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 .
DETAILED ACTION
Claims 1-20 are pending.
Claim Objections
Claims 6 and 8 are objected to because of the following informalities:
With respect to instant claims 6 and 8, line 2, it is suggested that Applicant delete “chosen” and insert “selected”.
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 1-17 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.
With respect to instant claims 1 and 7, these claims are vague and indefinite in that they recite percent ranges without any identifier such as by weight, by volume, etc. Clarification is required. Note that, for purposes of examination, the Examiner has interpreted the percent ranges as weight ranges, which is consistent with the instant specification.
With respect to instant claim 17, it is vague and indefinite in that it is not clear what is meant by “and other petroleum derived waxes”. The specification provides no definition or guidance with respect to the term “and other petroleum derived waxes” and the Examiner asserts that in the absence of such a definition or guidance, it would not be clear to one of ordinary skill in the art as to what additional compounds other than those specifically listed would fall within and outside the scope of instant claims. Thus, one of ordinary skill in the art would not be able to determine the metes and bounds of the claimed invention. Note that, instant claims 2-6 and 8-16 have also been rejected due to their dependency on claim 1.
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 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, 2, and 5-18 are rejected under 35 U.S.C. 103 as being unpatentable over Sturgis et al (US 11,833,232).
With respect to independent, instant claim 1, Sturgis et al teach a deodorant stick comprising: a natural or naturally-derived oil; an antimicrobial; a naturally-derived wax blend comprising from about 5% to about 20% an ester wax having a melting point of at least about 55° C.; and from 0.01% to 2% a fatty alcohol or fatty alcohol-containing wax; wherein the deodorant stick is anhydrous and substantially free of aluminum; and wherein the stick has an oil binding capacity percent of at least 80%. See column 1, lines 1-40. The primary structurant in the present invention may be an ester wax with a melting point of at least about 50° C., in some embodiments from about 55° C. to about 85° C., and in other embodiments from about 55° C. to about 80° C., and in other embodiments from about 60° C. to 80° C. Ester waxes with melting points between 50° C. and 85° C. include stearyl stearate, palmityl stearate, stearyl behenate, cetearyl behenate, behenyl behenate, stearyl stearate, and combinations thereof. A primary structurant is defined as the structurant that is present in the composition in the greatest amount (liquid triglycerides are not considered a structurant in this context). Some embodiments may have just a single structurant, so may have only a primary structurant. Other embodiments may have a primary structurant and then secondary structurants, those structurants that are used in a lesser amount than the primary structurant. The primary structurant may comprise from about 5% to about 20%, in some cases from about 7% to about 17%, by weight of the deodorant stick composition. The secondary structurants may cumulatively comprise about 0.01% to about 2%, by weight of the deodorant stick. In some embodiments, some secondary structurants may be fatty alcohol-containing waxes. Examples of fatty alcohol-containing waxes include rice bran wax, stearyl alcohol, behenyl alcohol, cetyl alcohol, oleyl alcohol, arachidyl alcohol, ceryl alcohol, and combinations thereof. See column 5.
The composition may include a natural or naturally-derived oil. The natural or naturally-derived oil may be a plant oil. The term “plant oil” means that the oil is obtained from a plant, or the plant oil can be made by blending of oil components to obtain an oil that is substantially similar in composition to a plant oil. By substantially similar, it is meant that the manufactured oil contains at least 50 weight % (or at least 60, 70, 80, 90, 95, 98, or 99 weight %) of the components that are found in the plant oil that it is designed to mimic. In certain embodiments, the plant oil has a melting point below 40° C., below 35° C., or below 30° C. Examples of the plant oil include, but are not limited to, palm kernel, coconut, avocado, canola, corn, cottonseed, olive, palm, hi-oleic sunflower, mid-oleic sunflower, sunflower, palm stearin, palm kernel olein, safflower, babassu oils, and combinations thereof. In one embodiment, palm kernel oil may be the selected oil. Note that, olive oil, for example, would fall within the broad scope a C18-C36 triglyceride. In another embodiment, coconut oil may be the selected oil. In another embodiment, the plant oil may be a combination of palm kernel oil and coconut oil. An effective and consumer-preferred emollient may be a liquid triglyceride. Derived directly from plant sources, they are often short chains. Longer chain triglycerides may be used as structurants in deodorant or antiperspirant sticks, but the triglycerides of the present invention are liquid at room temperature (25° C.) and tend to be shorter chains. An example may be caprylic/capric triglyceride (coconut oil fractionated) and/or triheptanoin. In some embodiments, the liquid triglyceride may have a mixture of chain lengths from 8 to 10, or C8-C10 triglycerides. The present inventive deodorant sticks may comprise at least about 20% of one or more liquid triglyceride, in some embodiments, at least about 25%, at least about 30%, at least 35%, at least about 40%, at least about 45%, or at least about 50% liquid triglyceride, by weight of the composition. In some embodiments, the deodorant stick comprises from about 25% to about 60%, by weight of the composition, of one or more liquid triglyceride, from about 25% to about 50%, from about 30% to about 50%, from about 35% to about 60%, from about 35% to about 50%, from about 40% to about 60%, or from about 40% to about 50%, by weight of the composition, of one or more liquid triglyceride. In general, the greater amount of liquid in the formulation, the softer the deodorant stick may be. In some embodiments, additional emollients may be used, such as plant oils (generally used at less than about 10% by weight of the composition) including olive oil, coconut oil, sunflower seed oil, jojoba seed oil, avocado oil, canola oil, and corn oil. Additional shea butter, etc. See columns 7 and 8. Additionally, optional materials include emulsifiers, distributing agents, antimicrobials, pharmaceutical or other topical active, preservatives, surfactants, chelants, and so forth. See column 12, lines 50-69. Note that, the Examiner asserts that the broad teachings of Sturgis et al would suggest compositions having the same average hardness and skin to bulk hardness ratio as recited by the instant claims because Sturgis et al teach compositions containing the same components in the same amounts as recited by the instant claims and further, such properties would flow naturally from the teachings of Sturgis et al.
Sturgis et al do not teach, with sufficient specificity, a soft solid composition containing an emollient, an emulsifier, a combination of wax structurants, and the other requisite components of the composition in the specific amounts as recited by independent, instant claim 1 and the respective dependent claims.
Nonetheless It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to formulate a soft solid composition containing an emollient, an emulsifier, a combination of wax structurants, and the other requisite components of the composition in the specific amounts as recited by independent, instant claim 1 and the respective dependent claims, with a reasonable expectation of success and similar results with respect to other disclosed components, because the broad teachings of Sturgis et al suggest a soft solid composition containing an emollient, an emulsifier, a combination of wax structurants, and the other requisite components of the composition in the specific amounts as recited by independent, instant claim 1 and the respective dependent claims.
Claims 3 and 4 are rejected under 35 U.S.C. 103 as being unpatentable over Sturgis et al (US 11,833,232) as applied to claims 1, 2, and 5-18 above, and further in view of Fan et al (US 2022/0000755).
Sturgis et al are relied upon as set forth above. However, Sturgis et al do not teach the use of an emulsifier such as sorbitan stearate or PEG-20 glyceryl triisostearate in addition to the other requisite components of the composition as recited by the instant claims.
Fan et al teach personal care compositions comprising a solid vinylpyrrolidone/vinyl acetate copolymer; a vinylpyrrolidone/vinyl acetate copolymer; and a cosmetically acceptable carrier. Methods of making and using the same are also described. See Abstract. The lotion may also comprise an emulsifier. Suitable emulsifiers include sorbitan stearate, PEG-20 glyceryl triisostearate, etc. See paras. 112-116.
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to use an emulsifier such as sorbitan stearate or PEG-20 glyceryl triisostearate in the composition taught by Sturgis et al, with a reasonable expectation of success, because Fan et al teach the use of emulsifiers such as sorbitan stearate or PEG-20 glyceryl triisostearate in a similar composition and further, Sturgis et al teach the use of emulsifiers in general.
Claims 19 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Sturgis et al (US 11,833,232) as applied to claims 1, 2, and 5-18 above, and further in view of Shah et al (US2021/0267872).
Sturgis et al are relied upon as set forth above. However, Sturgis et al do not teach the use of tribehenin in addition to the other requisite components of the composition as recited by the instant claims.
Shah et al teach a cosmetic composition comprising electrospun polymer fibers, at least one active ingredient, and at least one cosmetically acceptable carrier is provided, wherein the electrospun fibers are dispersed in the composition. The composition is in form of a solution, suspension, lotion, cream, gel, emulsion, toner, ointment, paste, foam, hydrogel, film-forming product, or facial skin mask. The composition comprises at least one active ingredient and further comprises antioxidants, moisturizers, surfactants, or humectants. See Abstract. Suitable thickeners may be incorporated into the composition. Suitable thickeners may be present in ranges are from about 0.0001-45%, preferably from about 0.0005-40%.
Examples of thickeners include animal, vegetable, mineral, silicone, or synthetic waxes which may have melting points ranging from about 30 to 150° C. including, but not limited to waxes made by Fischer-Tropsch synthesis, such as polyethylene or synthetic wax or various vegetable waxes such as bayberry, candelilla, ozokerite, acacia, beeswax, ceresin, cetyl esters, flower wax, citrus wax, carnauba wax, jojoba wax, Japan wax, polyethylene, microcrystalline, rice bran, lanolin wax, mink, montan, bayberry, ouricury, ozokerite, palm kernel wax, paraffin, avocado wax, apple wax, shellac wax, clary wax, spent grain wax, grape wax, and polyalkylene glycol derivatives thereof such as PEG6-20 beeswax, or PEG-12 carnauba wax or fatty acids or fatty alcohols, including esters thereof, such as hydroxystearic acids (for example 12-hydroxy stearic acid), tristearin, tribehenin, and so on. See para. 82.
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to use tribehenin in the composition taught by Sturgis et al, with a reasonable expectation of success and similar results with respect to other disclosed components, because Sturgis et al teach the equivalence of tribehenin to a variety of waxes including rice bran in a similar composition and further, Sturgis et al teach the use of a wide variety of waxes and structurants in general and specifically teaches rice bran wax.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Remaining references cited but not relied upon are considered to be cumulative to or less pertinent than those relied upon or discussed above.
Applicant is reminded that any evidence to be presented in accordance with 37 CFR 1.131 or 1.132 should be submitted before final rejection in order to be considered timely.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to GREGORY R DEL COTTO whose telephone number is (571)272-1312. The examiner can normally be reached M-F, 8:30am-6:00pm, EST.
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, Angela Brown-Pettigrew can be reached at (571) 272-2817. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/GREGORY R DELCOTTO/Primary Examiner, Art Unit 1761
/G.R.D/June 1, 2026
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