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 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) 53-56 are rejected under 35 U.S.C. 103 as being unpatentable over Myers et al. (WO 2022140280, disclosed by applicant).
Myers et al. disclose oral care compositions comprising stannous fluoride and/or stannous chloride, a potassium salt and a polyphosphate source (Abstract). The stannous ion source includes stannous fluoride and stannous chloride at a concentration of 0.1 to 2% (reference claim 8). Myers et al. disclose a nitric ion source including potassium nitrate at a concentration of 0.1 to 5% (reference claim 8). Myers et al. disclose the composition comprises surfactants and mixtures thereof at a concentration of 0.3 to 3%, which include sodium methyl cocyl taurate and cocoamidopropyl betaine ([0016]). Myers et al. disclose the composition comprises thickening agents, silica ([0020], 1.42), xanthan gum and carboxymethyl cellulose, wherein if the xanthan gum and carboxymethyl cellulose are used at equal amounts would meet the ratio of 1:1. Myers et al. disclose the composition comprises calcium pyrophosphate and tetrasodium pyrophosphate as anticalculus agent in a concentration of 2-20% ([0022]). Myers et al. disclose the composition further comprises a basic amino acid, such as arginine ([0033]). The compositions of Myers et al. are substantially free of a titanium containing material.
The prior discloses compositions containing a surfactant system comprising a sulfate based anionic surfactant, and an amphoteric surfactant; a thickener system; calcium pyrophosphate; a stannous ion source; a nitrate ion source; and phosphate ion source. Together these would provide a composition as claimed instantly.
The prior art is not anticipatory insofar as these combinations must be selected from various lists/locations in the reference. It would have been obvious, however, to make the combination since each component is taught as being useful in making the compositions of the prior art.
Since this modification of the prior art represents nothing more than “the predictable use of prior art elements according to their established functions” a prima facie case of obviousness exists.
Claim(s) 37-40 and 44-52 are rejected under 35 U.S.C. 103 as being unpatentable over Myers et al. (WO 2022140280, disclosed by applicant) in view of Riley (EP0740932).
Myers et al. disclose oral care compositions comprising stannous fluoride and/or stannous chloride, a potassium salt and a polyphosphate source (Abstract). The stannous ion source includes stannous fluoride and stannous chloride at a concentration of 0.1 to 2% (reference claim 8). Myers et al. disclose a nitric ion source including potassium nitrate at a concentration of 0.1 to 5% (reference claim 8). Myers et al. disclose the composition comprises surfactants and mixtures thereof at a concentration of 0.3 to 3%, which include sodium methyl cocyl taurate and cocoamidopropyl betaine ([0016]). Myers et al. disclose the composition comprises thickening agents, silica ([0020], 1.42), xanthan gum and carboxymethyl cellulose, wherein if the xanthan gum and carboxymethyl cellulose are used at equal amounts would meet the ratio of 1:1. Myers et al. disclose the composition comprises calcium pyrophosphate and tetrasodium pyrophosphate as anticalculus agent in a concentration of 2-20% ([0022]). Myers et al. disclose the composition further comprises a basic amino acid, such as arginine ([0033]). The compositions of Myers et al. are substantially free of a titanium containing material.
Myers et al. differs from the instant claims insofar as they do not disclose particles having a refractive index of from about 1.0 to about 2.5.
Riley discloses dentifrices comprising silica abrasive particles with refractive index in the range of 1.41 – 1.47 ([0013]).
It is prima facie obviousness to select a known material based on its suitability for its intended use. Also, established precedent holds that it is generally obvious to add known ingredients to known compositions with the expectation of obtaining their known function. MPEP 2144.07. Therefore, it would have been obvious to one of ordinary skill in the art to have used particles with a refractive index from about 1.0 to about 2.5, since they are known for oral care compositions.
Claim(s) 41-43 is/are rejected under 35 U.S.C. 103 as being unpatentable over Myers et al. (WO 2022140280, disclosed by applicant) in view of Riley (EP0740932) as applied to claims 37-40 and 44-52 above, and further in view of Miguelino et al. (WO 2022125783).
Myers in view of Riley is discussed above and differs from the instant claims insofar as they do not disclose an amino acid derived surfactant or a glucoside surfactant.
Miguelino et al. disclose oral care compositions comprising combination of surfactants.; wherein the surfactants include sodium cocoyl glutamate, sodium lauryl glucoside, sodium methyl cocoyl taurate and cocamidopropyl betaine.
It is prima facie obviousness to select a known material based on its suitability for its intended use. Also, established precedent holds that it is generally obvious to add known ingredients to known compositions with the expectation of obtaining their known function. MPEP 2144.07. It would have been obvious to one of ordinary skill in the art prior to the filing date of the claimed invention to have used sodium cocoyl glutamate and sodium lauryl glucoside as the surfactants of Myers et al. since they are suitable for use in oral care compositions.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to NANNETTE HOLLOMAN whose telephone number is (571)270-5231. The examiner can normally be reached Monday-Friday 9am-6pm.
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/NANNETTE HOLLOMAN/Primary Examiner, Art Unit 1612