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 .
Applicants' arguments in the Request for Continued Examination, filed August 4, 2026, have been fully considered. Rejections and/or objections not reiterated from previous office actions are hereby withdrawn. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application.
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims
Claim Rejections - 35 USC § 103 – Obviousness (New Rejections)
1) Claims 1, 9, 19-20, 22 and 25-29 are rejected under 35 U.S.C. 103 as being unpatentable over Swett et al. (US 8597618).
Swett et al. disclose a dentifrice composition comprising an orally acceptable vehicle, an abrasive particulate and a surfactant system comprising an anionic surfactant comprising a C8-C16 fatty acid glutamate salt and a nonionic surfactant comprising a C8-C16 alkyl glucoside (Abstract). Typically, the C8-C16 fatty acid glutamate salt comprises sodium cocoyl glutamate and the C10-C14 alkyl glucoside comprises lauryl glucoside. The C8-C16 fatty acid glutamate salt is present in an amount of from 0.25 to 1.5 wt % based on the weight of the dentifrice composition. The C8-C16 fatty acid glutamate salt is present in an amount of 0.25 to 1.5 wt % based on the weight of the dentifrice composition (col. 1, lines 40-67).
The dentifrice composition of the invention can contain a variety of optional dentifrice ingredients. Such optional ingredients can include, but are not limited to, thickening agents, anti-tartar agents, a source of fluoride ions, stabilizers, a synthetic anionic polycarboxylate, a flavoring agent, and coloring agents. Fluorides include sodium fluoride ad stannous fluoride. Anti-tartar agents include tetrasodium pyrophosphate (phosphate source) and comprise 1 to 5 wt%. Desensitizing agents include potassium nitrate. Thickening agents include natural and synthetic gums and colloids. The orally acceptable vehicle comprises at least one gum selected from carrageenan and xanthan gum, in an amount from 0.1 to 0.3 wt % carrageenan and from 0.25 to 0.65 wt % xanthan gum, each amount being based on the weight of the dentifrice composition. Other thickeners include polyvinylpyrrolidone, polyglycols such as Polyox (polyethylene glycol with higher molecular weight), and amorphous silica compounds which function as thickening agents. The thickening agent preferably is present in the dentifrice composition in amounts of 0.1 to 10 wt %, based on the weight of the dentifrice composition. Abrasives include amorphous silica in an amount ranging from 15 to 35 wt%. A humectant may be added at a concentration typically totals 5 to 75% by weight of the dentifrice composition. At least one humectant comprises a mixture of sorbitol, glycerin and xylitol. Typically, the orally acceptable vehicle comprises from 25 to 45 wt % sorbitol, from 5 to 15 wt % glycerin and from 5 to 15 wt % xylitol, each amount being based on the weight of the dentifrice composition. Water is present in an amount of at least 10 wt %, and generally 25 to 70 wt % of the dentifrice composition (col. 3, line 58 to col. 4, line 18).
The two surfactants are used in 1:1 ratios in amount falling within the range of the instant claims. One example comprise 2.5% of a 30% solution of each surfactant, meeting 1:1 and the amount of the surfactant system.
The compositions do not comprise sulfate surfactants.
Swett et al. differ from the instant claim insofar as they do not exemplify a composition comprising the surfactants with a stannous ion source, a nitrate source and/or a phosphate source.
However, Swett et al. do suggest using the above components in the composition as optional components. 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. Therefore it would have been obvious to one of ordinary skill in the art to have added a stannous ion source, a nitrate source and/or a phosphate source in the compositions of Swett et al. to obtain their known properties and because it is suggested by Swett et al.
2) Claims 1, 24 and 30 are rejected under 35 U.S.C. 103 as being unpatentable over Swett et al. (US 8597618) as applied above, in view of Xu et al. (US 20170348213).
Swett et al. are discussed above and differ from the instant claims insofar as they do not disclose the amount of stannous ion source or nitrate ion source.
Xu et al. disclose an oral care composition. The oral care actives include fluorides and desensitizing agents. Desensitizing agents include potassium nitrate and may comprise 0.5 to about 20 wt% (paragraph 0038). Fluorides include stannous fluoride and comprise 0.01 to 5 wt% of the composition (paragraph 0054). Polyethylene glycol may be used as a foaming agent and may comprise 0.05 to 0.5% by weight of the composition.
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 to one of ordinary skill in the art prior to filing the instant application to have used 0.1 to about 3 wt% potassium nitrate, 0.1 to 3% stannous fluoride and polyethylene glycol in the composition of Swett et al. because they are effective amounts for oral care composition.
In regards to the amount of thickening silica in claim 30, the thickener comprises up to 10% by weight of the composition and affects the rheological properties. Xanthan gum may comprise 0.25 to 0.65 wt % of the composition. Therefore, the thickening silica may be used in an amount of from .75 to 9.75%. It would have taken no more than the relative skill of on ordinary skill in the art to have adjusted the amount of thickening silica when used in the composition of Swett et al. to about 8 wt% in order to arrive at the desired rheological properties.
Polyethylene glycol may be used as a foaming agent and may comprise 0.05 to 0.5% by weight of the composition. This would meet “about” 2 wt%. Further, it affects foaming. It would have taken no more than the relative skill of on ordinary skill in the art to have adjusted the amount of polyethylene glycol when used in the composition of Swett et al. to about 2 wt% in order to arrive at the desired foaming properties.
Obvious-Type Double Patenting (Maintained Rejections)
1) Claims 1, 3, 5, 7, 9-11, 14-15 and 18-24 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3-11, 13-16, 19-20, 22 and 24-26 of copending Application No. 18/517,201 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the claims are coextensive insofar as both sets of claims recite an oral care composition comprising a stannous salt, potassium salt, a phosphate salt and a taurate surfactant. The instant claims differ from the copending claims insofar as they do not recited the specific stannous, nitrate and phosphate salts, making them genus claims to the copending claims. Therefore the instant claims are obvious over the copending claims.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Response to Arguments
The Examiner submits that this rejection is maintained since applicant does not argue the merits of the rejection; and neither allowable subject matter has been indicated, nor has a terminal disclaimer been filed.
2) Claims 1, 3, 5, 7, 9-11, 14-15 and 18-24 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 40-60 of copending Application No. 18/516,422 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the claims are coextensive insofar as both sets of claims recite an oral care composition comprising a stannous salt, potassium salt, a phosphate salt and a combination of surfactants including a betaine surfactant, a glutamate surfactant, a glucoside surfactant and a taurate surfactant. The instant claims differ from the copending claims insofar as they do not recite the surfactants are combined together in one composition, making them genus claims to the copending claims. Therefore the instant claims are obvious over the copending claims.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Response to Arguments
The Examiner submits that this rejection is maintained since applicant does not argue the merits of the rejection; and neither allowable subject matter has been indicated, nor has a terminal disclaimer been filed.
Conclusion
Claims 1, 3, 5, 7, 9-11, 14-15 and 18-24 are rejected.
No claims allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LEZAH ROBERTS whose telephone number is (571)272-1071. The examiner can normally be reached Monday-Friday 11:00-7:30.
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/LEZAH ROBERTS/Primary Examiner, Art Unit 1612
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