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 filed on 10/23/2023 is a CON of PCT/EP2022/060342 filed on 04/20/2022 which claims foreign priority to GERMANY 10 2021 002 147.9 filed on 04/23/2021 and GERMANY 10 2021 002 640.3 filed on 05/20/2021 .
DETAILED ACTION
The Office Action is in response to the Applicant's reply filed June 15, 2026 to the restriction requirement made on April 14, 2026.
Applicant's election with traverse of Group I, Claims 1-12, and the species citric acid; sodium benzoate; Plantacare R 810 UP (Capryl Glucoside); Ammonyx LO (Lauramine oxide); Hydrolite 6 (1,2-Hexanediol); Lemon aroma; and Glycerine in the reply filed on June 15, 2026 is acknowledged.
In response, Examiner respectfully reiterates in "a group of inventions claimed in an international application unity of invention exists only when there is a technical relationship among the claimed inventions involving one or more of the same or corresponding special technical features. The expression "special technical features" is defined in PCT Rule 13.2 as meaning those features that define a contribution which each of the inventions, considered as a whole, makes over the prior art. The determination is made on the contents of the claims as interpreted in light of the description or drawings (if any)." The inventions listed as Groups I-II do not relate to a single general inventive concept under PCT Rule 13.1 because, under PCT Rule 13.2, they lack the same or corresponding special technical features. In the instant case the nonionic cleaning surfactants include, but are not limited to, alkyl alcohol alkoxylates, organic acids, suitable enhancers including benzoates so there is no novel formulation as claimed, and therefore, there is a lack in unity (US 20190082684 A1 - IDS). Because Applicant's arguments are not found persuasive.
The requirement is still deemed proper and is therefore made FINAL.
Information Disclosure Statement
The information disclosure statement(s) (IDS) filed on 2/19/24 is in compliance with the provisions of S7 CFR 1.97. Accordingly, the IDS is being considered by the Examiner.
The rejections are as below:
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 1-12 are rejected under 35 U.S.C. 103 as being unpatentable over Modak et al. (WO 2008/157847 Al).
Modak et al. teaches a botanical antimicrobial compositions comprising acid pH adjusters such as mineral acids and polycarboxylic acids (e.g., hydrochloric acid, nitric acid, phosphoric acid, sulfuric acid, citric acid, glycolic acid, and lactic acid). Further comprising from about 0.2%(w/w) to about 0.5%(w/w) sodium benzoate. Examples comprising capryl Glucoside, Lemon Extract, glycerin and incromide oxide l (Lauramine oxide). Alkanediols include, but are not limited to, propanediol, butanediol, dodecanediol, decanediol, nonanediol, octanediol, heptanediol, hexanediol, and pentanediol. Examples of essential oils include ginger.
The reference does not specify a formulation in the amounts as claimed.
It would have been obvious to one of ordinary skill in the art at the time of filing to combine citric acid; sodium benzoate; Capryl Glucoside; Lauramine oxide; 1,2-Hexanediol; Lemon aroma; and Glycerine. The motivation to combine citric acid; sodium benzoate; Capryl Glucoside; Lauramine oxide; 1,2-Hexanediol; Lemon aroma; and Glycerine, is because Modak et al. teaches a botanical antimicrobial compositions for use by or on children or pets or for use in households or other environments occupied by children or animals. Hence, a skilled artisan would have reasonable expectation to successfully achieve similar efficacy and results. With respect to the amounts, in the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. 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). (MPEP § 2144.05(1)) Moreover, differences in concentration will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration is critical. “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” /n re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). (MPEP § 2144.05(Il)) “The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages.” In re Peterson, 315 F.3d 1325, 1330, 65 USPQ2d 1379, 1382-83 (Fed. Cir. 2003).
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 §§ 706.02(l)(1) - 706.02(l)(3) 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 USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The 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/process/file/efs/guidance/eTD-info-I.jsp.
Claims 1-12 provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-19 of co-pending Application No. : 19/036546.
Although the conflicting claims are not identical, they are not patentably distinct from each other because both applications disclose composition, comprising or consisting of: a micellar water comprising one or more non-ionic surfactants which are soluble or emulsifiable or dispersible in water; one or more of a prebiotic, a probiotic, or a postbiotic; one or more excipient solvents; one or more excipient pH regulators, one or more excipient acids or their alkali and/or alkaline earth salts and/or amino acids giving the resulting composition a pH between 3 and 4.2; up to 98.695% by weight of water; wherein an aqueous liquid composition of the rehabilitation composition comprises the one or more non-ionic surfactants in an amount ranging from 1.0 to 5.0% by weight; and with the proviso that no surfactants (0.0% by weight) other than the non-ionic surfactants are present; the one or more solvents in an amount ranging from 0.1 to 20.0% by weight; and that no C1-C6 alcohols (0.0% by weight) other than a type of glycol ether are present; and no quaternary ammonium compounds are present. The main difference between the instant application and the prior application is that the prior application does not specify the amounts.
In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. 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). (MPEP § 2144.05(1)) Moreover, differences in concentration will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration is critical. “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” /n re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). (MPEP § 2144.05(Il)) “The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages.” In re Peterson, 315 F.3d 1325, 1330, 65 USPQ2d 1379, 1382-83 (Fed. Cir. 2003).
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Conclusion
No claims allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LAYLA SOROUSH whose telephone number is (571)272-5008. The examiner can normally be reached on Monday thru Friday; 8:30 AM to 5:00 PM EST.
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/LAYLA SOROUSH/ Primary Examiner, Art Unit 1622
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