DETAILED ACTION
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 May 20, 2026 has been entered.
Previous Rejections
Applicant’s arguments, filed May 20, 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 Rejections and/or objections not reiterated from previous office actions are hereby withdrawn.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, 11, 12, 14, and 16 – 19 are cancelled.
Claims 27 and 28 are newly added.
Claims 3, 4, 6 – 10, 13, 15, and 20 – 28 are examined here-in.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
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 3, 4, 6 - 10, and 20 – 26 are rejected under 35 U.S.C. 103 as being unpatentable over Lindsay (US 2022/0071878 A1, of record) in view of Meyer (US 2022/0168198 A1, of record).
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).
Lindsay does not teach the short-chain glycol and/or polyether compound is at least 30% by weight of the composition, or that composition includes an antimicrobial compound.
Meyer teaches the missing elements of Lindsay.
Meyer teaches glycerol, propylene glycol, and butylene glycol are cosmetic carrier materials (paragraph 0254). Meyer teaches that hydrotrope polyols such as glycerol, propylene glycol, and butylene glycol may be used to improve flow behavior (paragraph 0256). Meyer teaches that organic solvents, including polydiols such as propylene glycol and dipropylene glycol, are appropriate in the amount of 0.1 to 60 wt. % (paragraph 0298).
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. Furthermore, a person of ordinary skill in the art would be motivated to include 0.1 to 60 wt. % of propylene glycol or dipropylene glycol as taught by Meyer (paragraph 0298), rather than 0.3 to 25% (paragraphs 0018, 0047, claim 1) as taught by Lindsay because Meyer teaches that hydrotrope polyols may be used to improve flow behavior (paragraph 0256). 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 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 that including 0.1 to 60 wt. % of propylene glycol or dipropylene glycol is advantageous to improve flow behavior (paragraphs 0256, 0298) reads on instant claim 21. Meyer’s teaching to include 0.1 to 60 wt. % of propylene glycol or dipropylene glycol overlaps on the instantly claimed amount of “at least 30% by weight” as recited in amended claim 21. Claimed ranges that overlap teachings of the prior art are prima facie obvious according to MPEP 2144.05(i).
The combination of Lindsay and Meyer’s teachings for an oil-in-water emulsion deodorant composition with the recited components of claim 21, 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.
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.
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.
Lindsay’s teaching the deodorant composition can take the form of a water-in-silicone emulsion (paragraphs 0009 – 0012, 0016) reads on claim 10.
Meyer’s teaching for azelaic acid (paragraphs 0101, 0234 – 0235, 0293) reads on instant claim 23.
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.
The combination of Lindsay’s teaching for an oil-in-water emulsion deodorant composition containing 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) and that including 0.1 to 60 wt. % of propylene glycol or dipropylene glycol is advantageous to improve flow behavior (paragraphs 0256, 0298) reads on instant claim 25. Meyer’s teaching to include 0.1 to 60 wt. % of propylene glycol or dipropylene glycol overlaps on the instantly claimed amount of “at least 30% 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 and Meyer each teach that a water-in-oil emulsion is a suitable formulation for a deodorant composition (Lindsay paragraph 0021, Meyer paragraph 0274), with Meyer teaching water in the amount of 5 to 80% by weight of the composition (paragraph 0277). Meyer’s teaching for water in an amount of 5 to 80% by weight of the composition (paragraph 0277) overlaps on the instantly claimed range of 30 to 80% by weight water as recited in claim 25. A person of ordinary skill in the art would be motivated to include such a range of water in the composition in order to balance levels of mandelic acid with good dispersion, as suggested by Lindsay (paragraph 0005).
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 13, 15, 27, and 28 are rejected under 35 U.S.C. 103 as being unpatentable over Lindsay (as cited above) and Meyer (as cited above) in view of Kux (US 2007/0116656 A1, of record).
The combination of Lindsay and Meyer’s teachings is discussed above.
The combination of Lindsay and Meyer does not teach the composition is a clear gel or the refractive index of the water phase.
Kux teaches the missing element of the combination of Lindsay and Meyer.
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, Meyer, and Kux renders claims 13, 15, 27, and 28 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 and Meyer 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, Meyer, and Kux is prima facie obvious according to MPEP 2143(i)(a) as combining prior elements according to known methods to yield predictable results.
The combination of Lindsay’s teaching for an oil-in-water emulsion deodorant composition containing 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) and that including 0.1 to 60 wt. % of propylene glycol or dipropylene glycol is advantageous to improve flow behavior (paragraphs 0256, 0298), further 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 claims 13, 15, 27, and 28.
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).
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 claims 27 and 28.
Examiner’s Reply to Attorney Arguments Dated May 20, 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.
Applicant pre-emptively argues against the combination of Lindsay and Meyer (Remarks page 4). The Examiner disagrees, because consideration of each of the references as a whole (i.e. deodorant compositions, water-in-oil emulsions) where a person of ordinary skill in the art would have been motivated to modify Lindsay’s deodorant composition to include to include 0.1 to 60 wt. % of propylene glycol or dipropylene glycol as taught by Meyer (paragraph 0298), rather than 0.3 to 25% (paragraphs 0018, 0047, claim 1) as taught by Lindsay because Meyer teaches that hydrotrope polyols may be used to improve flow behavior (paragraph 0256) provides an expectation of improved flow behavior. Improved flow behavior of the composition would be desirable for ease of application and a pleasant feeling associated with application. The expectation of an advantage is rationale for combining references according to MPEP 2144(ii).
Applicant argues that the combination of Lindsay and Meyer does not teach or suggest a clear gel composition (Remarks page 5). As discussed in the body of the rejection above, the teachings of Kux, in combination with Lindsay and Meyer, read on the clear gel composition of the recited claims.
Double Patenting
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 – 10, 13, 15, and 20 – 28 are provisionally rejected on the ground of non-statutory double patenting as being unpatentable over claims 1, 6, 7, 9, 11 – 15, 17, and 21 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 30% 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, 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, containing an antimicrobial, containing 10 to 45% water, and wherein the composition is free of aluminum.
The instant and conflicting claims differ because instant claim 21 recites the inclusion of a short-chain glycol or polyether compound and does not recite the inclusion of an antimicrobial compound or 10 to 45% water.
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 21.
Although the instant claim 21 does not recite the refractive indices of the phases, as recited in conflicting claim 1, instant claim 27 recites the refractive index of the water phase is within about 0.001 of the refractive index of the oil phase, reading on conflicting claim 1.
Conflicting claim 6’s recitation for a polar in silicone emulsion reads on instant claim 10.
Conflicting claim 7’s recitation for a water-in-oil emulsion reads on instant claims 21 and 25.
Conflicting claim 9’s recitation for the polar phase to comprise at least 75% of the composition overlaps on the recitation for a water phase in instant claim 25 including at least 30% short chain glycol or polyether compound and from about 30 to 80% of the composition water.
Conflicting claims 12 and 13 overlap on instant claims 13, 27, and 28.
Conflicting claim 17 reads on instant claim 15.
Conflicting claim 21’s recitation for octenidine dihydrochloride or piroctone olamine reads on instant claims 3, 20, 25, and 26.
This is a provisional non-statutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Examiner’s Reply to Attorney Arguments Dated May 20, 2026
Applicant does not present any arguments to rebut the non-statutory double patenting rejection (Remarks pages 5 – 6). According to MPEP 804(1), a complete response to a non-statutory double patenting rejection is either a showing that the claims subject to the rejection are patentably distinct from the reference claim or the filing of a terminal disclaimer. The Examiner notes that Applicant’s response is not a showing that the claims are patentably distinct from the reference claims. As such, the non-statutory double patenting rejections are maintained.
Conclusion
All claims are rejected. No claims are allowed.
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
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