DETAILED ACTION
Previous Rejections
Applicant’s arguments, filed January 12, 2026, have been fully considered. Rejections and/or objections not reiterated from previous office actions are hereby withdrawn. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application.
Claim Status
Claims 1, 2, 5, 14, and 16 – 19 are cancelled.
Claims 21 – 26 are newly added.
Claims 3, 4, 6 – 13, 15, and 20 – 26 are examined here-in.
Claim Objections (New, Necessitated by Amendment)
Claim 21 is objected to because of the following informalities:
Claim 21 recites a part “b.” but not a part “a.”. One possible correction is adding an “a.” following the “water-in-oil emulsion comprising:” but prior to “a water phase”.
Appropriate correction is required.
Claim Rejections - 35 USC § 112 (New, Necessitated by Amendment)
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.
Claim 26 is rejected under 35 U.S.C. 112(b) 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 26 recites the limitation "the antimicrobial". Claim 26 depends on independent claim 21 which does not recite an antimicrobial. Therefore, there is insufficient antecedent basis for this limitation in the claim.
Claim Rejections - 35 USC § 103 (New, Necessitated by Amendment)
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 non-obviousness.
Claims 4, 8 – 10, 21, 22, and 24 are rejected under 35 U.S.C. 103 as being unpatentable over Lindsay (US 2022/0071878 A1).
Lindsay teaches a deodorant composition comprising mandelic acid (abstract).
Lindsay teaches the composition includes polyols such as propylene glycol or dipropylene glycol in an amount of 0.3 to 25% of the composition (paragraphs 0018, 0047, claim 1). Lindsay teaches polyols act as thickeners, but also as solvents (paragraph 0047).
Lindsay teaches the composition includes mandelic acid, which is an alpha hydroxy acid that has a pH in the range of 3 to 4.5 (paragraphs 0004, 0009). Lindsay teaches that the low pH has historically made delivery of mandelic acid in an effective amount challenging, however Lindsay shows that mandelic acid can be effectively delivered when formulated as an emulsion, with minor aqueous phase and a much larger oil or silicone phase (paragraphs 0009, 0012, 0017).
Lindsay teaches the deodorant composition is aluminum free (paragraph 0017).
Lindsay teaches the composition may include cyclopentasiloxane, dimethicone, or other siloxanes in an amount from 1 to 50% (paragraphs 0024, 0049).
Although Lindsay does not teach a specific embodiment with each of the claimed elements, claims 4, 8 – 10, 21, 22, and 24 are rendered prima facie obvious over the teachings of Lindsay, because it is prima facie obvious to combine prior art elements according to known methods, in order to yield predictable results. In the instant case, all the claimed elements (e.g., propylene glycol, dipropylene glycol, water, alpha hydroxy acid, silicone) were known in the prior art (e.g., cosmetic compositions, water-in-oil emulsions) and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination yielded nothing more than predictable results (e.g., a deodorant composition) to one of ordinary skill in the art (MPEP 2143(i)(a)).
Lindsay’s teaching for an oil-in-water emulsion deodorant composition containing 0.3 to 25% propylene glycol or dipropylene glycol, water, mandelic acid, and silicone components, that is substantially free of aluminum (abstract, paragraphs 0004, 0009, 0017 – 0018, 0024, 0047, 0049, claim 1) reads on instant claim 21. Lindsay’s teaching for 0.3 to 25% propylene glycol or dipropylene glycol overlaps on the instantly claimed amount of “at least 20% by weight” as recited in claim 21. Claimed ranges that overlap teachings of the prior art are prima facie obvious according to MPEP 2144.05(i).
Lindsay’s teaching for mandelic acid, which is an alpha hydroxy acid that has a pH in the range of 3 to 4.5 (paragraphs 0004, 0009) reads on instant claims 4, 8, 9, and 22. Mandelic acid has 8 carbon atoms and a clogD value of approximately -0.5 at pH 3.
Lindsay’s teaching the deodorant composition can take the form of a water-in-silicone emulsion (paragraphs 0009 – 0012, 0016) reads on claim 10.
Lindsay’s teaching that the deodorant composition may have 0.2 to 20% water (paragraphs 0011, 0021) overlaps on the instantly claimed range of 10 to 99.5% by weight water as recited in claim 24.
Claims 3, 6, 7, 20, 23, 25, and 26 are rejected under 35 U.S.C. 103 as being unpatentable over Lindsay (as cited above) in view of Meyer (US 2022/0168198 A1, of record).
Lindsay’s teachings are discussed above.
Lindsay does not teach the composition includes an antimicrobial compound (claims 3, 6, 7, 20, 25, 26).
Meyer teaches the missing element of Lindsay.
Meyer teaches an antimicrobial mixture, and explains antimicrobial compounds are useful in body-treating compositions to combat microorganisms that can cause body odor or other undesirable effects (abstract, paragraphs 0002, 0027, 0268, 0364 – 0365, claims 13, 15).
Meyer teaches antimicrobial compounds such as thymol, cinnamic aldehyde, octenidine dihydrochloride, and piroctone olamine, among others (abstract, paragraphs 0019, 0036, 0253, Table 1).
Meyer teaches niacinamide, polyquaternium, and azelaic acid are also compounds that are suitable for inclusion in the composition (paragraphs 0046, 0101, 0231, 0234 – 0235, 0293).
The combination of Lindsay and Meyer’s teachings is prima facie obvious as combining prior art elements according to known methods to yield predictable results (MPEP 2143(i)(a)). A person of ordinary skill in the art would be motivated to modify Lindsay’s deodorant composition to include antimicrobial compounds as taught by Meyer because Meyer teaches that antimicrobial compounds are useful to combat microorganisms that can cause body odor (abstract, paragraphs 0002, 0027, 0268, 0364 – 0365, claims 13, 15). As such, a person of ordinary skill in the art would expect the deodorant composition of Lindsay as modified by Meyer to have antimicrobial properties to prevent odor, which is a predictable result. The combination of Lindsay and Meyer’s teachings is prima facie obvious as combining known prior art elements according to known methods to yield predictable results (MPEP 2143(i)(a)).
Lindsay’s teaching for an oil-in-water emulsion deodorant composition containing 0.3 to 25% propylene glycol or dipropylene glycol, water, mandelic acid, and silicone components, that is substantially free of aluminum (abstract, paragraphs 0004, 0009, 0017 – 0018, 0024, 0047, 0049, claim 1) in combination with Meyer’s teaching to include thymol, cinnamic aldehyde, octenidine dihydrochloride, piroctone olamine, niacinamide, or polyquaternium (abstract, paragraphs 0019, 0036, 0046, 0231, 0235 0253, Table 1) reads on instant claim 3.
Meyer’s teaching for piroctone olamine as an antimicrobial compound (abstract, paragraphs 0019, 0036, 0253, Table 1) reads on instant claims 6 and 20.
Meyer’s teaching for octenidine dihydrochloride as an antimicrobial compound (abstract, paragraphs 0019, 0036, 0253, Table 1) reads on instant claims 7, 20, and 26.
Meyer’s teaching for azelaic acid (paragraphs 0101, 0234 – 0235, 0293) reads on instant claim 23.
The combination of Lindsay’s teaching for an oil-in-water emulsion deodorant composition containing 0.3 to 25% propylene glycol or dipropylene glycol, 0.2 to 20% water, mandelic acid, and silicone components, that is substantially free of aluminum (abstract, paragraphs 0004, 0009, 0011, 0017 – 0018, 0021, 0024, 0047, 0049, claim 1) in combination with Meyer’s teaching for octenidine dihydrochloride, piroctone olamine, or niacinamide (abstract, paragraphs 0019, 0036, 0046, 0231, 0235 0253, Table 1) reads on instant claim 25. Lindsay’s teaching for 0.3 to 25% propylene glycol or dipropylene glycol overlaps on the instantly claimed amount of “at least 20% by weight” as recited in claim 25. Claimed ranges that overlap teachings of the prior art are prima facie obvious according to MPEP 2144.05(i).
Lindsay’s teaching for 0.2 to 20% water (paragraphs 0011, 0021) overlaps on the instantly claimed range of 10 to 80% by weight water as recited in claim 25.
Lindsay teaches mandelic acid has a pH in the range of 3 to 4.5 (paragraphs 0004, 0009), therefore, a person of ordinary skill in the art would expect an aqueous solution of mandelic acid to have a similar pH. Furthermore, Lindsay’s Table 1C shows compositions containing mandelic acid had a pH range from 3.5 to 3.9 (Table 1C). Lindsay’s teaching that mandelic acid has a pH of 3 to 4.5, and examples of compositions containing mandelic acid with a pH from 3.5 to 3.9 overlap on the instantly claimed pH of 3 to 4 as recited in claim 25.
Claims 11 – 13 and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Lindsay (as cited above) in view of Kux (US 2007/0116656 A1, of record).
Lindsay’s teachings are discussed above.
Lindsay does not teach the composition is a clear gel or the refractive index of the water phase (claims 11 – 13 and 15).
Kux teaches the missing element of Lindsay.
Kux teaches an antiperspirant composition with an alpha hydroxycarboxylic acid (abstract, paragraph 0032). Kux teaches that the inclusion of mandelic acid in a deodorant composition contributes to high transparency (paragraph 0094).
Kux teaches that water-in-silicone emulsions are often used for deodorant compositions (paragraphs 0005 – 0008). Kux teaches that the transparency of water-in-silicone emulsions results from matching the refractive indices of the water and silicone phases (paragraph 0011).
The combination of Lindsay and Kux renders claims 11 – 13 and 15 prima facie obvious as combining prior art elements according to known methods to yield predictable results. A person of ordinary skill in the art would be motivated to modify the composition of Lindsay with the teachings of Kux because Kux teaches that transparent and translucent products are preferred by customers and teaches methods of making a clear water-in-silicone emulsion (paragraphs 0005 – 0007, 0014). As such, the combination of Lindsay and Kux is prima facie obvious according to MPEP 2143(i)(a) as combining prior elements according to known methods to yield predictable results.
Lindsay’s teaching for an oil-in-water emulsion deodorant composition containing 0.3 to 25% propylene glycol or dipropylene glycol, water, mandelic acid, and silicone components, that is substantially free of aluminum (abstract, paragraphs 0004, 0009, 0017 – 0018, 0024, 0047, 0049, claim 1) in combination with Kux’s teaching for transparent solutions in the form of a gel (paragraphs 0014, 0036, 0038, examples 15 – 17, claim 24) reads on instant claim 11.
Kux’s teaching to match the refractive indices of water and silicone phases for transparency in a water-in-silicone emulsion (paragraph 0011) reads on instant claim 12.
Although Kux does not teach a percent transmittance for a deodorant composition, Kux’s teaching that the composition is transparent or translucent (paragraph 0038) would be reasonably expected to have high transmittance, reading on instant claim 13. It is within the expertise of a person of ordinary skill in the art to make a composition with at least 80% transmittance at 600 nm through routine optimization, which is prima facie obvious according to MPEP 2144.05(ii)(a).
Similarly, although Kux does not teach a specific refractive index for the water and silicone phases of the emulsion (paragraph 0011), it is within the expertise of a person of ordinary skill in the art to make a composition where the water phase has a refractive index between 1.3500 and 1.4300, therefore claim 15 is prima facie obvious according to MPEP 2144.05(ii)(a).
Examiner’s Reply to Attorney Arguments Dated January 12, 2026
Applicant’s arguments have been considered but are moot because the new ground of rejection addresses each limitation of the claims as presently amended.
Double Patenting (New, Necessitated by Amendment)
The judicially created doctrine for non-statutory double patenting rejections has been described in detail in the previous action.
Double Patenting over U.S. Application No. 18/743,381
Claims 3, 4, 6 – 13, 15, and 20 – 26 are provisionally rejected on the ground of non-statutory double patenting as being unpatentable over claims 1 – 20 of copending Application No. 18/743,381.
Although the claims at issue are not identical, they are not patentably distinct from each other because: instant claim 21 is drawn to a deodorant composition that is a water-in-oil emulsion with a water phase comprising at least 20% dipropylene glycol, propylene glycol, or a polyether compound; water; and a lipophilic carboxylic acid with a ClogD from -0.5 to 3 at a pH from 3 to 5, wherein the water phase has a pH from 3 to 5; then an oil phase comprising silicone and/or triglycerides, wherein the deodorant is free of aluminum.
Conflicting claim 1 is drawn to a deodorant composition with a primary carboxylic acid with a ClogD less than -0.5 at a pH from 3 to 5, wherein the deodorant composition is a polar in nonpolar emulsion, wherein the phases of the emulsion have refractive indices that vary at most by 0.01, wherein the composition is free of aluminum, and wherein the primary carboxylic acid has a surface tension that is at least 69.8 mN/m when measured in 2% water.
The instant and conflicting claims differ because instant claim 1 recites the inclusion of a short-chain glycol or polyether compound and does not recite the refractive indices of the phases or that the carboxylic acid has a surface tension that is at least 69.8 mN/m.
Although conflicting 1 claim does not specify a short-chain glycol or polyether compound, these are polar compounds, which is recited in the requirement for a polar-in-nonpolar emulsion. In addition, conflicting claim 15 recites the inclusion of PEG, which reads on the polyether compound of instant claim 1.
Although the instant claim 1 does not recite the refractive indices of the phases, as recited in conflicting claim 1, instant claim 12 recites “a refractive index of the water phase is the same as the oil phase” meeting the limitation of conflicting claim 1.
The conflicting specification notes malic acid, glycolic acid, citric acid, ascorbic acid, and succinic acid each have surface tensions of at least 69.8 mN/m, as each of these carboxylic acid have a ClogD less than -0.5 at a pH from 3 to 5, they read on the primary carboxylic acid with a ClogD less than -0.5 at a pH from 3 to 5 as recited in instant claim 1.
Conflicting claim 1, 6 – 8, 18, and 20 describing polar-in-nonpolar emulsions read on instant claims 21 and 10.
Conflicting claim 16’s recitation for an antimicrobial compound reads on instant claims 3, 6, 7, and 26.
This is a provisional non-statutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Conclusion
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.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Toriana N. Vigil whose telephone number is (571)270-7549. The examiner can normally be reached Monday - Friday 9:00 a.m. - 5:00 p.m. EST.
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/TORIANA N. VIGIL/Examiner, Art Unit 1612
/SAHANA S KAUP/Supervisory Primary Examiner, Art Unit 1612