DETAILED ACTION
Status of Application
The Examiner acknowledges receipt of the amendments filed on 6/29/2026 wherein claims 1-6, 8, 12, 21 and 24 have been amended and claim 7 has been cancelled.
Claims 1-6, 8-13, 16, 17 and 21-25 are presented for examination on the merits. The following rejections are made.
Response to Applicants’ Arguments
Applicant’s amendments filed 6/29/2026 overcome the rejection of claims 1, 2, 5, 6, 8-12 and 21-24 made by the Examiner under 35 USC 102(a)(1) over Kiozpeoplou (US 4487757). This rejection has been withdrawn as the reference fails to teach the dispenser as being a pump bottle.
Applicant’s amendments filed 6/29/2026 overcome the rejection of claims 1, 2, 5, 6, 8-13, 16, 17 and 21-24 made by the Examiner under 35 USC 103 over Kiozpeoplou (US 4487757). This rejection has been for the reasons noted under section 3.
Applicant’s amendments filed 6/29/2026 overcome the rejection of claims 3, 4 and 7 made by the Examiner under 35 USC 103 over Kiozpeoplou (US 4487757), further in view of Gantenberg (US 2008/0245678). This rejection has been withdrawn for the reason noted under section 3.
Applicant’s amendments filed 6/29/2026 overcome the rejection of claims 12 and 24 made by the Examiner under 35 USC 112(b). This rejection has been withdrawn.
New Rejections, Necessitated by Amendment
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.
Claims 1-6, 8-13, 16, 17 and 21-25 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kiozpeoplou (US 4487757; of record) in view of Gantenberg (US 2008/0245678; of record).
Kiozpeoplou is directed to a dispensing container of toothpaste having the following cross-sectional structure:
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(see Figure 1) wherein the dispensing container has separate envelopes, each of which contain a different toothpaste portion, wherein each envelope terminates at the neck of the tube so that the contents may be dispensed simultaneously. As illustrated, the two outlets of the neck of the dispensing container are considered ‘nozzles’ per instant claims 1 and 2. The separate envelopes of the dispensing container are simultaneously filled with distinct toothpaste compositions (see column 14, lines 1-5) (see instant claim 5), wherein each toothpaste portion comprises a base oral composition contacted with a colorant so as to produce two distinctly colored compositions (see abstract, see column 11, lines 16-60 and Example 1-6) such that when the distinctly colored composition are dispensed from the container the toothpaste possesses a multicolored striped appearance reflecting the first and second colorants as separate compositions (see instant claims 1 and 22). Example 1 states that the two toothpaste portions, when dispensed, come into interfacial contact and present a clear blue stripe on the surface of the toothpaste (see column 11, line 66 to column 12, line 1) (see instant claims 8, 21 and 23).
The release of the two portions can be controlled by changing the depth of the inner container as well as by squeezing the tube to push out the contents. The squeezing would control the rate or volume of the dispensation from the outlet nozzles as required by instant claim 2. When not being squeezed from the container, the composition remains undisturbed in the tube in the unique, multicolored pattern (see instant claim 6).
Kiozpeoplou tooth paste composition is to contain 1) thickening agents so as to control the consistency of the composition including gums and polymers such as sodium carboxymethyl cellulose, methyl cellulose, xanthan gum, silica and Arabic gum in an amount of 0.5-2% by weight (see column 7, lines 30-35) (see instant claims 13, 17 and 25); 2) vehicles such as water, glycerol, polyethylene glycol, etc in an amount of 20-99% by weight (see column 10, lines 24-28) (see instant claims 13 and 25); 3) a polishing abrasive to enhance cleaning activity of the toothpaste, such as silica combined with alumina, in an amount of 1-30% by weight (see column 7, lines 4-8) (see instant claims 13 and 25); and 4) surfactants for improving detersive and foaming activity, such as sodium lauryl sulfate, in an amount between 0.05-5% by weight (see column 8, lines 60-62) (see instant claims 13 and 25). The selection of the various claimed components from Kiozpeoplous teaching would have been obvious as the selection of a known material based on its intended purpose is supportive of obviousness. See MPEP 2144.07. Regarding the concentration of the components in the resulting composition set forth by instant claim 17, this would have been a product of optimizing the framework set forth by the reference. See MPEP 2144.05(II)(A) which states that where the general conditions of a claim are described, it is not inventive to discover optimum or workable ranges by routine experimentation. Similar rational is applied to instant claim 16 (silica abrasive:silica thickener ratio of about 1:1 to 2:1) because the reference suggests 0.5-2% of silica thickener and 1% of abrasive silica, a ratio of the abrasive to the thickening silica 2:1 to 1:2 results which obviates instant claim 16.
Kiozpeoplou’s toothpaste matrix is made by combining a silica aerogel thickener, water (vehicle), polishing agents such as silica modified with alumina (an abrasive) (see portion 1 of Example 1), humectants such as glycerol and surfactants such as sodium lauryl sulfate (see instant claims 9-12, 23 and 24).
Kiozpeoplou fails to teach the their method as utilizing a pump bottle. Moreover, Kiozpeoplou fails to teach a method comprising forming the unique, multicolored pattern of the first and second colorants in the pump bottle comprises agitating the vessel while disposing the first portion of the oral care composition into the pump bottle, while disposing the second portion of the oral care composition into the pump bottle, or while disposing both the first and second portions of the oral care composition into the pump bottle, wherein the agitating of the pump bottle comprises swirling.
Grantenberg is directed to a toothpaste composition comprising having a transparent multi-phase with alternating bands. The composition is to be provided in a dispenser such as a tube or pump bottle (see [0043, 0131]) (see instant claim 1). Modification of Kiozpeoplou to use a pump bottle rather than a tube would have been obvious given the ubiquity of both in tooth paste dispensation. The toothpaste composition may disposed into the container at a steady rate or discontinuously wherein the container may be rotated (i.e. swirling) during the filling process (see [0127]) (see instant claims 3 and 4). It would have been obvious to modify Kiozpeoplou’s method of filling the toothpaste container to include the action of rotating the container during filling as such a technique was known to be used with success in the art. Combining prior art elements to yield predictable results is supportive of obviousness. See MPEP 2143(I)(A).
Therefore, the invention as a whole is prima facie obvious to one of ordinary skill in the art at the time the invention was filed, as evidenced by the references, especially in absence of evidence to the contrary.
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 extension fee 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 date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KYLE A PURDY whose telephone number is (571)270-3504. The examiner can normally be reached from 9AM to 5PM.
If attempts to reach the examiner by telephone are unsuccessful, the examiner's supervisor, Bethany Barham, can be reached on 571-272-6175. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/KYLE A PURDY/Primary Examiner, Art Unit 1611
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