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 .
Priority
This application is a 371 of PCT/US2022/033440 filed 06/14/2022.
PCT/US2022/033440 has PRO of 63210140 filed 06/14/2021.
Accordingly, claims 1-23 are afforded the effective filing date of 06/14/2021.
Information Disclosure Statement
The information disclosure statement (IDS) submitted 03/04/2024 has been considered by the examiner and initialed copies of the IDS are included with the mailing of this office action.
It is noted that there was a second IDS filed on 03/04/2024 which is a duplicate of the above considered IDS. Thus, the duplicate IDS filed on 03/04/2024 is crossed-out and not considered. A copy of the crossed-out IDS is included with the mailing of this office action.
Status of the Claims
Claims 1-23 are pending in this instant application, and examined herein on the merits for patentability.
Claim Objections
Claim 21 is objected to because of the following informalities: please amend “incorporating” to transitional phrase of “comprising”. Appropriate correction is required.
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 2-3, 5-7, 9-10, 13, 20, and 23 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 2-3, 5-7, 9-10, and 13: a broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance:
claim 2 recites the broad recitation “multifunctional (meth)acrylate monomers,” and the claim also recites “preferably having at least three radical polymerizable functional groups,” which is the narrower statement of the limitation.
claim 3 recites the broad recitation “the at least one free radical initiator comprises a first free radical initiator and a second free radical initiator,” and the claim also recites “preferably wherein the first free radical initiator and the second free radical initiator are present in a weight ratio of from about 5:1 to about 1:5, or preferably from about 3:1 to about 1:3, or more preferably from about 2:1 to about 1:2, or even more preferably from about 1.5:1 to about 1:1.5,” which are the narrower statements of the range/limitation.
claim 3 recites the broad recitation “about 5:1 to about 1:5,” and the claim also recites “preferably from about 3:1 to about 1:3,” “more preferably from about 2:1 to about 1:2,” and “even more preferably from about 1.5:1 to about 1:1.5,” which are the narrower statements of the range/limitation.
claim 5 recites the broad recitation “the at least one free radical initiator comprises a material selected from the group consisting of peroxy initiators, azo initiators, and combinations thereof,” and the claim also recites “preferably at least one free radical initiator selected from the group consisting of: peroxide; dialkyl peroxide’ alkyl peroxide; … t-butyl perbenzoate; ethyl 3,3-di-(t-amlyperoxy)-butyrate; and combinations thereof” and “more preferably selected from the group consisting of: 4,4’azobis(4-cyanovaleric acid); … 2,2’-azobis(2-methylbutyronitrile); and combinations thereof,” which are the narrower statements of the limitation.
claim 6 recites the broad recitation “about 20% to about 60%,” and the claim also recites “preferably from about 20% to about 50%,” “more preferably from about 20% to about 45%,” and “even more preferably from about 20% to about 35%,” which are the narrower statements of the range/limitation.
claim 7 recites the broad recitation “about 96:4 to about 99:1,” and the claim also recites “preferably from about 97:3 to about 99:1,” and “even more preferably from about 97:3 to about 98:2,” which are the narrower statements of the range/limitation.
Claim 9 recites the broad recitation “fragrance,” and the claim also recites “preferably wherein the fragrance comprises at least about 25%, by weight of the fragrance, of aldehyde-containing perfume raw materials, ketone-containing perfume raw materials, or combinations thereof,” which is the narrower statement of the range/limitation.
claim 10 recites the broad recitation “a partitioning modifier,” and the claim also recites “preferably wherein the partitioning modifier is present in the core at a level of from about 5% to about 55%, by weight of the core,” “more preferably wherein the partitioning modifier is selected from the group consisting of isopropyl myristate, vegetable oil, modified vegetable oil, mono-, di-, and tri-esters of C4-C24 fatty acids, dodecanophenone, lauryl laurate, methyl behenate, methyl laurate, methyl palmitate, methyl stearate, and mixtures thereof,” and “even more preferably isopropyl myristate,” which are the narrower statements of the range/limitation.
claim 13 recites the broad recitation “at least three,” and the claim also recites “preferably at least four, at least five, or even at least six,” which is the narrower statement of the range/limitation.
The claim(s) 2-3, 5-7, 9-10, and 13 are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
Regarding claim 9, the recitation “at least about” in claim 9 is indefinite. The phrase “at least” typically indicates a minimum point; however, the phrase “at least” is controverted by the term “about,” which implies that values above and below the indicated amount are permitted. Therefore, the juxtaposition of these two terms makes it unclear what maximum dimensions are encompassed by the claim. In Amgen, Inc. v. Chugai Pharmaceutical co., 927 F.2d 1200 (CAFC 1991), the CAFC stated, “[t]he district court held claims 4 and 6 of the patent invalid because their specific activity of “at least about 160,000” was indefinite.” After review, the CAFC states “[w]e therefore affirm the district court’s determination on this issue.” Thus, the CAFC found the phrase “at least about” indefinite where the metes and bounds of the term were not defined in the specification.
Regarding claim 13, the recitation of “the free radical initiator or initiators comprises from about 15% to 60% by weight of the polymer wall” renders 13 indefinite because the “comprise” language raises unclearness to claim 13. It is not clear how the free radical initiator or initiators can comprise or “contain” from about 15% to 60% by weight of the polymer wall, as free radical initiator or initiators is a different component than the polymer wall or in other words, how can the free radical initiator contains polymer wall. To obviate the “comprising” language indefiniteness, it is suggested that “comprise” be amended to “is”.
Regarding claim 20, the recitation of “The process according to claim 13” renders claim 20 indefinite because there is lack of antecedent basis for “the process,” as claim 13 is drawn to a population of delivery particle, a product claim, and not a process claim. For art rejection purpose, the recitation of “The process according to claim 13” will be interpreted as “The population of delivery particles according to claim 13.” In the event Applicant maintains the recitation of “The process according to claim 13” for claim 20 and add subsequent claims drawn to process claims, said claim 20 and any subsequent new process claims will be withdrawn by original presentation because the claims under examination are product claims.
Regarding claim 23, the recitation of “the agriculture active” renders claim 23 indefinite because there is insufficient antecedent basis for this limitation in claim 21. It is noted that claim 23 is dependent from claim 21, yet claim 21 is not drawn to an agriculture active. Thus, it is unclear what “the agriculture active” is claim 23 referencing to, as claim 21 does not contain an agriculture active.
As a results, claims 2-3, 5-7, 9-10, 13, 20, and 23 do not clearly set forth the metes and bounds of patent protection desired.
Claim Interpretation
Claims 13-15 and 18-20 are structured as a product-by-process. Thus, claims 13-15 and 18-20 will be interpreted and examined for art rejections purposes (102 and 103 rejections) as product-by-process type claims. MPEP 2113 (I) states “[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.” In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985). Thus, while the structure implied by the process steps should be consider when assessing patentability of product-by-process claims over the prior art; however, burden of proof is placed upon Applicant to show that the product can only be defined by the process steps by which the product is made, or where the manufacturing process steps would be expected to impart distinctive structural characteristics to the final product. See, e.g., In re Garnero, 412 F.2d 276, 279, 162 USPQ 221, 223 (CCPA 1979). Also see MPEP § 2113.
Claim Rejections - 35 USC § 102
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1-23 is/are rejected under 35 U.S.C. 102(a)(1) or 102(a)(2) as being anticipated by Rodrigo-Gomez et al (US 2020/0030952 A1).
The product-by-process Claim Interpretation applies here.
Regarding claims 1, 13-15 and 18-20, Rodrigo-Gomez teaches polymeric capsules comprising a core and a polymer wall surrounding the core, wherein the polymer wall contains (meth)acrylate monomers and free radical initiators, and the core contains a benefit agent such as perfume (Abstract; [0004]-[0007], [0055]-[0123], [0150]-[0164]; Examples 4-8; claims 1-20). Rodrigo-Gomez teaches the weight ratio of the core to the polymer wall is greater than about 95 to 5, particularly 97 to 3 or 98 to 2 ([0007], [0062]-[0063]; Examples 4 and 8). Rodrigo-Gomez teaches the (meth)acrylate monomers makes up at least 50% by weight of the shell (wall-forming materials) ([0098], [0110]-[0115], [0119]; Examples 4 and 8). Rodrigo-Gomez provides an example of producing the polymeric capsules in which an oil phase (dispersed phase) is emulsified with an aqueous phase (continuous phase), wherein the oil phase containing 97.19 wt% fragrance oil, 0.07 wt% tertiarybutylaminoethyl methacrylate, 0.06 wt% 2-carboxyethyl acrylate, 2.68 wt% hexafunctional aromatic urethane-acrylate oligomer, 0.41 wt% 2,2′-Azobis(2,4-dimethylvaleronitrile), and 0.27 wt% 2,2′-Azobis(2-methylbutyronitrile, and the aqueous phase contains 2 wt% Selvol 540 (polyvinyl alcohol), 0.07 wt% NaOH, 0.37 wt% 4,4′-Azobis(4-cyanovaleric acid) (0.37% wt), and water (Example 4). Based on this example, the weight ratio of core to polymer wall is 97:3, and the amount of free radical initiator is about 27% by weight of the polymer wall, which meets the claimed limitations of “the core and the polymer wall are present in a weight ratio of from about 95:5 to about 99.5:0.5” and “he at least one free radical initiator is present at a level of from about 15% to about 60%, by weight of the polymer wall,” respectively of claim 1.
Regarding claim 2, Rodrigo-Gomez teaches the (meth)acrylate monomers makes up at least 95% by weight of the shell (wall-forming materials), wherein the (meth)acrylate monomers include hexafunctional aromatic urethane-acrylate oligomer ([0098], [0110]-[0115], [0119]; Examples 4 and 8)
Regarding claims 3-6, Rodrigo-Gomez teaches the free radical initiators include 2,2′-Azobis(2,4-dimethylvaleronitrile), 2,2′-Azobis(2-methylbutyronitrile, and 4,4′-Azobis(4-cyanovaleric acid) ([0151]-[0155]; Examples 4 and 8). As discussed above, Rodrigo-Gomez provides an example of producing the polymeric capsules in which an oil phase (dispersed phase) is emulsified with an aqueous phase (continuous phase), wherein the oil phase containing 97.19 wt% fragrance oil, 0.07 wt% tertiarybutylaminoethyl methacrylate, 0.06 wt% 2-carboxyethyl acrylate, 2.68 wt% hexafunctional aromatic urethane-acrylate oligomer, 0.41 wt% 2,2′-Azobis(2,4-dimethylvaleronitrile), and 0.27 wt% 2,2′-Azobis(2-methylbutyronitrile, and the aqueous phase contains 2 wt% Selvol 540 (polyvinyl alcohol), 0.07 wt% NaOH, 0.37 wt% 4,4′-Azobis(4-cyanovaleric acid) (0.37% wt), and water (Example 4). Based on this example the amount of the free radical initiator is about 27% by weight of the polymer wall, which meets the claimed range as recited in claim 6. Furthermore, the 0.41 wt% 2,2′-Azobis(2,4-dimethylvaleronitrile) and 0.27 wt% 2,2′-Azobis(2-methylbutyronitrile as taught in the Example above from Rodrigo-Gomez meets the claimed ratio as recited in claim 3.
Regarding claim 7, as discussed above, Rodrigo-Gomez teaches Rodrigo-Gomez teaches the weight ratio of the core to the polymer wall is greater than about 95 to 5, particularly 97 to 3 or 98 to 2.
Regarding claims 8-9, Rodrigo-Gomez teaches the benefit agent includes aldehyde perfume raw material and ketone perfume raw material ([0084]-[0090]). Rodrigo-Gomez teaches the perfume raw material is present in an amount from about 30% to about 90% by weight of the perfume composition ([0090] and [0095]).
Regarding claim 10, Rodrigo-Gomez teaches the core further contains a isopropyl myristate (a partitioning modifier) in an amount of 29.89 wt% ([0097], [0163]; Example 4).
Regarding claim 11, Rodrigo-Gomez teaches polymeric capsules have a volume-weighted median particle size of 28.8 µm (about 30 µm) or 29.7 µm (about 30 µm) (Examples 4 and 8).
Regarding claim 12, Rodrigo-Gomez teaches the polymeric capsules have fracture strength of about 0.6 MPa to about 5 MPa ([0067]).
Regarding claim 16-17, as discussed above, Rodrigo-Gomez teaches the (meth)acrylate monomers include hexafunctional aromatic urethane-acrylate oligomer
Regarding claims 21-23, Rodrigo-Gomez teaches a product containing the polymeric capsules, wherein the product include an agricultural formulation containing a herbicide ([0003], [0084], and [0161]; claim 18).
As a result, the aforementioned teachings from Rodrigo-Gomez are anticipatory to claims 1-23 of the instant invention.
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.
Claim(s) 1-23 is/are rejected under 35 U.S.C. 103 as being unpatentable over Smets et al (US 2015/0099680 A1) in view of Rodrigo-Gomez et al (US 2020/0030952 A1).
The product-by-process Claim Interpretation applies here.
Regarding claims 1, 13-15 and 18-20, Smets teaches delivery particles (capsules) comprising a core and a polymer wall surrounding the core, wherein the polymer wall contains (meth)acrylate monomers and free radical initiators, and the core contains a benefit agent including aldehyde based perfumes and ketone-based perfumes (Abstract; [0019]-[0070], [0075]-[0094], [0125]-[0156], [0184]; Example 5; claims 1-18). Smets teaches the (meth)acrylate monomers include hexafunctional aromatic urethane-acrylate oligomer ([0029], [0049]; Example 5). Smets teaches the free radical initiators include, 2,2′-Azobis(2-methylbutyronitrile and 4,4′-Azobis(4-cyanovaleric acid) (Example 5). Smets teaches the shell further contains an emulsifier ([0038], [0058], [0107]-[0123], [0199]-[0216]). Smets teaches the (meth)acrylate monomers include amine methacrylate and/or acidic methacrylate ([0027]-[0029], [0047]-[0049]; Example 5). Smets teaches the weight ratio of the core to polymer wall is from about 85:15 to about 96:4 ([0076], [0166]; Example 5). Smets teaches the shell comprises (meth)acrylate monomers in amount of at least 50% by weight ([0069]-[0070] and [0156]-[0157]).
It would have been obvious to one of ordinary skill in the art routine optimize the weight ratio of the core to polymer wall of the delivery particles (capsules) to a weight ratio of about 95:5 to about 99.5:0.5, and produce the claimed invention. One of ordinary skill in the art would have been motivated to do so because as discussed above, Smets teaches that the weight ratio of the core to polymer wall can be optimize from about 85:15 to about 96:4, which is a weight ratio range that overlaps the claimed range of about 95:5 to about 99.5:0.5. One of ordinary skill in the art would have reasonable expectation of success in optimizing the weight ratio of the core to polymer wall to the higher end of about 95:5 to about 99.5:0.5 because Rodrigo-Gomez provides the reasonable expectation for making said optimization by teaching that the weight ratio of the core to the polymer wall in polyacrylate capsules can be greater than about 95 to 5, particularly 97 to 3 or 98 to 2 (Rodrigo-Gomez: Abstract; [0004]-[0007], [0055]-[0123], [0150]-[0164]; Examples 4-8; claims 1-20). Thus, the courts have stated where the claimed ranges “overlap or lie inside the ranges disclosed by the prior art” and even when the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have similar properties, a prima facie case of obviousness exists (see In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990); Titanium Metals Corp. of America v. Banner, 778 F2d 775. 227 USPQ 773 (Fed. Cir. 1985). Absent some demonstration of unexpected results showing criticality from the claimed parameters, the optimization of the weight ratio of core to polymer wall would have been obvious before the effective filing date of Applicant’s invention. See MPEP §2144.05 (I)-(II).
While Smets does not expressly teaches the amount of free radical initiator is at a level of from about 15% to about 60% by weight of the polymer wall as recited in claim 1, it would have been obvious to optimize the amount of free radical initiator to said level in view of the guidance Rodrigo-Gomez.
Rodrigo-Gomez teaches polymeric capsules comprising a core and a polymer wall surrounding the core, wherein the polymer wall contains (meth)acrylate monomers and free radical initiators, and the core contains a benefit agent such as perfume (Abstract; [0004]-[0007], [0055]-[0123], [0150]-[0164]; Examples 4-8; claims 1-20). Rodrigo-Gomez teaches the weight ratio of the core to the polymer wall is greater than about 95 to 5, particularly 97 to 3 or 98 to 2 ([0007], [0062]-[0063]; Examples 4 and 8). Rodrigo-Gomez teaches the (meth)acrylate monomers makes up at least 50% by weight of the shell (wall-forming materials) ([0098], [0110]-[0115], [0119]; Examples 4 and 8). Rodrigo-Gomez provides an example of producing the polymeric capsules in which an oil phase (dispersed phase) is emulsified with an aqueous phase (continuous phase), wherein the oil phase containing 97.19 wt% fragrance oil, 0.07 wt% tertiarybutylaminoethyl methacrylate, 0.06 wt% 2-carboxyethyl acrylate, 2.68 wt% hexafunctional aromatic urethane-acrylate oligomer, 0.41 wt% 2,2′-Azobis(2,4-dimethylvaleronitrile), and 0.27 wt% 2,2′-Azobis(2-methylbutyronitrile, and the aqueous phase contains 2 wt% Selvol 540 (polyvinyl alcohol), 0.07 wt% NaOH, 0.37 wt% 4,4′-Azobis(4-cyanovaleric acid) (0.37% wt), and water (Example 4). Based on this example, the weight ratio of core to polymer wall is 97:3, and the amount of free radical initiator is about 27% by weight of the polymer wall, which meets the claimed limitations of “the core and the polymer wall are present in a weight ratio of from about 95:5 to about 99.5:0.5” and “he at least one free radical initiator is present at a level of from about 15% to about 60%, by weight of the polymer wall,” respectively of claim 1.
It would have been obvious to one of ordinary skill in the art to optimize the amount of free radical initiator in Smets to a level from about 15% to about 60% by weight of the polymer wall, and produce the claimed invention. One of ordinary skill in the art would have been motivated to do so because Smets and Rodrigo-Gomez are commonly drawn to polyacrylate capsules, and as discussed above, Rodrigo-Gomez provided the guidance for optimizing the amount of free radical initiator used for forming the polyacrylate capsules to a level of about 27% by weight of the polymer wall. Thus, Absent some demonstration of unexpected results showing criticality from the claimed parameters, the optimization of the level of free radical initiator in polymer wall would have been obvious before the effective filing date of Applicant’s invention. See MPEP §2144.05 (I)-(II).
Regarding claim 2, Smets teaches the polymer wall contains from about 80% to about 100% by weight of (meth)acrylate monomers ([0027]-[0029], [0047]-[0049], [0069]-[0070], [0156]-[0157]; Example 5). Smets teaches the (meth)acrylate monomers include hexafunctional aromatic urethane-acrylate oligomer ([0027]-[0029], [0047]-[0049], [0069]-[0070], [0156]-[0157]; Example 5). Rodrigo-Gomez teaches the (meth)acrylate monomers makes up at least 95% by weight of the shell (wall-forming materials), wherein the (meth)acrylate monomers include hexafunctional aromatic urethane-acrylate oligomer ([0098], [0110]-[0115], [0119]; Examples 4 and 8). Absent some demonstration of unexpected results showing criticality from the claimed parameters, the optimization of amount of (meth)acrylate monomers would have been obvious before the effective filing date of Applicant’s invention. See MPEP §2144.05 (I)-(II).
Regarding claims 3-5, Smets teaches the free radical initiators include, 2,2′-Azobis(2-methylbutyronitrile, and 4,4′-Azobis(4-cyanovaleric acid), wherein the ratio of 2,2′-Azobis(2-methylbutyronitrile to 4,4′-Azobis(4-cyanovaleric acid) is 1.3:1 (Example 5).
Regarding claim 6, as discussed above, Rodrigo-Gomez provided the guidance for optimizing the amount of free radical initiator used for forming the polyacrylate capsules to a level of about 27% by weight of the polymer wall (see pages 14-15 of this office action – incorporated herein in its entirety).
Regarding claim 7, as discussed above, Rodrigo-Gomez provided the guidance for optimizing the weight ratio of the core to the polymer wall in polyacrylate capsules can be greater than about 95 to 5, particularly 97 to 3 or 98 to 2 (see pages 13-14 of this office action – incorporated herein in its entirety).
Regarding claims 8 and 9, Smets teaches the core contains a benefit agent including aldehyde based perfumes and ketone-based perfumes ([0076]-[0096] and [0166]-[0186]) Smets teaches the core contains from about 20% to about 99% by weight of the benefit agent ([0076] and [0166]). Absent some demonstration of unexpected results showing criticality from the claimed parameters, the optimization of amount of perfume in the core would have been obvious before the effective filing date of Applicant’s invention. See MPEP §2144.05 (I)-(II).
Regarding claim 10, Rodrigo-Gomez provides the guidance for the core of Smets to further contains a isopropyl myristate (a partitioning modifier) in an amount of 29.89 wt% (Example 4).
Regarding claim 11, Smets teaches the delivery particles have a particle size from about 8 micrometers to about 50 micrometers ([0064] and [0152]). Absent some demonstration of unexpected results showing criticality from the claimed parameters, the optimization of the particle size of the delivery particles would have been obvious before the effective filing date of Applicant’s invention. See MPEP §2144.05 (I)-(II).
Regarding claim 12, Smets teaches the delivery particles have a fracture strength of from about 0.2 MPa to about 10 MPa ([0063] and [0152]).Absent some demonstration of unexpected results showing criticality from the claimed parameters, the optimization of the fracture strength of the delivery particles would have been obvious before the effective filing date of Applicant’s invention. See MPEP §2144.05 (I)-(II).
Regarding claim 16-17, Smets teaches the (meth)acrylate monomers include hexafunctional aromatic urethane-acrylate oligomer ([0027]-[0029], [0047]-[0049], [0069]-[0070], [0156]-[0157]; Example 5).
Regarding claim 21, Smets teaches a product containing the delivery particles (Abstract; [0019]-[0070], [0075]-[0094], [0125]-[0156], [0184]; Example 5; claims 1-18).
Regarding claims 22 and 23, Rodrigo-Gomez provides the guidance for including the delivery particles of Smets in agriculture products containing herbicides (Rodrigo-Gomez: Abstract; [0003]-[0007], [0055]-[0123], [0150]-[0164]; Examples 4-8; claims 1-20).
From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole was prima facie obvious to one of ordinary skill in the art before the effective filing date of Applicant’s invention, as evidenced by the references, especially in the absence of evidence to the contrary.
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 1-23 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-12 of U.S. Patent No. 11970676 in view of Rodrigo-Gomez et al (US 2020/0030952 A1).
Although the claims at issue are not identical, they are not patentably distinct from each other because the claims in the Patent ‘676 significantly overlap with the subject matter of instant claims, i.e., compositions comprising particles (capsules) comprising a core and a polymer wall surrounding the core, wherein the polymer wall contains (meth)acrylate monomers (polyacrylates), and the core contains a benefit agent such as perfumes including aldehyde based perfumes and ketone-based perfumes, wherein the amounts of perfumes in both the instant application and Patent ‘676 substantially overlaps.
While the claims in the Patent ‘676 do not recite the amount of (meth)acrylate monomers, the free radical initiator and its respective amounts, and the weight ratio of the core to polymer wall, as in the claims of the instant application, it would have been obvious to include free radical initiator in the formation of the polymeric wall of the Patent ‘676, as well as, optimize the amount of (meth)acrylate monomers and the weight ratio of the core to polymer wall in the Patent ‘676 to amounts recited in the claims of the instant application in view of the guidance from Rodrigo-Gomez (Abstract; [0003]-[0007], [0055]-[0123], [0150]-[0164]; Examples 4-8; claims 1-20).
Consequently, the ordinary artisan would have recognized the obvious variation of the instant claimed subject matter over U.S. Patent No. 11970676 in view of Rodrigo-Gomez.
Claims 1-23 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-18 of U.S. Patent No. 11732222 in view of Rodrigo-Gomez et al (US 2020/0030952 A1).
Although the claims at issue are not identical, they are not patentably distinct from each other because the claims in the Patent ‘222 significantly overlap with the subject matter of instant claims, i.e., compositions comprising particles (capsules) comprising a core and a polymer wall surrounding the core, wherein the polymer wall contains (meth)acrylate monomers including (meth)acrylate material derived from hexafunctional acrylate, and the core contains a benefit agent such as perfumes including aldehyde based perfumes and ketone-based perfumes, wherein the amounts of perfumes in both the instant application and Patent ‘222 substantially overlaps.
While the claims in the Patent ‘222 do not recite the amount of (meth)acrylate monomers, the free radical initiator and its respective amounts, and the weight ratio of the core to polymer wall, as in the claims of the instant application, it would have been obvious to include free radical initiator in the formation of the polymeric wall of the Patent ‘222, as well as, optimize the amount of (meth)acrylate monomers and the weight ratio of the core to polymer wall in the Patent ‘222 to amounts recited in the claims of the instant application in view of the guidance from Rodrigo-Gomez (Abstract; [0003]-[0007], [0055]-[0123], [0150]-[0164]; Examples 4-8; claims 1-20).
Consequently, the ordinary artisan would have recognized the obvious variation of the instant claimed subject matter over U.S. Patent No. 11732222 in view of Rodrigo-Gomez.
Claims 1-23 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 12398348 in view of Rodrigo-Gomez et al (US 2020/0030952 A1).
Although the claims at issue are not identical, they are not patentably distinct from each other because the claims in the Patent ‘348 significantly overlap with the subject matter of instant claims, i.e., compositions comprising particles (capsules) comprising a core and a polymer wall surrounding the core, wherein the polymer wall contains (meth)acrylate monomers (polyacrylates) and free radical initiator, and the core contains a benefit agent such as perfumes including aldehyde based perfumes and ketone-based perfumes, wherein the amounts of perfumes, amounts of free radical initiator, core:shell weight ratio, and particle size in both the instant application and Patent ‘348 substantially overlaps.
While the claims in the Patent ‘348 do not recite the amount of (meth)acrylate monomers as in the claims of the instant application, it would have been obvious to optimize the amount of (meth)acrylate monomers in the Patent ‘348 to amounts recited in the claims of the instant application in view of the guidance from Rodrigo-Gomez (Abstract; [0003]-[0007], [0055]-[0123], [0150]-[0164]; Examples 4-8; claims 1-20).
While the claims in the instant application do not recite the broadness index and fracture strength characteristics of the particles, as in the claims of the Patent ‘348, it would have been obvious that the broadness index and fracture strength characteristics recited in the Patent ‘348 would have been implicit in the substantially same particles of the instant claims in view of Rodrigo-Gomez (Abstract; [0003]-[0007], [0055]-[0123], [0150]-[0164]; Examples 4-8; claims 1-20)
Consequently, the ordinary artisan would have recognized the obvious variation of the instant claimed subject matter over U.S. Patent No. 12398348 in view of Rodrigo-Gomez.
Claims 1-23 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-23 of U.S. Patent No. 12227720 in view of Rodrigo-Gomez et al (US 2020/0030952 A1).
Although the claims at issue are not identical, they are not patentably distinct from each other because the claims in the Patent ‘720 significantly overlap with the subject matter of instant claims, i.e., compositions comprising particles (capsules) comprising a core and a polymer wall surrounding the core, wherein the polymer wall contains (meth)acrylate monomers (polyacrylates), and the core contains a benefit agent such as perfumes, wherein the core:shell weight ratio in both the instant application and Patent ‘720 substantially overlaps.
While the claims in the Patent ‘720 do not recite the amount of (meth)acrylate monomers and the free radical initiator and its respective amounts, as in the claims of the instant application, it would have been obvious to include free radical initiator in the formation of the polymeric wall of the Patent ‘720, as well as, optimize the amount of (meth)acrylate monomers in the Patent ‘720 to amounts recited in the claims of the instant application in view of the guidance from Rodrigo-Gomez (Abstract; [0003]-[0007], [0055]-[0123], [0150]-[0164]; Examples 4-8; claims 1-20).
Consequently, the ordinary artisan would have recognized the obvious variation of the instant claimed subject matter over U.S. Patent No. 12227720 in view of Rodrigo-Gomez.
Claims 1-23 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-21 of U.S. Patent No. 12486478 in view of Rodrigo-Gomez et al (US 2020/0030952 A1).
Although the claims at issue are not identical, they are not patentably distinct from each other because the claims in the Patent ‘478 significantly overlap with the subject matter of instant claims, i.e., compositions comprising particles (capsules) comprising a core and a polymer wall surrounding the core, wherein the polymer wall contains (meth)acrylate monomers including (meth)acrylate material derived from hexafunctional acrylate and free radical initiator, and the core contains a benefit agent such as perfumes and a partitioning modifier such as isopropyl myristate, wherein the particles are characterized by a volume-weighted median particle size from about 30 to about 40 microns, and wherein the core:shell weight ratio, the amounts of the partitioning modifier, and the amounts of free radical initiator in both the instant application and Patent ‘478 substantially overlaps.
While the claims in the Patent ‘478 do not recite the amount of (meth)acrylate monomers as in the claims of the instant application, it would have been obvious to optimize the amount of (meth)acrylate monomers in the Patent ‘478 to amounts recited in the claims of the instant application in view of the guidance from Rodrigo-Gomez (Abstract; [0003]-[0007], [0055]-[0123], [0150]-[0164]; Examples 4-8; claims 1-20).
Consequently, the ordinary artisan would have recognized the obvious variation of the instant claimed subject matter over U.S. Patent No. 12486478 in view of Rodrigo-Gomez.
Claims 1-23 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-11 of U.S. Patent No. 12146124 in view of Rodrigo-Gomez et al (US 2020/0030952 A1).
Although the claims at issue are not identical, they are not patentably distinct from each other because the claims in the Patent ‘124 significantly overlap with the subject matter of instant claims, i.e., compositions comprising particles (capsules) comprising a core and a polymer wall surrounding the core, wherein the polymer wall contains (meth)acrylate monomers (polyacrylates) including a (meth)acrylate material derived from hexafunctional acrylate and free radical initiator, and the core contains a benefit agent such as perfumes and a partitioning modifier such as isopropyl myristate, wherein the particles are characterized by a volume-weighted median particle size from about 30 to about 40 microns, and wherein the core:shell weight ratio, the amounts of the partitioning modifier, and the amounts of free radical initiator in both the instant application and Patent ‘124 substantially overlaps.
While the claims in the Patent ‘124 do not recite the amount of (meth)acrylate monomers as in the claims of the instant application, it would have been obvious to optimize the amount of (meth)acrylate monomers in the Patent ‘124 to amounts recited in the claims of the instant application in view of the guidance from Rodrigo-Gomez (Abstract; [0003]-[0007], [0055]-[0123], [0150]-[0164]; Examples 4-8; claims 1-20).
Consequently, the ordinary artisan would have recognized the obvious variation of the instant claimed subject matter over U.S. Patent No. 12146124 in view of Rodrigo-Gomez.
Claims 1-23 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-17 of U.S. Patent No. 12209232 in view of Rodrigo-Gomez et al (US 2020/0030952 A1).
Although the claims at issue are not identical, they are not patentably distinct from each other because the claims in the Patent ‘232 significantly overlap with the subject matter of instant claims, i.e., compositions comprising particles (capsules) comprising a core and a polymer wall surrounding the core, wherein the polymer wall contains (meth)acrylate monomers a (meth)acrylate material derived from hexafunctional acrylate and free radical initiator, and the core contains a benefit agent such as perfumes including aldehyde based perfumes, and a partitioning modifier such as isopropyl myristate,
While the claims in the Patent ‘232 do not recite the amount of (meth)acrylate monomers, the free radical initiator and its respective amounts, and the weight ratio of the core to polymer wall, as in the claims of the instant application, it would have been obvious to include free radical initiator in the formation of the polymeric wall of the Patent ‘676, as well as, optimize the amount of (meth)acrylate monomers and the weight ratio of the core to polymer wall in the Patent ‘232 to amounts recited in the claims of the instant application in view of the guidance from Rodrigo-Gomez (Abstract; [0003]-[0007], [0055]-[0123], [0150]-[0164]; Examples 4-8; claims 1-20).
Consequently, the ordinary artisan would have recognized the obvious variation of the instant claimed subject matter over U.S. Patent No. 12209232 in view of Rodrigo-Gomez.
Claims 1-23 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1-21 of copending Application No. 18554018 (reference application) in view of Feng et al (US 2016/0108339 A1).
Although the claims at issue are not identical, they are not patentably distinct from each other because the claims in the copending application ‘018 significantly overlap with the subject matter of instant claims, i.e., compositions comprising particles (capsules) comprising a core and a polymer wall surrounding the core, wherein the polymer wall contains (meth)acrylate monomers (polyacrylates) and free radical initiator, and the core contains a benefit agent such as perfumes including aldehyde based perfume and ketone based perfumes, and wherein the core:shell weight ratio, the amounts of (meth)acrylate monomers, and the amounts of free radical initiator in both the instant application and copending application ‘018 substantially overlaps.
While the claims in the instant application do not recite the shielding agent in the core, as in the claims of copending application ‘018, it would have been obvious to include a shielding agent such as anthranilates in the core of the copending application ‘018 in view of the guidance from Feng (Abstract; [0009]-[0015]. [0022]-[0026], [0034]-[0035], [0062], [0087]-[0108], [0113], [0127]-[0136], [0417], and [0419]).
Consequently, the ordinary artisan would have recognized the obvious variation of the instant claimed subject matter over copending Application No. 18554018 in view of Feng.
This is a provisional nonstatutory double patenting rejection.
Claims 1-23 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3-9 and 13-20 of copending Application No. 17863510 (reference application) in view of Feng et al (US 2016/0108339 A1).
Although the claims at issue are not identical, they are not patentably distinct from each other because the claims in the copending application ‘510 significantly overlap with the subject matter of instant claims, i.e., compositions comprising particles (capsules) comprising a core and a polymer wall surrounding the core, wherein the polymer wall contains (meth)acrylate monomers (polyacrylates) and free radical initiator, and the core contains a benefit agent such as perfumes including aldehyde based perfume and ketone based perfumes, and wherein the core:shell weight ratio, the amounts of (meth)acrylate monomers, and the amounts of free radical initiator in both the instant application and copending application ‘510 substantially overlaps.
While the claims in the instant application do not recite the shielding agent in the core, as in the claims of copending application ‘510, it would have been obvious to include a shielding agent such as methyl anthranilates in the core of the copending application ‘510 in view of the guidance from Feng (Abstract; [0009]-[0015]. [0022]-[0026], [0034]-[0035], [0062], [0087]-[0108], [0113], [0127]-[0136], [0417], and [0419]).
Consequently, the ordinary artisan would have recognized the obvious variation of the instant claimed subject matter over copending Application No. 17863510 in view of Feng.
This is a provisional nonstatutory double patenting rejection.
Claims 1-23 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-18 of copending Application No. 17839547 (reference application).
Although the claims at issue are not identical, they are not patentably distinct from each other because the claims in the copending application ‘547 significantly overlap with the subject matter of instant claims, i.e., compositions comprising particles (capsules) comprising a core and a polymer wall surrounding the core, wherein the polymer wall contains (meth)acrylate monomers (polyacrylates) and free radical initiator, and the core contains a benefit agent such as perfumes, and wherein the core:shell weight ratio, the amounts of (meth)acrylate monomers, and the amounts of free radical initiator in both the instant application and copending application ‘547 substantially overlaps.
Consequently, the ordinary artisan would have recognized the obvious variation of the instant claimed subject matter over copending Application No. 17839547.
This is a provisional nonstatutory double patenting rejection.
Claims 1-23 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of copending Application No. 19278000 (reference application) in view of Rodrigo-Gomez et al (US 2020/0030952 A1).
Although the claims at issue are not identical, they are not patentably distinct from each other because the claims in the copending application ‘800 significantly overlap with the subject matter of instant claims, i.e., compositions comprising particles (capsules) comprising a core and a polymer wall surrounding the core, wherein the polymer wall contains (meth)acrylate monomers (polyacrylates) and free radical initiator, and the core contains a benefit agent such as perfumes, wherein amounts of free radical initiator, core:shell weight ratio, and particle size in both the instant application and copending application ‘800 substantially overlaps.
While the claims in the copending application ‘800 do not recite the amount of (meth)acrylate monomers as in the claims of the instant application, it would have been obvious to optimize the amount of (meth)acrylate monomers in the copending application ‘800 to amounts recited in the claims of the instant application in view of the guidance from Rodrigo-Gomez (Abstract; [0003]-[0007], [0055]-[0123], [0150]-[0164]; Examples 4-8; claims 1-20).
While the claims in the instant application do not recite the broadness index and fracture strength characteristics of the particles, as in the claims of the copending application ‘800, it would have been obvious that the broadness index and fracture strength characteristics recited in the copending application ‘800 would have been implicit the substantially same particles of the instant claims in view of Rodrigo-Gomez (Abstract; [0003]-[0007], [0055]-[0123], [0150]-[0164]; Examples 4-8; claims 1-20)
Consequently, the ordinary artisan would have recognized the obvious variation of the instant claimed subject matter over copending Application No. 19278000 in view of Rodrigo-Gomez.
This is a provisional nonstatutory double patenting rejection.
Claims 1-23 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of copending Application No. 19368295 (reference application) in view of Rodrigo-Gomez et al (US 2020/0030952 A1).
Although the claims at issue are not identical, they are not patentably distinct from each other because the claims in the copending application ‘295 significantly overlap with the subject matter of instant claims, i.e., compositions comprising particles (capsules) comprising a core and a polymer wall surrounding the core, wherein the polymer wall contains (meth)acrylate monomers (polyacrylates) including hexafunctional aromatic urethane acrylate and free radical initiator, and the core contains a benefit agent such as perfumes and a partitioning modifier such as isopropyl myristate, wherein the particles are characterized by a volume-weighted median particle size from about 30 to about 40 microns, and wherein the core:shell weight ratio, the amounts of the partitioning modifier, and the amounts of free radical initiator in both the instant application and copending application ‘295 substantially overlaps.
While the claims in the copending application ‘295 do not recite the amount of (meth)acrylate monomers, as in the claims of the instant application, it would have been obvious to optimize the amount of (meth)acrylate monomers in the copending application ‘295 to amounts recited in the claims of the instant application in view of the guidance from Rodrigo-Gomez (Abstract; [0003]-[0007], [0055]-[0123], [0150]-[0164]; Examples 4-8; claims 1-20).
Consequently, the ordinary artisan would have recognized the obvious variation of the instant claimed subject matter over copending Application No. 19368295 in view of Rodrigo-Gomez.
This is a provisional nonstatutory double patenting rejection.
Claims 1-23 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-17 of copending Application No. 18985688 (reference application) in view of Rodrigo-Gomez et al (US 2020/0030952 A1).
Although the claims at issue are not identical, they are not patentably distinct from each other because the claims in the copending application ‘688 significantly overlap with the subject matter of instant claims, i.e., compositions comprising particles (capsules) comprising a core and a polymer wall surrounding the core, wherein the polymer wall contains (meth)acrylate monomers (polyacrylates), and the core contains a benefit agent such as perfumes including aldehyde based perfumes and ketone-based perfumes, wherein the amounts of perfumes in both the instant application and copending application ‘688 substantially overlaps.
While the claims in the copending application ‘688 do not recite the amount of (meth)acrylate monomers, the free radical initiator and its respective amounts, and the weight ratio of the core to polymer wall, as in the claims of the instant application, it would have been obvious to include free radical initiator in the formation of the polymeric wall of the copending application ‘688, as well as, optimize the amount of (meth)acrylate monomers and the weight ratio of the core to polymer wall in the copending application ‘688 to amounts recited in the claims of the instant application in view of the guidance from Rodrigo-Gomez (Abstract; [0003]-[0007], [0055]-[0123], [0150]-[0164]; Examples 4-8; claims 1-20).
Consequently, the ordinary artisan would have recognized the obvious variation of the instant claimed subject matter over copending Application No. 18985688 in view of Rodrigo-Gomez.
This is a provisional nonstatutory double patenting rejection.
Conclusion
No claim is allowed.
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/DOAN T PHAN/ Primary Examiner, Art Unit 1613