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 .
Applicants' arguments, filed May 4, 2026, have been fully considered. Rejections and/or objections not reiterated from previous office actions are hereby withdrawn. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application.
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims
Claim Rejections - 35 USC § 103 – Obviousness (Maintained Rejection)
Claims 1-18 are rejected under 35 U.S.C. 103 as being unpatentable over Yuan et al. (US 2018/0133129) in view of Fei et al. (US 2017/0143599).
Yuan et al. disclose oral care composition, including from about 0.01% to about 40% peroxymonosulfate whitening agent and from about 1% to about 99% non-aqueous dispersant. Additional whitening agents may be added and include hydrogen peroxide (paragraph 0046). The composition may comprise a poloxamer dispersant. Polyethylene glycols may also be added to the compositions. Abrasives include calcium pyrophosphate and insoluble sodium polymetaphosphate. The calcium pyrophosphate comprises about 20% of the of the compositions. Commercial compositions comprise PVP-peroxide complexes. The compositions comprise poloxamers, which are triblock copolymers. The oral care composition may include additional ingredients common to oral care compositions, such as thickeners, flavoring agents, tartar control agents, surfactants, sweeteners, humectants, colorants, dyes, and pigments. The composition may comprise about 2% tetrasodium pyrophosphate as a pH modifier. A composition comprises 1% Oxone ® (0.5% potassium peroxymonosulfate), 20% insoluble phosphate abrasive, 5.75% polyvinylpyrrolidone, 1.75% thickening agent, 1.98% flavoring and sweeteners, 2% pH modifying agents, 0.03% butylated hydroxytoluene, 1.1% sodium monofluorophosphate, 6.31% polyethylene glycol 600, 15.95% propylene glycol, 7.5% polyethylene glycol/polypropylene glycol 116/66 copolymer and 2% sodium lauryl sulfate powder (see Tables, meeting instant claim 1). Another composition comprises 36% polyoxyethylene-polyoxypropylene glycol (L35).
Yuan et al. differ from the instant claims insofar as it does not disclose the amount of hydrogen peroxide that may be used in addition to the peroxymonosulfate.
Fei et al. disclose single phase whitening dentifrices with metaphosphate abrasives. The composition comprises a whitening agent, wherein the whitening agent includes hydrogen peroxide and a peroxide bound to a polyvinyl pyrrolidone polymer. The amount of whitening agent used is about 0.05% to about 6% by weight (paragraph 0051).
It would have been obvious to one of ordinary skill in the art prior to filing the instant application to have use hydrogen peroxide in an amount ranging from 0.05 to about 6% in the composition of Yuan et al. because this is an effective range for whitening the teeth.
In regards the specific amounts, the claims use e.g., making the claims indefinite. See Indefiniteness rejections above.
Response to Arguments
The Examiner submits that it does not appear that Yuan et al. teach away from using peroxide in the disclosed compositions because they disclose that additional whitening agents may be added and include hydrogen peroxide (paragraph 0046). This supports that peroxide may be used in combination because “additional whitening agents” is disclosed. Therefore Yuan et al. does not appear to teach away from using peroxide. One would have a reasonable expectation of success because Yuan et al. suggest the composition. Since Yuan et al. suggest the combination, impermissible hindsight was not used. In regards to not being enabling, it would be in the relative skill of one ordinary skill in the art to adjust the condition to ensure the composition remains stable. In one example, hydrogen peroxide was complexed to polyvinyl pyrrolidone for stabilization. Other options within the skill of one of ordinary skill in the art is adjusting the pH.
In regards to the alleged unexpected results, it is not clear whether the results are additive or more than additive. One would reasonably conclude that the presence of larger amounts of whitening agent would lead to greater whitening. Further, there does not appear to be a control composition for MPS alone. Therefore it is not clear whether the results are additive or more than additive because the whitening effect for MPS is not shown alone.
Obvious-Type Double Patenting (Maintained Rejection)
Claims 1-18 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 12,226,499. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims are coextensive insofar as they both comprise potassium peroxymonosulfate, calcium phosphate, polyvinyl pyrrolidone, polyoxyethylene/polyoxypropylene triblock copolymer and PEG/PPG random copolymer and hydrogen peroxide. The patented claims are narrower in scope whereas the instant claims further define the composition in the dependent claims. Therefore the instant claims are obvious over the patented claims.
Response to Arguments
The patented claims recite an abrasive in the dependent claims. Therefore it would have been obvious to have added an abrasive recited in the instant claims to the compositions of the patented claims. Therefore the rejection is maintained.
Conclusion
Claims 1-18 are rejected.
Claim 19 is withdrawn.
No claims allowed.
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LEZAH ROBERTS whose telephone number is (571)272-1071. The examiner can normally be reached Monday-Friday 11:00-7:30.
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/LEZAH ROBERTS/Primary Examiner, Art Unit 1612
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