DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Double Patenting
A rejection based on double patenting of the "same invention" type finds its support in the language of 35 U.S.C. 101 which states that "whoever invents or discovers any new and useful process ... may obtain a patent therefor ..." (Emphasis added). Thus, the term "same invention," in this context, means an invention drawn to identical subject matter. See Miller v. Eagle Mfg. Co., 151 U.S. 186 (1894); In re Ockert, 245 F.2d 467, 114 USPQ 330 (CCPA 1957); and In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970).
A statutory type (35 U.S.C. 101) double patenting rejection can be overcome by canceling or amending the conflicting claims so they are no longer coextensive in scope. The filing of a terminal disclaimer cannot overcome a double patenting rejection based upon 35 U.S.C. 101.
Claim 19 is objected to under 37 CFR 1.75 as being a substantial duplicate of claim 18. When two claims in an application are duplicates or else are so close in content that they both cover the same thing, despite a slight difference in wording, it is proper after allowing one claim to object to the other as being a substantial duplicate of the allowed claim. See MPEP § 706.03(k). Note that claim 19 is dependent on claim 14 but it does not further limit the components of claim 14 and thus it further limits the corresponding limitation of claim 12, which makes it essentially same as claim 18.
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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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 1-11 are rejected under 35 U.S.C. 103 as being unpatentable over McKeon et al. (US 2024/0101930 A1) in view of Mayer et al. (US 8,497,234 B2).
Regarding claims 1, 7 and 11, McKeon teaches a unit dose fabric treatment composition (abstract, 9) comprising; a water soluble film material with two compartments; [50, 52, 55], enclosing a liquid material (i.e. first compartment) with 5-60 wt.% non-aqueous solvents; [11, 111], surfactants such as methyl ester sulfonate (MES), alcohol ethoxylate (AE), laurethethyl sulfate (AES); [95, 120]. The second compartment encloses solid ingredients; [55, 135-136], and is not taught in details. However, according to McKeon (135) this is identical to the analogous prior art of Mayer’s teaching, wherein the compartment comprises sulfonated methyl ester (MES) lauryl sulfate (SLS); [13: 2-30], and methyl ester ethoxylate (MEE); [12: 1-5]. As stated by McKeon and evidenced by Mayer, at the time before the effective filing date of the claimed invention, it would have been obvious to a person of ordinary skill in the art to use the solid ingredient compartment taught by Mayer to be utilized for McKeon’s second compartment as an actual functional equivalent composition. It should be noted that (instant 11) Mayer teaches the enzymes such as lipase and protease within the solid ingredients of its corresponding compartment (i.e. 2nd compartment); [15: 60-67].
Regarding claims 1 and 7, Regarding the instantly claimed percent swelling of the unit dose McKeon, and the unit dose product’s (instant claim 7) Zein score (skin irritation potential of surfactants) does not expressly teach this property. However, the reference teaches all of the claimed reagents, in the claimed ranges, was prepared under similar conditions, and that the original specification specifies that the properties arise from a combination of specific ingredients or process step and that it is rendered obvious by the applied art. Therefore, the claimed effects and physical properties, i.e. “percent swelling of the unit dose”, would expectedly be achieved by a composition with all the claimed ingredients. If it is the applicants’ position that this would not be the case: (1) evidence would need to be presented to support applicant’s position; and (2) it would be the Office’s position that the application contains inadequate disclosure that there is no teaching as to how to obtain the claimed properties and effects with only the claimed ingredients.
“Products of identical chemical composition cannot have mutually exclusive properties.” A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990) [see MPEP 2112.01].
Regarding claims 2-5, 6, and 8-10, McKeon teaches nonaqueous solvents of polyethylene glycol in amounts of 10-60%, glycerin in amount of 5-40%, and polyethylene glycol (PEG 200-1000 D, preferred 400 D) in amounts of 0-20%; [15, 17, 25-26], wherein their instantly claimed ratios (instant claims 3-4) are met with a considerable overlaps. The liquid material compartment further (instant 6) comprises anti-redeposition, defoamer, enzyme and bleaching agents; [123-124], and (instant 8) alcohol ethoxylate; [95], and alcohol ethoxy sulfate; [120]. McKeon teaches (instant 10) alcohol ethoxy sulfate (anionic surfactant) in the amount of 0-50%; [119-120]. 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, R5].
Note that (instant 9) Mckeon the instantly claimed amount of nonionic alcohol ethoxylate surfactant (AE). However, the analogous art of Mayer teaches a similar unit dose product wherein the total amount of nonionic (including alcohol ethoxylate; [11: 22-30, 40], is 5-30%; [12: 55-58]. At the time before the effective filing date of invention, it would have been obvious to a person of ordinary skill in the art to increase the amount of AE to about 15% (as instantly claimed) without any adverse effect and with motivation enhancing its effective degreasing, soil suspension, and cold-water cleaning properties (please consult any general chemistry textbook) as taught by Mayer.
Claims 12-20 are rejected under 35 U.S.C. 103 as being unpatentable over McKeon et al. (US 0101930 A1) in view of Mayer et al. (US 8,497,234 B2).
Regarding claims 12, 14-15 and 20, McKeon teaches a unit dose fabric treatment composition (abstract, 9) comprising; a water soluble film material with two compartments; [50, 52, 55], enclosing a liquid material (i.e. first compartment) with 5-60 wt.% non-aqueous solvents; [11, 111], comprising polyethylene glycol in amounts of 10-60%, glycerin in amount of 5-40%, and polyethylene glycol (PEG 200-1000 D, and preferred PEG 400 D) in amounts of 0-20%; [15, 17, 25-26], wherein their instantly claimed ratios (instant claims 14-15) are met with a considerable overlaps. McKeon teaches the surfactants such as methyl ester sulfonate (MES), alcohol ethoxylate (AE), laurethethyl sulfate (AES); [95, 120], and additives such as comprises anti-redeposition, defoamer, enzyme and bleaching agents; [123-124].
The second compartment encloses solid ingredients; [55, 135-136], and is not taught in details. However, according to McKeon (135) this is identical to the analogous prior art of Mayer’s teaching, wherein the solid compartments comprises sulfonated methyl ester (MES) lauryl sulfate (SLS); [13: 2-30], and methyl ester ethoxylate (MEE); [12: 1-5]. Total amounts of nonionic and anionic surfactants, by Mayer, are 2-30% + 5-30% (total of 5-60%) correspondingly; [13: 64-67, 12: 55-58]. As stated by McKeon and evidenced by Mayer, at the time before the effective filing date of the claimed invention, it would have been obvious to a person of ordinary skill in the art to use the solid ingredient compartment taught by Mayer to be utilized for McKeon’s second compartment as an actual functional equivalent composition. It should be noted that Mayer teaches (instant 20) the enzymes such as lipase and protease within the solid ingredients of its corresponding compartment (i.e. 2nd compartment); [15: 60-67].
Regarding claims 12-13, Regarding the instantly claimed percent swelling of the unit dose McKeon, and the unit dose product’s Zein score (skin irritation potential of surfactants) does not expressly teach this property. However, the reference teaches all of the claimed reagents, in the claimed ranges, was prepared under similar conditions, and that the original specification specifies that the properties arise from a combination of specific ingredients or process step and that it is rendered obvious by the applied art. Therefore, the claimed effects and physical properties, i.e. “percent swelling of the unit dose”, would expectedly be achieved by a composition with all the claimed ingredients. If it is the applicants’ position that this would not be the case: (1) evidence would need to be presented to support applicant’s position; and (2) it would be the Office’s position that the application contains inadequate disclosure that there is no teaching as to how to obtain the claimed properties and effects with only the claimed ingredients.
“Products of identical chemical composition cannot have mutually exclusive properties.” A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990) [see MPEP 2112.01].
Regarding claims 16-18, McKeon teaches alcohol ethoxylate in the liquid composition; [95], and alcohol ethoxy sulfate; [120], and the solid composition’s alcohol ethoxy sulfate; [120]. McKeon teaches (instant 17) anionic surfactant (i.e. alcohol ethoxy sulfate) in the amount of 0-50%; [119-120]. 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, R5]. Mayer teaches the anionic surfactants (including methyl ester sulfonate; 13: 3-5) in solid composition (instant 18) comprises the amount of 2-30%; [13: 65-67]. It is noted that; “a prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected [the claimed product and a product disclosed in the prior art] to have the same properties.” Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed. Cir. 1985). [MPEP 2131.03, R6].
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Dr. M. Reza Asdjodi whose telephone number is (571)270-3295. The examiner can normally be reached on 9 AM- 6 PM.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Dr. Mark Eashoo can be reached on 571-272-1197. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see http://pair-direct.uspto.gov. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/M.R.A./
Examiner, Art Unit 1767
2026/02/20
/MARK EASHOO/Supervisory Patent Examiner, Art Unit 1767