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 .
Response to Election/Restrictions
Applicant's election with traverse of Group I in the reply filed on December 19, 2025 is acknowledged. The traversal is on the ground(s) that it is not a serious burden to search both groups. This is not found persuasive because Burden consists not only of specific searching of classes and subclasses, but also of searching multiple databases for foreign references and literature searches. Burden also resides in the examination of independent claim set for clarity, enablement and double patenting issues. Further, a reference that would anticipate the invention of one group would not necessarily anticipate or even make obvious another group. Finally, the consideration for patentability is different in each case. Thus, it would be an undue burden to examine all of the above inventions in one application and the restriction for examination purposes as indicated above is deemed proper.
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The requirement is still deemed proper and is therefore made FINAL.
Claims 1-21 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected Invention, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on December 19, 2025.
Claims
Claim Rejections - 35 USC § 102 - Anticipation
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1-3, 11 and 15-16 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Mintel (already of record, 2011).
Mintel discloses a mouthwash comprising water, sorbitol, caprylyl/capryl glucoside (alkyl glucoside), olaflur (amine fluoride) and sodium fluoride (Ingredients). The composition is free of anionic surfactants.
Mintel anticipates the instant claims.
Claim Rejections - 35 USC § 103 - Obviousness
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.
1) Claims 1-6, 11 and 15-16 are rejected under 35 U.S.C. 103 as being unpatentable over Mintel (already of record, 2011) in view of Li et al. (WO 2021263151, already of record).
Mintel discloses a mouthwash comprising water, sorbitol, caprylyl/capryl glucoside (alkyl glucoside), olaflur (amine fluoride) and sodium fluoride (Ingredients). The composition is free of anionic surfactants.
Mintel differs from the instant claims insofar as it does not disclose the amounts of each components.
Li et al. disclose mouthwash compositions. The mouthwash comprises a nonionic surfactant and includes alkyl glucosides, such as capryl/caprylyl glucoside and coco glucoside (paragraph 0029). The nonionic surfactant comprises 0.1 to 2% and 0.2 to 0.4% by weight of the composition (paragraph 0030) (instant claims 5-6). Fluoride may be used in the composition and includes amine fluoride (e.g., N'-octadecyltrimethylendiamine- Ν,Ν,Ν'-tris(2-ethanol)-dihydrofluoride) (olaflur) (page 9, 1.48).
Generally, it is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use. See MPEP 2144.07. It would have been obvious for one of ordinary skill in the art prior to filing the instant application to have used 0.1% to 2% caprylyl/capryl glucoside in the composition of Mintel because this is a suitable amount of nonionic surfactant used in a mouthwash composition.
It is obvious to replace one component for another equivalent component if it is recognized in the art that two components are equivalent and is not based on the Applicant disclosure. See MPEP 2144.06. It would have been obvious to one of skill in the art prior to the time the Application was filed to have used coco glucoside in place of caprylyl/capryl glucoside in the compositions of Mintel because they are taught as equivalents, as disclosed by Li et al.
The amount of nonionic surfactant controls the clarity of the mouthwash. When lower amounts of glucoside surfactants are used, they create a cloudy composition. One of ordinary skill in the art would reasonably conclude that the composition would comprise micelles when low amounts of glucoside surfactant are used.
2) Claims 1-5, 11-13 and 15-16 are rejected under 35 U.S.C. 103 as being unpatentable over Mintel (already of record, 2011) in view of Poth (US 2021/0169757).
Mintel discloses a mouthwash comprising water, sorbitol, caprylyl/capryl glucoside (alkyl glucoside), olaflur (amine fluoride) and sodium fluoride (Ingredients). The composition is free of anionic surfactants.
Mintel differs from the instant claims insofar as it does not disclose the amounts of each components.
Poth discloses stable oral care compositions comprising one or more alkyl glucosides (Abstract). Alkyl glucoside may be C.sub.8-25 alkyl glucoside, such as, C.sub.8-18 alkyl glucoside or C.sub.10-18 alkyl glucoside. These include lauryl glucoside and coco glucoside. In some embodiments, the alkyl glucoside may be present in an amount of from 2% to 3%, from 2.2% to 2.8%, from 2.4% to 2.6%, or about 2.5% by weight of the composition (paragraph 0084). The composition may comprise amine fluoride. The amine fluoride comprises greater than 0 to 0.8 wt% of the composition. The fluoride ion sources may be present in an amount sufficient to supply 25 ppm to 5,000 ppm of fluoride ions (paragraph 0088). The composition comprises water, optionally wherein water is present in an amount of from 10% to 80%. The composition may be formulated into a mouthwash (paragraph 0077). The composition does not comprises sodium lauryl sulfate and is free of anionic surfactants.
Generally, it is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use. See MPEP 2144.07. It would have been obvious for one of ordinary skill in the art prior to filing the instant application to have used 2% alkyl glucoside and 0 to 0.8% amine fluoride in the composition of Mintel because these are suitable amounts of nonionic surfactant and amine fluoride used in a mouthwash composition.
It is obvious to replace one component for another equivalent component if it is recognized in the art that two components are equivalent and is not based on the Applicant disclosure. See MPEP 2144.06. It would have been obvious to one of skill in the art prior to the time the Application was filed to have used coco glucoside in place of caprylyl/capryl glucoside in the compositions of Mintel because they are taught as equivalents, as disclosed by Poth et al.
In regards 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. MPEP 2144.05 A. The amounts of the combination of references, 2 to 3% alky glucoside and 0 to 0.8% amine fluoride, overlap that of the instant claims, 0.1% to 2.5% alkyl glucoside and 0.5% to 1.5% amine fluoride. Therefore, since an overlap exists here, the claims are obvious over the combination of references.
3) Claims 1-16 are rejected under 35 U.S.C. 103 as being unpatentable over Mintel (already of record, 2011) in view of Hug et al. (WO 2014094900).
Mintel discloses a mouthwash comprising water, sorbitol, caprylyl/capryl glucoside (alkyl glucoside), olaflur (amine fluoride) and sodium fluoride (Ingredients). The composition is free of anionic surfactants.
Mintel differs from the instant claims insofar as it does not disclose that the amine fluoride is made in situ or the amounts of the amine fluoride or nonionic surfactant (alkyl glucoside).
Hug et al. disclose oral care composition comprising an amine fluoride. The amine fluoride may be added already formed or may be formed in situ when an amine base and fluoride are in solution together (paragraph 0086). The amine fluoride comprises at least one of Olaflur (paragraph 0030). The amine fluoride comprises 0.01 to 10 wt% of the composition (paragraph 0013). The compositions may comprise surfactants, including nonionic surfactants, and comprise 0 to 2 wt% based on the weight of the composition (paragraph 0015).
Generally, it is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use. See MPEP 2144.07. It would have been obvious for one of ordinary skill in the art prior to filing the instant application to have formed the amine fluoride in situ by adding a fluoride salt and an amine base to the composition of Mintel because this is a method used in the art to incorporate amine fluoride in an oral care composition.
It would have been obvious for one of ordinary skill in the art prior to filing the instant application to have used 0 to 2% caprylyl/capryl glucoside and 0.01 to 10 wt% amine fluoride in the composition of Mintel because they are suitable amounts for oral care compositions.
The preferred amine fluoride is olaflur which a has an amine of claim 11. Therefore it would have been obvious to one of ordinary skill in the art to have used the amine base to make the amine fluoride of the Mintel because it would result in the formation of olaflur.
In regards 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. MPEP 2144.05 A. The amounts of the combination of references, 0 to 2% nonionic surfactant (alkyl glucoside) and 0.01 to 10% amine fluoride, overlap and encompass that of the instant claims, 0.1% to 2.5% alkyl glucoside and 0.5% to 1.5% amine fluoride, respectively. Therefore, since an overlap exists here, the claims are obvious over the combination of references.
Claims 1-16 are rejected.
Claims 19-21 are withdrawn.
No claims allowed.
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/LEZAH ROBERTS/ Primary Examiner, Art Unit 1612