seen is free of direct dyes, oxidative dyes, parabens, or mixtures thereof (corresponding to instant claim 16).
US’827 does not recite species of fatty alkanolamide or hydrophobically modified ethoxylated methyl glucoside species in the composition as recited in instant claim 1, 10 or 20. US’827 does not recite alkanolamide to the hydrophobically modified ethoxylated methyl glucoside ratio as recited in instant claims 1 and 18. US’827 also does not specify the preservative is chosen from the species as recited in instant claims 1 and 19. US’827 does not recite fatty acyl isethionate surfactant general formula as recited in instant claim 2.
As discussed above in greater detail, He XJ, Dodd, Sutcliffe, Ishikawa, and Hsu combined teaching, as evidenced by Chemical Book, teach a cleansing composition comprising all components showing in instant claim 1, formula (I) in instant claim 2, and also exemplifies fatty alkanolamide and hydrophobically modified ethoxylated methyl glucoside species in an exemplified ratio close to instantly claimed ratio ranges, as well as specific preservative or PEG-120 methyl glucose trioleate as recited in instant claims, as presented above in great detail and incorporated herein.
It would be obvious to incorporate the species of desirable components from teachings of He XJ, Dodd, Sutcliffe, Ishikawa, and Hsu into the composition of US’827 to arrive at instant invention. It is well settled that it is a matter of obviousness for one of ordinary skill in the art to select a particular component from among many disclosed by the prior art as long as it is taught that the selection will result in the disclosed effect. Merck & Co., Inc. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989); In re Corkill, 771 F.2d 1496, 1500 (Fed. Cir. 1985).
Differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). For this instance, bothUS’827 and prior art teach overlapping ranges of those in instant claims as discussed above. Even if a ratio of the fatty alkanolamide to the hydrophobically modified ethoxylated methyl glucoside does not overlap with what is taught in prior art, there is no evidence such a range is critical because a range of about 2 to about 12 is implemented in instant specification, which overlaps with that taught in prior art. Further, in light of claim interpretation, the viscosity is a property or “intended use” of the composition which has been taught by prior art. “[i]t would have been prima facie obvious for one of ordinary skill in the art to optimize additive amount through nothing more than “routine experimentation,” because of a reasonable expectation of success resulting from the optimization for desirable features of intended use of the composition (MPEP §2144.05 (II)). See Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382; In re Hoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969).
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Response to Arguments
Applicant’s Remarks/Arguments filed on 05/06/2026 have been fully considered, but they are not persuasive.
Applicant asserts that the interpretation of viscosity as property of the composition or “intended use” is incorrect, especially the amended claim adds “wormlike micelle structures” and “phase stable” limitations to the claim, and “wormlike micelle” is tangible, observable and defining structural feature of the invention.
Examiner has taken full consideration and addressed these features in this office action above. Please find corresponding details in office action as a complete response.
Applicant asserts that He XJ and Dodd does not provide teaching of the specific ratio and the combination of prior art and reasoning constitutes impermissible hindsight using applicant’s own disclosure as a roadmap.
In response to applicant’s argument that there is no teaching, suggestion, or motivation to combine the references, the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). “The use of patents as references is not limited to what the patentees describe as their own inventions or to the problems with which they are concerned. They are part of the literature of the art, relevant for all they contain.” In re Heck, 699 F.2d 1331, 1332-33, 216 USPQ 1038, 1039 (Fed. Cir. 1983), and "A reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art, including nonpreferred embodiments." Merck & Co. v.Biocraft Labs., Inc. 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir. 1989). In this case, He XJ teaches the essential material components of the composition as instantly claimed, the specific ratio exists in compositions of combined prior art teaching even though it is not explicitly disclosed, and an artisan can obviously produce such ratio based on the prior art teaching, as presented in the office action above and copied the most relevant paragraphs below for reference.
Dodd teaches in Examples 10-14 using cocamide MEA at 1.44% (or lauramide DEA at 1.44%) with PEG-20 methyl glucose sesquisterate (corresponding to instant claim 10) at 0.24% in the self-foaming shave gel (Examples 10-14, Pg. 13, Line 19 -Pg. 14, Line 9), resulting in the weight ratio 1.44 : 0.24 = 6 : 1; if the percentage numbers are rounded to one decimal digit resulting in 1.4% : 0.2 % = 7 : 1. In light of claim interpretation, the term "about" is interpreted as having its ordinary and customary meaning to a POSITA as "approximately" (see MPEP 2111.01 IV A), i.e. in general, within a range of plus or minus 10%. With plus or minus 10% as conventionally interpreted as “about”, the claimed ratio range from about 7 : 1 to about 10 : 1 as recited in instant claim 1 results in the range as 6.3 : 1 to 11 : 1 (can be rounded to 6 : 1). The weight ratio range from about 8: 1 to about 9 : 1 in instant claim 18 results in the range as 7.2 : 1 to 9.9 : 1 (can be rounded to 7 : 1 to 10 : 1). Therefore, Dodd teaches the corresponding weight ratio range at least very close to or overlapping with the instantly claimed ranges in instant claims 1 and 18.
It would have been prima facie obvious for one with ordinary skills in the art prior to the filing date to incorporate weight ratios of specific ingredients, suitable alternative surfactants including cocamidopropyl betaine, PEG-20 methylglucose sesquistearate, and preservatives taught by Dodd and Sutcliffe into the composition of He XJ to arrive at instant invention. Because He XJ already shows the formulation comprising more fatty alkanolamide as cocamide methyl MEA amount (3.0%) than hydrophobically modified ethoxylated methyl glucoside as PEG-120 methyl glucose dioleate (1.5%) at weight ratio 2 : 1, while Dodd shows the in the lubricity and performance enhanced formulation with higher weight ratio close to 7 : 1, it would have motivated artisans in the field to increase the weight ratio close to that of Dodd in the formulation to achieve the desirable properties as demonstrated in the lubricity and performance enhanced formulation of Dodd. This renders obviousness as “use of known technique to improve similar devices (methods, or products) in the same way” or as “applying a known technique to a known device (method, or product) ready for improvement to yield predictable results”. See MPEP §2143. (I)(C) and (I)(D). Moreover, It is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use (MPEP §2144.07). See Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945).
Differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). For this case, there is no evidence of this claimed range 7:1 to 10:1 is critical, as evidenced by range from 2:1 to 12:1 is indicated in instant spec. (Pg. 14, lines 28-29). MPEP §2144.05(I) states that “A prima facie case of obviousness typically exists when the ranges of a claimed composition overlap the ranges disclosed in the prior art.” See In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003). For this instance, the ratio of cocamide MEA and PEG-120 methyl glucose dioleate is close to or overlaps with that in prior art, and all the other ingredient amounts, e.g., the fatty acyl isethionate surfactant amount, co-surfactant amount, non-ionic surfactant amount, hydrophobically modified ethoxylated methyl glucoside amount, preservative amount, pH, fatty acyl sarcosinate amount, electrolyte amount, fragrance amount, overlap with those ranges taught by prior art as discussed above.
Applicant asserts that a mixture of fatty alkanolamide, like cocamide MEA, and hydrophobically modified ethoxylated methyl glucoside, such as PEG-120 methyl glucose trioleate, achieved the desired viscosity for the personal cleansing composition at a weight ratio of 8.3 (Fig. 2), and improved phase stability with a satisfactory consistent rheology profile but at the same time with an acceptable or improved stability in terms of color and antimicrobial stabilities.
In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., consistent rheology profile, color stability, or antimicrobial stabilities ) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). Regarding the components in the composition and weight ratio, the office action has presented above in detail in the obviousness rejection based on combined prior art of He XJ, Dodd, Sutcliffe, Ishikawa, and Hsu.
Applicant does not take action on the non-statutory double patenting rejections for the time being.
The non-statutory double patenting rejections maintained.
Please refer to the entire office action as a complete response to the remarks/arguments.
Conclusion
No claim is 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 (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/DX.Z./Examiner, Art Unit 1616
/SUE X LIU/Supervisory Patent Examiner, Art Unit 1616
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