DETAILED ACTION
Election/Restrictions
Applicant's election with traverse of Group I in the reply filed on 07/20/2026 is acknowledged. The traversal is on the ground(s) that the restriction is improper with the assertion that claim of Group II mirrors the limitation of the product of claim 1 of Group I wherein there is not an undue search or examination burden. This is not found persuasive because contrary to Applicant’s assertion and as addressed in the prior action, the composition of Group I can be used for a different method such as a method of cleaning teeth which is distinct from whitening teeth as recited in Group II, as the composition contain component like calcium pyrophosphate which is a known mild abrasive and anti-calcium ingredient known to clean and remove stain and plaque wherein the group have different status in the art as seen by the different classification and require different fields of search.
The requirement is still deemed proper and is therefore made FINAL.
Status of Application
Applicant has elected Group I in response to restriction requirement and for the examination.
Due to restriction, based on election of Group I, claim 20 is withdrawn from further consideration by the examiner, 37 CFR 1.142(b), as being drawn to a non-elected invention.
Claims 1-20 are pending.
Claims 1-19 are present for examination at this time.
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
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 6 and 10-13, 15-20 are 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.
Regarding claims 6 and 10-13, 15-20, the phrase “e.g”. which is "for example" renders the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
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 1-15, 18-19 are rejected under 35 U.S.C. 103 as being unpatentable over Yuan et al. (WO 2018/093357).
Rejection:
Yuan et al. teaches an oral care composition comprising peroxysulfate whitening agent like potassium peroxymonosulfate from about 0.01-about 40% like about 0.2-about 10%wt. [5, 10, 16], about 0.01-about 99% a non-aqueous dispersant such as at least one of polyethylene glycol and polyoxyethylene-polyoxypropylene glycol (poloxamer), a structural builder like PVP from about 0.1-about 60% like about 16%, a pyrophosphate/abrasive like calcium pyrophosphate from about 0.1-about 60%wt. (abstract, [5, 19, 45, 55-57, 61, 65, 70, 85] (claims 1, 6-9). The oral composition can be a dentifrice ([18], claim 14).
The PEG forms include PEG 400 and PEG 600 from about 0.1-about 50% [56-57], and the poloxamer is from about 10-about 80% [56-57] such as Pluronic L35 (a=11, b=16 see specification) and (Pluronic L44 (also known as poloxamer 124 with a=12 and b=20 as seen by Handbook of Pharmaceutical Practice, they are known to have the formula
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,[51]). The composition can include additional dispersants like PEG 600 and additional polyethylene/polypropylene glycol copolymer like PEG/PPG-116/666 [56. ]The composition also includes additional PEG’s like PEG 600 and additional polyethylene/polypropylene glycol copolymer like PEG/PPG-116/666 [56] antioxidants [77]; pH modifiers like 0.9% sodium acid pyrophosphate (also known as disodium pyrophosphate and SAPP) and about 2% tetrasodium pyrophosphate [81]; dyes/pigments like FD&C Blue No. 1; and surfactants like sodium lauryl sulfate and cocamidopropyl betaine and mixtures thereof [72], wherein the surfactants can be from about 1-about 10% such as about 2% and may include about 2% sodium lauryl sulfate [74]. It can also comprising a source of fluoride ions like monofluorophosphate from 0.01-10%wt., typically about 1.1% [89]; a thickening agent from about 0.1-about 90% including about 2.3% fumed silica [15, 75-76]; and flavorings 0.01%> to about 5%wt. like 1.5% ([15, 78-79], see full document specifically areas cited).
Wherein the combination of components are obvious as each component is taught to be useful for the composition for their recited purpose. While Yuan et al. does not teach the exact claimed values for the potassium peroxymonosulfate, calcium pyrophosphate, polyethylene glycol-400 (PEG-400), poloxamer, PVP, PEG 600, or cocamidopropyl betaine; they are encompassed by the general range taught by the prior art (i.e. about 0.1-about 50% PEG 400) wherein optimization within the taught range is prima facie obvious as a means to attain the desired profile/effect with a reasonable expectation of success absent evidence of criticality or unexpected results.
Claim 16 is rejected under 35 U.S.C. 103 as being unpatentable over Yuan et al. (WO 2018/093357) as applied to claims 1-15, 18-19 above, in view of Chen et al. (U.S. Pat. Pub. 2015/0306001).
Rejection:
The teachings of Yuan et al. are addressed above.
Yuan et al. does not expressly teach the inclusion of propylene glycol but does teach the inclusion of humectants [38].
Chen et al. teaches that humectants are known to adjust the rheology and feel of oral care compositions which include propylene glycol from 10-20%wr [45-46, 48].
Wherein it would be obvious to one of ordinary skill in the art to incorporate propylene glycol as suggested by Chen et al. and produce the claimed invention; as it is prima facie obvious to incorporate a known humectant at its known range which overlaps the claimed values and even a slight overlap in ranges establishes a prima facie case of obviousness as a means of optimizing the amount of humectant to attain the desired consistency/profile with a reasonable expectation of success absent evidence of criticality for the claimed range.
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over Yuan et al. (WO 2018/093357) as applied to claims 1-15, 18-19 above, in view of Martinetti et al. (U.S. Pat. Pub. 2020/0163868).
Rejection:
The teachings of Yuan et al. are addressed above.
Yuan et al. does not expressly teach the inclusion of the recited nitrate or chloride salts for the oral composition.
Martinetti et al. teaches that known desensitizing agents include potassium salts like potassium nitrate and potassium chloride, and they are known to be incorporated from about 1-about 20%wt. in oral care compositions for hypersensitivity by blocking dentin tubules when applied to the tooth [38].
Wherein it would be obvious to one of ordinary skill in the art to incorporate desensitizing agents like potassium nitrate and potassium chloride as suggested by Martinetti et al. and produce the claimed invention; as it is prima facie obvious to incorporate a desensitizing agents like potassium nitrate and potassium chloride for its additive effect and optimize within its known range to attain the desired effect/profile with a reasonable expectation of success absent evidence of criticality for the claimed range.
Double Patenting
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 1-6, 11-12, 19 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 10 of U.S. Patent No. 12226499.
Although the claims at issue are not identical, they are not patentably distinct from each other because the patented claims contain the components of the instant claims either at the same range or they embrace the instant range wherein it would be prima facie obvious to one of ordinary skill in the art to optimize within the patented range as a means of attain the desired profile and arrive at the claimed values with a reasonable expectation of success.
Claims 1-16, 18-19 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-15, 17-20 of U.S. Patent No. 12226499 in view of Yuan et al. (WO 2018/093357).
The patented claims recite the instant claimed components either at the same range or they embrace the instant range wherein it would be prima facie obvious to one of ordinary skill in the art to optimize within the patented ranges as a means of attain the desired profile and arrive at the claimed values with a reasonable expectation of success absent evidence of criticality for the claimed values.
The patented claims do not explicitly recite the specific PEG form.
Yuan et al. teaches that useful components for oral care whitening compositions include known PEG forms include PEG 400 [56-57].
Wherein it would be obvious to one of ordinary skill in the art to incorporate the PEG 400 components as suggested by Yuan et al. and produce the claimed invention; as the inclusion of known PEG forms for oral care whitening compositions for their known purpose is prima facie obvious with a reasonable expectation of success.
Claim 16 is rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-15, 17-20 of U.S. Patent No. 12226499 in view of Yuan et al. (WO 2018/093357) as applied to claims 1-16, 18-19 above, further in view of Chen et al. (U.S. Pat. Pub. 2015/0306001).
The teachings of the patented claims in view of Yuan et al. are addressed above.
The patented claims in view of Yuan et al. does not expressly teach the inclusion of propylene glycol.
Chen et al. teaches that humectants are known to adjust the rheology and feel of oral care compositions which include propylene glycol from 10-20%wr [45-46, 48].
Wherein it would be obvious to one of ordinary skill in the art to incorporate propylene glycol as suggested by Chen et al. and produce the claimed invention; as it is prima facie obvious to incorporate a known humectant for its known purpose at its known range which overlaps the claimed values and even a slight overlap in ranges establishes a prima facie case of obviousness as a means of optimizing the amount of humectant to attain the desired rheology/consistency/feel with a reasonable expectation of success absent evidence of criticality for the claimed range.
Claim 17 is rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-15, 17-20 of U.S. Patent No. 12226499 in view of Yuan et al. (WO 2018/093357) as applied to claims 1-16, 18-19 above, further in view of Martinetti et al. (U.S. Pat. Pub. 2020/0163868).
Rejection:
The teachings of the patented claims in view of Yuan et al. are addressed above.
The patented claims in view of Yuan et al. does not expressly teach the inclusion of the recited nitrate or chloride salts for the oral composition.
Martinetti et al. teaches that known desensitizing agents including potassium salts like potassium nitrate and potassium chloride and they are known to be incorporated from about 1-about 20%wt. in oral care compositions for hypersensitivity by blocking dentin tubules when applied to the tooth [38].
Wherein it would be obvious to one of ordinary skill in the art to incorporate desensitizing agents like potassium nitrate and potassium chloride as suggested by Martinetti et al. and produce the claimed invention; as it is prima facie obvious to incorporate a desensitizing agents like potassium nitrate and potassium chloride for its additive effect and optimize within its known range to attain the desired effect/profile with a reasonable expectation of success absent evidence of criticality for the claimed range.
Claims 1-15, 18-19 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 18 of U.S. Patent No. 12582585 in view of Yuan et al. (WO 2018/093357).
The patented claims recite the instant claimed components either at the same range or they embrace the instant range wherein it would be prima facie obvious to one of ordinary skill in the art to optimize within the patented ranges as a means of attain the desired profile and arrive at the claimed values with a reasonable expectation of success absent evidence of criticality for the claimed values.
The patented claims do not explicitly recite the specific PEG 400 form, poloxamer form, the specific surfactants, the specific PEG/PPG random copolymer, the inclusion of tetrasodium pyrophosphate with disodium pyrophosphate, PEG 600, or the oral care whitening composition form (i.e. dentifrice).
Yuan et al. teaches that useful components for oral care whitening compositions include known poloxamer forms like Pluronic L35 [51] (has a formula of
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with a=11, b=16 see specification), known PEG forms include PEG 400 [56-57], known surfactants include sodium lauryl sulfate and cocamidopropyl betaine and mixtures thereof [72] from about 1-about 10% such as about 2% and may include about 2% sodium lauryl sulfate [74], additional dispersants include polyethylene/polypropylene glycol copolymer like PEG/PPG-116/666 and PEG600 [56], pH modifiers like 0.9% sodium acid pyrophosphate (also known as disodium pyrophosphate and SAPP) and about 2% tetrasodium pyrophosphate [81], and that oral care whitening composition can be in a dentifrice form (claim 14).
Wherein it would be obvious to one of ordinary skill in the art to incorporate these components as suggested by Yuan et al. and produce the claimed invention; as the inclusion of known components for oral care whitening compositions for their known purpose is prima facie obvious with a reasonable expectation of success.
Claim 16 is rejected on the ground of nonstatutory double patenting as being unpatentable claim 18 of U.S. Patent No. 12582585 in view of Yuan et al. (WO 2018/093357) as applied to claims 1-16, 18-19 above, further in view of Chen et al. (U.S. Pat. Pub. 2015/0306001).
The teachings of the patented claims in view of Yuan et al. are addressed above.
The patented claims in view of Yuan et al. does not expressly teach the inclusion of propylene glycol.
Chen et al. teaches that humectants are known to adjust the rheology and feel of oral care compositions which include propylene glycol from 10-20%wr [45-46, 48].
Wherein it would be obvious to one of ordinary skill in the art to incorporate propylene glycol as suggested by Chen et al. and produce the claimed invention; as it is prima facie obvious to incorporate a known humectant for its known purpose at its known range which overlaps the claimed values and even a slight overlap in ranges establishes a prima facie case of obviousness as a means of optimizing the amount of humectant to attain the desired rheology/consistency/feel with a reasonable expectation of success absent evidence of criticality for the claimed range.
Claim 17 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 18 of U.S. Patent No. 12582585 in view of Yuan et al. (WO 2018/093357) as applied to claims 1-16, 18-19 above, further in view of Martinetti et al. (U.S. Pat. Pub. 2020/0163868).
The teachings of the patented claims in view of Yuan et al. are addressed above.
The patented claims in view of Yuan et al. does not expressly teach the inclusion of the recited nitrate or chloride salts for the oral composition.
Martinetti et al. teaches that known desensitizing agents including potassium salts like potassium nitrate and potassium chloride and they are known to be incorporated from about 1-about 20%wt. in oral care compositions for hypersensitivity by blocking dentin tubules when applied to the tooth [38].
Wherein it would be obvious to one of ordinary skill in the art to incorporate desensitizing agents like potassium nitrate and potassium chloride as suggested by Martinetti et al. and produce the claimed invention; as it is prima facie obvious to incorporate a desensitizing agents like potassium nitrate and potassium chloride for its additive effect and optimize within its known range to attain the desired effect/profile with a reasonable expectation of success absent evidence of criticality for the claimed range.
Claims 1-4, 6-7, 10, 15-18 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 18 of copending Application No. 18/401008 (reference application).
Although the claims at issue are not identical, they are not patentably distinct from each other because the copending claims recite the instant claimed components within the instant claimed ranges or embrace the instant claimed ranges wherein it would be prima facie obvious to optimize within the taught range and arrive at the claimed values with a reasonable expectation of success absent evidence of criticality for the claimed values.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 5,8-9, 11-14, 19 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 18 of copending Application No. 18/401008 (reference application) as applied to claims 1-4, 6-7, 10, 15-18, in view of Yuan et al. (WO 2018/093357).
The teachings of the copending claims are addressed above.
The copending claims do not explicitly recite the poloxamer form, the specific surfactants, the specific PEG/PPG random copolymer, the inclusion of tetrasodium pyrophosphate with disodium pyrophosphate, or the oral care whitening composition form (i.e. dentifrice).
Yuan et al. teaches that useful components for oral care whitening compositions include known poloxamer forms like Pluronic L35 [51] (has a formula of
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with a=11, b=16 see specification), known surfactants include sodium lauryl sulfate and cocamidopropyl betaine and mixtures thereof [72] from about 1-about 10% such as about 2% and may include about 2% sodium lauryl sulfate [74], additional dispersants include polyethylene/polypropylene glycol copolymer like PEG/PPG-116/666 [56], pH modifiers like 0.9% sodium acid pyrophosphate (also known as disodium pyrophosphate and SAPP) and about 2% tetrasodium pyrophosphate [81], and that oral care whitening composition can be in a dentifrice form (claim 14).
Wherein it would be obvious to one of ordinary skill in the art to incorporate these components as suggested by Yuan et al. and produce the claimed invention; as the inclusion of known components for oral care whitening compositions for their known purpose is prima facie obvious with a reasonable expectation of success.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1-4, 6-7, 10, 15-18 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 18 of copending Application No. 18/400906 (reference application).
Although the claims at issue are not identical, they are not patentably distinct from each other because the copending claims recite the instant claimed components within the instant claimed ranges or embrace the instant claimed ranges wherein it would be prima facie obvious to optimize within the taught range and arrive at the claimed values with a reasonable expectation of success absent evidence of criticality for the claimed values.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 5,8-9, 11-14, 19 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 18 of copending Application No. 18/400906 (reference application) as applied to claims 1-4, 6-7, 10, 15-18, in view of Yuan et al. (WO 2018/093357).
The teachings of the copending claims are addressed above.
The copending claims do not explicitly recite the poloxamer form, the specific surfactants, the specific PEG/PPG random copolymer, the inclusion of tetrasodium pyrophosphate with disodium pyrophosphate, or the oral care whitening composition form (i.e. dentifrice).
Yuan et al. teaches that useful components for oral care whitening compositions include known poloxamer forms like Pluronic L35 [51] (has a formula of
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with a=11, b=16 see specification), known surfactants include sodium lauryl sulfate and cocamidopropyl betaine and mixtures thereof [72] from about 1-about 10% such as about 2% and may include about 2% sodium lauryl sulfate [74], additional dispersants include polyethylene/polypropylene glycol copolymer like PEG/PPG-116/666 [56], pH modifiers like 0.9% sodium acid pyrophosphate (also known as disodium pyrophosphate and SAPP) and about 2% tetrasodium pyrophosphate [81], and that oral care whitening composition can be in a dentifrice form (claim 14).
Wherein it would be obvious to one of ordinary skill in the art to incorporate these components as suggested by Yuan et al. and produce the claimed invention; as the inclusion of known components for oral care whitening compositions for their known purpose is prima facie obvious with a reasonable expectation of success.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1-15, 18-19 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 17 of copending Application No. 18/463723 (reference application) in view of Yuan et al. (WO 2018/093357).
The copending claims recite the instant claimed components within the instant claimed ranges or either overlap/embrace the instant claimed ranges wherein it would be prima facie obvious to optimize within the taught range and arrive at the claimed values with a reasonable expectation of success absent evidence of criticality for the claimed values.
The copending claims do not explicitly recite the specific PEG 400 form, the poloxamer form, the specific surfactants, the specific PEG/PPG random copolymer, the inclusion of tetrasodium pyrophosphate with disodium pyrophosphate, PEG 600, or the oral care whitening composition form (i.e. dentifrice).
Yuan et al. teaches that useful components for oral care whitening compositions include known poloxamer forms like Pluronic L35 [51] (has a formula of
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with a=11, b=16 see specification), known PEG forms include PEG 400 [56-57], known surfactants include sodium lauryl sulfate and cocamidopropyl betaine and mixtures thereof [72] from about 1-about 10% such as about 2% and may include about 2% sodium lauryl sulfate [74], additional dispersants include polyethylene/polypropylene glycol copolymer like PEG/PPG-116/666 and PEG 600 [56], pH modifiers like 0.9% sodium acid pyrophosphate (also known as disodium pyrophosphate and SAPP) and about 2% tetrasodium pyrophosphate [81], and that oral care whitening composition can be in a dentifrice form (claim 14).
Wherein it would be obvious to one of ordinary skill in the art to incorporate these components as suggested by Yuan et al. and produce the claimed invention; as the inclusion of known components for oral care whitening compositions for their known purpose is prima facie obvious with a reasonable expectation of success.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claim 17 is rejected are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 17 of copending Application No. 18/463723 (reference application) in view of Yuan et al. (WO 2018/093357) as applied to claims 1-16, 18-19 above, further in view of Martinetti et al. (U.S. Pat. Pub. 2020/0163868).
The teachings of the copending claims in view of Yuan et al. are addressed above.
The copending claims in view of Yuan et al. does not expressly teach the inclusion of the recited nitrate or chloride salts for the oral composition.
Martinetti et al. teaches that known desensitizing agents including potassium salts like potassium nitrate and potassium chloride and they are known to be incorporated from about 1-about 20%wt. in oral care compositions for hypersensitivity by blocking dentin tubules when applied to the tooth [38].
Wherein it would be obvious to one of ordinary skill in the art to incorporate desensitizing agents like potassium nitrate and potassium chloride as suggested by Martinetti et al. and produce the claimed invention; as it is prima facie obvious to incorporate a desensitizing agents like potassium nitrate and potassium chloride for its additive effect and optimize within its known range to attain the desired effect/profile with a reasonable expectation of success absent evidence of criticality for the claimed range.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1-16, 18-19 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 16 of U.S. Patent Application No. 19/018357 in view of Yuan et al. (WO 2018/093357).
The copending claim recite the instant claimed components either at the same range or they embrace the instant range wherein it would be prima facie obvious to one of ordinary skill in the art to optimize within the patented ranges as a means of attain the desired profile and arrive at the claimed values with a reasonable expectation of success absent evidence of criticality for the claimed values.
The copending claim does not explicitly recite the specific PEG form of 400, the inclusion of tetrasodium pyrophosphate with disodium pyrophosphate, PEG 600, or the oral care whitening composition form (i.e. dentifrice).
Yuan et al. teaches that useful components for oral care whitening compositions include known PEG forms include PEG 400 and PEG 600 [56-57], pH modifiers like 0.9% sodium acid pyrophosphate (also known as disodium pyrophosphate and SAPP) and about 2% tetrasodium pyrophosphate [81], and that oral care whitening composition can be in a dentifrice form (claim 14).
Wherein it would be obvious to one of ordinary skill in the art to incorporate these components as suggested by Yuan et al. and produce the claimed invention; as the inclusion of known components for oral care whitening compositions for their known purpose is prima facie obvious with a reasonable expectation of success.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claim 17 is rejected are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 16 of U.S. Patent Application No. 19/018357 in view of Yuan et al. (WO 2018/093357) as applied to claims 1-16, 18-19 above, further in view of Martinetti et al. (U.S. Pat. Pub. 2020/0163868).
The teachings of the copending claims in view of Yuan et al. are addressed above.
The copending claims in view of Yuan et al. does not expressly teach the inclusion of the recited nitrate or chloride salts for the oral composition.
Martinetti et al. teaches that known desensitizing agents including potassium salts like potassium nitrate and potassium chloride and they are known to be incorporated from about 1-about 20%wt. in oral care compositions for hypersensitivity by blocking dentin tubules when applied to the tooth [38].
Wherein it would be obvious to one of ordinary skill in the art to incorporate desensitizing agents like potassium nitrate and potassium chloride as suggested by Martinetti et al. and produce the claimed invention; as it is prima facie obvious to incorporate a desensitizing agents like potassium nitrate and potassium chloride for its additive effect and optimize within its known range to attain the desired effect/profile with a reasonable expectation of success absent evidence of criticality for the claimed range.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Conclusion
Claims 1-19 are rejected.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to GIGI GEORGIANA HUANG whose telephone number is (571)272-9073. The examiner can normally be reached Monday-Thursday 9:00-5:00pm.
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/GIGI G HUANG/Primary Examiner, Art Unit 1613
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