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 .
Formal Matters
Receipt of Applicant’s response dated 05/06/2026 is acknowledged.
Claims 1-19 are pending.
Claims 1-5, 9-10, 15, and 17 are amended.
Claims 7-8, 12, and 18 remain withdrawn from consideration as being drawn to a nonelected invention.
Claims 4 and 13-14 remain withdrawn from consideration as being drawn to nonelected species.
Claims 1-3, 5-6, 9-11, 15-17, and 19 are under consideration in the instant Office action to the extent of the elected species, i.e., the at least one biosurfactant is di-rhamnolipids, the at least one sulfonic or sulfinic acid derivative of formula (I) or any salt thereof is 2-hydroxy sulfonate acetate (where n=2, R1=H, and R2=COOH), and the at least one further surfactant is an anionic surfactant.
Information Disclosure Statement
The information disclosure statement (IDS) filed 03/25/2026 has been considered by the Examiner. A signed copy of the IDS is included with the present Office Action.
OBJECTIONS/REJECTIONS WITHDRAWN
Drawings
The objection to the Figure set forth in the Office action dated 02/06/2026 is hereby withdrawn in light of the replacement drawings filed on 05/06/2026.
Specification
The objections to the abstract and to the specification set forth in the Office action dated 02/06/2026 are hereby withdrawn in light of Applicant’s amendments to the abstract and to the specification.
Claim Objections
The objections to claims 1, 5, 9-10, 15, and 17 set forth in the Office action dated 02/06/2026 are hereby withdrawn in light of Applicant’s amendments to the claims.
Claim Rejections - 35 USC § 112(b)
The indefiniteness rejections of claims 2 and 3 set forth in the Office action dated 02/06/2026 are hereby withdrawn in light of Applicant’s amendments to the claims.
REJECTION MAINTAINED AND MADE AGAIN
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-3, 5-6, 9-11, 15-17, and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Schelges et al (US 2017/0071842 A1, published 03/16/2017, cited in Notice of References Cited dated 02/06/2026) in view of Berghofer et al (WO 2018/108925 A1, published 06/21/2018, cited in IDS dated 11/03/2023).
Schelges et al teach cosmetic cleansing agents, i.e., compositions, comprising one or more biosurfactants, one or more anionic surfactants, and water as a cosmetic carrier (See entire document, e.g., Abstract, [0016], [0078]). Suitable biosurfactants include rhamnolipids, wherein rhamnolipid may be a mixture of a mono- and di-rhamnolipid each derived from 3-hydroxydodecanoic acid and/or 3-hydroxyundecanoic acid (e.g., [0016], [0028]-[0033]). Schelges et al teach that all anionic surface-active substances suitable for use on the human body are suitable as anionic surfactants and teach a list of suitable anionic surfactants including mixtures of surface-active hydroxysulfonates (e.g., [0052]-[0053], [0064]).
The cosmetic cleansing composition preferably includes the one or more biosurfactants in an amount of approximately 0.5 to 50% by weight based on the total weight of the cosmetic cleansing composition (e.g., [0051]). The cosmetic cleansing composition preferably includes the one or more anionic surfactants in an amount of approximately 0.5 to 30% by weight based on the total weight of the cosmetic cleansing composition (e.g., [0072]).
The cosmetic cleansing composition may be formulated as a body cleansing agent, face cleansing agent, or agent for cosmetically treating acne (e.g., [0016], [0084]).
Schelges et al do not teach examples of suitable hydroxysulfonates, and therefore do not specifically teach 2-hydroxysulfonatoacetate (corresponding to formula (I) of the instant claims wherein n=2, R1=H, and R2=COOH, i.e., the elected species of the at least one sulfonic or sulfinic acid derivative of formula (I) or any salt thereof) as suitable.
This deficiency is made up for in the teaching of Berghofer et al.
Berghofer et al teach use of sulfonic acid salts bearing a hydroxyl group (i.e., hydroxysulfonates) including the following compound
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, wherein R1 is preferably H, and magnesium and zinc salts thereof, in compositions and teach a process of synthesizing these compounds (See entire document, e.g., Page 3 Lines 15-25, Page 4 Line 31-Page 5 Line 6, Page 5 Line 24). These compounds have color stabilization without odor problems and increased aqueous solubility (e.g., Page 3 Lines 10-13).
It would have been prima facie obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, based on the teachings of Schelges et al and Berghofer et al, to provide a cosmetic cleansing composition comprising one or more biosurfactants from approximately 0.5 to 50% by weight, one or more anionic surfactants from approximately 0.5 to 30% by weight and water, where percent by weight is based on the total weight of the composition, wherein the one or more biosurfactants comprise a mixture of a mono- and di-rhamnolipid each derived from 3-hydroxydodecanoic acid and/or 3-hydroxyundecanoic acid, wherein the one or more anionic surfactants comprise
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with R1=H, and wherein the composition is formulated as a body cleansing agent, face cleansing agent, or agent for cosmetically treating acne.
One of ordinary skill in the art would have been motivated to use
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with R1=H in the composition of Schelges et al and there would have been a reasonable expectation of success in doing so because the composition of Schelges et al is compatible with hydroxysulfonates but Schelges et al do not provide examples of suitable hydroxysulfonates, for which Berghofer et al teach the aforementioned compound, a hydroxysulfonate, as well as its synthesis, and teach properties that would be favorable in an aqueous cosmetic cleansing composition, i.e., color stabilization without odor problems and increased aqueous solubility.
The modified cosmetic cleansing composition and corresponding formulation comprising the composition of Schelges et al in view of Berghofer et al renders obvious the composition and formulation of instant claims 1-3, 5-6, 9-11, 15-17, and 19.
Regarding the required ranges of the instant claims, a prima facie case of obviousness typically exists when the ranges of a claimed composition overlap the ranges disclosed in the prior art (In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003)).
Regarding the requirement of instant claims 10 and 19 that the formulation comprising the composition comprises at least one further anionic surfactant (an anionic surfactant was elected as the species of the at least one further surfactant), the formulation of Schelges et al in view of Berghofer et al comprising the cosmetic cleansing composition comprising one or more anionic surfactants renders obvious this limitation. Further, the formulation of Schelges et al in view of Berghofer et al comprising the cosmetic cleansing composition, wherein the one or more biosurfactants are present from approximately 0.5 to 50% by weight and the one or more anionic surfactants are present from approximately 0.5 to 30% by weight based on the total weight of the composition renders obvious, i.e., either overlaps or can be obtained by routine experimentation and optimization, the range of total surfactant content relative to the formulation required by instant claim 11. A prima facie case of obviousness typically exists when the ranges of a claimed composition overlap the ranges disclosed in the prior art (In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003)). A prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close (Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985)). Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation (In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955)).
NEW GROUND OF OBJECTION
Claim Objections
Claim 5 is objected to because the line break between lines 3 and 4 should be removed in order to improve claim readability.
Appropriate correction is required.
Response to Applicant’s Arguments
Applicant’s arguments filed on 05/06/2026 have been considered.
Applicant argues that a person having ordinary skill in the art would not have been motivated to combine Schelges with Berghofer because the purpose of Schelges is to provide a prebiotic composition suitable for use on skin whereas the purpose of Berghofer is to provide sulfonate salt compound compositions for color stabilization of non-living organic matter such as for paints and lacquers. Applicant argues that Schelges discloses and teaches using longer alkyl chain sulfonates and sulfates having C8 to C30 atoms, and therefore, one of ordinary skill in the art would not have been motivated to reduce the length of the carbon chains in the anionic surfactant to C1 to C6 or H, as in R1 of the present compound of formula (I).
The above arguments have been fully considered by the Examiner but are not found persuasive because the Examiner disagrees with the argument that a person having ordinary skill in the art would not have been motivated to combine the teachings of Schelges et al and Berghofer et al; as can be seen in the maintained ground of rejection under 35 USC 103 above, one of ordinary skill in the art would have been motivated to combine the teachings of Schelges et al and Berghofer et al, i.e., use
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with R1=H taught by Berghofer et al as an anionic surfactant in the composition of Schelges et al because Schelges et al teach that the composition is compatible with hydroxysulfonates but Schelges et al do not provide examples of suitable hydroxysulfonates, for which Berghofer et al teach the aforementioned compound, which is a hydroxysulfonate, teach its synthesis which would enable one of ordinary skill in the art to make and use the compound, and teach properties that would be favorable in an aqueous cosmetic cleansing composition, i.e., color stabilization without odor problems and increased aqueous solubility. The strongest rationale for combining references is a recognition, expressly or impliedly in the prior art or drawn from a convincing line of reasoning based on established scientific principles or legal precedent, that some advantage or expected beneficial result would have been produced by their combination (In re Sernaker, 702 F.2d 989, 994-95 (Fed. Cir. 1983)). Applicant is reminded that "A person of ordinary skill in the art is also a person of ordinary creativity, not an automaton. "KSR, 550 U.S. at 421, 82 USPQ2d at 1397. "[I]n many cases a person of ordinary skill will be able to fit the teachings of multiple patents together like pieces of a puzzle. "Id. at 420, 82 USPQ2d at 1397. Office personnel may also take into account "the inferences and creative steps that a person of ordinary skill in the art would employ. "Id. at 418, 82 USPQ2d at 1396. The above argument regarding Schelges et al allegedly disclosing and teaching using longer alkyl chain sulfonates and sulfates having C8 to C30 atoms has been fully considered by the Examiner but is not found persuasive because as can be seen in Par. [0064] of Schelges et al, Schelges et al do not teach suitable examples of surface-active hydroxysulfonates, and therefore, a person of ordinary skill in the art would not have been motivated to restrict use to C8 to C30 hydroxysulfonates. Further, the maintained rejection under 35 USC 103 above does not rely on the stance that it would have been prima facie obvious to one of ordinary skill in the art “to reduce the length of the carbon chains in the anionic surfactant to C1 to C6 or H”, but rather it relies on the stance that it would have been prima facie obvious to one of ordinary skill in the art to use
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with R1=H taught by Berghofer et al as an anionic surfactant in the composition of Schelges et al. For at least the reasons described herein, the rejection under 35 USC 103 of claims 1-3, 5-6, 9-11, 15-17, and 19 over Schelges et al in view of Berghofer et al set forth in the Office action dated 02/06/2026 is hereby maintained and made again.
Conclusion
No claims are allowable.
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KAELEIGH ELIZABETH OLSEN whose telephone number is (703)756-1962. The examiner can normally be reached M-F 8-5 PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, David Blanchard can be reached at (571)272-0827. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/K.E.O./Examiner, Art Unit 1619
/DAVID J BLANCHARD/Supervisory Patent Examiner, Art Unit 1619
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