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 .
Election/Restrictions
Applicant's election with traverse of Group I – claims 1-6 and the following species: A-anionic surfactant = sodium cocoyl isethionate; B-amphoretic/zwitterionic surfactant = cocamidopropyl betaine; C-acid/alcohol/amide = lauric acid; D-hydroxyfunctionalized compound = propylene glycol, in the reply filed on 12/22/2025 is acknowledged. The traversal is on the ground(s) that Applicant’s invention is linked to a single general inventive concept under PCT Rule 13.1.
In regards to the election of species and restriction requirement, applicant argues that the species and restriction requirements should be withdrawn in light of PCT rule 13.1. As the examiner provided prior art and broke unity showing the technical feature of the instant claims is ‘common’ and not special (see pages 5-6 of the restriction for the explanation made of Tsaur et al.).
As per Annex B Unity of Invention, (b) technical feature, Rule 13.2 states:
The expression "special technical features" is defined in Rule 13.2 as meaning those technical features that define a contribution which each of the inventions, considered as a whole, makes over the prior art.
Furthermore, as stated in the restriction/election requirement, the groups and species lack unity of invention because even though the inventions of these groups require the same technical feature, this technical feature is not a special technical feature as it does not make a contribution over the prior art. Therefore, the groups and species lack unity of invention.
Overall, Applicant’s argument is not found persuasive because unity was broken based off of the originally filed claims. Furthermore, over Arata in view of Su and in view of Goodman, the prior art below in the USC 103 rejection teaches the same issue with the amended claims, thus unity remains broken. Therefore, the requirement is still deemed proper and is therefore made FINAL.
Upon further search and consideration the species A, anionic surfactant is broadened to include: ammonium cocoyl isethionate, sodium cocoyl isethionate, sodium lauroyl isethionate, and mixtures thereof.
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Information Disclosure Statement
The information disclosure statements (IDS) submitted on 04/29/2024 and 06/11/2025 are being considered by the examiner. The submission is in compliance with the provisions of 37 CFR 1.97.
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.
Claim(s) 1-6 are rejected under 35 U.S.C. 103 as being unpatentable over Arata et al. (US20060051430A1, published 03/09/2006, hereafter Arata), in view of Su et al. (US20190282480A1, published 09/19/2019, hereafter Su), in view of Goodman et al. (Goodman, G. Cleansing and Moisturizing in Acne Patients. AM J Clin Dermatol 10 (Suppl 1), 1–6 (2009). https://doi.org/10.2165/0128071-200910001-00001, hereafter Goodman).
Arata teaches a personal care cleanser composition that can be in a concentrated form (title, [0002], and [0163]; according to the claim limitations of the instant claim 1). Further Arata teaches the addition of antibacterial enhancing agents that are swellable and hydratable ([0158]; according to the claim limitations of the instant claim 1). Arata teaches the cleansing composition comprises an anionic surfactant at a concentration of about 0.05 to about 10% and teaches the anionic surfactant to be an acyl isethionate, specifically ammonium cocoyl isethionate, sodium cocoyl isethionate, sodium lauroyl isethionate, and mixtures thereof ([0062] and [0072]; according to the claim limitations of the instant claims 1-5). Arata provides multiple examples comprising cocamidopropyl betaine at concentrations of 1 and 4% ([0228], [0232], and [0238]; according to the claim limitations of the instant claim 1). Arata teaches the addition of stabilizers from about 0.1 to about 10% and teaches lauric acid to be preferred stabilizer ([0101-0102]; according to the claim limitations of the instant claim 1). Arata teaches the addition of water in a quantity sufficient (Q.S.) in multiple examples ([0214-0220] tables 1-7; according to the claim limitations of the instant claim 1). Arata provides example antimicrobial cleansing compositions including propylene glycol at 1% concentration ([0228] examples 11-15; according to the claim limitations of the instant claim 1). Arata teaches the addition of antimicrobial agents to include resorcinol and its derivatives ([0052]; according to the claim limitations of the instant claim 6). Lastly, Arata teaches that the stabilizer could be 12-hydroxystearic acid ([0095]; according to the claim limitations of the instant claim 6).
Arata fails to explicitly state the composition is substantially free of oil and free of sulfated surfactant as in instant claim 1.
Su teaches thickening cleansing compositions and applications (title). Su claims the composition comprising: A. an N-acyl acidic amino acid, or a salt or composition thereof; B. an amphoteric surfactant or a composition thereof; C. optionally water; D. optionally one or more other ingredients (claim 1). Su further claims wherein the acyl group of the N-acyl acidic amino acid derives from a fatty acid comprising a C8 to C22 carbon chain and wherein the fatty acid is selected from the group consisting of caprylic acid, capric acid, lauric acid, myristic acid, stearic acid, palmitic acid, oleic acid, linoleic acid, behenic acid, coconut acid, palm fatty acid, hydrogenated beef tallow fatty acid, and mixtures thereof (claims 3-4). Furthermore, Su claims amphoteric surfactant of component B is selected from the group consisting of cocoamidopropyl betaine (claim 7). Su claims the optional one or more other ingredients are selected from the group consisting of anionic and/or nonionic surfactants and wherein the anionic surfactants are selected from the group including alkyl isothionates (claims 8-9). Su teaches that amino acid based surfactants are a category of greener, safer, and milder surfactants well-suited for personal care and cosmetic applications due to their safety, mildness and sustainability compared to the currently prevailing surfactants of alkylether sulfates such as sodium laureth sulfate (SLES) ([0049]). Furthermore, Su teaches the cosmetic and personal care industry has witnessed an increasing popularity and importance of “sulphate free” products ([0003]).
It would be obvious to one skilled in the art before the effective filing date of the claimed invention to modify a cleansing composition comprising sodium cocoyl isethionate, cocoamidopropyl betaine, water, about 0.1-10% lauric acid, and 1% propylene glycol as outlined by Arata by addition of utilizing a surfactant other than a sulfated surfactant and creating a composition substantially free of a sulfated surfactant as outlined by Su under TSM, see MPEP 2143(G). As outlined by Su, there is a growing popularity for “sulfate-free” personal care products and sulfated surfactants are considered to be less sustainable and safe option which would motivate someone skilled in the art to advantageously combine using a sulfate free surfactant with the composition of Arata as it would have a reasonable expectation of success.
Both Arata and Su fail to explicitly teach the composition is free of oil as in instant claim 1.
Goodman teaches cleansing and moisturizing in acne patients (title). Goodman teaches that a clinician should recommend oil-free and non-comedogenic cleansers for delicate, aged or sun-damaged skin as some can leave noticeable residue on the skin (page 3, column 2, paragraph 2).
It would be obvious to one skilled in the art before the effective filing date of the claimed invention to modify a cleansing composition comprising sodium cocoyl isethionate, cocoamidopropyl betaine, water, about 0.1-10% lauric acid, and 1% propylene glycol as outlined by Arata by making the composition oil-free as outlined by Goodman under TSM, see MPEP 2143(G). As outlined by Goodman, oil based cleansers can leave a noticeable residue on the skin and clinicians should recommend oil-free cleansers for patients, which would motivate someone skilled in the art to advantageously make the composition of Arata oil-free as it would have a reasonable expectation of success.
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 1-6 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-6 of copending Application No. 18572036 (reference application) in view of Su et al. (US20190282480A1, published 09/19/2019, hereafter Su), in view of Goodman et al. (Goodman, G. Cleansing and Moisturizing in Acne Patients. AM J Clin Dermatol 10 (Suppl 1), 1–6 (2009). Although the claims at issue are not identical, they are not patentably distinct from each other.
18572036 claims a hydratable concentrated surfactant composition comprising: a) an anionic surfactant, b) an amphoteric and/or zwitterionic surfactant, c) from 1 to 16% by weight C6-C14 acid, or an alcohol or amide derivative thereof, or mixture thereof, d) water, and e) from 0.5 to 5% by weight of at least one of a mono-, di-, or tri-ester, the ester or esters having a weight percent of oxygen from 12 to 45 (claim 1; according to the claim limitations of the instant claim 1). Claim 2 of 18572036 claims the anionic surfactant comprises an isethionate, taurate, glycinate or a mixture thereof (according to the claim limitations of the instant claim 2). Claim 3 of 18572036 claims the anionic surfactant comprises an acyl taurate (according to the claim limitations of the instant claim 3). Claim 4 of 18572036 claims the anionic surfactant comprises an acyl glycinate (according to the claim limitations of the instant claim 4). Claim 5 of 18572036 claims the anionic surfactant comprises an isethionate (according to the claim limitations of the instant claim 5). Lastly, claim 6 of 18572036 claims the composition further comprises a resorcinol, niacinamide, 12-hydroxystearic acid or mixture thereof (according to the claim limitations of the instant claim 6).
18572036 does not explicitly teach the composition is free substantially of oil and sulfated surfactant.
As outlined above, Su teaches thickening cleansing compositions and applications (title). Su claims the composition comprising: A. an N-acyl acidic amino acid, or a salt or composition thereof; B. an amphoteric surfactant or a composition thereof; C. optionally water; D. optionally one or more other ingredients (claim 1). Su further claims wherein the acyl group of the N-acyl acidic amino acid derives from a fatty acid comprising a C8 to C22 carbon chain and wherein the fatty acid is selected from the group consisting of caprylic acid, capric acid, lauric acid, myristic acid, stearic acid, palmitic acid, oleic acid, linoleic acid, behenic acid, coconut acid, palm fatty acid, hydrogenated beef tallow fatty acid, and mixtures thereof (claims 3-4). Furthermore, Su claims amphoteric surfactant of component B is selected from the group consisting of cocoamidopropyl betaine (claim 7). Su claims the optional one or more other ingredients are selected from the group consisting of anionic and/or nonionic surfactants and wherein the anionic surfactants are selected from the group including alkyl isothionates (claims 8-9). Su teaches that amino acid based surfactants are a category of greener, safer, and milder surfactants well-suited for personal care and cosmetic applications due to their safety, mildness and sustainability compared to the currently prevailing surfactants of alkylether sulfates such as sodium laureth sulfate (SLES) ([0049]). Furthermore, Su teaches the cosmetic and personal care industry has witnessed an increasing popularity and importance of “sulphate free” products ([0003]).
It would be obvious to one skilled in the art before the effective filing date of the claimed invention would claim a hydratable concentrated surfactant composition comprising a) an anionic surfactant, b) an amphoteric and/or zwitterionic surfactant, c) from 1 to 16% by weight C6-C14 acid, or an alcohol or amide derivative thereof, or mixture thereof, d) water, and e) from 0.5 to 5% by weight of at least one of a mono-, di-, or tri-ester, the ester or esters having a weight percent of oxygen from 12 to 45 as outlined by 18572036 by addition of utilizing a surfactant other than a sulfated surfactant and creating a composition substantially free of a sulfated surfactant as outlined by Su under TSM, see MPEP 2143(G). As outlined by Su, there is a growing popularity for “sulfate-free” personal care products and sulfated surfactants are considered to be less sustainable and safe option which would motivate someone skilled in the art to advantageously combine using a sulfate free surfactant with the composition of 18572036 as it would have a reasonable expectation of success.
Both 18572036 and Su fail to explicitly teach the composition is free of oil as in instant claim 1.
Goodman teaches cleansing and moisturizing in acne patients (title). Goodman teaches that a clinician should recommend oil-free and non-comedogenic cleansers for delicate, aged or sun-damaged skin as some can leave noticeable residue on the skin (page 3, column 2, paragraph 2).
It would be obvious to one skilled in the art before the effective filing date of the claimed invention to modify a hydratable concentrated surfactant composition comprising a) an anionic surfactant, b) an amphoteric and/or zwitterionic surfactant, c) from 1 to 16% by weight C6-C14 acid, or an alcohol or amide derivative thereof, or mixture thereof, d) water, and e) from 0.5 to 5% by weight of at least one of a mono-, di-, or tri-ester, the ester or esters having a weight percent of oxygen from 12 to 45 as outlined by 18572036 by making the composition oil-free as outlined by Goodman under TSM, see MPEP 2143(G). As outlined by Goodman, oil based cleansers can leave a noticeable residue on the skin and clinicians should recommend oil-free cleansers for patients, which would motivate someone skilled in the art to advantageously make the composition of 18572036 oil-free as it would have a reasonable expectation of success.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1-6 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-7 and 13 of copending Application No. 18288111 (reference application) in view of Arata et al. (US20060051430A1, published 03/09/2006, hereafter Arata). Although the claims at issue are not identical, they are not patentably distinct from each other.
18288111 claims a hydratable concentrated surfactant composition comprising: a) an anionic surfactant, b) an amphoteric and/or zwitterionic surfactant, c) a C6-C14 acid, C6-C14 alcohol and/or C6-C14 amide, d) water, and e) structuring agent, wherein the anionic surfactant is an isethionate, taurate, and less than 1% by weight sulfate comprising surfactant (claim 1; according to the claim limitations of the instant claims 1 and 5). Claim 2 of 18288111 claims the composition is substantially free of oil (according to the claim limitations of the instant claim 1). Claim 3 of 18288111 claims the anionic surfactant is a taurate or a mixture of taurate and glycinate (according to the claim limitation of the instant claim 2). Claim 4 of 18288111 claims the taurate comprises an acyl taurate and claim 5 of 18288111 claims the glycinate is an acyl glycinate (according to the claim limitations of the instant claims 2-4). 18288111 claims the composition further comprises a resorcinol, niacinamide, 12-hydroxystearic acid or a mixture thereof (claim 6; according to the claim limitations of the instant claim 6). 18288111 claims the structuring agent comprises PEG150 pentaerythritol tetrastearate (claim 7; according to the claim limitations of the instant claim 1). 18288111 claims comprises no isethionate and no sulphate and comprises zwitterionic surfactant comprising a betaine (claim 13; according to the claim limitations of the instant claim 1).
18288111 fails to claim the addition of a mono-, di-, tri- hydroxyfunctioned compound having a weight percent of oxygen from 8 to 35, specifically propylene glycol as in instant claim 1.
As outline above, Arata teaches a personal care cleanser composition that can be in a concentrated form (title, [0002], and [0163]; according to the claim limitations of the instant claim 1). Further Arata teaches the addition of antibacterial enhancing agents that are swellable and hydratable ([0158]; according to the claim limitations of the instant claim 1). Arata teaches the cleansing composition comprises an anionic surfactant at a concentration of about 0.05 to about 10% and teaches the anionic surfactant to be an acyl isethionate, specifically ammonium cocoyl isethionate, sodium cocoyl isethionate, sodium lauroyl isethionate, and mixtures thereof ([0062] and [0072]; according to the claim limitations of the instant claims 1-5). Arata provides multiple examples comprising cocamidopropyl betaine at concentrations of 1 and 4% ([0228], [0232], and [0238]; according to the claim limitations of the instant claim 1). Arata teaches the addition of stabilizers from about 0.1 to about 10% and teaches lauric acid to be preferred stabilizer ([0101-0102]; according to the claim limitations of the instant claim 1). Arata teaches the addition of water in a quantity sufficient (Q.S.) in multiple examples ([0214-0220] tables 1-7; according to the claim limitations of the instant claim 1). Arata provides example antimicrobial cleansing compositions including propylene glycol at 1% concentration ([0228] examples 11-15; according to the claim limitations of the instant claim 1). Arata teaches the addition of antimicrobial agents to include resorcinol and its derivatives ([0052]; according to the claim limitations of the instant claim 6). Lastly, Arata teaches that the stabilizer could be 12-hydroxystearic acid ([0095]; according to the claim limitations of the instant claim 6).
It would be obvious to one skilled in the art before the effective filing date of the claimed invention would claim a hydratable concentrated surfactant composition comprising: a) an anionic surfactant, b) an amphoteric and/or zwitterionic surfactant, c) a C6-C14 acid, C6-C14 alcohol and/or C6-C14 amide, d) water, and e) structuring agent, wherein the anionic surfactant is an isethionate, taurate, and less than 1% by weight sulfate comprising surfactant as outlined by 18288111 with the ready for improvement with the known technique of adding propylene glycol as outlined by Arata. Adding the forementioned components to a hydratable composition as claimed by instant claim 1 would yield predictable results thus making them of obviousness as modification of a known product with a known technique is within the purview of the skilled artisan. This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1-5 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 3-8 of copending Application No. 18/392,507 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other.
18/392,507 claims a hydratable concentrated surfactant composition comprising: a) an anionic surfactant comprising acyl isethionate, b) an amphoteric and/or zwitterionic surfactant, c) a C6-C14 acid or alcohol, d) water (claims 1 and 3; according to the claim limitations of the instant claims 1-2 and 5). Claim 4 of 18/392,507 claims anionic surfactant comprising an acyl isethionate further comprises an additional anionic surfactant and claims 5 and 7 of 18/392,507 claims the additional anionic surfactant is an acyl taurate, acyl glycinate, or a mixture thereof (according to the claim limitations of the instant claims 1-4). Claim 6 of 18/392,507 claims the anionic surfactant is acyl isethionate (according to the claim limitations of the instant claim 5). Claim 8 of 18/392,507 claims the zwitterionic surfactant is a betaine and the acid is lauric acid (according to the claim limitations of the instant claim 1).
18/392,507 fails to claim the addition of a mono-, di-, tri- hydroxyfunctioned compound having a weight percent of oxygen from 8 to 35, specifically propylene glycol as in instant claim 1.
As outline above, Arata teaches a personal care cleanser composition that can be in a concentrated form (title, [0002], and [0163]; according to the claim limitations of the instant claim 1). Further Arata teaches the addition of antibacterial enhancing agents that are swellable and hydratable ([0158]; according to the claim limitations of the instant claim 1). Arata teaches the cleansing composition comprises an anionic surfactant at a concentration of about 0.05 to about 10% and teaches the anionic surfactant to be an acyl isethionate, specifically ammonium cocoyl isethionate, sodium cocoyl isethionate, sodium lauroyl isethionate, and mixtures thereof ([0062] and [0072]; according to the claim limitations of the instant claims 1-5). Arata provides multiple examples comprising cocamidopropyl betaine at concentrations of 1 and 4% ([0228], [0232], and [0238]; according to the claim limitations of the instant claim 1). Arata teaches the addition of stabilizers from about 0.1 to about 10% and teaches lauric acid to be preferred stabilizer ([0101-0102]; according to the claim limitations of the instant claim 1). Arata teaches the addition of water in a quantity sufficient (Q.S.) in multiple examples ([0214-0220] tables 1-7; according to the claim limitations of the instant claim 1). Arata provides example antimicrobial cleansing compositions including propylene glycol at 1% concentration ([0228] examples 11-15; according to the claim limitations of the instant claim 1). Arata teaches the addition of antimicrobial agents to include resorcinol and its derivatives ([0052]; according to the claim limitations of the instant claim 6). Lastly, Arata teaches that the stabilizer could be 12-hydroxystearic acid ([0095]; according to the claim limitations of the instant claim 6).
It would be obvious to one skilled in the art before the effective filing date of the claimed invention would claim a hydratable concentrated surfactant composition comprising: a) an anionic surfactant comprising acyl isethionate, b) an amphoteric and/or zwitterionic surfactant, c) a C6-C14 acid or C6-C14 alcohol, d) water as outlined by 18/392,507 with the ready for improvement with the known technique of adding propylene glycol as outlined by Arata. Adding the forementioned components to a hydratable composition as claimed by instant claim 1 would yield predictable results thus making them of obviousness as modification of a known product with a known technique is within the purview of the skilled artisan. This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1-5 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 7, 10, 15-18, and 21 of copending Application No. 17/611,700 (reference application) Arata et al. (US20060051430A1, published 03/09/2006, hereafter Arata), and in view of Goodman et al. (Goodman, G. Cleansing and Moisturizing in Acne Patients. AM J Clin Dermatol 10 (Suppl 1), 1–6 (2009). https://doi.org/10.2165/0128071-200910001-00001, hereafter Goodman).. Although the claims at issue are not identical, they are not patentably distinct from each other.
17611700 claims a liquid lamellar composition comprising: 1) acyl isethionate; 2)a methyl acyl taurate; 3) 0.1-20% structurant comprising caprylic acid, lauric acid, myristic acid, or mixtures thereof; 4) zwitterionic surfactant; 5) nonionic surfactant (claim 1; according to the claim limitations of the instant claims 1-3). 17611700 further claims the zwitterionic surfactant is cocamidopropyl betaine, less than 0.2% of a sulfate based surfactant (claim 1; according to the claim limitations of the instant claim 1). Claim 7 of 17611700 claims the lauric acid makes up 0.5 to 8% of the composition (claim 7; according to the claim limitations of the instant claim 1). Claim 10 of 17611700 claims the structurant is present in from 1 to 10% and comprises caprylic acid, lauric acid, myristic acid, or mixtures thereof (according to the claim limitations of the instant claim 1). Claims 15-16 of 17611700 claims the composition comprises from 0.0001 to less than 0.2% of sulfate-based surfactant (according to the claim limitations of the instant claim 1). Further, claim 17 of 17611700 claims the composition has a 0.0% by weight sulfate-based surfactant (according to the claim limitations of the instant claim 1). 17611700 claims the composition further comprises 0.05 to 6% by weight of cellulose gum, microcrystalline cellulose, cellulose gel, hydroxyethyl cellulose, hydroxypropyl cellulose, sodium carboxymethylcellulose, hydroxymethyl or carboxymethyl cellulose, methyl cellulose, ethyl cellulose, guar gum, gum karaya, gum tragacanth, gum Arabic, gum acacia, gum agar, xanthan gum, polyacrylate, modified polysaccharide or a mixture thereof (claim 18; according to the claim limitations of the instant claim 1). Claim 21 of 17611700 claims the zwitterionic surfactant is cocamidopropyl betaine (according to the claim limitations of the instant claim 1).
17611700 fails to teach the composition is oil-free and fails to teach the addition of propylene glycol. Further although 17611700 claims the composition is a liquid, it fails to explicitly claim the composition comprises water.
As outline above, Arata teaches a personal care cleanser composition that can be in a concentrated form (title, [0002], and [0163]; according to the claim limitations of the instant claim 1). Further Arata teaches the addition of antibacterial enhancing agents that are swellable and hydratable ([0158]; according to the claim limitations of the instant claim 1). Arata teaches the cleansing composition comprises an anionic surfactant at a concentration of about 0.05 to about 10% and teaches the anionic surfactant to be an acyl isethionate, specifically ammonium cocoyl isethionate, sodium cocoyl isethionate, sodium lauroyl isethionate, and mixtures thereof ([0062] and [0072]; according to the claim limitations of the instant claims 1-5). Arata provides multiple examples comprising cocamidopropyl betaine at concentrations of 1 and 4% ([0228], [0232], and [0238]; according to the claim limitations of the instant claim 1). Arata teaches the addition of stabilizers from about 0.1 to about 10% and teaches lauric acid to be preferred stabilizer ([0101-0102]; according to the claim limitations of the instant claim 1). Arata teaches the addition of water in a quantity sufficient (Q.S.) in multiple examples ([0214-0220] tables 1-7; according to the claim limitations of the instant claim 1). Arata provides example antimicrobial cleansing compositions including propylene glycol at 1% concentration ([0228] examples 11-15; according to the claim limitations of the instant claim 1).
It would be obvious to one skilled in the art before the effective filing date of the claimed invention would claim a composition comprising acyl isethionate, a methyl acyl taurate, 0.1-10% lauric acid, and a zwitterionic surfactant such as cocamidopropyl betaine as outlined by 17611700 with the ready for improvement with the known technique of adding water and propylene glycol as outlined by Arata. Adding the forementioned components to a composition comprising acyl isethionate, lauric acid, and a zwitterionic surfactant such as cocamidopropyl betaine as claimed by instant claim 1 would yield predictable results thus making them of obviousness as modification of a known product with a known technique is within the purview of the skilled artisan. This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Further both 17611700 and Arata fail to teach the composition is oil-free.
Goodman teaches cleansing and moisturizing in acne patients (title). Goodman teaches that a clinician should recommend oil-free and non-comedogenic cleansers for delicate, aged or sun-damaged skin as some can leave noticeable residue on the skin (page 3, column 2, paragraph 2).
It would be obvious to one skilled in the art before the effective filing date of the claimed invention to modify a composition comprising acyl isethionate, a methyl acyl taurate, 0.1-10% lauric acid, and a zwitterionic surfactant such as cocamidopropyl betaine as outlined by 17611700 by making the composition oil-free as outlined by Goodman under TSM, see MPEP 2143(G). As outlined by Goodman, oil based cleansers can leave a noticeable residue on the skin and clinicians should recommend oil-free cleansers for patients, which would motivate someone skilled in the art to advantageously make the composition of 17611700 oil-free as it would have a reasonable expectation of success.
Conclusion
No claims allowed.
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/BETHANY P BARHAM/Supervisory Patent Examiner, Art Unit 1611
/A.N.I./ Examiner, Art Unit 1611