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 .
In view of the amendment, previous 112(b) rejection on claims 16-20, previous 112(b) rejection on claims 1-4 and 9-11 and previous 112(b) rejection on claims 3 and 4 are hereby withdrawn.
It is to be noted that upon reconsideration in view of applicant’s argument, previously applied Lee et al (US 2017/0066936 A1) was removed from previous 103 rejections over Meadow et al (WO’674) in view of Lee et al’936 and Ghavami-Nasr et al’482.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
Claim Objections
The numbering of claims is not in accordance with 37 CFR 1.126 which requires the original numbering of the claims to be preserved throughout the prosecution. When claims are canceled, the remaining claims must not be renumbered. When new claims are presented, they must be numbered consecutively beginning with the number next following the highest numbered claims previously presented (whether entered or not).
Misnumbered claims 22 and 23 been renumbered as claims 23 and 24.
Even though claims 23 and 24 (misnumbered claims 22 and 23) depend from claim 21, the Examiner assumed (for the purpose of examining the claims) that applicant meant both of the claims to be dependent on instant independent claim 22. If the Examiner’s assumption is correct, applicant need to change the claim dependency of claims 23 and 24 from “claim 21” to --- claim 22 ---.
Claim 11 is objected to because of the following informalities: on line 1, applicant need to change the claim dependency of claim 11 from “claim 1” to --- claim 7 --- (so as to provide a proper antecedent basis for “the valve”). 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 7-9 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.
In claim 7, applicant recite “an actuator insert comprising an area; wherein the value has a valve stem comprising a valve stem area.”. It is unclear what exactly applicant mean by these “areas” since they are not sufficiently described or explained in present specification or figures. Both the actuator insert and valve stem are 3-dimensional objects with multiple surfaces, so which surface areas are applicant referring to? Also, in claim 9, applicant recite “a ratio of the valve stem to the actuator insert area of less than about 10.”. It is unclear to the Examiner what the “ratio” is referring to. For example, is it referring to the ratio of lengths, volumes, widths or areas of the valve stem to the actuator insert area?
Appropriate corrections and clarifications are required. Instant 112 (b) rejection was previously made in the last Office Action; however, applicant did not address the rejection in their response.
Claim 5 is 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.
Applicant recite “a gas solubility at least 1e-4 H (mol/m3Pa) at 25oC”. Didn’t applicant mean to say Henry’s Law Constant of 10-4 (mol/m3Pa) instead of gas solubility?
Appropriate correction or clarification is required. Instant 112 (b) rejection was previously made in the last Office Action; however, applicant did not address the rejection in their response.
Claims 22-24 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 22 recites “at least about 10%” (line 6) and “at most about 1” (line 12). These phrases are rendered indefinite due to presence of the term “about” because: the term “at least” should precede a single minimum value; the term “at most” should precede a single maximum value.
Claims 1-16 and 21-24 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being incomplete for omitting essential elements, such omission amounting to a gap between the elements. See MPEP § 2172.01. The omitted elements are: Both claims 1 and 22 are drawn to an aerosol deodorant product, In present specification, applicant state (see pg.4, lines 3-5) that the term “deodorant composition” refers to any composition containing a deodorant active and which is intended to be applied onto skin. Yet, claims 1 and 22 omit the essential element, a deodorant active. Instant rejection can be overcome by reciting --- a deodorant active --- in both claims 1 and 22.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 15 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
In their amendment of claim 14, from which claim 15 depends, applicant deleted “dipropylene glycol” from the list of the emollients. Yet, claim 15 requires the emollient of claim 14 to comprise both dipropylene glycol and capric/caprylic triglyceride. Thus, claim 15 fails to further limit the subject matter of instant claim 14.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
For the purpose of examining claims 14 and 15, the Examiner assumed that applicant did not mean to delete “dipropylene glycol” in claim 14 (i.e., claim 14 was rejected as if dipropylene glycol was still included in the list for the emollient).
Claim 15 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 14, from which claim 15 depends, recites that “the emollient is selected from the group consisting of propylene glycol, diethylene glycol, capric/caprylic triglyceride, or combinations thereof”. Yet, claim 15 recites that the same emollient (described in claim 14) “comprises dipropylene glycol and capric/caprylic triglyceride.” Thus, claim 15 fails to further limit the subject matter of claim 14.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Instant rejection can be overcome by changing “comprises” on line 2 of claim 15 to --- consists of ---.
Claim 12 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claim 1 is drawn to an aerosol deodorant product. Yet, claim 12, which depends from claim 1, recites that the product of claim 1 is an antiperspirant comprising an antiperspirant active and/or deodorant product, which means that the product of claim 1 does not have to be a deodorant product. Thus, claim 12 fails to further limit the subject matter of claim 1. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim(s) 1-14 are rejected under 35 U.S.C. 103 as being unpatentable over Meadows et al (WO 97/19674) in view of Ghavami-Nasr et al (US 2018/0134482 A1).
Meadows teaches (see abstract, pg.1, 1st paragraph, pg.11, last 4 lines and pg.12) an aerosol deodorant composition (see Component II) consisting of 40 wt.% of propellant (CAP 40), 20 wt.% of polyhydric alcohol (dipropylene glycol – instant emollient of claim 1), 1.0 wt.% of anti-bacterial (zinc phenolsulphonate – instant deodorant of claim 12), 1 wt.% of silicone emollient (dimethicone) and C1-C4 alcohol (denatured ethanol) to balance (i.e., 38 wt.% as calculated by the Examiner).
With respect to instant liquid concentrate (c), the composition of Component II without the propellant (i.e., instant liquid concentrate of claim 1) would be 33.3 wt.% of dipropylene glycol, 1.6 wt.% dimethicone, 63 wt.% of denatured ethanol and 1.6 wt.% of antibacterial (as calculated by the Examiner). Thus, Meadows’s Component II composition contains 33.3 wt.% (by weight of the concentrate) of dipropylene glycol, and thus, Meadows teaches instant liquid concentrate (c) comprising at least 10 wt.% (by weight of the concentrate) of the emollient (dipropylene glycol): even though Meadows’s Component II composition also contains dimethicone (another emollient), instant claim language does not exclude the presence of additional emollient(s), i.e., emollients other than those listed in claim1 (since present claim language uses the transitional phrase “comprising”, and instant claim 1 does not expressly require that the liquid concentrate does not include any other emollient(s) than what is listed in claim 1).
With respect to instant limitation “wherein the concentrate comprises a viscosity (cP) to surface tension (dyn/cm) ratio of at most about 1”, Meadows does not explicitly teach such limitation. However, the components included in the Component II composition of Meadows have following physical properties: dipropylene glycol having a surface tension of 33 dynes/cm and a viscosity of 122.1 cP; dimethicone having a surface tension of 20.6 dynes/cm and a viscosity of 19 cP; and denatured ethanol having a surface tension of 22 dynes/cm and a viscosity of 1.2 cP (even though the surface tension and viscosity information for zinc phenolsulphonate (the anti-bacterial (instant deodorant)) were not available because it is solid, it is the Examiner’s position that since it is neither a surfactant nor a thickener and is used in such a small amount, it would not contribute to either the surface tension or viscosity of the liquid concentrate as a whole). ((i) the information for the dipropylene glycol was obtained from Table 1 (Example 9) of present specification; (ii) the information for the dimethicone was obtained from the website: https://www.shinetsusilicone-global.com/catalog/pdf/DMF_us.pdf (see DM-FLUID-20cs from the table on pg.2 for the viscosity and see the graph titled “Surface tension of DM-FLUID” on pg.17 for the surface tension – the Examiner assumed that the dimethicone has a kinematic viscosity of 20 cst as specified by Meadows on pg.7, last paragraph); and (iii) the information for the denatured ethanol was obtained from the website: https://www.engineeringtoolbox.com/surface-tension-d_962.html (see the second table titled “Common Fluids - Surface Tension”, which gives the surface tension for Ethanol) and from the website: https://www.engineeringtoolbox.com/ethanol-dynamic-kinematic-viscosity-temperature-pressure-d_2071.html (see the first graph titled “Viscosity of liquid ethanol at 1 bar”, which gives the viscosity of 1.2 cP at 25oC)). Since the components used in Meadow’s Component II composition are inert to each other, it is the Examiner’s position that both the surface tension and viscosity of the mixture would fall within the range of the lowest and the highest values of individual components, which means that the surface tension for Meadows’s Component II composition would range from 20.6 – 33 dynes/cm and the viscosity for the composition would range from 1.2 – 122.1 cP, which would give the ratio of the viscosity to surface tension to be 0.036 – 5.93 (as calculated by the Examiner). Such range overlaps with instant range of “at most 1” (of claim 1) as well as with instant range of “at most 0.8” (of claim 2), thus rendering instant ranges prima facie obvious. In the case “where the [claimed] ranges overlap or lie inside ranges disclosed by the prior art,” a prima facie case of obviousness would exist which may be overcome by a showing of unexpected results, In re Wertheim, 541. F.2d 257, 191 USPQ 90 (CCPA 1976). Thus, Meadow renders obvious instant limitation “wherein the concentrate comprises a viscosity (cP) to surface tension (dyn/cm) ratio of at most 1”.
With respect to instant limitation as to the compressed gas propellant, Meadows’s Component II composition contains CAP 40 (propane/butane mixture) as the propellant, which does not teach instant compressed gas propellant. However, Meadows teaches (pg.10, 3rd paragraph) that compressed gases, such as carbon dioxide, nitrogen and air, may also be used as propellants. Thus, it would be obvious to one skilled in the art to use these compressed gases (instead of CAP 40) as the propellant in Meadows’s Component II composition with a reasonable expectation of success. Thus, Meadows teaches instant compressed gas propellant. Meadows does not teach that its aerosol deodorant composition is contained in a pressurized container. However, as evidenced by Ghavami-Nasr et al (abstract, [0010] and [0043]), it is well known in the art that propellant-based aerosol compositions for antiperspirants and deodorants are contained in pressurized containers. It would be obvious to one skilled in the art to contain Meadows’s aerosol deodorant composition in a pressurized container according to the well-known practice in the art. Thus, Meadows in view of Ghavami-Nasr renders obvious instant pressurized container (a) and instant compressed gas propellant (b) contained within the container.
Thus, Meadows in view of Ghavami-Nasr renders obvious instant claims 1, 2, 6 12 and 14.
With respect to instant claims 3-4, as discussed above, Meadows’s Component II composition contains dipropylene glycol (instant emollient). As also discussed above, dipropylene glycol has a viscosity of 122.1 cP as evidenced from Table 1 (Example 9) of present specification. Thus, Meadows in view of Ghavami-Nasr renders obvious instant claims 3 and 4.
With respect to instant claim 5, since Meadows’s Component II composition (as modified by Meadows’s teaching to contain compressed gases such as carbon dioxide (instead of CAP 40) and modified by Ghavami-Nasr’s teaching to be contained in a pressurized container) is similar to Example C composition of Table A of present specification (pg.30-31), and since Example C has a gas solubility value of 4.11 x 10-4 mol/m3Pa for carbon dioxide, it is the Examiner’s position that Meadows’s Component II composition would also have a similar value for the gas solubility of carbon dioxide. Thus, Meadows in view of Ghavami-Nasr renders obvious instant claim 5.
With respect to instant claim 13, Meadows (pg.3, 5th paragraph, pg.11, 3rd paragraph) teaches that its aerosol deodorant compositions are preferably single-phase solutions which remain stable over a typical shelf-life. Thus, Meadows in view of Ghavami-Nasr renders obvious instant claim 13.
With respect to instant claims 7 and 8, Ghavami-Nasr teaches (Fig.1, [0073]-[0073]) an aerosol spray device that contains a cylindrical, axially movable valve stem (“7” in Fig.1) having an axial bore extending from the upper end of the valve to the lower end. At the lower end, the valve stem locates within a cylindrical housing positioned internally in the container, and at the upper end, the bore is fitted with an actuator in the form of a cap (“10” in Fig.1) having a spray outlet region. Provided at the outlet end of the spray region is a conventional mechanical break up unit (MBU) insert. Ghavami-Nasr’s valve stem teaches instant valve stem and inherently instant valve stem area of claim 7. Ghavami-Nasr’s MBU insert teaches instant actuator insert and inherently instant actuator insert area of claim 7. Ghavami-Nasr further teaches (abstract) that the valving arrangement is adapted such that the movement of the valve stem from its first to second limit position (by depressing the actuator cap – see [0084]) opens the first and second inlets to cause a bubble laden flow to be created in the flow conduit, and movement of the valve stem back to the first limit position closes the first and second inlets. Ghavami-Nasr’s bubble laden flow teaches instant effervescent atomization of claim 8 (see [0005] of US-PGPUB of present application). Thus, Meadows in view of Ghavami-Nasr renders obvious instant claims 7 and 8.
With respect to instant claim 9, Meadows in view of Ghavami-Nasr does not teach instant ratio of the valve stem to the actuator insert area. However, since Ghavami-Nasr (see abstract, [0020], [0023]) aims to have fine spray droplets (applicant also aims to have good atomization of the formulation – [0049] of US-PGPUB of present application), instant range (less than about 10) for the ratio of the valve stem to the actuator insert area would have been obvious to one skilled in the art before the effective filing date of the claimed invention, since discovering the optimum or workable ranges that would give the best atomization result would be within a realm of one of ordinary skill in the art. Meadows in view of Ghavami-Nasr renders obvious instant claim 9.
With respect to instant claim 10, Ghavami-Nasr teaches ([0072]) that the gas in the head space of the container may have an internal pressure of 9-12 bars. Thus, Meadows in view of Ghavami-Nasr renders obvious instant claim 10.
With respect to instant claim 11, Ghavami-Nasr shows (see Table between [0119] and [0120]) that the flow rate of the liquid range from 19.2 mL/min to 48.9 mL/min, depending on the initial pressure of the container. Since the test was done with deionized water (see [0114]), this converts to a flow rate of 0.32 g/second to 0.815 g/second, which teaches instant limitation of claim 11. Thus, Meadows in view Ghavami-Nasr renders obvious instant claim 11.
Claim(s) 15 is rejected under 35 U.S.C. 103 as being unpatentable over Claim(s) 1-14 are rejected under 35 U.S.C. 103 as being unpatentable over Meadows et al (WO 97/19674) in view of Ghavami-Nasr et al (US 2018/0134482 A1) as applied to claim 14 above, and further in view of Garcia Sanz et al (US 10,500,153 B2).
As already discussed above, Meadows’s composition of Component II contains dipropylene glycol, but the composition does not include instant capric/caprylic triglyceride. As evidenced by Garcia Sanz (see col.11, lines 31-32, lines 42-44), dimethicone (another emollient included in Meadows’s Component II composition) and capric/caprylic triglyceride are well known in the art as equivalent or interchangeable emollients used in cosmetic compositions. It would be obvious to one skilled in the art to use capric/caprylic triglyceride (instead of dimethicone) in Meadows’s composition of Component II containing dipropylene glycol with a reasonable expectation of achieving skin conditioning. Thus, Meadows in view of Ghavami-Nasr, and further in view of Garcia Sanz renders obvious instant claim 15.
Claim(s) 16 is rejected under 35 U.S.C. 103 as being unpatentable over Meadows et al (WO 97/19674) in view of Ghavami-Nasr et al (US 2018/0134482 A1), as applied to claim 1 above, and further in view of Lemoine et al (US 2009/0035245 A1).
Although Meadows teaches that its aerosol deodorant compositions are single-phase solutions, as evidenced by Lemoine et al ([0049]), it is well known in the art that deodorant compositions can equally be formulated in the form of single phase, water-in-oil emulsion, or oil-in-water emulsion. It would be obvious to one skilled in the art to formulate Meadows’s aerosol deodorant composition in the form of W/O emulsion with a reasonable expectation of success. Furthermore, in the case of W/O emulsion, Meadows’s dipropylene glycol (which is a water-soluble emollient) would naturally migrate to the disperse phase (i.e., water phase), and Meadows’s dimethicone (a water-insoluble emollient) would migrate to the continuous phase (i.e., oil phase), thus teaching instant limitation of clam 16. Thus, Meadows in view of Ghavami-Nasr, and further in view of Lemoine renders obvious instant claim 16.
Claim(s) 21 is rejected under 35 U.S.C. 103 as being unpatentable over Meadows et al (WO 97/19674) in view of Ghavami-Nasr et al (US 2018/0134482 A1), as applied to claim 1 above, and further in view of Emmerling et al (EP 1 803 660 A1 and its English translation).
Meadows in view of Ghavami-Nasr does not teach instant Dv50 limitation. Emmerling teaches ([0001] and [0013]) that the droplet sizes for sprayed antiperspirant/deodorant should be in the range of 50 microns or less so as to ensure unform distribution of the antiperspirant/deodorant on the body. It would be obvious to one skilled in the art to make the droplet size of Meadows’s aerosol deodorant composition to be 50 microns or less when sprayed so as to ensure uniform distribution of the antiperspirant/deodorant on the body. Thus, Meadows in view of Ghavami-Nasr, and further in view of Emmerling renders obvious instant claim 21.
Claim(s) 22 is rejected under 35 U.S.C. 103 as being unpatentable over
Meadows et al (WO 97/19674) in view of Ghavami-Nasr et al (US 2018/0134482 A1) and Emmerling et al (EP 1 803 660 A1 and its English translation).
Meadows teaches (see abstract, pg.1, 1st paragraph, pg.11, last 4 lines and pg.12) an aerosol deodorant composition (see Component II) consisting of 40 wt.% of propellant (CAP 40), 20 wt.% of polyhydric alcohol (dipropylene glycol – instant emollient of claim 1), 1.0 wt.% of anti-bacterial (zinc phenolsulphonate – a deodorant), 1 wt.% of silicone emollient (dimethicone) and C1-C4 alcohol (denatured ethanol) to balance (i.e., 38 wt.% as calculated by the Examiner).
With respect to instant liquid concentrate (c), Meadows’s composition of Component II without the propellant (i.e., instant liquid concentrate of claim 22) would be 33.3 wt.% of dipropylene glycol, 1.6 wt.% dimethicone, 63 wt.% of denatured ethanol and 1.6 wt.% of antibacterial (as calculated by the Examiner). Thus, Meadows’s Component II composition contains 33.3 wt.% (by weight of the concentrate) of dipropylene glycol (instant emollient). Meadows also teaches (pg.3, 5th paragraph, pg.11, 3rd paragraph) that its aerosol deodorant compositions are preferably single-phase solutions which remain stable over a typical shelf-life. Thus, Meadows teaches instant liquid concentrate (c) which is a homogeneous solution comprising at least 10 wt.% (by weight of the concentrate) of the emollient (dipropylene glycol): even though Meadows’s Component II composition also contains dimethicone (another emollient), instant claim language does not exclude the presence of additional emollient(s), i.e., emollients other than those listed in claim1 (since present claim language uses the transitional phrase “comprising”, and instant claim 22 does not expressly require that the liquid concentrate does not include any other emollient(s) than what is listed in claim 22).
With respect to instant water, Meadows teaches (pg.5, 2nd paragraph) that its composition can comprise water up to about 2 wt.%. Thus, Meadows teaches instant water.
With respect to instant limitation “wherein the concentrate comprises a viscosity (cP) to surface tension (dyn/cm) ratio of at most about 1”, Meadows does not explicitly teach such limitation. However, the components included in the Component II composition of Meadows have following physical properties: dipropylene glycol having a surface tension of 33 dynes/cm and a viscosity of 122.1 cP; dimethicone having a surface tension of 20.6 dynes/cm and a viscosity of 19 cP; and denatured ethanol having a surface tension of 22 dynes/cm and a viscosity of 1.2 cP (even though the surface tension and viscosity information for zinc phenolsulphonate (the anti-bacterial (instant deodorant)) were not available because it is solid, it is the Examiner’s position that since it is neither a surfactant nor a thickener and is used in such a small amount, it would not contribute to either the surface tension or viscosity of the liquid concentrate as a whole). ((i) the information for the dipropylene glycol was obtained from Table 1 (Example 9) of present specification; (ii) the information for the dimethicone was obtained from the website: https://www.shinetsusilicone-global.com/catalog/pdf/DMF_us.pdf (see DM-FLUID-20cs from the table on pg.2 for the viscosity and see the graph titled “Surface tension of DM-FLUID” on pg.17 for the surface tension – the Examiner assumed that the dimethicone has a kinematic viscosity of 20 cst as specified by Meadows on pg.7, last paragraph); and (iii) the information for the denatured ethanol was obtained from the website: https://www.engineeringtoolbox.com/surface-tension-d_962.html (see the second table titled “Common Fluids - Surface Tension”, which gives the surface tension for Ethanol) and from the website: https://www.engineeringtoolbox.com/ethanol-dynamic-kinematic-viscosity-temperature-pressure-d_2071.html (see the first graph titled “Viscosity of liquid ethanol at 1 bar”, which gives the viscosity of 1.2 cP at 25oC)). Since the components used in Meadow’s Component II composition are inert to each other, it is the Examiner’s position that both the surface tension and viscosity of the mixture would fall within the range of the lowest and the highest values of individual components, which means that the surface tension for Meadows’s Component II composition would range from 20.6 – 33 dynes/cm and the viscosity for the composition would range from 1.2 – 122.1 cP, which would give the ratio of the viscosity to surface tension to be 0.036 – 5.93 (as calculated by the Examiner). Such range overlaps with instant range of “at most about 1” of claim 22, thus rendering instant ranges prima facie obvious. In re Wertheim, supra. Thus, Meadow renders obvious instant limitation “wherein the concentrate comprises a viscosity (cP) to surface tension (dyn/cm) ratio of at most about 1”.
With respect to instant limitation as to the nitrogen propellant, Meadows’s Component II composition contains CAP 40 (propane/butane mixture) as the propellant, which does not teach instant compressed gas propellant. However, Meadows teaches (pg.10, 3rd paragraph) that compressed gases, such as carbon dioxide, nitrogen and air, may also be used as propellants. Thus, it would be obvious to one skilled in the art to use nitrogen (instead of CAP 40) as the propellant in Meadows’s Component II composition with a reasonable expectation of success. Thus, Meadows teaches instant nitrogen propellant. Meadows does not teach that its aerosol deodorant composition is contained in a pressurized container. However, as evidenced by Ghavami-Nasr et al (abstract, [0010] and [0043]), it is well known in the art that propellant-based aerosol compositions for antiperspirants and deodorants are contained in pressurized containers. It would be obvious to one skilled in the art to contain Meadows’s aerosol deodorant composition in a pressurized container according to the well-known practice in the art. Thus, Meadows in view of Ghavami-Nasr renders obvious instant pressurized container (a) and instant nitrogen propellant (b) contained within the container.
With respect to instant limitation “wherein when the product is sprayed the Dv50 is no more than 200 mm”, Meadows in view of Ghavami-Nasr does not teach instant Dv50 limitation. Emmerling teaches ([0001] and [0013]) that the droplet sizes for sprayed antiperspirant/deodorant should be in the range of 50 microns or less so as to ensure unform distribution of the antiperspirant/deodorant on the body. It would be obvious to one skilled in the art to make the droplet size of Meadows’s aerosol deodorant composition to be 50 microns or less when sprayed so as to ensure uniform distribution of the antiperspirant/deodorant on the body. Thus, Meadows in view of Ghavami-Nasr and Emmerling renders obvious instant Dv50 limitation.
Therefore, Meadows in view of Ghavami-Nasr and Emmerling renders obvious instant claim 22.
Claim(s) 23 is rejected under 35 U.S.C. 103 as being unpatentable over Meadows et al (WO 97/19674) in view of Ghavami-Nasr et al (US 2018/0134482 A1) and Emmerling et al (EP 1 803 660 A1 and its English translation) as applied to claim 22 above, and further in view of Garcia Sanz et al (US 10,500,153 B2).
As already discussed above, Meadows’s composition of Component II contains dipropylene glycol, but the composition does not include instant capric/caprylic triglyceride. As evidenced by Garcia Sanz (see col.11, lines 31-32, lines 42-44), dimethicone (another emollient included in Meadows’s Component II composition) and capric/caprylic triglyceride are well known in the art as equivalent or interchangeable emollients used in cosmetic compositions. It would be obvious to one skilled in the art to use capric/caprylic triglyceride (instead of dimethicone) in Meadows’s composition of Component II containing dipropylene glycol with a reasonable expectation of achieving skin conditioning. Thus, Meadows in view of Ghavami-Nasr and Emmerling, and further in view of Garcia Sanz renders obvious instant claim 23.
Claim(s) 24 is rejected under 35 U.S.C. 103 as being unpatentable over Meadows et al (WO 97/19674) in view of Ghavami-Nasr et al (US 2018/0134482 A1) and Emmerling et al (EP 1 803 660 A1 and its English translation) as applied to claim 22 above, and further in view of Sato et al (JP 2016-117699 A and its English translation).
As shown above, Meadows’s composition of Component II contains anti-bacterial, zinc phenolsulphonate as its deodorant active. Meadows does not teach instant piroctone olamine of claim 24. Sato teaches ([0002], [0004]) an aerosol-type deodorant composition that provides long-lasting deodorizing effect and antibacterial effect after excessive sweating. Sato teaches ([0007]-[0008]) that such effect can be obtained by an aerosol-type deodorant composition containing (a) an antibacterial agent, (B) a fragrance component, (C) ethanol and propellant. As the antibacterial agent, Sato teaches that piroctone olamine, isopropylmethylphenol or benzalkonium chloride can be used ([0008]). Meadows’s composition of Component II contains zinc phenolsulphonate (antibacterial agent), ethanol and propellant. Meadows also teaches (pg.9, 2nd paragraph) that its composition can contain fragrances to mask malodors. Since Sato’s piroctone olamine and Meadows’s zinc phenolsulphonate are being individually taught by the prior arts to be useful for the same purpose (i.e., as antibacterial deodorant actives), it would have been obvious to one skilled in the art to further include Sato’s piroctone olamine (antibacterial agent) in Meadows’s composition of Component II containing zinc phenolsulphonate (antibacterial agent) with a reasonable expectation of providing long-lasting deodorizing effect and antibacterial effect after excessive sweating. "It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980). See MPEP 2144.06(I). Thus, Meadows in view of Ghavami-Nasr and Emmerling, and further in view of Sato renders obvious instant claim 24.
Response to Arguments
Applicant first argue that the amended claim 1 recites a specific list of emollients that explicitly excludes silicones and argue that since Meadows teaches that the silicone emollient is valuable in its compositions for the provision of enhanced smooth, non-sticky, dry skin feel benefits, one skilled in the art would have no reason to modify Meadows to remove the silicone. However, applicant’s such argument is unpersuasive since, as already discussed above, instant claim language does not exclude the presence of additional emollient(s), i.e., emollients other than those listed in claim1, for example, silicone emollients. That is, present claim language uses the transitional phrase “comprising”, and also, instant claim 1 or claim 22 does not expressly require that the liquid concentrate does not include any other emollient(s) than what is listed in claim 1 or claim 22.
The rest of applicant’s arguments involves Lee et al (US 2017/0066936 A1), which has been removed from instant 103 rejections. Thus, applicant’s arguments are now moot.
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/SIN J LEE/
Primary Examiner, Art Unit 1613
May 25, 2026
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