Response to Amendment
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 .
Claim Rejections - 35 USC § 103
Claims 1-20 is/are rejected under 35 U.S.C. 103 as being obvious over EP (3124585) in view of Lant et al (2018/0023043).
EP 3124585 or EP ‘585 discloses a water soluble unit dose article with liquid detergent composition sealed therein (abstract). The water soluble unit dose article laundry detergent composition comprises a first 10-45% anionic surfactant such as linear alkyl benzene sulfonate having C10-C16 (0020-0024); and a second anionic surfactant such ethoxylated alkyl sulfate having C12-C18 carbons and may be linear or branched and have 1-3 moles of ethoxylation (0025). Further included as a surfactant are fatty acid soaps and 0.1 to 10% nonionic surfactants such as ethoxylates , oxo- synthesized non-ionic surfactants and mixtures thereof (0029). The film material for pouch or unit dose are polyvinyl alcohols, copolymers and mixtures thereof (0039- 0040). Table 1 discloses a detergent composition such as 4.5% C12-C14 fatty alcohol ethoxylates; Linear alkylbenzene sulfonates 29.7-32.4%; C12-C14 ethoxylated alkyl sulfate having 3EO 12.1%; palm kernel fatty acid salt 8.9%; 1,2-propanediol 17.2%; dipropylene glycol 0.5%; glycerine 4.7% and water from 9.5-10.7% (see examples 1-4).
EP ‘585 teach all of the instantly required except said reference is silent with the mixture of branched and linear alkyl chains having greater than 55-95% branching.
Lant et al disclose a cellulose particle with a surfactant system comprising 5 to 50% of cleaning compositions (0113). The preferred surfactant includes a C8-C18 alkyl ethoxy sulfate having an average degree of ethoxylation of less than 5 and an average level of branching to about 40% (0116). Moreover, the weight average branching is defined as the weight in grams of alcohol and reads on applicants’ formulae see (0127) and additional alkyl sulfates which are non-ethoxylated and linear alkyl benzene sulfonates are employed (0131). Furthermore, alcohols used comprise natural and synthetic (0131). In addition, nonionic surfactants having 8-22 carbon atoms and 5-12 moles of ethylene oxide are employed in amounts from 0.1 to 40% (0136) and water is employed at levels from 2 to 10% (0157). With respect to form of the liquid detergent suggested by Lant et al, he teaches that unit dosage compositions with polyvinyl-alcohol based film are utilized with embodiments comprising AE-7, AE3S, LAS, C12-C15, fatty acids in amounts from 6-15%, water, glycerol 4-5% and pH of 7-8.2 (see examples 9-17).
It would have been obvious to the skilled artisan to employ a level of branching to greater than 40% given that Lant et al and EP “585 both teach similar compositions useful for the same purpose of providing a water soluble unit dose composition. Lant et al further discloses the definition and formulae of weight average of branching (0127) and it would have been obvious to the skilled artisan to derive the AES branching within the range as suggested by Lant et al with the expectation to produce a similar compositions of EP ‘585 since they are analogous art and with a reasonable expectation of success to formulate a similar product, absent a showing to the contrary. Moreover, the data point of 40% and greater than 55% is close where the skilled artisan would expect similar results of cleansing, absent a showing to the contrary commensurate in scope with the claims and furthermore, it is held that optimizing ranges is permissible and the expectation of similar characteristics is expected with those range outside of the scope as claimed but close enough.
As stated in KSR Int'l Co., v. Teleflex, Inc., 550 U.S. 398, 418 (2007):
"[A]nalysis [of whether the subject matter of a claimwould have been prima facie obvious] need not seek out preciseteachings directed to the specific subject matter of thechallenged claim, for a court can take account of the inferencesand creative steps that a person of ordinary skill in the artwould employ."
With respect to claim 19, wherein the composition has a pH from 6-10, EP “585 is silent. The working examples show a composition that appears basic and furthermore, the compositions of Lant et al, teaches that unit dosage compositions with polyvinyl-alcohol based film are utilized with embodiments comprising AE-7, AE3S, LAS, C12-C15, fatty acids in amounts from 6-15%, water, glycerol 4-5% and pH of 7-8.2 (see examples 9-17). One skilled in the art would have been motivated, and it appears to include, a compositions within EP “585 having pH of 7-8.2. Lant et al teach that it is well known to have a basic unit dose composition for wash liquor purposes and EP ‘585 appears to suggest a basic composition within his working examples, one would expect similar compositions with similar or the same ingredients to have similar characteristics, in the absence of a showing to the contrary.
“The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages” Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382; In re Hoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969) Merck & Co. Inc. v. Biocraft Laboratories Inc., 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir.), cert. denied, 493 U.S. 975 (1989); In re Kulling, 897 F.2d 1147, 14 USPQ2d 1056 (Fed. Cir. 1990); and In re Geisler, 116 F.3d 1465, 43 USPQa2d 1362 (Fed. Cir. 1997).
Similarly, a prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have the same properties. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed. Cir. 1985)
Response to Arguments
Applicant's arguments filed 4-24-2026 have been fully considered but they are not persuasive.
Applicant argues that “the data show that when the weight average degree of branching is 55%, the detergent composition achieves %SRI performance that is comparable to, and in some instances better than, both Comparative Example 1, which has 0% branching, and Comparative Example 2, which has 18% branching. Comparative Example 2 is especially relevant because it is more representative of the actual disclosure of Lant. See Lant [116] and [132]. Thus, the evidence establishes that compositions at the newly claimed threshold of about 55% branching exhibit a desirable cleansing profile that a person of ordinary skill in the art would not have reasonably predicted based on EP '585 and Lant.”
Applicant’s attempt to show criticality of said branching of known ingredients within the tables and example 2 are not commensurate in scope with the claimed invention to be given patentable weight. For example, the plethora of ingredients disclosed in example 1 and 2 are not commensurate with the binary composition of the claims. The examiner further contends that 0% compared to 18%, respectively above does not correlate to 40% and 55%. It is held that result effective variable are optimizable, in the absence of unexpected results, one skilled would similar performance from the same or similar compounds with branching differentials would have the same or similar characteristics on the compositions at hand. Applicant has failed to show criticality commensurate in scope and therefore the prima facie case of obviousness is maintained.
Whether the unexpected results are the result of unexpectedly improved results or a property not taught by the prior art, the “objective evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support.” In other words, the showing of unexpected results must be reviewed to see if the results occur over the entire claimed range. In re Clemens, 622 F.2d 1029, 1036, 206 USPQ 289, 296 (CCPA 1980)
Conclusion
THIS ACTION IS MADE FINAL. 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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/NECHOLUS OGDEN JR/ Primary Examiner, Art Unit 1761
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