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 .
Response to Amendment
The Amendment filed on June 3rd, 2026 has been entered. Claims 16-20 and claim 26 are pending in the application. Claims 1-15 and claims 21-25 have been cancelled. 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.
Claim 16 and dependent claims 17-20 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.
Claim 16 recites “from about 0.038% to about 0.15% by weight of lactic acid (LA);at least about 0.04% by weight of linear alkylbenzenesulfonic acid (LAS); andat least about 0.05% by weight of sodium lauryl sulfate (SLS), wherein the total percentage by weight of LA, LAS, SLS, and any additional components in the composition is less than or equal to about 0.55%”. Based on the instant specifications, this is interpreted to mean that “any additional components” includes only “an ingredient that is recognized as being an active antimicrobial agent by a governmental agency that regulates environmental conditions” (see page 5 line 10-13).
Claim 16 is interpreted to mean that all components which are an active antimicrobial agent, as defined in the instant specifications, must be less than or equal to about 0.55%.
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 16-20 and claim 26 are rejected under 35 U.S.C. 103 as being unpatentable over Roselle (US 20010046979 A1) is maintained.
With regard to claims 16-18, 20, and 26, Roselle discloses acidic antimicrobial compositions for treating food surfaces and food contact surfaces (see Abstract). Roselle further discloses compositions, especially in concentrated, or the corresponding diluted liquid form (see [0002]). Roselle further discloses lactic acid in a dilute composition at 0.003wt%-4.75wt% (see [0068] and [0072]), alkylbenzene sulfonic acid at 0.0002wt%-2wt% (see [0082] and [0086]), and sodium lauryl sulfate at 0.001wt%-5wt% (see [0075] and [0077]). Roselle further discloses concentrates can be diluted by the consumer using water (see [0004]).
It would have been obvious to one of ordinary skill in the art, before the effective filing date and with a reasonable expectation of success, to utilize the lactic acid, alkylbenzene sulfonic acid, and sodium lauryl sulfate of Roselle in the cleaning composition as Roselle discloses an acidic antimicrobial composition comprising (1) organic acid; (2) surfactant, preferably selected from the group consisting of anionic surfactant, nonionic surfactant, and mixtures thereof (see [0005]). Lactic acid is an organic acid and alkylbenzene sulfonic acid and sodium lauryl sulfate are anionic surfactants.
With regard to claim 19, Roselle discloses effervescent buffers in a dilute composition at 0.0005wt%-3wt% (see [0099]).
Response to Arguments
Applicant's arguments filed June 3rd, 2026 have been fully considered but they are not persuasive.
Applicant argues that Roselle does not teach or suggest a composition comprising lactic acid, alkylbenzenesulfonic acid, and sodium lauryl sulfate in a single embodiment. As stated above, Roselle further discloses compositions, especially in concentrated, or the corresponding diluted liquid form (see [0002]). Roselle further discloses lactic acid in a dilute composition at 0.003wt%-4.75wt% (see [0068] and [0072]), alkylbenzene sulfonic acid at 0.0002wt%-2wt% (see [0082] and [0086]), and sodium lauryl sulfate at 0.001wt%-5wt% (see [0075] and [0077]). The entire reference must be considered.
Applicant further argues that all three components are necessary to achieve the unexpected results disclosed in the instant specifications. Applicant further argues one and two component compositions fail during testing. Composition A, Applicant argues, comprises 0.07% LA, 0.15% LAS, and 0.09% SLS and not only passes against S. aureus at one minute, but also exhibits broad-spectrum activity, achieving passing results against Pseudomonas aeruginosa and Candida albicans and demonstrated kill of poliovirus type 1 and canine parvovirus. Applicant further argues that the efficacy of the three- component composition, including at very low total amounts, is not predictable from the performance of its parts, each of which fails when tested alone or in pairs.
As stated above, Roselle discloses acidic antimicrobial compositions for treating food surfaces and food contact surfaces (see Abstract). Roselle further discloses compositions, especially in concentrated, or the corresponding diluted liquid form (see [0002]). Roselle further discloses lactic acid in a dilute composition at 0.003wt%-4.75wt% (see [0068] and [0072]), alkylbenzene sulfonic acid at 0.0002wt%-2wt% (see [0082] and [0086]), and sodium lauryl sulfate at 0.001wt%-5wt% (see [0075] and [0077]). Roselle further discloses concentrates can be diluted by the consumer using water (see [0004]).
It would have been obvious to one of ordinary skill in the art, before the effective filing date and with a reasonable expectation of success, to utilize the lactic acid, alkylbenzene sulfonic acid, and sodium lauryl sulfate of Roselle in the cleaning composition as Roselle discloses an acidic antimicrobial composition comprising (1) organic acid; (2) surfactant, preferably selected from the group consisting of anionic surfactant, nonionic surfactant, and mixtures thereof (see [0005]). Lactic acid is an organic acid and alkylbenzene sulfonic acid and sodium lauryl sulfate are anionic surfactants.
Further, in response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., broad-spectrum antimicrobial efficacy at these low concentrations at short contact times) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). Further, most of the claims are for a composition and not a method of using. A composition is not limited to the intended use presented.
Applicant further argues Roselle does not disclose the claimed combination and a person of ordinary skill would not have arrived at it from Roselle’s teachings. Applicant further argues that each of Roselle's working Examples I through VIII uses citric acid as the organic acid and SLS as the sole surfactant, not one example uses lactic acid, not one example uses LAS, and not one example combines LAS with SLS. Applicant further argues that Roselle fails to disclose a composition comprising all three components. As stated above, the entire reference must be considered.
Applicant further argues that Roselle only discloses antimicrobial efficacy for citric acid, not lactic acid. However, Roselle discloses lactic acid as an alternative for citric acid (see [0007]). Roselle discloses lactic acid as a suitable organic acid to kill and/or reduce microorganisms on the treated surface (see [0007]). Therefore, lactic acid is disclosed as having antimicrobial efficacy.
Applicant further argues that the rejection requires hindsight reconstruction. Applicant further argues that the combination of an organic acid and a surfactant is only possible using the instant claims as a template. Roselle discloses an acidic antimicrobial composition for treating food surfaces and food contact surfaces comprise an organic acid and a surfactant (see Abstract). Roselle further discloses anionic surfactants, nonionic surfactants, and mixtures thereof (see [0008]). As stated above, it would have been obvious to one of ordinary skill in the art, before the effective filing date and with a reasonable expectation of success, to utilize the lactic acid, alkylbenzene sulfonic acid, and sodium lauryl sulfate of Roselle in the cleaning composition as Roselle discloses an acidic antimicrobial composition comprising (1) organic acid; (2) surfactant, preferably selected from the group consisting of anionic surfactant, nonionic surfactant, and mixtures thereof (see [0005]). Lactic acid is an organic acid and alkylbenzene sulfonic acid and sodium lauryl sulfate are anionic surfactants.
The affidavit under 37 CFR 1.132 filed June 3rd, 2026 is insufficient to overcome the rejection of claim 1based upon 35 U.S.C. 103 as set forth in the last Office action because:
It includes statements which amount to an affirmation that the claimed subject matter functions as it was intended to function. This is not relevant to the issue of nonobviousness of the claimed subject matter and provides no objective evidence thereof. See MPEP § 716.
The affidavit states the compositions require lactic acid (LA), linear alkylbenzenesulfonic acid (LAS), and sodium lauryl sulfate (SLS) together. The affidavit further states that all three components are required to achieve the antimicrobial efficacy of the claimed compositions.
In view of the foregoing, when all of the evidence is considered, the totality of the rebuttal evidence of nonobviousness fails to outweigh the evidence of obviousness.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BRITTANY SHARON HARRIS whose telephone number is (571)270-1390. The examiner can normally be reached 7:30-5:00.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Angela Brown-Pettigrew can be reached at (571) 272-2817. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/B.S.H./Examiner, Art Unit 1761
/ANGELA C BROWN-PETTIGREW/Supervisory Patent Examiner, Art Unit 1761
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