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 .
Summary
Receipt of Applicant’s remarks and amended claims filed on October 15, 2024 is acknowledged.
Claims 1-2 and 4-12 are pending in this application.
Claim 1 has been amended.
Claim 3 has been cancelled.
All pending claims are under examination.
Information Disclosure Statement
Receipt of the Information Disclosure Statement filed on October 21, 2024 is acknowledged. A signed copy has been attached to this office action.
Withdrawn Objections/Rejections
Claim Rejections - 35 USC § 102
The rejection of claim 1 under 35 U.S.C. 102(a)(1) as being anticipated by Osipow et al. (US 4,832,945) has been withdrawn in view of the amendment to claim 1 to incorporate claim 3.
Double Patenting
The rejection of claims 1-12 on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 10,905,647 has been withdrawn in view of the acceptance of the terminal disclaimer.
The rejection of claims 1-12 on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 10,543,164 has been withdrawn in view of the acceptance of the terminal disclaimer.
The rejection of claims 1-12 on the ground of nonstatutory double patenting as being unpatentable over claims 1-15 of U.S. Patent No. 10,966,915 has been withdrawn in view of the acceptance of the terminal disclaimer.
The rejection of claims 1-12 on the ground of nonstatutory double patenting as being unpatentable over claims 1-23 of U.S. Patent No. 11,497,706 has been withdrawn in view of the acceptance of the terminal disclaimer.
The rejection of claims 1-12 on the ground of nonstatutory double patenting as being unpatentable over claims 1-18 of U.S. Patent No. 11,540,999 has been withdrawn in view of the acceptance of the terminal disclaimer.
The rejection of claims 1-12 on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 11,844,752 has been withdrawn in view of the acceptance of the terminal disclaimer.
Newly Applied 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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-2 and 4-8 are rejected under 35 U.S.C. 103 as being unpatentable over Lesniak et al. (US 11,433,018) in view of Bianchi (US 2007/0166254).
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, it would have been obvious to have used ozokerite 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 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 suitable for use (paragraph 0058).
Regarding claim 5, a person of ordinary skill would have a reasonable expectation of success to formulate a deodorant stick such as that disclosed by Lesniak to have a hardness within the claimed range because it is 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 because 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 are also desired,
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 Bianchi (US 2007/0166254) and further in view of Phinney (US 9,314,412).
The teachings of Lesniak and Bianchi are discussed above.
The combination 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).
Regarding claims 10-12, as noted above, Lesniak discloses the inclusion of natural fragrances, including essential oils (column 8, lines 36-42).
Phinney acknowledges that prior publications described magnesium hydroxide as an “effective deodorant” and touts its enhanced effectiveness in preventing odor when 26 used in combination with zinc oxide (column 1, lines 12-22).
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 teaches that using magnesium hydroxide in combination with zinc oxide improves antimicrobial properties. A person of ordinary skill in the art would have been motivated to incorporate known improvements to odor protection, particularly where the known improvement also was known to maintain the “natural” composition intended by Lesniak.
Conclusion
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 extension fee 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 date of this final action.
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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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Robert A Wax can be reached on 571-272-0623. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MELISSA S MERCIER/Primary Examiner, Art Unit 1615
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