FINAL 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 .
Status of the Claims
This action is in response to papers filed 07/07/2026 in which claim 10 was canceled; claims 1-6, 8-9, 12-13, 15-16, 18-19, and 21 were amended; and claim 22 was newly added. All the amendments have been thoroughly reviewed and entered.
Claims 1-9 and 11-22 are under examination.
Withdrawn Objections/Rejections
The Examiner has re-weighted all the evidence of record. Any rejection and/or objection not specifically addressed below is hereby withdrawn. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set of rejections and/or objections presently being applied to the instant application.
Claim Interpretation
Claims 16 and 17 are structured as a product-by-process. Thus, claims 16 and 17 will be interpreted and examined for art rejections purposes (102 and 103 rejections) as product-by-process type claims. MPEP 2113 (I) states “[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.” In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985). Thus, while the structure implied by the process steps should be consider when assessing patentability of product-by-process claims over the prior art; however, burden of proof is placed upon Applicant to show that the product can only be defined by the process steps by which the product is made, or where the manufacturing process steps would be expected to impart distinctive structural characteristics to the final product. See, e.g., In re Garnero, 412 F.2d 276, 279, 162 USPQ 221, 223 (CCPA 1979). Also see MPEP § 2113.
Modified Rejections
Necessitated by Applicant’s Claim 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, 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.
Claim(s) 1-9 and 11-22 is/are rejected under 35 U.S.C. 103 as being unpatentable over Rodrigo-Gomez et al (US 2020/0330952 A1) in view of Feng et al (US 2016/0108339 A1).
The product-by-process Claim Interpretation applies here.
Regarding claims 1 and 16 and 17, Rodrigo-Gomez teaches polymeric capsules comprising a core and a polymer wall surrounding the core, wherein the polymer wall contains (meth)acrylate monomers and free radical initiators, and the core contains a benefit agent and an aggregate inhibiting material that include salts (i.e., calcium chloride) that can have a charge-shielding effect around the capsule (Abstract; [0004]-[0007], [0055]-[0123], [0150]-[0164]; Examples 4-8; claims 1-20). Rodrigo-Gomez teaches the weight ratio of the core to the polymer wall is greater than about 95 to 5, particularly 97 to 3 or 98 to 2 ([0007], [0062]-[0063]; Examples 4 and 8). Rodrigo-Gomez teaches the benefit agent includes aldehyde perfume raw material and ketone perfume raw material ([0084]-[0090]). Rodrigo-Gomez teaches benefit agent and the aggregate inhibiting material are mixed in the dispersed phase to form the core ([0160] and [0164]).
However, Rodrigo-Gomez does not teach the shielding agent of claim 1.
Regarding the shielding agent of claim 1, Feng teaches microcapsules comprising a core and a polymer wall surrounding the core, wherein the polymer wall contains (meth)acrylate monomers and free radical initiators, and the core contains a benefit agent and an amine compound including anthranilates (Abstract; [0009]-[0015]. [0022]-[0026], [0034]-[0035], [0062], [0087]-[0108], [0113], [0127]-[0136], and [0417]-[0419]). It is noted that the amine compounds including anthranilates meets the claimed shielding agent. Feng teaches the benefit agent including aldehyde based perfumes and ketone-based perfumes ([0093] and [0418]). Feng teaches the amine compound is premixed with perfume so as to provide an amine-assisted delivery in that such amine-assisted delivery improved delivery of the perfume as well as controlled perfume release ([0417] and [0419]), thereby the perfume forms a complex with the amine compound, particularly a covalent complex ([0417] and [0419]). Feng teaches the amine compounds used for the amine-assisted delivery is provided in an amount from about 0.001% to about 20% by weight of the perfume delivery technology ([0417] and [0419]).
It would have been obvious to one of ordinary skill in the art to include an amine compound such as anthranilates in the core of the capsules of Rodrigo-Gomez, and produce the claimed invention. One of ordinary skill in the art would have been motivated to do so because Rodrigo-Gomez and Feng are commonly drawn to microcapsules comprising a core and a polymer wall surrounding the core, wherein the polymer wall contains (meth)acrylate monomers and free radical initiators, and the core contains a benefit agent such as aldehyde based perfumes and ketone-based perfumes. Feng provide the guidance for including, particularly premixing the perfume with an amine compound such as anthranilates so as to provide an amine-assisted delivery in that such amine-assisted delivery improved delivery of the perfume as well as controlled perfume release. Thus, an ordinary artisan seeking to provide additional benefits to the capsules of Rodrigo-Gomez would have looked to include an amine compound such as anthranilates in the core of the capsules so as to provide improved delivery of the perfume as well as controlled perfume release, and achieve Applicant’s claimed invention with reasonable expectation of success.
With respect to the claimed “the shielding agent is capable of complexing with the aldehyde-containing benefit agents, the ketone-containing benefit agents, or a combination thereof” as recited in claim 1, as discussed above, Feng provided the guidance for including, particularly premixing the perfume with an amine compound such as anthranilates in the core of Rodrigo-Gomez so as to provide an amine-assisted delivery in that such amine-assisted delivery improved delivery of the perfume as well as controlled perfume release, thereby the perfume forms a complex with the amine compound, particularly a covalent complex. Thus, the addition of amine compound such as anthranilates in the core of Rodrigo-Gomez as guided by Feng would be capable of performing the intended use of “complexing with the aldehyde-containing benefit agents, the ketone-containing benefit agents, or a combination thereof” as claimed in claim 1. It is noted that a recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim.
Regarding claim 2, as discussed above, Rodrigo-Gomez teaches the weight ratio of the core to the polymer wall is greater than about 95 to 5, particularly 97 to 3 or 98 to 2.
Regarding claim 3, Rodrigo-Gomez teaches the (meth)acrylate monomers makes up at least 50% by weight of the shell (wall-forming materials) ([0098], [0110]-[0115], [0119]; Examples 4 and 8).
Regarding claim 4, as discussed above, Rodrigo-Gomez teaches the polymer wall contains (meth)acrylate monomers. Rodrigo-Gomez teaches the (meth)acrylate monomers include hexafunctional aromatic urethane-acrylate oligomer ([0098], [0110]-[0115], [0119]; Examples 4 and 8).
Regarding claim 5, as discussed above, Rodrigo-Gomez teaches the (meth)acrylate monomers makes up at least 50% by weight of the shell (wall-forming materials).
Regarding claims 6-8 and 22, Rodrigo-Gomez teaches the free radical initiators include 2,2′-Azobis(2,4-dimethylvaleronitrile), 2,2′-Azobis(2-methylbutyronitrile, and 4,4′-Azobis(4-cyanovaleric acid) ([0151]-[0155]; Examples 4 and 8).).
Regarding claim 9, as discussed above, Rodrigo-Gomez teaches the benefit agent includes aldehyde perfume raw material and ketone perfume raw material. Rodrigo-Gomez teaches the perfume raw material is present in an amount from about 20% to about 90% by weight of the perfume composition ([0090] and [0095]).
Regarding claim 11, as discussed above, Feng provided the guidance for including, particularly premixing the perfume with an amine compound such as anthranilates in the core of Rodrigo-Gomez.
Regarding claim 12, as discussed above, Feng provided the guidance for including, particularly premixing the perfume with an amine compound such as anthranilates in the core of Rodrigo-Gomez. As discussed above, Feng also teaches the amine compounds used for the amine-assisted delivery is provided in an amount from about 0.001% to about 20% by weight of the perfume delivery technology ([0417] and [0419]). Thus, it would have been obvious to one of ordinary skill in the art to routinely optimize the amount of amine compound such as anthranilates used in the core of the capsules of Rodrigo-Gomez in view Feng to amounts as claimed in claim 12, and produce the claimed invention. One of ordinary skill in the art would have been motivated to do so because as discussed above, Feng provides the guidance for optimizing the amount of the amine compounds used for the amine-assisted delivery to an amount from about 0.001% to about 20% by weight of the perfume delivery technology, which is a range that the claimed range as recited in claim 12. Thus, it is noted that the courts have stated where the claimed ranges “overlap or lie inside the ranges disclosed by the prior art” and even when the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have similar properties, a prima facie case of obviousness exists (see 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); Titanium Metals Corp. of America v. Banner, 778 F2d 775. 227 USPQ 773 (Fed. Cir. 1985). Absent some demonstration of unexpected results showing criticality from the claimed parameters, the optimization of the weight amount of the shielding agent would have been obvious before the effective filing date of Applicant’s invention. See MPEP §2144.05 (I)-(II).
Regarding claim 13, as discussed above, Feng provided the guidance for including, particularly premixing the perfume with an amine compound such as anthranilates so as to provide an amine-assisted delivery in that such amine-assisted delivery improved delivery of the perfume as well as controlled perfume release. As discussed above, Feng teaches the amine compound is premixed with perfume so as to provide an amine-assisted delivery in that such amine-assisted delivery improved delivery of the perfume as well as controlled perfume release, thereby the perfume forms a complex with the amine compound, particularly a covalent complex.
Regarding claim 14, Rodrigo-Gomez teaches the core further contains isopropyl myristate in an amount of 29.89% by weight or 54.95% by weight ([0097], [0163]; Examples 4 and 8).
Regarding claim 15, Rodrigo-Gomez teaches the polymer shell wall further contains an emulsifier such as polyvinyl alcohol ([0098], [0112], [0120]-[0122]; Example 4).
Regarding claim 18, Rodrigo-Gomez teaches polymeric capsules have a volume-weighted median particle size of 28.8 µm (about 30 µm) or 29.7 µm (about 30 µm) (Examples 4 and 8).
Regarding claims 19-21, Rodrigo-Gomez teaches a product containing the polymeric capsules, wherein the product include an agricultural formulation containing a herbicide ([0003], [0084], and [0161]; claim 18).
From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole was prima facie obvious to one of ordinary skill in the art before the effective filing date of Applicant’s invention, as evidenced by the references, especially in the absence of evidence to the contrary.
Response to Arguments
Applicant's arguments filed 07/07/2026 have been fully considered but they are not persuasive.
Applicant argues that “Feng does not teach amine compounds as Applicant's claimed core shielding agent.” Applicant alleges that “Feng teaches amine-containing materials in the context of forming the (meth)acrylate ester-based portion of a dual melamine resin/(meth)acrylate polymer microcapsule wall.” Applicant further alleges “Feng claim 1 recites microcapsules whose shell wall comprises melamine resin and a (meth)acrylate polymer, where the (meth)acrylate polymer comprises the reaction product of the amine (meth)acrylate/simple-base-containing wall-forming components.” Thus, Applicant alleges “Feng's amine- containing materials are disclosed as constituents of the shell wall polymer, not as a separate core shielding agent.” As such, Applicant alleges that “if Feng's amine-containing wall-forming materials were incorporated into Rodrigo-Gomez, the result would be an amine-containing polymer precursor or shell component, not a delivery particle whose core comprises an aldehyde/ketone benefit agent and a shielding agent as claimed.” (Remarks, page 11).
In response, the Examiner disagrees. As discussed above in the pending 103 rejection, Feng teaches an amine compound including anthranilates is premixed with perfume so as to provide an amine-assisted delivery in that such amine-assisted delivery improved delivery of the perfume as well as controlled perfume release, thereby the perfume forms a complex with the amine compound, particularly a covalent complex (Feng: [0417] and [0419]). Thus, contrary to Applicant’s allegation, Feng does in fact teach the claimed shielding agent (i.e., anthranilates), as well as, guide one of ordinary skill in the art to for including, particularly premixing the perfume with an amine compound such as anthranilates in the core of Rodrigo-Gomez. See 103 rejection, pages 4-6 of this office action, said page being incorporated herein in its entirety.
As a result, for at least the reason discussed above, claims 1-9 and 11-22 remain rejected as being obvious and unpatentable over the combined teachings of Rodrigo-Gomez and Feng in the pending 103 rejection as set forth in this office action.
Claim(s) 1-9 and 11-22 is/are rejected under 35 U.S.C. 103 as being unpatentable over Smets et al (US 2015/0099680 A1) in view of Rodrigo-Gomez et al (US 2020/0330952 A1) and Feng et al (US 2016/0108339 A1).
The product-by-process Claim Interpretation applies here.
Regarding claims 1, 16 and 17, Smets teaches delivery particles (capsules) comprising a core and a polymer wall surrounding the core, wherein the polymer wall contains (meth)acrylate monomers and free radical initiators, and the core contains a benefit agent including aldehyde based perfumes and ketone-based perfumes (Abstract; [0019]-[0070], [0075]-[0094], [0125]-[0156], [0184]; Example 5; claims 1-18). Smets teaches the weight ratio of the core to polymer wall is from about 85:15 to about 96:4 ([0076], [0166]; Example 5).
It would have been obvious to one of ordinary skill in the art routine optimize the weight ratio of the core to polymer wall of the delivery particles (capsules) to a weight ratio of at least 95:5, and produce the claimed invention. One of ordinary skill in the art would have been motivated to do so because as discussed above, Smets teaches that the weight ratio of the core to polymer wall can be optimize from about 85:15 to about 96:4, which is a weight ratio range that overlaps the claimed range of at least 95:5. One of ordinary skill in the art would have reasonable expectation of success in optimizing the weight ratio of the core to polymer wall to the higher end of at least 95:5 because Rodrigo-Gomez provides the reasonable expectation for making said optimization by teaching that the weight ratio of the core to the polymer wall in polyacrylate capsules can be greater than about 95 to 5, particularly 97 to 3 or 98 to 2 (Rodrigo-Gomez: Abstract; [0004]-[0007], [0055]-[0123], [0150]-[0164]; Examples 4-8; claims 1-20). Thus, the courts have stated where the claimed ranges “overlap or lie inside the ranges disclosed by the prior art” and even when the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have similar properties, a prima facie case of obviousness exists (see 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); Titanium Metals Corp. of America v. Banner, 778 F2d 775. 227 USPQ 773 (Fed. Cir. 1985). Absent some demonstration of unexpected results showing criticality from the claimed parameters, the optimization of the weight ratio of core to polymer wall would have been obvious before the effective filing date of Applicant’s invention. See MPEP §2144.05 (I)-(II).
While Smets does not expressly teach a shielding agent in the core, it would have been obvious to include a shielding agent in the core of Smets in view of the guidance from Feng.
Feng teaches microcapsules comprising a core and a polymer wall surrounding the core, wherein the polymer wall contains (meth)acrylate monomers and free radical initiators, and the core contains a benefit agent and an amine compound including anthranilates (Abstract; [0009]-[0015]. [0022]-[0026], [0034]-[0035], [0062], [0087]-[0108], [0113], [0127]-[0136], and [0417]-[0419]). It is noted that the amine compounds including anthranilates meets the claimed shielding agent. Feng teaches the benefit agent including aldehyde based perfumes and ketone-based perfumes ([0093] and [0418]). Feng teaches the amine compound is premixed with perfume so as to provide an amine-assisted delivery in that such amine-assisted delivery improved delivery of the perfume as well as controlled perfume release ([0417] and [0419]), thereby the perfume forms a complex with the amine compound, particularly a covalent complex ([0417] and [0419]). Feng teaches the amine compounds used for the amine-assisted delivery is provided in an amount from about 0.001% to about 20% by weight of the perfume delivery technology ([0417] and [0419]).
It would have been obvious to one of ordinary skill in the art to include an amine compound such as anthranilates in the core of the delivery particles (capsules) of Smets, and produce the claimed invention. One of ordinary skill in the art would have been motivated to do so because Smets and Feng are commonly drawn to microcapsules comprising a core and a polymer wall surrounding the core, wherein the polymer wall contains (meth)acrylate monomers and free radical initiators, and the core contains a benefit agent such as aldehyde based perfumes and ketone-based perfumes. Feng provide the guidance for including, particularly premixing the perfume with an amine compound such as anthranilates so as to provide an amine-assisted delivery in that such amine-assisted delivery improved delivery of the perfume as well as controlled perfume release. Thus, an ordinary artisan seeking to provide additional benefits to the delivery particles of Smets would have looked to include an amine compound such as anthranilates in the core of the capsules so as to provide improved delivery of the perfume as well as controlled perfume release, and achieve Applicant’s claimed invention with reasonable expectation of success.
With respect to the claimed “the shielding agent is capable of complexing with the aldehyde-containing benefit agents, the ketone-containing benefit agents, or a combination thereof” as recited in claim 1, as discussed above, Feng provided the guidance for including, particularly premixing the perfume with an amine compound such as anthranilates in the core of Smets so as to provide an amine-assisted delivery in that such amine-assisted delivery improved delivery of the perfume as well as controlled perfume release, thereby the perfume forms a complex with the amine compound, particularly a covalent complex. Thus, the addition of amine compound such as anthranilates in the core of Smets as guided by Feng would be capable of performing the intended use of “complexing with the aldehyde-containing benefit agents, the ketone-containing benefit agents, or a combination thereof” as claimed in claim 1. It is noted that a recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim.
Regarding claim 2, as discussed above, Smets teaches that the weight ratio of the core to polymer wall can be optimize from about 85:15 to about 96:4, which is a weight ratio range that overlaps the claimed range as recited in claim 2. One of ordinary skill in the art would have reasonable expectation of success in optimizing the weight ratio of the core to polymer wall to the higher end of at least 96:4 because Rodrigo-Gomez provides the reasonable expectation for making said optimization by teaching that the weight ratio of the core to the polymer wall in polyacrylate capsules can be greater than about 95 to 5, particularly 97 to 3 or 98 to 2 (Rodrigo-Gomez: Abstract; [0004]-[0007], [0055]-[0123], [0150]-[0164]; Examples 4-8; claims 1-20). Thus, the courts have stated where the claimed ranges “overlap or lie inside the ranges disclosed by the prior art” and even when the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have similar properties, a prima facie case of obviousness exists (see 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); Titanium Metals Corp. of America v. Banner, 778 F2d 775. 227 USPQ 773 (Fed. Cir. 1985). Absent some demonstration of unexpected results showing criticality from the claimed parameters, the optimization of the weight ratio of core to polymer wall would have been obvious before the effective filing date of Applicant’s invention. See MPEP §2144.05 (I)-(II).
Regarding claim 3, Smets teaches the shell comprises (meth)acrylate monomers in amount of at least 50% by weight ([0027]-[0029], [0047]-[0049], [0069]-[0070], [0156]-[0157]; Example 5). Rodrigo-Gomez teaches the (meth)acrylate monomers makes up at least 50% by weight of the shell (wall-forming materials) ([0098], [0110]-[0115], [0119]; Examples 4 and 8).
Regarding claim 4, Smets teaches the (meth)acrylate monomers include hexafunctional aromatic urethane-acrylate oligomer ([0029], [0049]; Example 5). Rodrigo-Gomez teaches the (meth)acrylate monomers include hexafunctional aromatic urethane-acrylate oligomer ([0098], [0110]-[0115], [0119]; Examples 4 and).
Regarding claim 5, as discussed above, Smets teaches the shell comprises (meth)acrylate monomers in amount of at least 50% by weight. As discussed above, Rodrigo-Gomez also teaches the (meth)acrylate monomers makes up at least 50% by weight of the shell (wall-forming materials).
Regarding claims 6-8 and 22, Smets teaches the free radical initiators include 2′-Azobis(2,4-dimethylvaleronitrile), 2,2′-Azobis(2-methylbutyronitrile, and 4,4′-Azobis(4-cyanovaleric acid) (Example 5). Rodrigo-Gomez also teaches the free radical initiators include 2,2′-Azobis(2,4-dimethylvaleronitrile), 2,2′-Azobis(2-methylbutyronitrile, and 4,4′-Azobis(4-cyanovaleric acid) ([0151]-[0155]; Examples 4 and 8).
Regarding claim 9, as discussed above, Smets teaches the core contains a benefit agent including aldehyde-based perfumes and ketone-based perfumes. Smets teaches the perfume is present in amount of at least about 20% by weight of the benefit agent delivery particles ([0076] and [0166]). Rodrigo-Gomez also teaches the perfume raw material is present in an amount from about 20% to about 90% by weight of the perfume composition ([0084]-[0090] and [0095]).
Regarding claims 11-13, as discussed above, Feng provided the guidance for including, particularly premixing the perfume with an amine compound such as anthranilates so as to provide an amine-assisted delivery in that such amine-assisted delivery improved delivery of the perfume as well as controlled perfume release. As discussed above, Feng teaches the amine compound is premixed with perfume so as to provide an amine-assisted delivery in that such amine-assisted delivery improved delivery of the perfume as well as controlled perfume release, thereby the perfume forms a complex with the amine compound, particularly a covalent complex. In addition, as discussed above, Feng provide the guidance for optimizing the amine compound such as anthranilates to an amount from about 0.001% to about 20% by weight of the perfume delivery technology (Feng: [0417] and [0419]), which overlaps the claimed range as recited in claim 12. Thus, it is noted that the courts have stated where the claimed ranges “overlap or lie inside the ranges disclosed by the prior art” and even when the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have similar properties, a prima facie case of obviousness exists (see 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); Titanium Metals Corp. of America v. Banner, 778 F2d 775. 227 USPQ 773 (Fed. Cir. 1985). Absent some demonstration of unexpected results showing criticality from the claimed parameters, the optimization of the weight amount of the shielding agent would have been obvious before the effective filing date of Applicant’s invention. See MPEP §2144.05 (I)-(II).
Regarding claim 14, Rodrigo-Gomez provides the guidance for including isopropyl myristate in an amount of 29.89% by weight or 54.95% by weight in the core of Smets (Rodrigo-Gomez: [0097], [0163]; Examples 4 and 8).
Regarding claim 15, Rodrigo-Gomez provides the guidance for including an emulsifier such as polyvinyl alcohol in the shell wall of Smets (Rodrigo-Gomez: [0098], [0112], [0120]-[0122]; Example 4).
Regarding claim 18, Smets teaches the delivery particles have a particle size from about 8 micrometers to about 50 micrometers ([0064] and [0152]). Rodrigo-Gomez provides the guidance for optimizing the particles of Smets to have a volume-weighted median particle size of 28.8 µm (about 30 µm) or 29.7 µm (about 30 µm) (Examples 4 and 8). Thus, it is noted that the courts have stated where the claimed ranges “overlap or lie inside the ranges disclosed by the prior art” and even when the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have similar properties, a prima facie case of obviousness exists (see 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); Titanium Metals Corp. of America v. Banner, 778 F2d 775. 227 USPQ 773 (Fed. Cir. 1985). Absent some demonstration of unexpected results showing criticality from the claimed parameters, the optimization of volume-weighted median particle size of the delivery particles would have been obvious before the effective filing date of Applicant’s invention. See MPEP §2144.05 (I)-(II).
Regarding claim 19, Smets teaches a product containing the delivery particles (Abstract; [0019]-[0070], [0075]-[0094], [0125]-[0156], [0184]; Example 5; claims 1-18).
Regarding claims 20 and 21, Rodrigo-Gomez provides the guidance for including the delivery particles of Smets in agriculture products containing herbicides (Rodrigo-Gomez: Abstract; [0003]-[0007], [0055]-[0123], [0150]-[0164]; Examples 4-8; claims 1-20).
From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole was prima facie obvious to one of ordinary skill in the art before the effective filing date of Applicant’s invention, as evidenced by the references, especially in the absence of evidence to the contrary.
Response to Arguments
Applicant's arguments filed 07/07/2026 have been fully considered but they are not persuasive.
Applicant argues:
“The combination of Smets, Rodrigo-Gomez, and Feng also fails to teach the
claimed invention. Smets teaches core-shell encapsulates in which the core comprises a perfume and the shell comprises a (meth)acrylate polymer formed by radical polymerization. Rodrigo-Gomez similarly distinguishes between benefit agent in the core and polymer precursor that migrates to the shell upon polymerization. Feng, in turn, discloses amine-containing materials as part of the (meth)acrylate wall-forming system. Thus, even if the teachings of Feng were incorporated into Smets and Rodrigo-Gomez, the resulting system would place the amine-containing material in the wall-forming polymer system, not in the core.” (Remarks, page 12, 2nd paragraph).
In response, the Examiner disagrees. As discussed above in the pending 103 rejection, Feng teaches an amine compound including anthranilates is premixed with perfume so as to provide an amine-assisted delivery in that such amine-assisted delivery improved delivery of the perfume as well as controlled perfume release, thereby the perfume forms a complex with the amine compound, particularly a covalent complex (Feng: [0417] and [0419]). Thus, contrary to Applicant’s allegation, Feng does in fact teach the claimed shielding agent (i.e., anthranilates), as well as, guide one of ordinary skill in the art to for including, particularly premixing the perfume with an amine compound such as anthranilates in the core of Smets. See 103 rejection, pages 12-14 of this office action, said page being incorporated herein in its entirety.
As a result, for at least the reason discussed above, claims 1-9 and 11-22 remain rejected as being obvious and unpatentable over the combined teachings of Smets, Rodrigo-Gomez and Feng in the pending 103 rejection as set forth in this office action.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-9 and 11-22 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-12 of U.S. Patent No. 11970676 in view of Rodrigo-Gomez et al (US 2020/0330952 A1) and Feng et al (US 2016/0108339 A1).
Although the claims at issue are not identical, they are not patentably distinct from each other because the claims in the Patent ‘676 significantly overlap with the subject matter of instant claims, i.e., compositions comprising particles (capsules) comprising a core and a polymer wall surrounding the core, wherein the polymer wall contains (meth)acrylate monomers including hexafunctional acrylate, and the core contains a benefit agent such as perfumes including aldehyde based perfumes and ketone-based perfumes, wherein the amounts of perfumes in both the instant application and Patent ‘676 substantially overlaps.
While the claims in the Patent ‘676 do not recite the weight ratio of the core to polymer wall, as in the claims of the instant application, it would have been obvious to optimize the weight ratio of the core to polymer wall in the Patent ‘676 to weight ratio recited in the claims of the instant application in view of the guidance from Rodrigo-Gomez (Abstract; [0004]-[0007], [0055]-[0123], [0150]-[0164]; Examples 4-8; claims 1-20).
While the claims in the Patent ‘676 do not recite the shielding agent in the core, as in the claims of instant application, it would have been obvious to include a shielding agent such as anthranilates in the core of the Patent ‘676 in view of the guidance from Feng (Abstract; [0009]-[0015]. [0022]-[0026], [0034]-[0035], [0062], [0087]-[0108], [0113], [0127]-[0136], and [0417]-[0419]).
Consequently, the ordinary artisan would have recognized the obvious variation of the instant claimed subject matter over U.S. Patent No. 11970676 in view of Rodrigo-Gomez and Feng.
Claims 1-9 and 11-22 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-18 of U.S. Patent No. 11732222 in view of Rodrigo-Gomez et al (US 2020/0330952 A1) and Feng et al (US 2016/0108339 A1).
Although the claims at issue are not identical, they are not patentably distinct from each other because the claims in the Patent ‘222 significantly overlap with the subject matter of instant claims, i.e., compositions comprising particles (capsules) comprising a core and a polymer wall surrounding the core, wherein the polymer wall contains (meth)acrylate monomers including hexafunctional acrylate, and the core contains a benefit agent such as perfumes including aldehyde based perfumes and ketone-based perfumes, wherein the amounts of perfumes in both the instant application and Patent ‘222 substantially overlaps.
While the claims in the Patent ‘222 do not recite the weight ratio of the core to polymer wall, as in the claims of the instant application, it would have been obvious to optimize the weight ratio of the core to polymer wall in the Patent ‘222 to weight ratio recited in the claims of the instant application in view of the guidance from Rodrigo-Gomez (Abstract; [0004]-[0007], [0055]-[0123], [0150]-[0164]; Examples 4-8; claims 1-20).
While the claims in the Patent ‘222 do not recite the shielding agent in the core, as in the claims of instant application, it would have been obvious to include a shielding agent such as anthranilates in the core of the Patent ‘222 in view of the guidance from Feng (Abstract; [0009]-[0015]. [0022]-[0026], [0034]-[0035], [0062], [0087]-[0108], [0113], [0127]-[0136], and [0417]-[0419]).
Consequently, the ordinary artisan would have recognized the obvious variation of the instant claimed subject matter over U.S. Patent No. 11732222 in view of Rodrigo-Gomez and Feng.
Claims 1-9 and 11-22 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 12398348 in view of Rodrigo-Gomez et al (US 2020/0330952 A1) and Feng et al (US 2016/0108339 A1).
Although the claims at issue are not identical, they are not patentably distinct from each other because the claims in the Patent ‘348 significantly overlap with the subject matter of instant claims, i.e., compositions comprising particles (capsules) comprising a core and a polymer wall surrounding the core, wherein the polymer wall contains (meth)acrylate monomers (polyacrylates) and free radical initiator, and the core contains a benefit agent such as perfumes including aldehyde based perfumes and ketone-based perfumes, wherein the core:shell weight ratio and particle size in both the instant application and Patent ‘348 substantially overlaps.
While the claims in the instant application do not recite the broadness index and fracture strength characteristics of the particles, as in the claims of the Patent ‘348, it would have been obvious that the broadness index and fracture strength characteristics recited in the Patent ‘348 would have been implicit the substantially same particles of the instant claims in view of Rodrigo-Gomez (Abstract; [0004]-[0007], [0055]-[0123], [0150]-[0164]; Examples 4-8; claims 1-20)
While the claims in the Patent ‘348 do not recite the shielding agent in the core, as in the claims of instant application, it would have been obvious to include a shielding agent such as anthranilates in the core of the Patent ‘348 in view of the guidance from Feng (Abstract; [0009]-[0015]. [0022]-[0026], [0034]-[0035], [0062], [0087]-[0108], [0113], [0127]-[0136], and [0417]-[0419]).
Consequently, the ordinary artisan would have recognized the obvious variation of the instant claimed subject matter over U.S. Patent No. 11732222 in view of Rodrigo-Gomez and Feng.
Claims 1-9 and 11-22 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-23 of U.S. Patent No. 12227720 in view of Feng et al (US 2016/0108339 A1).
Although the claims at issue are not identical, they are not patentably distinct from each other because the claims in the Patent ‘720 significantly overlap with the subject matter of instant claims, i.e., compositions comprising particles (capsules) comprising a core and a polymer wall surrounding the core, wherein the polymer wall contains (meth)acrylate monomers (polyacrylates) and free radical initiator, and the core contains a benefit agent, wherein the core:shell weight ratio in both the instant application and Patent ‘720 is at least 95:5.
While the claims in the Patent ‘720 do not recite the shielding agent in the core and the benefit agent comprises aldehyde-containing benefit agent, ketone-containing benefit agent, or a combination thereof, as in the claims of instant application, it would have been obvious to include a shielding agent such as anthranilates, and aldehyde-containing benefit agent, ketone-containing benefit agent, or a combination thereof as the benefit agent in the core of the Patent ‘720 in view of the guidance from Feng (Abstract; [0009]-[0015]. [0022]-[0026], [0034]-[0035], [0062], [0087]-[0108], [0113], [0127]-[0136], and [0417]-[0419]).
Consequently, the ordinary artisan would have recognized the obvious variation of the instant claimed subject matter over U.S. Patent No. 12227720 in view of Feng.
Claims 1-9 and 11-22 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-21 of U.S. Patent No. 12486478 in view of Feng et al (US 2016/0108339 A1).
Although the claims at issue are not identical, they are not patentably distinct from each other because the claims in the Patent ‘478 significantly overlap with the subject matter of instant claims, i.e., compositions comprising particles (capsules) comprising a core and a polymer wall surrounding the core, wherein the polymer wall contains (meth)acrylate monomers (polyacrylates) and free radical initiator, and the core contains a benefit agent such as perfumes and a partitioning modifier such as isopropyl myristate, wherein the particles are characterized by a volume-weighted median particle size from about 30 to about 40 microns, and wherein the core:shell weight ratio and the amounts of the partitioning modifier in both the instant application and Patent ‘478 substantially overlaps.
While the claims in the Patent ‘478 do not recite the shielding agent in the core and the benefit agent comprises aldehyde-containing benefit agent, ketone-containing benefit agent, or a combination thereof, as in the claims of instant application, it would have been obvious to include a shielding agent such as anthranilates, and aldehyde-containing benefit agent, ketone-containing benefit agent, or a combination thereof as the benefit agent in the core of the Patent ‘478 in view of the guidance from Feng (Abstract; [0009]-[0015]. [0022]-[0026], [0034]-[0035], [0062], [0087]-[0108], [0113], [0127]-[0136], and [0417]-[0419]).
Consequently, the ordinary artisan would have recognized the obvious variation of the instant claimed subject matter over U.S. Patent No. 12486478 in view of Feng.
Claims 1-9 and 11-22 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-11 of U.S. Patent No. 12146124.
Although the claims at issue are not identical, they are not patentably distinct from each other because the claims in the Patent ‘124 significantly overlap with the subject matter of instant claims, i.e., compositions comprising particles (capsules) comprising a core and a polymer wall surrounding the core, wherein the polymer wall contains (meth)acrylate monomers (polyacrylates) including acidic (meth)acrylate , amine (meth)acrylate and hexafunctional acrylate, and free radical initiator, and the core contains a benefit agent such as perfumes and a partitioning modifier such as isopropyl myristate, wherein the particles are characterized by a volume-weighted median particle size from about 30 to about 40 microns, and wherein the core:shell weight ratio and the amounts of the partitioning modifier in both the instant application and Patent ‘124 substantially overlaps.
While the claims in the Patent ‘124 do not recite the shielding agent in the core and the benefit agent comprises aldehyde-containing benefit agent, ketone-containing benefit agent, or a combination thereof, as in the claims of instant application, it would have been obvious to include a shielding agent such as anthranilates, and aldehyde-containing benefit agent, ketone-containing benefit agent, or a combination thereof as the benefit agent in the core of the Patent ‘124 in view of the guidance from Feng (Abstract; [0009]-[0015]. [0022]-[0026], [0034]-[0035], [0062], [0087]-[0108], [0113], [0127]-[0136], and [0417]-[0419]).
Consequently, the ordinary artisan would have recognized the obvious variation of the instant claimed subject matter over U.S. Patent No. 12146124 in view of Feng.
Claims 1-9 and 11-22 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-17 of U.S. Patent No. 12209232 in view of Rodrigo-Gomez et al (US 2020/0330952 A1) and Feng et al (US 2016/0108339 A1).
Although the claims at issue are not identical, they are not patentably distinct from each other because the claims in the Patent ‘232 significantly overlap with the subject matter of instant claims, i.e., compositions comprising particles (capsules) comprising a core and a polymer wall surrounding the core, wherein the polymer wall contains (meth)acrylate monomers including a hexafunctional acrylate and free radical initiator, and the core contains a benefit agent such as perfumes including aldehyde based perfumes, and a partitioning modifier such as isopropyl myristate.
While the claims in the Patent ‘232 do not recite core:shell weight ratio as in the claims of the instant application, it would have been obvious to optimize core:shell weight ratio in the Patent ‘232 to core:shell weight ratio recited in the claims of the instant application in view of the guidance from Rodrigo-Gomez (Abstract; [0004]-[0007], [0055]-[0123], [0150]-[0164]; Examples 4-8; claims 1-20).
While the claims in the Patent ‘232 do not recite the shielding agent in the core, as in the claims of instant application, it would have been obvious to include a shielding agent such as anthranilates in the core of the Patent ‘232 in view of the guidance from Feng (Abstract; [0009]-[0015]. [0022]-[0026], [0034]-[0035], [0062], [0087]-[0108], [0113], [0127]-[0136], and [0417]-[0419]).
Consequently, the ordinary artisan would have recognized the obvious variation of the instant claimed subject matter over U.S. Patent No. 12209232 in view of Rodrigo-Gomez and Feng.
Claims 1-9 and 11-22 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1-23 of copending Application No. 18462537 (reference application) in view of Feng et al (US 2016/0108339 A1).
Although the claims at issue are not identical, they are not patentably distinct from each other because the claims in the copending application ‘537 significantly overlap with the subject matter of instant claims, i.e., compositions comprising particles (capsules) comprising a core and a polymer wall surrounding the core, wherein the polymer wall contains (meth)acrylate monomers (polyacrylates) and free radical initiator, and the core contains a benefit agent such as perfumes including aldehyde based perfume and ketone based perfumes, and wherein the core:shell weight ratio, the amounts of (meth)acrylate monomers, and the amounts of free radical initiator in both the instant application and copending application ‘537 substantially overlaps.
While the claims in the copending application ‘537 do not recite the shielding agent in the core, as in the claims of instant application, it would have been obvious to include a shielding agent such as anthranilates in the core of the copending application ‘537 in view of the guidance from Feng (Abstract; [0009]-[0015]. [0022]-[0026], [0034]-[0035], [0062], [0087]-[0108], [0113], [0127]-[0136], and [0417]-[0419]).
Consequently, the ordinary artisan would have recognized the obvious variation of the instant claimed subject matter over copending Application No. 18462537 in view of Feng.
This is a provisional nonstatutory double patenting rejection.
Claims 1-9 and 11-22 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3-9 and 13-20 of copending Application No. 17863510 (reference application).
Although the claims at issue are not identical, they are not patentably distinct from each other because the claims in the copending application ‘510 significantly overlap with the subject matter of instant claims, i.e., compositions comprising particles (capsules) comprising a core and a polymer wall surrounding the core, wherein the polymer wall contains (meth)acrylate monomers (polyacrylates) and free radical initiator, and the core contains a benefit agent such as perfumes including aldehyde based perfume and ketone based perfumes and a shielding agent such as methyl anthranilate, and wherein the core:shell weight ratio in both the instant application and copending application ‘510 substantially overlaps.
Consequently, the ordinary artisan would have recognized the obvious variation of the instant claimed subject matter over copending Application No. 17863510
This is a provisional nonstatutory double patenting rejection.
Claims 1-9 and 11-22 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-18 of copending Application No. 17839547 (reference application) in view of Feng et al (US 2016/0108339 A1).
Although the claims at issue are not identical, they are not patentably distinct from each other because the claims in the copending application ‘547 significantly overlap with the subject matter of instant claims, i.e., compositions comprising particles (capsules) comprising a core and a polymer wall surrounding the core, wherein the polymer wall contains (meth)acrylate monomers and free radical initiator, and the core contains a benefit agent such as perfumes including aldehyde-containing benefit agent and ketone-containing benefit agent, and wherein the core:shell weight ratio, the amounts of (meth)acrylate monomers, and the amounts of free radical initiator in both the instant application and copending application ‘547 substantially overlaps.
While the claims in the copending application ‘547 do not recite the shielding agent in the core, as in the claims of instant application, it would have been obvious to include a shielding agent such as anthranilates in the core of the copending application ‘547 in view of the guidance from Feng (Abstract; [0009]-[0015]. [0022]-[0026], [0034]-[0035], [0062], [0087]-[0108], [0113], [0127]-[0136], and [0417]-[0419]).
Consequently, the ordinary artisan would have recognized the obvious variation of the instant claimed subject matter over copending Application No. 17839547 in view of Feng.
This is a provisional nonstatutory double patenting rejection.
Claims 1-9 and 11-22 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of copending Application No. 19278000 (reference application) in view of Rodrigo-Gomez et al (US 2020/0330952 A1) and Feng et al (US 2016/0108339 A1).
Although the claims at issue are not identical, they are not patentably distinct from each other because the claims in the copending application ‘800 significantly overlap with the subject matter of instant claims, i.e., compositions comprising particles (capsules) comprising a core and a polymer wall surrounding the core, wherein the polymer wall contains (meth)acrylate monomers (polyacrylates) and free radical initiator, and the core contains a benefit agent such as perfumes, wherein the core:shell weight ratio and particle size in both the instant application and copending application ‘800 substantially overlaps.
While the claims in the instant application do not recite the broadness index and fracture strength characteristics of the particles, as in the claims of the copending application ‘800, it would have been obvious that the broadness index and fracture strength characteristics recited in the copending application ‘800 would have been implicit in the substantially same particles of the instant claims in view of Rodrigo-Gomez (Abstract; [0004]-[0007], [0055]-[0123], [0150]-[0164]; Examples 4-8; claims 1-20).
While the claims in the copending application ‘800 do not recite the shielding agent in the core and the benefit agent comprises aldehyde-containing benefit agent, ketone-containing benefit agent, or a combination thereof, as in the claims of instant application, it would have been obvious to include a shielding agent such as anthranilates, and aldehyde-containing benefit agent, ketone-containing benefit agent, or a combination thereof as the benefit agent in the core of copending application ‘800 in view of the guidance from Feng (Abstract; [0009]-[0015]. [0022]-[0026], [0034]-[0035], [0062], [0087]-[0108], [0113], [0127]-[0136], and [0417]-[0419]).
Consequently, the ordinary artisan would have recognized the obvious variation of the instant claimed subject matter over copending Application No. 19278000 in view of Rodrigo-Gomez and Feng.
This is a provisional nonstatutory double patenting rejection.
Claims 1-9 and 11-22 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of copending Application No. 19368295 (reference application) in view of Feng et al (US 2016/0108339 A1).
Although the claims at issue are not identical, they are not patentably distinct from each other because the claims in the copending application ‘295 significantly overlap with the subject matter of instant claims, i.e., compositions comprising particles (capsules) comprising a core and a polymer wall surrounding the core, wherein the polymer wall contains (meth)acrylate monomers (polyacrylates) including hexafunctional aromatic urethane acrylate and free radical initiator, and the core contains a benefit agent such as perfumes and a partitioning modifier such as isopropyl myristate, wherein the particles are characterized by a volume-weighted median particle size from about 30 to about 40 microns, and wherein the core:shell weight ratio and the amounts of the partitioning modifier in both the instant application and copending application ‘295 substantially overlaps.
While the claims in the copending application ‘295 do not recite the shielding agent in the core and the benefit agent comprises aldehyde-containing benefit agent, ketone-containing benefit agent, or a combination thereof, as in the claims of instant application, it would have been obvious to include a shielding agent such as anthranilates, and aldehyde-containing benefit agent, ketone-containing benefit agent, or a combination thereof as the benefit agent in the core of copending application ‘295 in view of the guidance from Feng (Abstract; [0009]-[0015]. [0022]-[0026], [0034]-[0035], [0062], [0087]-[0108], [0113], [0127]-[0136], and [0417]-[0419]).
Consequently, the ordinary artisan would have recognized the obvious variation of the instant claimed subject matter over copending Application No. 19368295 in view of Feng.
This is a provisional nonstatutory double patenting rejection.
Claims 1-9 and 11-22 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-17 of copending Application No. 18985688 (reference application) in view of Rodrigo-Gomez et al (US 2020/0330952 A1) and Feng et al (US 2016/0108339 A1).
Although the claims at issue are not identical, they are not patentably distinct from each other because the claims in the copending application ‘688 significantly overlap with the subject matter of instant claims, i.e., compositions comprising particles (capsules) comprising a core and a polymer wall surrounding the core, wherein the polymer wall contains (meth)acrylate monomers, and the core contains a benefit agent such as perfumes including aldehyde based perfumes and ketone-based perfumes.
While the claims in the copending application ‘688 do not recite the weight ratio of the core to polymer wall, as in the claims of the instant application, it would have been obvious to include optimize the weight ratio of the core to polymer wall in the copending application ‘688 to the weight ratio in the claims of the instant application in view of the guidance from Rodrigo-Gomez Abstract; [0004]-[0007], [0055]-[0123], [0150]-[0164]; Examples 4-8; claims 1-20).
While the claims in the copending application ‘688 do not recite the shielding agent in the core, as in the claims of instant application, it would have been obvious to include a shielding agent such as anthranilates in the core of the copending application ‘688 in view of the guidance from Feng (Abstract; [0009]-[0015]. [0022]-[0026], [0034]-[0035], [0062], [0087]-[0108], [0113], [0127]-[0136], and [0417]-[0419]).
Consequently, the ordinary artisan would have recognized the obvious variation of the instant claimed subject matter over copending Application No. 18985688 in view of Rodrigo-Gomez and Feng.
This is a provisional nonstatutory double patenting rejection.
Response to Arguments
Applicant's arguments filed 07/07/2026 have been fully considered but they are not persuasive.
Applicant traverses the nonstatutory double patenting rejections over Patent No(s). 11970676, 11732222, 12398348, 12227720, 12486478, 12146124, and 12209232 by arguing that “[t]he claims of the applied patents/applications do not require the presently claimed combination of (i) an aldehyde- and/or ketone-containing benefit agent and (ii) a shielding agent present in the core materials.” Applicant alleges “nonstatutory double patenting is based on a comparison of the claims of the application and the reference patent or application, not on a combination with additional references.” Applicant goes on to allege that “[e]ven under the Examiner's reasoning, incorporation of Feng's amine-containing materials would result in amine-containing wall-forming components, not a core comprising both a benefit agent and a shielding agent.” (Remarks, page 12, last paragraph to page 13).
In response, the Examiner disagrees. The nonstatutory double patenting rejections over Patent No(s). 11970676, 11732222, 12398348, 12227720, 12486478, 12146124, and 12209232, are obviousness-type nonstatutory double patenting rejections. The obviousness-type nonstatutory double patenting rejections are indeed proper because Feng does teach and provide guidance for including a shielding agent such as anthranilates in the core of the Patents. As discussed above, Feng teaches an amine compound including anthranilates is premixed with perfume so as to provide an amine-assisted delivery in that such amine-assisted delivery improved delivery of the perfume as well as controlled perfume release, thereby the perfume forms a complex with the amine compound, particularly a covalent complex (Feng: [0417] and [0419]).
Accordingly, The nonstatutory double patenting rejections over Patent No(s). 11970676, 11732222, 12398348, 12227720, 12486478, 12146124, and 12209232 are proper and maintained for the reason of record, pending filing of a terminal disclaimer.
Applicant traverses the nonstatutory double patenting rejections over copending Application No(s). 18462537, 17863570, 17839547, 19278000, 19368295, and 18985688 by arguing that these are provisional rejections and thus, “Applicants will wait to respond until the claims in the reference application issue as they may change during prosecution.” (Remarks, pages 13-14).
In response, the Examiner disagrees. The provisional nonstatutory double patenting rejections over copending Application No(s). 18462537, 17863570, 17839547, 19278000, 19368295, and 18985688 are proper and maintained for the reason of record, pending filing of a terminal disclaimer.
Conclusion
No claim is allowed.
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
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/DOAN T PHAN/ Primary Examiner, Art Unit 1613
