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 .
Claim Interpretation
The claims are interpreted broadly as a personal cleansing composition and method of same comprising 1) anionic surfactant; 2) anionic polymer(s); 3) anionic surfactant(s); 4) nonionic emulsifier(s); 5) divalent salt(s); 6) water soluble organic solvent and 7) water to balance. All components in percentages as claimed.
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 13 is 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.
A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 13 and 19 recites the broad recitation calcium pyrrolidone carboxylate and polyols and the claim also recites in parenthesis calcium pidolate and polyhydric alcohols, respectively, which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
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.
Claim(s) 1-18 and 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Brown et al (2019/0365611).
Brown et al disclose a personal cleansing composition for cleansing hair and body comprising a detersive surfactant; an aqueous carrier; from about 0.5% to about 30% by weight of the cleansing composition of discrete particles comprising anhydrous particles and an aqueous phase (0005). Specifically, with respect to claim 18, Brown et al disclose said composition provides conditioning whether made by polymerization of one type of monomer or benefits. As used herein, the term “gel network” refers to a lamellar or vesicular solid crystalline phase (0013). Moreover, a fatty amphiphiles also have a hydrophilic head group which does not make the compound water soluble, such as in compounds having an HLB of 6 or less. Examples of classes of compounds having such a hydrophilic head group include fatty alcohols, alkoxylated fatty alcohols, fatty phenols, alkoxylated fatty phenols, fatty amides, alkyoxylated fatty amides, fatty amines, fatty alkylamidoalkylamines, fatty alkyoxyalted amines, fatty carbamates, fatty amine oxides, fatty acids, alkoxylated fatty acids, fatty diesters, fatty sorbitan esters, fatty sugar esters, methyl glucoside esters, fatty glycol esters, mono, di & tri glycerides, polyglycerine fatty esters, alkyl glyceryl ethers, propylene glycol fatty acid esters (0032). Brown et al specifically teach that said fatty amphiphile in an amount from about 0.05% to about 20%, by weight of the shampoo composition (033). Examples of said fatty amphiphile include In addition, with respect to claims 2-11, Brown et al discloses suitable anionic detersive surfactants include those which are known for use in hair care or other personal care cleansing compositions in amounts from 5-50% and comprise alkyl ether sulfates, sodium methyl cocoyl taurate, sodium lauroyl isethionate, sodium cocoyl isethionate, sodium laurethsulfosuccinate, sodium laurylsulfosuccinate, sodium tridecyl benzene sulfonate, sodium dodecyl benzene sulfonate, and mixtures thereof (0067-0071). Additional anionic surfactant comprise sodium lauryl sulfoacetate, ammonium lauryl sulfoacetate, sodium cocoyl glycinate, sodium lauroyl glycinate, sodium cocoyl glutamate, disodium cocoyl glutamate and mixtures thereof (074-082). Furthermore, an electrolyte may include an anion comprising chloride or sulfate and a cation comprising sodium, magnesium or mixtures thereof. The electrolyte may be added to the composition in the amount of from about 0.1 wt. % to about 15 wt. % by weight (0102). The compositions, therefore, comprise an aqueous carrier at a level of at from about 20% to about 95%, and alternatively from about 60% to about 85%, by weight of the compositions. The aqueous carrier may comprise water, or a miscible mixture of water and organic solvent (0104). With further respect to claim 16, Brown et al teach anionic polymers such as, cross-linked acrylates, hydrophobically modified associative polymers, or a mixture thereof (0101). Specifically, examples 3, 22 and 23 include acrylate copolymers at 1.5%-2.0%. Moreover, solvents such as polyhydric alcohols are employed from about 0.1% to about 20% (0116).
Brown et al do not teach with sufficient specificity to anticipate the claims but the skilled artisan would have been motivated to combine the ingredients to suggest the claimed invention, given that each ingredient is known in a single composition and utilized for the purpose of producing a personal cleansing composition analogous to the claimed invention. The skilled artisan, in the absence of a showing to the contrary, commensurate in scope with the claims, would readily envision a composition comprising each of the components, in their requisite proportions in view of the teachings of Brown et al.
[W]hen a patent 'simply arranges old elements with each performing the same function it had been known to perform' and yields no more than one would expect from such an arrangement, the combination is obvious. [KSR Int'l Co. v.Teleflex Inc., 550 U.S. at 418 (quoting Sakraida v. Ag Pro, Inc., 425 U.S. 273,282 (1976).]
With respect to the divalent salt, solubility and cation charge density, Brown et al is silent, however, the magnesium sulfate or magnesium chloride salt taught in Brown et al is the preferred salt of applicant. Furthermore, accordingly to applicant’s specification, said magnesium salt comprises the characteristics as claimed and therefore, in light of applicant’s admission, one skilled in the art would assume the magnesium chloride and magnesium sulfate encompass the same or similar characteristics in the absence of a showing to the contrary.
“[T]he discovery of a previously unappreciated property of a prior art composition, or of a scientific explanation for the prior art’s functioning, does not render the old composition patentably new to the discoverer.” Atlas Powder Co. v. Ireco Inc., 190 F.3d 1342, 1347, 51 USPQ2d 1943, 1947 (Fed. Cir. 1999). Thus the claiming of a new use, new function or unknown property, which is inherently present in the prior art does not necessarily make the claim patentable. In re Best, 562 F.2d 1252, 1254, 195 USPQ 430, 433 (CCPA 1977).
Allowable Subject Matter
Claim 19 is allowed. The prior art of record does not teach or suggest the claim limitations without picking and choosing ingredients and ratios to satisfy the claim and thereby improperly hind sighting the reasons.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to NECHOLUS OGDEN JR whose telephone number is (571)272-1322. The examiner can normally be reached 8-4:30 EST M-F.
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/NECHOLUS OGDEN JR/ Primary Examiner, Art Unit 1761