DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Priority
This application is a 371 of PCT/US2022/036940 filed 07/13/2022.
This application also has PRO of 63221618 filed 07/14/2021.
Accordingly, claims 1-21 are afforded the effective filing date of 07/14/2021.
Information Disclosure Statement
The information disclosure statement (IDS) submitted 03/04/2024 has been considered by the examiner and initialed copies of the IDS are included with the mailing of this office action.
Status of the Claims
Claims 1-21 are pending in this instant application, and examined herein on the merits for patentability.
Claim Objections
Claim 8 is objected to because of the following informalities: “comprises a” is recited twice in line 2 of claim 8. Appropriate correction is required.
Claim 19 is objected to because of the following informalities: please amend “incorporating” to transitional phrase of “comprising”. 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.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 2-6, 9, 12-13, 15-16, 18 and 21 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding claims 2-6, 9, 12-13, 15-16, and 18: 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 2 recites the broad recitation “at least 96:4,” and the claim also recites “preferably at least 97:3.” “more preferably at least 97.5:2.5,” and “even more preferably at least 98:2,” which are the narrower statements of the range/limitation.
claim 3 recites the broad recitation “at least 50%,” and the claim also recites “preferably at least 60%,” “preferably at least 70%,” and “more preferably at least 90%,” which are the narrower statements of the range/limitation.
claim 4 recites the broad recitation “at least three,” and the claim also recites “preferably at least four, at least five, or even at least six,” which is/are the narrower statement(s) of the range/limitation.
claim 4 recites the broad recitation “at least one,” and the claim also recites “more preferably at least three,” which is the narrower statement of the range/limitation.
claim 5 recites the broad recitation “at least 50%,” and the claim also recites “preferably at least 60%,” “preferably at least 70%,” “more preferably at least 80%,” and “even more preferably at least 90%,” which are the narrower statements of the range/limitation.
claim 6 recites the broad recitation “free radical initiating agent comprises a material selected from the group consisting of peroxy initiators, azo initiators, and combinations thereof,” and the claim also recites “preferably at least one free initiating agent selected from the group consisting of: peroxide; dialkyl peroxide’ alkyl peroxide; … t-butyl perbenzoate; ethyl 3,3-di-(t-amylperoxy)-butyrate; and combinations thereof” and “more preferably selected from the group consisting of: 4,4’azobis(4-cyanovaleric acid); … 2,2’-azobis(2-methylbutyronitrile); and combinations thereof,” which are the narrower statements of the limitation.
claim 9 recites the broad recitation “perfume raw materials,” and the claim also recites “preferably wherein the perfume raw materials comprise at least about 20%, preferably at least about 25%, more preferably at least about 30%, more preferably at least about 40%, even more preferably at least about 50%, by weight of the fragrance by weight of the perfume raw materials, of aldehyde-containing perfume raw materials, ketone-containing raw materials, or mixtures thereof” which is the narrower statement of the limitation.
claim 9 recites the broad recitation “at least about 20%,” and the claim also recites “preferably at least about 25%,” “more preferably at least about 30%,” “more preferably at least about 40%,” and “even more preferably at least about 50%,” which is the narrower statements of the range/limitation.
Claim 12 recites the broad recitation “at least about 1%,” and the claim also recites “preferably at least about 3%,” and “more preferably at least about 5%,” which is the narrower statements of the range/limitation.
claim 13 recites the broad recitation “at least some of the aldehyde-containing benefit agents and/or ketone-containing benefit agents are present in the form of a complex with at least a portion of the shielding agent,” and the claim also recites “preferably wherein the complex is a covalently-bonded compound,” which is the narrower statement of the limitation.
claim 15 recites the broad recitation “polymeric emulsifier,” and the claim also recites “preferably wherein the polymeric emulsifier comprises polyvinyl alcohol,” which is the narrower statement of the limitation.
claim 16 recites the broad recitation “the benefit agent, the shielding agent, at least one (meth)acrylate monomer, and at least one free radical initiating agent are present in the same liquid phase,” and the claim also recites “preferably in the oil phase,” which is the narrower statement of the limitation.
claim 18 recites the broad recitation “about 10 to about 100 microns,” and the claim also recites “preferably from about 15 to about 60 microns,” “more preferably from about 20 to about 50 microns,” and “even more preferably from about 30 to about 40 microns,” which is the narrower statements of the range/limitation.
The claim(s) 2-6, 9, 12-13, 15-16 and 18 are 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.
Regarding claims 9 and 12, the multiple recitations “at least about” in claims 9 and 12 are indefinite. The phrase “at least” typically indicates a minimum point; however, the phrase “at least” is controverted by the term “about,” which implies that values above and below the indicated amount are permitted. Therefore, the juxtaposition of these two terms makes it unclear what maximum dimensions are encompassed by the claim. In Amgen, Inc. v. Chugai Pharmaceutical co., 927 F.2d 1200 (CAFC 1991), the CAFC stated, “[t]he district court held claims 4 and 6 of the patent invalid because their specific activity of “at least about 160,000” was indefinite.” After review, the CAFC states “[w]e therefore affirm the district court’s determination on this issue.” Thus, the CAFC found the phrase “at least about” indefinite where the metes and bounds of the term were not defined in the specification.
Regarding claim 13, the recitation of “The population of delivery particles according to v” is indefinite because it is unclear the metes and bounds of “v” or what the population of delivery particles is according to. For this office action and prior art rejection purpose, claim 13 will be interpreted as “The population of delivery particles according to claim 1.” Clarification by amendment is required in claim 13.
Regarding claim 21, the recitation of “the agriculture active” renders claim 21 indefinite because there is insufficient antecedent basis for this limitation in claim 19. It is noted that claim 21 is dependent from claim 19, yet claim 19 is not drawn to an agriculture active. Thus, it is unclear what “the agriculture active” is claim 21 referencing to, as claim 19 does not contain an agriculture active.
As a results, claims 2-6, 9, 12-13, 15-16, 18 and 21 do not clearly set forth the metes and bounds of patent protection desired.
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.
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1-9 and 14-21 is/are rejected under 35 U.S.C. 102(a)(1) or 102(a)(2) as being anticipated by Rodrigo-Gomez et al (US 2020/0030952 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 (a shielding agent) (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 (shielding agent) are mixed in the dispersed phase to form the core ([0160] and [0164]). Given that the benefit agent including aldehyde perfume raw material and ketone perfume raw material, and the aggregate inhibiting material meets the claimed structures of “the benefit agent comprises aldehyde-containing benefit agents, ketone-containing benefit agents, or a combination thereof” and “a shielding agent” as recited in claim 1, the aggregate inhibiting material (shielding agent) of Rodrigo-Gomez 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, 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 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).
As a result, the aforementioned teachings from Rodrigo-Gomez are anticipatory to claims 1-9 and 14-21 of the instant invention.
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) 1-21 is/are rejected under 35 U.S.C. 103 as being unpatentable over Rodrigo-Gomez et al (US 2020/0030952 A1), and further in view of Feng et al (US 2016/0108339 A1).
The product-by-process Claim Interpretation applies here.
The population of delivery particles and article of 1-9 and 14-21, respectively, are discussed above.
However, Rodrigo-Gomez does not teach the shielding agent and amount of shielding agent of claims 10-13, respectively.
Regarding claims 10-13, 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 ([0094], [0417] and [0419]), thereby the perfume forms a complex with the amine compound, particularly a covalent complex ([0094], [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.
It would also 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).
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.
Claim(s) 1-21 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 2020/0030952 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 ([0094], [0417] and [0419]), thereby the perfume forms a complex with the amine compound, particularly a covalent complex ([0094], [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.
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, 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 10-13, 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.
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 1-21 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 2020/0030952 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 1-21 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 2020/0030952 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 1-21 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 2020/0030952 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 1-21 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 1-21 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 1-21 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 1-21 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 2020/0030952 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 1-21 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 1-21 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 1-21 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 1-21 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 2020/0030952 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 1-21 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 1-21 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 2020/0030952 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.
Conclusion
No claim is allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DOAN THI-THUC PHAN whose telephone number is (571)270-3288. The examiner can normally be reached 8-5 EST Monday-Friday.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Brian Kwon can be reached at 571-272-0581. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/DOAN T PHAN/ Primary Examiner, Art Unit 1613