Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 7-13-2026 has been entered.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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) 1-15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Tobita (7947260).
Tobita disclose a creamy wash personal cleansing composition. Table 4 exemplifies the instant applicable claims:
TABLE 4 Formulation Example 1 Cleansing foam (wt. %) Sodium lauroyl glutamate (component (A)) 16.0 Sodium lauroyl aspartate (component (A)) 2.0 Glycerin (component (B)) 30.0 Butylene glycol (component (B)) 2.0 Glyceryl laurate (component (C)) 5.0 Magnesium chloride (6-hydrate)(component (D)) 3.0 Zinc PCA (component (D)) 0.2 Glyceryl distearate (component (F)) 2.0 Sodium Cocoyl Glycinate 1.0 Coco-glucoside 1.0 Sodium cocoylmethyltaurate 2.0 Cocamidopropyl betaine 1.0 PCA-Na (50%) 1.0 PEG-7 glyceryl cocoate 0.5 Disodium EDTA 0.05 Carrageenan (component (G)) 0.2 Water (component (E)) 33.05. Specifically, the amount of water, chelant and amino surfactant is not suggested to the level of anticipation. However, Tobita teach the broad nature of the ingredients may be optimized to encompass the claims. For example, water is taught from 10-70% (col. 6, lines 23-27) and amino surfactants are suggested at levels to 35% when the ratios of A, C and D are tabulated. This is the maximum amount and encompass the lower end of the data point of the claim to make obvious the optimization of said amino surfactants.
“The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages” Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382; In re Hoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969) Merck & Co. Inc. v. Biocraft Laboratories Inc., 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir.), cert. denied, 493 U.S. 975 (1989); In re Kulling, 897 F.2d 1147, 14 USPQ2d 1056 (Fed. Cir. 1990); and In re Geisler, 116 F.3d 1465, 43 USPQ2d 1362 (Fed. Cir. 1997).
[W]hen a patent 'simply arranges old elements with each performing the same function it had been known to perform' and yields no more than one would expect from such an arrangement, the combination is obvious. [KSR Int'l Co. v.Teleflex Inc., 550 U.S. at 418 (quoting Sakraida v. Ag Pro, Inc., 425 U.S. 273,282 (1976).]
With respect to the chelant being 0.1% and the examples show 0.05%, the examiner contends a prima facie case of obviousness exist when proportions are close enough and not overlapping but would have been obvious to the skilled artisan. Chelants are notoriously well utilized in cleansing compositions for their intended purpose and one skilled in the art in the absence of a showing to the contrary would have been within their purview to optimize from 0.o5% to 0.1% as claimed.
Similarly, a prima facie case of obviousness exists where 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 the same properties. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed. Cir. 1985)
Response to Arguments
Applicant's arguments filed 7-13-2026 have been fully considered but they are not persuasive.
Applicant argues that the proportions of the chelant would not be supported in a 103 obviousness rejection in light of the Declaration submitted on 7-13-2026.
The TABLE submitted by applicant, specifically examples IE.5 and CE.5 show the proportions of the chelant, called out as trisodium ethylenediamine succinate, in amounts from 0.1% and 0.05%, respectively. The Declaration keeps the all ingredients and proportions static, while only variating the chelant proportions, this is appreciated and adds to the criticality argument purported by the applicant. However, it is not clear that the showing in the Declaration is composition of the claimed invention, given the broad nature of ingredients claimed against the extremely narrow and plethora of ingredients opined in the Declaration. The tertiary aqueous composition claimed against the 8 ingredient composition shown in the Declaration is not commensurate in scope and therefore criticality cannot be clearly established. Applicant is advised to narrow the claimed invention to be commensurate with the Declaration to overcome the rejection.
Whether the unexpected results are the result of unexpectedly improved results or a property not taught by the prior art, the “objective evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support.” In other words, the showing of unexpected results must be reviewed to see if the results occur over the entire claimed range. In re Clemens, 622 F.2d 1029, 1036, 206 USPQ 289, 296 (CCPA 1980)
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to NECHOLUS OGDEN JR whose telephone number is (571)272-1322. The examiner can normally be reached 8-4:30 EST M-F.
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/NECHOLUS OGDEN JR/Primary Examiner, Art Unit 1761
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