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 .
DETAILED ACTION
Applicant’s Request for Reconsideration dated July 2, 2026 is acknowledged.
Claims 1-17 are pending.
Claims 1-4, 7, 8 and 9 are identified as currently amended. Claim 3 as currently amended does not read on the elected embodiment and is newly withdrawn.
Claims 3, 4 and 10-17 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to nonelected inventions, there being no allowable generic or linking claim.
Claims 1, 2 and 5-9 as filed on July 2, 2026 are pending and under consideration to the extent of the elected species, e.g., A is benzyl 2-hydroxybezoate (BENZYL SALICYLATE), B is 2-cyclohexylidene-2-pheylacetonitrile (PEONILE) and C is 3,7-dimethyloctan-1-ol (PELARGOL).
This action is made FINAL.
37 CFR 1.121 – Manner of Making Amendments
With regard to claim 5, 6 and 11, as per MPEP § 714 II C (A) all claims currently amended must be presented with appropriate status identifiers to indicate that changes have been made relative to the immediate prior version. Claims 5, 6 and 11 are properly identified as currently amended.
Response to Arguments: Election/Restrictions
Applicant’s arguments at pages 16-17 of the Remarks that claim 4 should not have been withdrawn is acknowledged but not found persuasive because Applicant’s election of three fragrances as the species of one or more ingredient from Group A and/or from Group B and/or from Group C does not meet the threshold of at least 5 required by claim 4. Because 3 is less than 5, the withdrawal is proper.
Withdrawn Objections / Rejections
In view of the substitute abstract and the substitute specification, all previous objections to the specification are withdrawn.
In view of the amendment of the claims, all previous claim objections are withdrawn and all previous claim rejections under 35 USC 112(b) are withdrawn.
Applicant’s arguments 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 Rejections and/or objections not reiterated from previous office actions are hereby withdrawn.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.
Specification
The disclosure is objected to because of the following informalities: “composition” in the 4th line of the abstract should presumably recite “compositions”. Appropriate correction is required.
Maintained Grounds of Rejection / New Grounds of Rejection Necessitated by Amendment
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1, 2 and 5-9 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more.
Claim(s) 1-9 recite(s) nature-based composition(s) comprising ingredients from groups A and B or/and C in amounts according to a circumscribed equation and limit ingredients from group D to less than 10 wt%. These ingredients encompass natural products per se, e.g., benzyl salicylate as elected and as set forth in group A or/and benzyl cinnamate as set forth in group B or/and lemon oil as set forth in group C, and combinations thereof. Claim 2 requires at least one ingredient from group A inclusive of benzyl salicylate. Claims 5-9 further limit amounts.
This judicial exception is not integrated into a practical application because the claims are broadly drawn to natural products and combinations thereof and the preamble limitation drawn to a malodor counteracting fragrance composition is merely an intended use of the enumerated fragrances. The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because there are no additional elements.
Therefore, claims 1, 2 and 5-9 recite natural products and combinations of natural products and there is no evidence of record that the combinations possess any new structural or functional properties, e.g., that any of the claimed combinations are more than the sum of their parts or are markedly different than what is found in nature.
The rationale for this determination is explained below: as per the Patent Subject Matter Eligibility Guidance and MPEP 2106.04(b)-(c), nature-based products that (i) are naturally occurring or (ii) are not naturally occurring but have characteristics that are not markedly different from a naturally occurring counterpart fall within an exception (law of nature or natural phenomena). Compositions, or combinations of naturally occurring nature-based products, are not patent eligible even if the combination itself is not naturally occurring absent the presence of markedly different characteristics in structure, function and/or other properties. Non-limiting examples of markedly different characteristics include biological or pharmacological functions or activities; chemical and physical properties; phenotype; and structure and form. This conclusion finds support in Funk Brothers Seed Co. v Kalo Inoculant Co., 33 U.S. 127, 131 (1948) and is re-iterated in Myriad, 133 S.Ct. at 2117 which states that “the composition was not patent eligible because the patent holder did not alter the bacteria in any way." See also Example 30 of the Life Sciences Examples of May 6, 2016 in which man-made mixtures/combinations of natural products present in prescribed amounts/ranges are deemed ineligible under the “product of nature" exception in view of Funk Brothers and in view of Myriad.
Response to Arguments: Claim Rejections - 35 USC § 101
Applicant’s arguments at pages 17-18 of the Remarks that the claimed fragrance composition is not a natural product because (1) it masks, reduces or prevents malodours while preserving the microbiome and (2) the claims as amended no longer read on individual ingredients are acknowledged but not found persuasive because (1) there is no evidence of record that any let alone every composition falling within the scope of the claims possesses these properties and there is no evidence of record that these properties are not also possessed by the individual ingredients and (2) the claims as amended read on at least pure components of Group C (e.g., an embodiment of claim 1 as currently amended reads “two or more … from Group A and one or more … from Group B” OR “one or more … from Group C”). Therefore, the rejection is properly maintained in modified form as necessitated by Applicant’s amendments.
Claim Rejections - 35 USC § 102
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, 2 and 6-9 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Brain et al. (US 2015/0267144, published September 24, 2015, of record).
Brain is applied herewith on the broader recitation of the claims in an effort to expedite prosecution
Regarding claims 1, 6-9
Brain discloses deposition of ethyl vanillin (Group B) and/or vanillin (Group C) with friable microcapsules prepared by combining ethyl vanillin or vanillin with preformed microcapsules (title; abstract; claims). The ethyl vanillin and/or vanillin are used as a neat fragrance (paragraphs [0005], [0029]).
Regarding the selection criteria of claims 1 and 7-9, the neat fragrance of Brain may comprise 100 wt% vanillin.
Regarding claim 2
Brain discloses other suitable fragrances inclusive of benzyl salicylate (Group A, elected) (paragraph [0007]).
Claims 1 and 6-9 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Jacob et al. (WO 91/13606, published September 19, 1991, as evidenced by the Google translation, of record).
Jacob is applied herewith on the broader recitation of the claims in an effort to expedite prosecution
Regarding claims 1, 6-9
Jacob teaches the use of 3,7-dimethyloctan-1-ol (Group C, elected) as a pure antimicrobially active substance (title; abstract; claims).
Regarding the selection criteria of claims 1 and 7-9, the pure substance of Jacob comprises 100 wt% 3,7-dimethyloctan-1-ol.
Claims 1, 2 and 6-9 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Bachmann et al. (US 2017/0181945, published June 29, 2017, of record).
Bachmann is applied herewith on the broader recitation of the claims in an effort to expedite prosecution
Regarding claims 1, 2, 6-9
Bachmann teaches liquid fragrance compositions inclusive of an embodiment consisting essentially of cyclohexylidene phenyl acetonitrile (Group B, elected) and a component A which is a salicylate selected from the group consisting of cyclohexyl salicylate, benzyl salicylate (Group A, elected), iso-bornyl salicylate and phenylethyl salicylate (title; abstract; claims; paragraphs [0014]-[0016]). Component A may also be selected from the group inclusive of benzyl salicylate (Group A, elected) and cis-3 hexenyl salicylate (Group A) (paragraph [0013]).
The compositions comprise about 40 to 95 wt% of cyclohexylidene phenyl acetonitrile (claim 10; paragraph [0034]).
The compositions comprise about 5 to 60 wt% or 45 to 55 wt% of component A (claim 11; paragraph [0035]).
Regarding the selection criteria of claims 1 and 7, the compositions of Bachmann comprise 5 * [45 to 55 wt%] + 4 * [40 to 95 wt%] + 3 * [0].
Regarding the selection criteria of claim 8, the compositions of Bachmann comprise 4 * [45 to 55 wt%] + 3 * [40 to 95 wt%] + 2 * [0].
Regarding the selection criteria of claim 9, the compositions of Bachmann comprise 3 * [45 to 55 wt%] + 2 * [40 to 95 wt%] + 1 * [0].
The above teachings therefore anticipate the claims.
Response to Arguments: Claim Rejections - 35 USC § 102
Applicant’s arguments have been fully considered but they are not persuasive.
With regard to the rejection over Brian, Applicant’s argument at pages 18-20 of the Remarks that Brian does not disclose at least two Group A ingredients is acknowledged but not found persuasive because the claims as currently amended recite such in the alternative (e.g., an embodiment of claim 1 as currently amended reads “two or more … from Group A and one or more … from Group B” OR “one or more … from Group C”).
With regard to the rejection over Jacob, Applicant’s argument at page 20 that Jacob does not anticipate is acknowledged but not found persuasive.
With regard to the rejection over Bachmann, Applicant’s argument at pages 20-21 that Bachmann does not anticipate is acknowledged but not found persuasive.
Therefore, the rejections are properly maintained in modified form as necessitated by Applicant’s amendments.
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 of this title, 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, 2 and 5-9 are rejected under 35 U.S.C. 103 as being unpatentable over Bachmann et al. (US 2017/0181945, published June 29, 2017, of record).
Bachmann is applied herewith on the broader recitation of the claims in an effort to expedite prosecution
The teachings of Bachmann have been described supra with regard to the anticipation of claims 1, 2 and 6-9. Claims 1, 2 and 6-9 are therefore also obvious over Bachmann.
Bachmann further teaches the compositions may optionally further comprise a component B which is one or more of inter alia diphenyl oxide (Group C) (claim 1).
Regarding instant claim 5 which recites inter alia 0.01 to 20 wt% Group A ingredient(s), Bachmann teaches the compositions comprise about 5 to 60 wt% of component A which is a salicylate selected from the group inclusive of benzyl salicylate (Group A, elected) or/and cis-3 hexenyl salicylate (Group A) (claim 11; paragraphs [0013]-[0016], [0035]). Regarding instant claim 5 which alternatively recites inter alia 5 to 60 wt% Group B ingredient(s), Bachmann teaches the compositions comprise about 40 to 95 wt% of cyclohexylidene phenyl acetonitrile (Group B, elected) (claim 10; paragraph [0034]). The ranges of Bachmann are not considered to disclose the instantly claimed ranges with sufficient specificity and anticipation cannot be found (see MPEP 2131.03), however, 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). See MPEP 2144.05.
Claims 1, 2 and 5-9 are rejected under 35 U.S.C. 103 as being unpatentable over Bachmann et al. (US 2017/0181945, published June 29, 2017, of record) as applied to claims 1, 2 and 5-9 above, and further in view of Quellet et al. (GB 2,528,480, published January 27, 2016, of record) and Ishida et al. (JP 2010-053107 A, published March 11, 2010, as evidenced by the Google translation, of record).
Bachmann is applied herewith on the elected embodiment
The teachings of Bachmann have been described supra.
Bachmann does not teach C is 3,7-dimethyloctan-1-ol (PELARGOL) as required by the elected embodiment of the claims.
This deficiency is made up for in the teachings of Quellet and Ishida.
Quellet teaches malodor-blocking perfume compositions comprising ingredients inclusive of Class B ingredients inclusive of 2-cyclohexylidene-2-phenylacetonitrile (Group B, elected) and benzyl 2-hydrobenzoate (benzyl salicylate, Group A, elected) (title; abstract; claims, in particular 1, page 23, lines 2 and 5). These ingredients are cyclic nucleotide-gated (CNGA2) ion channel blocking agents which decrease the flux of calcium ions, thereby decreasing activation of the olfactory sensory neurons (abstract; page 3, lines 7-12). Each ingredient may be present from 0.01 to 100 wt% (claims 2-5).
Ishida teaches monoterpene alcohol CNG channel inhibitors inclusive of (title; abstract; claims; page 2, last full paragraph):
PNG
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176
118
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(3,7-dimethyloctan-1-ol, Group C, elected). The total amount of compounds inclusive of (3) is 0.1 to 90 wt% (page 3, 4th full paragraph).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the compositions of Bachmann comprising about 40 to 95 wt% of cyclohexylidene phenyl acetonitrile (Group B, elected) and about 5 to 60 wt% or 45 to 55 wt% of component A which is a salicylate selected from the group inclusive of benzyl salicylate (Group A, elected) or/and cis-3 hexenyl salicylate (Group A) to further comprise 0.1 to 90 wt% of compounds inclusive of compound (3) of Ishida because “[i]t is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art.” In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980). See MPEP 2144.06. One would be imbued with the reasonable expectation that combining the compositions as taught by Bachmann which encompass malodor-blocking perfume compositions as taught by Quellet with the compositions as taught by Ishida which likewise inhibit or block CNG channels would result in a third composition also possessing this property.
Response to Arguments: Claim Rejections - 35 USC § 103
Applicant’s arguments have been fully considered but they are not persuasive.
Applicant’s arguments at pages 21-22 of the Remarks that the claimed fragrance composition masks, reduces or prevents malodours while preserving the microbiome citing to the examples within the instant specification are acknowledged but not found persuasive because the content of the specification has already been considered as part of the Graham analysis. The proffered examples have limited nexus with the broad genus of compositions claimed. See MPEP 716 for information regarding allegations of unexpected results.
Applicant’s argument that Bachmann does not provide a reasonable expectation of success of reproducing the disclosed examples is acknowledged but unpersuasive because Bachmann need only render obvious that which is actually claimed.
Therefore, the rejections are properly maintained in modified form as necessitated by Applicant’s amendments.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Meine et al. (US 2015/0259628) teaches odorant mixtures containing hexyl salicylate (Group C) and at least one other salicylate (title; abstract; claims).
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 nonprovisional extension fee (37 CFR 1.17(a)) 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 mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALISSA PROSSER whose telephone number is (571)272-5164. The examiner can normally be reached M - Th, 10 am - 6 pm.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, DAVID BLANCHARD can be reached on (571)272-0827. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ALISSA PROSSER/
Examiner, Art Unit 1619
/BENNETT M CELSA/Primary Examiner, Art Unit 1600
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