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 in the Request for Continued Examination, filed December 9, 2025, 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 Rejections and/or objections not reiterated from previous office actions are hereby withdrawn.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
Obvious-Type Double Patenting (Maintained Rejections)
1) Claims 1-3 and 6-22 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-35 of U.S. Patent No. 8,535,646. The rejection is maintained and further applied to claims 6-7 and 22.
Although the claims at issue are not identical, they are not patentably distinct from each other because they are coextensive insofar as both sets of claims recite method of inhibiting microorganisms that cause infectious diseases using the same compositions wherein each component is used in the same concentration range. The patented claims differ from the instant claims insofar as instant claims are genus claims of the patented claims.
Therefore the instant claims are obvious over the patented claims.
Response to Amendments
The Examiner submits that the method of the instant claims comprise the same method steps using the same compositions as those of the patented claims. Further microorganisms encompass bacteria as in the instantly recited bacterial infections. An election of species was made, however this did not result in claims being withdrawn. Further, although the other diseases were removed from the claims, this was not required for the election of species because the diseases were recited in one claim. Therefore, once the generic claim was deemed allowable, the dependent claims would have also been allowable. Therefore, the method of the instant claims is obvious over the patented claims.
2) Claims 1-3 and 6-22 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-25 of U.S. Patent No. 8,992,893. The rejection is maintained and further applied to claims 6-7 and 22.
Although the claims at issue are not identical, they are not patentably distinct from each other because they both encompass the same composition having about 0.01% to about 0.4% of a carbohydrate gum, about 7% to about 65% of a humectant and greater than 0.05% of an antimicrobial. The instant claims differ from the patented claims insofar as they disclose a method of using the compositions. However, it would have been obvious to one of ordinary skill in the art to have used the composition of the patented claims in the method of instant claims because it is the same composition and the patented claims recite that the composition is a barrier forming composition having antimicrobial properties.
Therefore the instant claims are obvious over the patented claims.
Response to Amendments
The Examiner submits that the method of the instant claims comprise the same method steps using the same compositions as those of the patented claims. Further microorganisms encompass bacteria as in the instantly recited bacterial infections. An election of species was made, however this did not result in claims being withdrawn. Further, although the other diseases were removed from the claims, this was not required for the election of species because the diseases were recited in one claim. Therefore, once the generic claim was deemed allowable, the dependent claims would have also been allowable. Further, the patented claims are drawn to a composition, the same composition used in the method of the instant claims. Therefore, the method of the instant claims is obvious over the patented claims.
3) Claims 1-3 and 6-22 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-23 of U.S. Patent No. 10,398,645. The rejection is maintained and further applied to claims 6-7 and 22.
Although the claims at issue are not identical, they are not patentably distinct from each other because they both encompass the same composition having about 0.01% to about 0.4% of a carbohydrate gum, about 7% to about 65% of a humectant and greater than 0.05% of an antimicrobial. The instant claims differ from the patented claims insofar as they disclose a method of using the compositions. However, it would have been obvious to one of ordinary skill in the art to have used the composition of the patented claims in the method of instant claims because it is the same composition and the patented claims recite that the composition is a barrier forming composition having antimicrobial properties.
Therefore the instant claims are obvious over the patented claims.
Response to Amendments
The Examiner submits that the method of the instant claims comprise the same method steps using the same compositions as those of the patented claims. Further, both sets of claims recite upper respiratory tract infections. Thus, the instant claims are species claims of the patented claims. Therefore, the method of the instant claims is obvious over the patented claims.
Conclusion
Claims 1-3 and 6-22 are rejected.
No claims allowed.
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