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 Claims
Claims 1-11 are currently pending and are examined on the merits herein.
Priority
The instant application filed 01/03/2024, claims priority to Provisional Application No. 63/478,372, filed 01/04/2023. However, upon review, the provisional application appears to define a completely different composition. The provisional application defines a body wash which only has sodium benzoate and citric acid in common with the instant invention. It is not apparent from the provisional application that Applicant was in possession of the instant invention at the time of the provisional. As such, the effective filing date of the instant invention is 01/03/2024.
Information Disclosure Statement
No information disclosure statement (IDS) has been filed at the time of the instant action.
Claim Objections
Claims 1 and 3-9 are objected to because of the following informalities: various chemical names are capitalized in the claims. Please remove capitalization.
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1-11 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by NOMOBO Underarm Shower Rinse, Retrieved 10/24/2025, Reviews date back to 12/14/2022, see p. 10, (PTO-892), hereinafter NOMOBO.
NOMOBO discloses an underarm shower rinse (p. 1, product title). The shower rinse comprises: aqua, propanediol, hydroxyethylcellulose, soyethyl morpholinium ethosulfate, cocamidropopyl PG-dimonium chloride phosphate, sodium benzoate, potassium sorbate, sodium hydroxide, and citric acid (p. 7, full ingredients). Such ingredients read entirely on the ingredients of the instant under arm rinse of claim 1. Since the overall composition of NOMOBO comprises water along with the sodium hydroxide and citric acid, the sodium hydroxide and citric acid ingredients read on mixtures with water as instantly recited. Regarding the recitation of “wherein the underarm rinse solution targets, eliminates and minimizes growth of” different bacteria, the composition of the prior art is structurally identical to the instantly claimed composition. Since the composition anticipated by the prior art is identical to the composition claimed, the composition must necessarily have the characteristics claimed as an inherent property. It is noted that In re Best (195 USPQ 430) and In re Fitzgerald (205 USPQ 594) discuss the support of rejections wherein the prior art discloses subject matter, which there is reason to believe inherently includes functions that are newly cited, or is identical to a product instantly claimed. In such a situation the burden is shifted to the applicants to “prove that subject matter to be shown in the prior art does not possess the characteristic relied on” (205 USPQ 594). There is no requirement that a person of ordinary skill in the art would have recognized the inherent disclosure at the time of invention, but only that the subject matter is in fact inherent in the prior art reference. The properties of instant claims 10-11 are also inherent to the NOMOBO composition for the same reasons.
Claims 2-9 recite the properties and purposes of each ingredient in the underarm rinse. Since the ingredients taught by the prior art are identical in chemical structure to the ingredients of the instant underarm rinse, each ingredient will inherently provide for its respective purpose within the composition. "Products of identical chemical composition cannot have mutually exclusive properties." See In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).
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 nonobviousness.
1. Claims 1-11 are rejected under 35 U.S.C. 103 as being unpatentable over Ma, Q., et al. (US 2023/0105693 A1, 04/06/2023, filed 02/18/2021, PTO-892), hereinafter Ma, in view of Colonial Chemicals, Inc. (2020). Soothing Odor Control Wipes, Formulation No. 4030. Retrieved 10/30/2025. (PTO-892), hereinafter Colonial Chemicals1, and Colonial Chemicals, Inc. (2021). Natural Gel-Stick Deodorant, Formulation No. 4025. Retrieved 10/30/25. (PTO-892), hereinafter Colonial Chemicals2.
Ma discloses methods and compositions that reduce or eliminate microbes on a surface or body part (abstract). The antimicrobial compositions may be formulated into consumer products such as, a personal cleaning product, an oral care product, a deodorant product, a hard surface cleaning product, liquid soap, foaming soap, liquid detergent, shampoo, shower gel, facial cleanser, mouthwash, and toothpaste ([0091]). Ma specifically discloses compositions of a roll-on deodorant soap base which comprise water deionized, hydroxyethylcellulose, ethyl alcohol, and 1,2-propylene glycol (i.e., propanediol) (table 19). High antimicrobial efficacy was detected when adding 0.5-1% of the perfumery ingredients according to the invention in the base ([0156]). The antimicrobial composition may further comprise optional ingredients such as colorants, preservatives, viscosifiers, opacifiers, emollients, humectants, antioxidants, gelling agents, gums, chelators, functional polymers, cellulose derivatives, essential oils, electrolytes, and pH adjusters ([0090]; claim 43).
Colonial Chemicals1 teaches soothing odor control wipes comprising mild odor-neutralizing and moisturizing ingredients, these freshening wipes are designed to soothe and cleanse sensitive skin (p. 1, description). The formulation comprises water, glycerin, soyethyl morpholinium ethosulfate (i.e., Cola®Quat SME), cocamidopropyl PG-dimonium chloride phosphate (i.e., Cola®Lipid C), sorbitan oleate decyl glucoside crosspolymer, lavender oil, sodium benzoate and potassium sorbate, and citric acid (p. 1, formulation). Of these ingredients, Cola®Quat SME works to eliminate unwanted odors, while Cola®Lipid C lightly conditions and protects from odor causing bacteria with antimicrobial activity (p. 1, description).
Colonial Chemicals2 teaches a natural gel-stick deodorant formulation comprising ethanol, propanediol, coco-caprylate, cocamidopropyl PG-dimonium chloride phosphate (i.e., Cola®Lipid C), soyethyl morpholinium ethosulfate (i.e., Cola®Quat SME), glyceryl laurate, stearic acid, sodium hydroxide (50%), and fragrance (p. 1, formulation).
It would have been obvious to combine the compositions of Ma, Colonial Chemicals1, and Colonial Chemicals2 before the effective filing date of the claimed invention to give a combined composition that comprises all of the ingredients as instantly claimed. Ma teaches a deodorant soap base while Colonial Chemicals1 teaches odor control wipes for the body and Colonial Chemicals2 teaches a deodorant. All of these products are used in methods of eliminating odor causing bacteria and deodorizing the body. “It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose…[T]he idea of combining them flows logically from their having been individually taught in the prior art.” In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980). As such, it would be obvious to combine the three compositions above to form a final composition which is capable of eliminating odor causing bacteria and deodorizing the body. Furthermore, one of ordinary skill in the art would have been specifically motivated to add in the cocamidopropyl PG-dimonium chloride phosphate and soyethyl morpholinium ethosulfate of Colonial Chemicals 1 and 2, since these ingredients are taught to eliminate unwanted odors and protect from odor causing bacteria, both of which would be desirable in the antimicrobial deodorant composition of Ma. It would have been prima facie obvious to incorporate the citric acid of Colonial Chemicals1 and the sodium hydroxide (50% ) of Colonial Chemicals2 into the composition of Ma since these are known and effective pH adjusters for body deodorizing products. One of ordinary skill in the art would have had a reasonable expectation of success in adding these ingredients since Ma welcomes pH adjusters. Lastly, it would have been prima facie obvious to incorporate the sodium benzoate and potassium sorbate of Colonial Chemicals1 into the composition of Ma since these are known and effective preservatives for body deodorizing products. One of ordinary skill in the art would have had a reasonable expectation of success in adding these ingredients since Ma welcomes preservatives.
Regarding the recitation of “wherein the underarm rinse solution targets, eliminates and minimizes growth of” different bacteria, the composition made obvious by the prior art is structurally identical to the instantly claimed composition. Since the composition made obvious by the prior art is identical to the composition claimed, the composition must necessarily have the characteristics claimed as an inherent property. It is noted that In re Best (195 USPQ 430) and In re Fitzgerald (205 USPQ 594) discuss the support of rejections wherein the prior art discloses subject matter, which there is reason to believe inherently includes functions that are newly cited, or is identical to a product instantly claimed. In such a situation the burden is shifted to the applicants to “prove that subject matter to be shown in the prior art does not possess the characteristic relied on” (205 USPQ 594). There is no requirement that a person of ordinary skill in the art would have recognized the inherent disclosure at the time of invention, but only that the subject matter is in fact inherent in the prior art reference. The properties of instant claims 10-11 are also inherent to the combined composition for the same reasons.
Claims 2-9 recite the properties and purposes of each ingredient in the underarm rinse. Since the ingredients taught by the prior art are identical in chemical structure to the ingredients of the instant underarm rinse, each ingredient will inherently provide for its respective purpose within the composition. "Products of identical chemical composition cannot have mutually exclusive properties." See In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SUSANNAH S ARMSTRONG whose telephone number is (571)272-0112. The examiner can normally be reached Mon-Fri 7:30-5 (Flex).
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/SUSANNAH S ARMSTRONG/Examiner, Art Unit 1616
/Mina Haghighatian/Primary Examiner, Art Unit 1616