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 the Claims
Claims 1-14 and 17-20 are pending in the application. Claims 14, and 17-20 are under current examination. Claims 1-13 remain withdrawn.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 4/21/2026 has been considered by the examiner.
Withdrawn Rejections and Response to Arguments
Applicant’s arguments filed 3/4/2026 (hereafter, “Remarks”) have been fully considered and are addressed as follows. All rejections of claims 15 and 16 are withdrawn in view of Applicant’s amendments to these claims.
The rejections of claims 19 and 20 under 35 U.S.C. 112(b) are withdrawn in view of Applicant’s amendments to the claims. Applicant’s argument to this effect is persuasive.
Regarding the previously issued rejections under 35 U.S.C. 103 over Ceulemans in view of Cunningham, Applicant argues that all elements now recited are not taught. In reply, modified rejections as necessitated by amendment are presented below. In brief, the previous limitation of claims 15-17 as incorporated into claim 14 have been addressed by the combination of cited references’ teachings of what amounts to qualitative and quantitative overlapping subject matter.
As to the nonstatutory double patenting rejections previously issued, these are maintained as modified based on the claim amendments filed 3/4/2026. Applicant’s lack of address of the rejections does not constitute a complete response or compact prosecution. See MPEP 37 C.F.R. 1.111(b) and 7.14.02. Thus, the double patenting rejection of record is maintained as no action regarding this rejection has been taken by Applicant at this time.
Modified Rejections as Necessitated by Amendments filed 3/4/2026
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 14 and 17-20 are rejected under 35 U.S.C. 103 as being unpatentable over US2019/0330564 (“Ceulemans”) in view of US 6869923 (“Cunningham”).
The claims are drawn to a composition comprising alkyl polyglycoside surfactant; alcohol ethoxylated surfactant present at a ratio of at least 4 parts alkyl polyglycoside surfactant to 1 part alcohol ethoxylated surfactant; and at least about 0.1% perfume by weight of the composition, as further specified in the claims, and wherein the composition has a pH equal to or greater than about 7, as measured at about 25 degrees Celsius.
Regarding claim 14, Ceulemans teaches an acidic hard surface cleaner composition comprising an alkyl pyrrolidone and an additional nonionic surfactant (see abstract, in particular). Ceulemans’ additional nonionic surfactant may be alkoxylated nonionic surfactants (“emulsifier”) and alkyl polyglycoside and mixtures thereof (see [0030]) in an amount of 0.3 to 12% by weight of the composition (see [0031]); this range overlaps the range recited in claims 19 and 20. The alkoxylated nonionic surfactant may be a primary C6-C16 alcohol polyglycol ether i.e. ethoxylated alcohols having 6 to 16 carbon atoms in the alkyl moiety and 4 to 30 ethylene oxide units (see [0034])(limitation of claims 17 and 18); this component of Ceulemans is considered comparable to the “surfactant” instantly claimed, which is an alcohol ethoxylated (limitation of claims 19 and 20); upon using Ceulemans’ combination of alkoxylated nonionic surfactant and alkyl polyglycoside in admixture, Ceulemans appears to teach the same or substantially the same alcohol ethoxylated surfactant component newly recited; further regarding amounts, Ceulemans’ claim 6 teaches an overlapping amount of alkoxylated nonionic surfactant by its disclosure of from about 0.27 to about 8.0% by weight of this component. The compositions have a pH of greater than 4.0 an even more preferably from 9.5 to 11.3 for instance, most preferably 10 to 11 at 25 degrees Celsius (see [0019]), a range included by and narrower than the instantly claimed range of “equal to or greater than about 7”. Further regarding the weight ratio in claim 14 as amended, Ceulemans’ example 16 for instance discloses 5.7% alkyl poly glycoside, 0.5% alkyl polyglycoside esters, among other components including 0.8% perfume at a formulation pH of 10.8.
Ceulemans’ formulations may comprise a perfume for olfactory aesthetic benefit and/or masking “chemical” odors (see [0106]); An example demonstrates perfume in an amount of 0.43% by weight of the total formulation, a value within the instantly claimed range of “at least about 0.1% perfume” as in claim 14 (see [0149] for instance and considered “from about 0.1 to about 0.5%” as in claim 19, and “about 1% as instantly included in claim 20).
Ceulemans does not specify the perfume component of the total composition to comprise any particular concentration of perfume raw material or that it comprises an ester functionality as instantly elected.
Cunningham cures this deficiency. Cunningham pertains to perfume ingredients for use in cleaning compositions for instance further comprising surfactant components such as alkyl polyglycosides and alkyl ethoxylates for instance (see column 11, lines 9-12; see also lines 25-30). Cunningham teaches that high impact accord perfume ingredients are included in perfume compositions based on known characteristics that Cunningham further details (see paragraph bridging columns 2 and 3, in particular). Cunningham structures laundry and cleaning compositions to comprise perfume compositions which themselves comprise perfume ingredients including “high impact accord” perfume ingredients which meet “perfume raw material” as instantly claimed (see column2, lines 39-57). For instance, an ester may be the HIA perfume ingredient and therefore a “perfume raw material”)(see Cunningham Table 1). Cunningham specifies that of the perfume ingredients in a given perfume composition, at least 10% preferably at least 20%, and most preferably at least 30% are HIA perfume ingredients (column 5, lines 46-50), a range overlapping the “at least about 10 wt% perfume raw material” recited in claim 14. Cunningham further specifies that the laundry and cleaning compositions comprise about 0.01% to about 50% of said HIA perfume composition (column 6, lines 37-44), thereby teaching a range overlapping the at least about 0.1% perfume by weight as in claim 14.
Ceulemans and Cunningham are both directed to surfactant-containing formulations which further comprise perfume. It would have been prima facie obvious to one of ordinary skill in the art at the time the invention was filed to incorporate a perfume composition comprising a perfume HIA component (i.e., an ester) as taught by Cunningham in place of the generically disclosed perfume component of Ceulemans, with a reasonable expectation of success. One would have been motivated to do so to facilitate good odor properties and formulation stability features as taught by Cunningham specifically to be useful in laundry and cleaning compositions including hard surface cleaners. As to the instantly elected ester functionality, one would have been motivated to include an ester HIA perfume ingredient of Class 1 based on Cunningham’s explicit teaching of these components as successful perfume ingredients in the disclosed applications (see Cunningham Table 1).
Double Patenting, Maintained Grounds and Modified As Necessitated by Amendment
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 14 and 17-20 provisionally are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 2, 5, 6, and 9 of copending Application No. 18340956 (reference application) in view of US 6869923 (“Cunningham”).
Although the claims at issue are not identical, they are not patentably distinct from each other because both sets of claims are drawn to a composition comprising surfactants which are a combination of alkyl polyglycoside and a nonionic surfactant comprising alcohol ethoxylated surfactant, and perfume, with an overlapping pH range. The precise amount of perfume is considered a result effective variable since one reasonably would have expected success from optimizing the amount so to achieve the desired perfume efficacy and/or benefit result. The alkyl polyglycoside surfactant and additional surfactant/emulsifier component which may be non-ionic surfactant and an alkoxylated alcohol are claimed in the same weight ratio of 4:1 in copending claim 2 and instant claim 15.
The copending claims do not specify a perfume component and amount thereof or a perfume raw material and amount thereof.
Cunningham cures this deficiency. Cunningham pertains to perfume ingredients for use in cleaning compositions for instance further comprising surfactant components such as alkyl polyglycosides and alkyl ethoxylates for instance (see column 11, lines 9-12; see also lines 25-30). Cunningham teaches that high impact accord perfume ingredients are included in perfume compositions based on known characteristics that Cunningham further details (see paragraph bridging columns 2 and 3, in particular). Cunningham structures laundry and cleaning compositions to comprise perfume compositions which themselves comprise perfume ingredients including “high impact accord” perfume ingredients which meet “perfume raw material” as instantly claimed (see column2, lines 39-57). For instance, an ester may be the HIA perfume ingredient and therefore a “perfume raw material”)(see Cunningham Table 1). Cunningham specifies that of the perfume ingredients in a given perfume composition, at least 10% preferably at least 20%, and most preferably at least 30% are HIA perfume ingredients (column 5, lines 46-50), a range overlapping the “at least about 10 wt% perfume raw material” recited in claim 14. Cunningham further specifies that the laundry and cleaning compositions comprise about 0.01% to about 50% of said HIA perfume composition (column 6, lines 37-44), thereby teaching a range overlapping the at least about 0.1% perfume by weight as in claim 14 as well as additional ranges recited in claims 19 and 20.
It would have been prima facie obvious to one of ordinary skill in the art at the time the invention was filed to incorporate a perfume composition comprising a perfume HIA component (i.e., an ester) as taught by Cunningham in place of the generically disclosed perfume component of the copending claims, with a reasonable expectation of success. One would have been motivated to do so to facilitate good odor properties and formulation stability features as taught by Cunningham specifically to be useful in laundry and cleaning compositions including hard surface cleaners. As to the instantly elected ester functionality, one would have been motivated to include an ester HIA perfume ingredient of Class 1 based on Cunningham’s explicit teaching of these components as successful perfume ingredients in the disclosed applications (see Cunningham Table 1).
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to AUDREA B CONIGLIO whose telephone number is (571)270-1336. The examiner can normally be reached Monday - Thursday 7:00 a.m. - 5:30 p.m..
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Michael Hartley can be reached at 5712720616. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/AUDREA B CONIGLIO/Primary Examiner, Art Unit 1617
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