DETAILED ACTION
Previous Rejections
Applicant’s arguments, filed April 6, 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 Rejections and/or objections not reiterated from previous office actions are hereby withdrawn.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.
Claim Status
Claims 2, 3, 18, 19, 22, and 23 are cancelled.
Claims 1, 4 – 17, 20, 21, and 24 are examined here-in.
Claim Objections
Claim 1 is objected to because of the following informalities:
On line 13 of claim 1 “weight%” should be “wt. %” to remain consistent with the rest of the claims.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
Claim 10 is rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor, regards as the invention.
For claim 10: A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 10 recites “wherein the cocamidopropyl betaine is present in an amount from about 0.6 wt.% to about 1.8 wt.%, about 0.8 wt.% to about 1.6 wt.%”, the broad recitation is 0.6 to about 1.8 wt.% and the narrower statement of the range is 0.8 to about 1.6 wt.%. The claim is considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
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 non-obviousness.
Claims 1, 4 – 17, 20, 21, and 24 are rejected under 35 U.S.C. 103 as being unpatentable over Fan (US 7,259,131 B2, of record).
Fan teaches a cosmetic composition that is mild to the hair and skin which contains a sulfosuccinate surfactant and an amphoteric surfactant in amounts of 1 to 20% each (column 2 lines 31 – 50, column 3 lines 12 – 14). Fan teaches that the composition contains an additional anionic surfactant (column 2 lines 47 – 49).
Fan teaches that sodium laureth sulfate is a surfactant added to several of the example compositions in the amount of 5 to 10 wt. % (column 17 lines 14 – 15, Tables 4 – 6).
Fan teaches the amphoteric surfactant can be cocamidopropyl betaine (column 3 lines 63 – 64) or a hydroxysultaine (column 4 lines 1 – 2), among others such as oleyl betaine, caprylamidopropyl betaine, lauramidopropyl betaine, isostearlyamidopropyl betaine, and cocoimidazolinium betaine (column 3 lines 59 – 62) or cocoamidopropyl hydroxysultaine or laurylamidopropyl hydroxysultaine (column 4 lines 22 – 24). Fan teaches laurylamidopropyl hydroxysultaine is a preferred hydroxysultaine (column 4 lines 22 – 24). In claim 1, Fan teaches a composition containing 2 to 7.5% cocamidopropyl betaine, additional surfactants, and 0 to 1% of a thickener (claim 1).
Fam teaches the composition includes a thickening agent to ensure that insoluble materials are stable (column 12 lines 32 – 34). Fan teaches PEG-150 pentaerythrityl tetrastearate as a preferred thickening agent (column 13 lines 49 – 59) and teaches that thickening agents can be included in the amount of about 0.1 to about 10 wt. % (column 14 lines 5 – 7).
For Example 1, Fan teaches mixing PEG-150 distearate (a thickener compound) with cocamidopropyl betaine to form a solution (column 17 lines 8 – 11). Fan teaches that additional surfactants are then mixed with the solution (column 17 lines 13 – 20).
Claims 1, 4 – 17, 20, 21, and 24 are rendered prima facie obvious over the teachings of Fan, because it is prima facie obvious to combine prior art elements according to known methods, in order to yield predictable results. In the instant case, all the claimed elements (e.g., anionic surfactants, zwitterionic surfactants, thickeners) were known in the prior art (e.g., cosmetic compositions) and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination yielded nothing more than predictable results to one of ordinary skill in the art (MPEP 2143(i)(a)).
Fan’s teaching for a composition containing a sulfosuccinate surfactant and an amphoteric surfactant in amounts of 1 to 20% each, and an additional anionic surfactant (column 2 lines 31 – 50, column 3 lines 12 – 14), with thickening agents in the amount of about 0.1 to about 10 wt. % (column 14 lines 5 – 7) reads on instant claim 1. A person of ordinary skill in the art would be motivated to include a thickening agent because Fan teaches that thickening agents ensure that insoluble materials are stable (column 12 lines 32 – 34).
Fan’s teaching for sodium laureth sulfate as an anionic in the amount of 5 to 10 wt. % (column 17 lines 14 – 15, Tables 4 – 6), reads on claim 1’s recitation for “at least one anionic surfactant comprises sodium laureth sulfate present in an amount from 4 wt. % to less than 7.8 wt. %”. Claimed ranges that overlap teachings of the prior art are prima facie obvious according to MPEP 2144.05(i).
Fan’s teaching the amphoteric surfactant can be cocamidopropyl betaine in the amount of 2 to 7.5 wt. % (column 3 lines 63 – 64, claim 1) overlaps on the instantly claimed range of 0.t to 2 wt. %. % as recited in claim 1.
Fan’s teachings for PEG-150 pentaerythrityl tetrastearate as a preferred thickening agent and that thickening agents should be in the amount of about 0.1 to about 10 wt. % (column 13 lines 49 – 59, column 14 lines 5 – 7) reads on claim 1’s recitation that the thickener comprises esters of polyalkoxylated polyols and fatty acids and is present in an amount from 0.08 to 0.12 wt. %.
Fan does not require polyquaternium compounds in the composition, reading on the recitation “comprises less than 10.0 wt. % polyquaternium” of claim 1.
Fan’s teachings for disodium laureth sulfosuccinate as an anionic sulfosuccinate surfactant for inclusion in the composition (column 2 lines 37 – 38, column 3 lines 36 – 38, claim 1) reads on instant claim 4.
Fan’s teaching that additional amphoteric surfactants of the composition may be selected from oleyl betaine, caprylamidopropyl betaine, lauramidopropyl betaine, isostearlyamidopropyl betaine, and cocoimidazolinium betaine (column 3 lines 59 – 62) reads on instant claims 5, 6 and 8.
Fan’s teaching for amphoteric surfactants cocoamidopropyl hydroxy sultaine or laurylamidopropyl hydroxysultaine (column 4 lines 22 – 24) reads on instant claim 7. Hydroxysultaine is CTFA name for a sulfobetaine (column 4 lines 2 – 3), and a sulfobetaine is a sulfonate of a fatty quaternary.
Fan’s teaching for a composition containing a sulfosuccinate surfactant and an amphoteric surfactant in amounts of 1 to 20% each (column 2 lines 31 – 50) is a composition with a total amount of surfactant in the range of 2 to 40 wt. % which overlaps on the claimed amount of surfactant of 6.8 to 10 wt. % as recited in claim 9.
Fan’s example 4G includes sodium laureth sulfate in the amount of 5% and cocamidopropyl betaine in the amount of 2% (Table 4). Sodium laureth sulfate in amounts of 5% overlaps on the instantly claimed amounts of 4.5 to 6.5 wt. % sodium laureth sulfate recited in claim 10. Claimed ranges that overlap teachings of the prior art are prima facie obvious according to MPEP 2144.05(i)(a). Cocamidopropyl betaine in the amount of 2% is very close to the amount of about 0.6 to about 1.8 wt.% or about 0.8 to about 1.6 wt.% as recited in claim 10. According to MPEP 2144.05(i), a prima facie case of obviousness exists where the claimed ranges do not overlap with the prior art but are merely close. Additionally, the claim’s recitation of “about” suggests that there is some flexibility in the amounts. Fan’s example 4G includes hydroxysultaine in the amount of 2.0 wt. % (Table 4). Although the example amount of hydroxysultaine is greater than the instantly claimed range of 0.3 to 0.9 wt. %, a person of ordinary skill in the art would recognize that Fan’s teaching of amphoteric surfactants in the amount of 1 to 20% suggests that less hydroxysultaine (amphoteric surfactant) than that of Example 4G would also be likely to result in a well-dispersed composition. As such, a person of ordinary skill in the art would have been motivated to engage in routine experimentation for the amount of hydroxysultaine, which is prima facie obvious according to MPEP 2144.05(ii)(a). Throughout Table 4 Examples A – H, the amount of hydroxysultaine ranges from 0 to 3.0 wt. %, and Fan teaches that these examples “are meant to illustrate some of the varied compositions” (column 22 lines 13 – 15) which would motivate a person of ordinary skill in the art to experiment with hydroxysultaine in the limited range of 0 to 3.0 wt. % to potentially modulate the lather performance of the composition. (Throughout the examples, Fan describes mildness, viscosity, and lather as important parameters impacted by the surfactant combinations (columns 16 – 24)).
Fan does not require the inclusion of polyquaternium or cocomonoethanolamide (column 12 lines 9 – 29), reading on instant claim 11.
Fan’s teaching for PEG-150 pentaerythrityl tetrastearate as thickening agent (column 13 line 55), reads on instant claim 12.
Fan’s teaching for thickening agent in in the amount of about 0.1 to about 10 wt. % (column 14 lines 5 – 7) overlaps on the instantly claimed range of about 0.09 to about 0.11 wt. % as recited in claim 13.
Fan’s teaching for a composition containing a sulfosuccinate surfactant and an amphoteric surfactant in amounts of 1 to 20% each (column 2 lines 31 – 50), with thickening agents in the amount of about 0.1 to about 10 wt. % (column 14 lines 5 – 7) is a composition with a total amount of surfactant in the range of 2 to 40 wt. % and thickener in the amount of 0.1 to 10 wt. %, which overlaps on the claimed amount of surfactant and thickener of 6.8 to 10 wt. % as recited in claim 14.
Fan’s teaching for a composition containing 2 to 7.5% cocamidopropyl betaine, 5 to 9% lauryl ethoxy sulfate, 2 to 6% disodium laureth sulfosuccinate, and 0 to 1% of a thickener (claim 1); this is equal to anionic surfactants in the amount of 7 to 15% (5 to 9% and 2 to 6%) and thickener in the amount of 0 to 1%. For a composition with 15% anionic surfactants and 0.3% thickener, the weight ratio is 45:1, reading on instant claim 15. Furthermore, Fan’s teachings for a composition containing an anionic (sulfosuccinate) surfactant in an amount of 1 to 20% (column 2 lines 31 – 50), with thickening agents in the amount of about 0.1 to about 10 wt. % (column 14 lines 5 – 7) is a weight ratio range of anionic surfactant to thickener of 10:1 to 200:1, which overlaps on the instantly claimed range of 45:1 to 70:1 as recited in claim 15.
Fan’s teaching for cocamidopropyl betaine in an amount of 2 to 7.5% and thickener in an amount of 0 to 1% (claim 1) encompasses the weight ratio of betaine to thickener of 9.5:1 to 16:1, as recited in claim 16. For example, cocamidopropyl betaine in the amount of 7.5% and thickener in the amount of 0.47% is a ratio of 16:1. Furthermore, Fan’s teachings for a composition containing an amphoteric surfactant in an amount of 1 to 20% (column 2 lines 31 – 50), with thickening agents in the amount of about 0.1 to about 10 wt. % (column 14 lines 5 – 7) is a weight ratio range of amphoteric surfactant to thickener of 10:1 to 200:1, which overlaps on the instantly claimed range of 9.5:1 to 16:1 as recited in claim 16.
Fan’s teaching for hydroxysultaine as an amphoteric surfactant, where amphoteric surfactant is to be included in the amount of 1 to 20% (column 4 lines 1 – 2, lines 22 – 24, lines 59 – 63) in combination with Fan’s teaching for thickening agent in the amount of 0.1 to 10% (column 14 lines 5 – 7) reads on instant claim 17. For example, hydroxysultaine in the amount of 1.3% and thickener in the amount of 0.1% is a weight ratio of 13:1, as recited in claim 17. Fan’s teachings for a composition containing an amphoteric surfactant in an amount of 1 to 20% (column 2 lines 31 – 50), with thickening agents in the amount of about 0.1 to about 10 wt. % (column 14 lines 5 – 7) is a weight ratio range of amphoteric surfactant to thickener of 10:1 to 200:1, which overlaps on the instantly claimed range of 13:1 to 22:1 as recited in claim 17. Claimed ranges that overlap teachings of the prior art are prima facie obvious according to MPEP 2144.05(i).
In each of Fan’s examples, the pH of the composition is 6.3 (Tables 1 – 3). A pH of 6.3 falls within the claimed range of 4.0 to 6.5, reading on instant claim 20.
With regards to the functional limitations recited for claim 21 “wherein the surfactant system and the thickener are present in a synergistic amount to provide comparable foam volume, reduced stringiness, increased structure, and increased fragrance release as compared to conventional personal care compositions…”: the foam volume, reduced stringiness, increased structure, and increased fragrance release are the result of including the claimed ingredients in the claimed amounts. As discussed above, Fan’s teachings discloses a surfactant system and thickener in the claimed amounts (column 2 lines 31 – 50, column 3 lines 12 – 14, column 14 lines 5 – 7, claim 1). Therefore, since it does not appear from the instant disclosure that additional elements are required to cause the functional limitations (examples 1 and 4, composition 2 recites surfactant system and thickener, resulting in the claimed properties). According to MPEP 2112(III) and 2163.07(a), an inherent feature of a composition or method does not need to be explicitly recognized in the prior art for the prior art to be applied. Said differently, “By disclosing in a patent application a device that inherently performs a function or has a property, operates according to a theory or has an advantage, a patent application necessarily discloses that function, theory or advantage, even though it says nothing explicit concerning it” MPEP 2163.07(a).
Since the composition taught by Fan appears to overlap with the claimed composition, the skilled artisan would have expected that the composition of Fan would have had the properties of comparable foam volume, reduced stringiness, increased structure, and increased fragrance release (compared to conventional personal care compositions) as that which is instantly claimed. Something which is old (e.g., the composition of Fan) does not become patentable upon the discovery of a new property (e.g., comparable foam volume, reduced stringiness, increased structure, and increased fragrance release compared to conventional personal care compositions), and this feature need not have been recognized at the time of the invention. See MPEP 2112(I) and 2112(II). Put another way, "When the claimed compositions are not novel they are not rendered patentable by recitation of properties, whether or not these properties are shown or suggested in the prior art." In re Spada, 911 F .2d 705, 709, (Fed. Cir. 1990). Therefore, since Fan’s prior art teachings recite a surfactant system and thickener in the claimed amount, the functional limitations of claim 21 are obvious.
Fan’s teaching to mix PEG-150 distearate (a thickener compound) with cocamidopropyl betaine (an amphoteric surfactant) to form a solution, then adding additional surfactants and mixing the solution (column 17 lines 8 -11, lines 13 – 20) reads on instant claim 24.
Examiner’s Reply to Attorney Arguments Dated April 6, 2026
Applicant argues that Fan fails to teach or fairly suggest the claimed ingredients in the claimed amounts (sodium laureth sulfate in an amount from 4 to 7.8 wt.%; cocoamidopropyl betaine in the amount of 0.5 to 2.0 wt.%; lauryl hydroxysultaine, if present in an amount of 0.2 to 1.0 wt.%; a thickener comprising esters of polyalkoxylated polyols and fatty acids in the amount of 0.08 to 0.12 wt.%) of amended claim 1 (Remarks page 9). The Examiner disagrees, because as discussed in the body of the rejection above, Fan’s teaching for a composition containing a sulfosuccinate surfactant and an amphoteric surfactant in amounts of 1 to 20% each, and an additional anionic surfactant (column 2 lines 31 – 50, column 3 lines 12 – 14), with thickening agents in the amount of about 0.1 to about 10 wt. % (column 14 lines 5 – 7) reads on instant claim 1. Fan’s teaching for sodium laureth sulfate as an anionic in the amount of 5 to 10 wt. % (column 17 lines 14 – 15, Tables 4 – 6), reads on claim 1’s recitation for “at least one anionic surfactant comprises sodium laureth sulfate present in an amount from 4 wt. % to less than 7.8 wt. %”. Claimed ranges that overlap teachings of the prior art are prima facie obvious according to MPEP 2144.05(i). Fan’s teaching the amphoteric surfactant can be cocamidopropyl betaine in the amount of 2 to 7.5 wt. % (column 3 lines 63 – 64, claim 1) overlaps on the instantly claimed range of 0.t to 2 wt. % as recited in claim 1.Fan’s teachings for PEG-150 pentaerythrityl tetrastearate as a preferred thickening agent and that thickening agents should be in the amount of about 0.1 to about 10 wt. % (column 13 lines 49 – 59, column 14 lines 5 – 7) reads on claim 1’s recitation that the thickener comprises esters of polyalkoxylated polyols and fatty acids and is present in an amount from 0.08 to 0.12 wt. %. Fan does not require polyquaternium compounds in the composition, reading on the recitation “comprises less than 10.0 wt. % polyquaternium” of claim 1.
Applicant argues that Fan fails to provide any motivation to modify examples 1 to 4 to arrive at instant claim 1 (Remarks pages 9 - 11). First, the Examiner notes that the teachings of the prior art are not limited to the examples, but include the full disclosure of the prior art reference, including nonpreferred and alternative embodiments, according to MPEP 2123. Then, as discussed in the body of the rejection above, Fan teaches that these examples “are meant to illustrate some of the varied compositions” (column 22 lines 13 – 15) which would motivate a person of ordinary skill in the art to experiment with the various surfactants and thickeners in the ranges taught and exemplified to potentially modulate the mildness, viscosity, and lather performance of the composition (columns 16 – 24). Further, the amounts of anionic surfactant, amphoteric surfactant, and thickener taught by Fan overlap on the instantly claimed amounts, as discussed in the body of the rejection above. Claimed ranges that overlap teachings of the prior art are prima facie obvious according to MPEP 2144.05(i).
Applicant alleges unexpected results associated with a surfactant system and thickener that is present in an amount of less than 10 wt. %, including:
“sensory properties, such as foam volume and/or foam stability, that were at least parity with respect to conventional personal care compositions” (Remarks page 12);
and “the surfactant system, including at least one anionic surfactant and at least one zwitterionic surfactant, interacts synergistically with the thickener to provide comparable foam volume, reduced stringiness, increased structure, and increased fragrance release as compared to conventional personal care compositions” (Remarks page 12);
and “relatively greater naturality and sustainability as compared to conventional personal care compositions” (Remarks page 12);
and “at least one anionic surfactant and at least one zwitterionic surfactant interact synergistically with the thickener to provide increased naturality and sustainability as compared to conventional personal care compositions” (Remarks page 13);
“at least one anionic surfactant and at least one zwitterionic surfactant interact synergistically with the thickener to provide stable personal care compositions having a pH from 4.9 to 5.3… and/or a viscosity of 4,000 cP or greater” even “when exposed to accelerated aging conditions” (Remarks page 13).
As an initial matter, the Examiner notes that a proper side-by-side comparison to the closest prior art as required by MPEP 716.02(e) does not appear to have been made even though Applicant references paragraphs 0041, 0042, and 0113 of the instant specification. Applicant’s references to paragraphs 0041 and 0042 of the instant specification appear to include general statements regarding allegedly unexpected naturality, sustainability, and stability that are not supported by data.
For paragraph 0113, of the instant specification, describes a comparison of compositions 1 and 2 for viscoelastic parameters including micellar shape, size, and density, structural properties, and temperature dependence, referring to results in Figure 3. Figure 3 is a graph of viscosity in Pa*s as related to time in seconds. It is not clear to the Examiner how Figure 3 compares viscoelastic parameters, structural properties, and temperature dependence as stated in paragraph 0113.
Compositions 1 and 2 (Table 1, page 28) contain amounts of 70% solution sodium laureth sulfate, 30% solution cocamidopropyl betaine, 37.5% solution lauryl hydroxysultaine, which are converted to total weight percent of the composition in the table below. With these conversions, it appears that composition 2 is meant to illustrate a composition of the claimed invention, while composition 1 is meant to be a comparative composition. Nonetheless, composition 1 is not a composition of the closest prior art, which is required according to MPEP 716.02(e).
70% SLES solution
30% CAPB solution
37.5% LHS solution
Total SLES
Total CAPB
Total LHS
Composition 1
11.1
7.7
0
7.8
2.3
0
Composition 2
8
4
1.68
5.6
1.2
0.6
With discussion of Example 4 of the instant application, Applicant argues that the inventive composition exhibited comparable foam volume and increased structure as compared to compositions which contained a greater amount of surfactant (Remarks pages 13 – 14). Applicant argues that greater than expected results are evidence of non-obviousness (Remarks page 14). Assuming purely arguendo that a proper side-by-side comparison was made, even then the Examiner would disagree that the compared parameters are significantly different. It is not clear how many replicates were performed (if any) and thus if the results have any statistically significant difference. As such, it is not clear to the Examiner how Applicant’s argument is supported by the proffered evidence.
Finally, and purely arguendo, even if Applicant has in fact shown unexpected results (of which the Examiner is not persuaded at this time), the unexpected results must be commensurate in scope with the claimed invention. Analysis regarding allegedly unexpected results and commensurate in scope will not be done at this time, because for the reasons above the Examiner is not convinced that the results are unexpected.
Double Patenting
The judicially created doctrine for non-statutory double patenting rejections has been described in detail in the previous action.
Double Patenting over U.S. Patent No. 11,147,757
Claims 1, 4 – 17, 20, 21, and 24 are rejected on the ground of non-statutory double patenting as being unpatentable over claims 1 – 18 of U.S. Patent No. 11,147,757 in view of Fan (as cited above).
Although the claims at issue are not identical, they are not patentably distinct from each other because: instant claim 1 is drawn to a personal care composition comprising a surfactant system containing at least one anionic surfactant and at least one zwitterionic surfactant, and a thickener.
Conflicting claim 1 is drawn to a personal care composition consisting of a surfactant system containing at least one anionic surfactant and at least one zwitterionic surfactant, a preservative, a pH modifier, a rheology modifier, and water.
The instant and conflicting claims differ because conflicting claim 1 recites the inclusion of a preservative, a pH modifier, a rheology modifier, and water. A rheology modifier reads on the thickener of instant claim 1.
Fan teaches preservatives, pH modifiers, and water are standard optional ingredients for personal care compositions (column 14 lines 57 – 67, column 22 lines 1 – 11, pH modifiers and water in each example). Furthermore, preservatives, pH modifiers, and water are well-known to persons of skill in the art.
It would be prima facie obvious to the ordinarily skilled artisan to include, within instant claim 1, a preservative, a pH modifier, and water as taught by Fan. It is prima facie obvious according to MPEP 2143(I)(a) as combining prior art elements according to known methods to yield predictable results.
Conflicting claim 4 requires the anionic surfactant is an alkyl ether sulfate, reading on instant claim 4.
Conflicting claims 5 and 6 require the zwitterionic surfactant is cocamidopropyl betaine, reading on instant claims 5 and 6.
Conflicting claims 7 – 18 overlap with instant claims 7 – 17, 20, 21, and 24 in a similar manner, including overlapping amounts and ratios of ingredients.
Double Patenting over U.S. Application No. 18/715,218
Claims 1, 4 – 17, 20, 21, and 24 are provisionally rejected on the ground of non-statutory double patenting as being unpatentable over claims 1, 2, 4, 5, 7, 8, 10 – 15, 17 – 24, and 26 – 36 of copending Application No. 18/715,218 in view of Malik (US 4,668,422, of record).
Although the claims at issue are not identical, they are not patentably distinct from each other because: instant claim 1 is drawn to a personal care composition comprising a surfactant system and a thickener.
Conflicting claim 1 is drawn to a personal care composition comprising a polyol, a surfactant system that includes one or more alkyl glucosides, an amphoteric surfactant, an anionic surfactant, and a non-ionic surfactant, and water.
The instant and conflicting claims differ because conflicting claim 1 recites the inclusion of a polyol, on ore more alkyl glucosides, a non-ionic surfactant, and water. A polyol reads on the thickener of instant claim 1. Alkyl glucosides are non-ionic surfactants.
Malik teaches that the inclusion of a glycoside surfactant in a soap composition leads to a pleasing texture and consistency (abstract). Malik teaches alkyl glycosides are known non-ionic surfactants (column 1 lines 13 – 18). Malik also teaches the inclusion of an additional nonionic surfactant in the composition to boost foaming (column 5 lines 37 – 40).
It would be prima facie obvious to the ordinarily skilled artisan to include, within instant claim 1, an alkyl polyglucoside and non-ionic surfactant as taught by Malik. It is prima facie obvious according to MPEP 2143(I)(a) as combining prior art elements according to known methods to yield predictable results.
Conflicting claim 1’s requirement for an anionic surfactant and amphoteric surfactant reads on the anionic and zwitterionic surfactant of instant claim 1.
Conflicting claim 1’s recitation for a polyol reads on instant claim 12.
Conflicting claims 2 and 4 recite the inclusion of a sultaine, reading on instant claims 6, 7, and 10.
Conflicting claims 5, 7, 8, 10 – 15, 17 – 24, and 26 – 36 overlap with instant claims 4, 5, 8, 9, 11 – 17, 20, 21, and 24 in a similar manner, including overlapping amounts and ratios of ingredients.
This is a provisional non-statutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Examiner’s Reply to Attorney Arguments Dated April 6, 2026
Applicant request the Examiner reconsiders the provisional rejection for non-statutory double patenting (Remarks page 14). As an initial matter, the rejection over claims 1 – 18 of U.S. Patent No. 11,147,757 in view of Fan is non-provisional. Next, it appears Applicant has inadvertently overlooked the provisional non-statutory double patenting rejection over U.S. Application No. 18/715,218 in view of Malik. According to MPEP 804(1), a complete response to a non-statutory double patenting rejection is either a showing that the claims subject to the rejection are patentably distinct from the reference claim or the filing of a terminal disclaimer. The Examiner notes that Applicant’s argument is not a showing that the claims are patentably distinct from the reference claims. As such, the non-statutory double patenting rejections are maintained.
Conclusion
THIS ACTION IS MADE FINAL. 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.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Toriana N. Vigil whose telephone number is (571)270-7549. The examiner can normally be reached Monday - Friday 9:00 a.m. - 5:00 p.m. EST.
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/TORIANA N. VIGIL/Examiner, Art Unit 1612
/SAHANA S KAUP/Supervisory Primary Examiner, Art Unit 1612
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