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 .
Status of Application
Receipt of the Appeal Briefs filed on February 12, 2026 and April 9, 2026 is acknowledged.
Claims 1-2 and 4-12 are pending in this application.
In view of the Appeal Brief filed on February 12, 2026 and the amended Appeal Brief filed on April9, 2026, PROSECUTION IS HEREBY REOPENED. New and amended grounds of rejection are set forth below.
To avoid abandonment of the application, appellant must exercise one of the following two options:
(1) file a reply under 37 CFR 1.111 (if this Office action is non-final) or a reply under 37 CFR 1.113 (if this Office action is final); or,
(2) initiate a new appeal by filing a notice of appeal under 37 CFR 41.31 followed by an appeal brief under 37 CFR 41.37. The previously paid notice of appeal fee and appeal brief fee can be applied to the new appeal. If, however, the appeal fees set forth in 37 CFR 41.20 have been increased since they were previously paid, then appellant must pay the difference between the increased fees and the amount previously paid.
A Supervisory Patent Examiner (SPE) has approved of reopening prosecution by signing below.
Modified and New Rejections
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.
Claims 1, 4, and 6-8 are rejected under 35 U.S.C. 103 as being unpatentable over Lesniak et al. (US 11,433,018) in view of Elsnau (US 4,049,792).
Lesniak discloses an anhydrous personal care composition comprising:
(a) 45 to 60 weight % of at least one ester, selected from (i) triglycerides, (ii) diglycerides, (iii) monoglycerides, (iv) monoesters of diols, and (v) diesters of diols;
(b) a first wax having a melting point of from 35° C. to 72° C. present in an amount of 5 to 25 weight %;
(c) a second wax having a melting point of 73 to 90° C. present in an amount of 0.5 to 15 weight %; and
(d) at least one plant oil having a saponification value of from 150 to 275 mg KOH/g present in an amount of 5 to 35 weight (abstract).
It is noted that ozokerite has a melting point of 73-76 ˚C. Therefore, based on the criteria of waxes disclosed by Lesniak (which include hydrogenated castor oil, sunflower wax, sunflower seed wax, carnauba wax, rice bran wax), ozokerite meets the criteria as second wax in the formulation.
The composition is disclosed to contain zinc oxide (column 3, lines 39-40). It is noted that zinc oxide has antimicrobial properties.
The composition is disclosed as being anhydrous (column 1, lines 39-40).
The composition is not disclosed to contain silicones, aluminum salts, or baking soda.
Regarding claim 4, Lesniak does not disclose the use of synthetic fragrances.
Regarding claims 6-8, Lesniak discloses the inclusion of natural fragrances, including essential oils (column 8, lines 36-42).
Lesniak does not specifically disclose ozokerite as a wax.
Elsnau discloses an antiperspirant composition in the form of a stick comprising 1% to about 20% of a water insoluble wax (abstract).
Suitable waxes are water insoluble waxes having a melting point of from 150 ˚F to about 215 ˚F (66-102˚C) and include carnauba and ozokerite. It is speculated that the high melting point wax provides a structure which can be sheared when applied to the skin. Higher levels of wax lead to lower wear rates, and lower levels of wax tend to give higher wear rates and a softer, less desirable structure which feels sticky to the user and does not provide adequate shearing action in use (column 2, lines 45-68). The skilled artisan would have recognized that the waxes disclosed by Lesniak and the waxes disclosed by Elsnau would have been functional equivalents within the art of deodorant/antiperspirant compositions. Applicant is directed to MPEP 2183 regarding the showing of equivalence of an claimed element (component). The wax of Elsnau is disclosed to perform identical function within the claimed composition in substantially the same way, while performing the same function. A person of ordinary skill would have recognized the interchangability of the elements (component).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the invention to have utilized ozokerite wax in the formulation of Lesniak since it meets the melting point requirement recited, and as noted by Elsnau, it is a preferred wax to be included in stick compositions since high melting point waxes provide a structure which can be sheared when applied.
Claims 2 and 5 are rejected under 35 U.S.C. 103 as being unpatentable over Lesniak et al. (US 11,433,018) in view of Elsnau (US 4,049,792) as applied to claims 1, 4, and 6-8 above, and further in view of Bianchi (US 2007/0166254).
The combined teachings of Lesniak and Elsnau are discussed above.
The combination does not disclose the use of stearyl alcohol or the hardness of the stick.
Bianchi discloses an antiperspirant stick comprising a fatty alcohol (abstract).
Regarding claim 2, stearyl alcohol is disclosed as a fatty alcohol widely used in antiperspirant sticks (paragraph 0001).
Regarding claim 5, Bianchi discloses explains that the "[t]he hardness of the sticks can be measured in a needle penetration test." (paragraph 0026). Bianchi describes the method for measuring stick hardness using a "brass/steel tapered needle (DIN 51-579)" depth on six locations of the stick, "with the hardness values being reported as an average of the six measurements." (Paragraph 0117). A person of ordinary skill in the art would have been motivated to formulate Lesniak's deodorant stick to be within the claimed hardness range, which overlaps with ranges known to be acceptable to consumers as disclosed in Bianchi with a reasonable expectation of success since the claims hardness is within a range routinely done in the art. It would have been understood how to adjust the hardness by adjusting the amounts of structurants to achieve the target hardness. For example, Lesniak’s composition comprises ranges of the first structurants and the second structurants which can be optimized.
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the invention to have added stearyl alcohol to the stick of Lesniak as disclosed by Bianchi in order to obtain non-whitening fatty alcohol-containing sticks that have desirable antiperspirant payouts, while providing a "clean", non-sticky feel and are resistant to rub-off, while having desirable wash-off characteristics.
Claims 9-12 are rejected under 35 U.S.C. 103 as being unpatentable over Lesniak et al. (US 11,433,018) in view of Phinney (US 9,314,412).
The teachings of Lesniak are discussed above.
Lesniak does not disclose magnesium hydroxide as the antimicrobial agent.
Phinney discloses deodorant formulations. He discloses the use of zinc oxide alone is not an efficacious antimicrobial when used alone (paragraph 2, lines 33-37).
Phinney explains that zinc and aluminum oxide are very unreactive against perspiration odour due to insolubility and low hydrolysis rat (column 2, lines 35-36). According to Phinney, magnesium hydroxide, has low solubility and therefore does not 'wash away' under heavy perspiration and thus provides 16-20 hour protection and more for a broad cross section of people (column 5, lines 47-51).
Phinney, additionally, discloses an embodiment of a specific formulation prepared as a solid stick that includes magnesium oxide in an amount of between 1% and 2.5% by weight and zinc oxide in an amount of between 0.5% and 1.5% by weight (column 6, lines 32-34).
Regarding claims 10-12, as noted above, Lesniak discloses the inclusion of natural fragrances, including essential oils (column 8, lines 36-42).
Therefore, it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the invention to have used magnesium hydroxide in the formulation of Lesniak because he teaches using zinc oxide (a known antimicrobial) and Phinney acknowledges that prior publications described magnesium hydroxide as an “effective deodorant” and touts its enhanced effectiveness in preventing odor when used in combination with zinc oxide (column 1, lines 12-22).
Phinney teaches that: (i) zinc oxide has "low activity" as a "deodorant agent"; (ii) magnesium hydroxide is "an effective deodorant"; and (iii) zinc and magnesium compounds have synergistic effects, hence motivating a person of ordinary skill to add magnesium hydroxide to Lesniak's zinc oxide deodorants ( column 1, line 13-column 3, lines 16 and column 5, lines 61-67).
Conclusion
Due to the new grounds of rejection presented in this office action, this action is made Non-Final.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MELISSA S MERCIER whose telephone number is (571)272-9039. The examiner can normally be reached M-F 6:30 am to 4 pm EST.
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/MELISSA S MERCIER/Primary Examiner, Art Unit 1615
/Robert A Wax/Supervisory Patent Examiner, Art Unit 1615
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