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 .
Status of the Claims
This is a final office action in response to the applicant’s arguments and remarks filed on 08-Jul-2026. Claims 1-20 are pending in the current office action. Claim 1-4, 9-11, 14, and 16-17 has been amended by the applicant.
Response to Amendment
The amendment, filed on 08-Jul-2026, is acknowledged.
During examination, the claims are given their broadest reasonable interpretation. So that the record is clear, the examiner interprets the claims as follows:
The invention is directed to a composition comprising alkyl glyceryl ether at about 0.5 to 2.5 wt%, xanthan gum at about 0.1 wt% to about 0.6 wt%, an ester of glycerin and a C8-C18 fatty acid at about 0.25 wt% to about 2.25 wt%, a polyol, and an alkali salt of a C14-C22 fatty acid. The alkyl glyceryl ether is required to be methylheptylglycerin, the sweat reduction and malodor reduction performance is required within a specific time frame, and the physical form of the composition is required to be a stick type deodorant, antiperspirant, a roll-on deodorant or antiperspirant, a lotion, a cream, or a balm.
Status of the Rejection
The specification objections have been overcome by the applicant's amendments.
All 35 U.S.C. § 112(b) rejections from the previous office action are withdrawn in view of the Applicant’s amendment.
All 35 U.S.C. § 103 rejections from the previous office action are substantially maintained and modified only in response to the amendments to the claims.
Maintained Rejections and Made Again
Claim Rejections - 35 USC § 103
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.
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 and 4-8 are rejected under 35 U.S.C. 103 as being unpatentable over Vermeer (US005653970A, Patented 05-Aug-1997) in view of Yoneda (JP2005097284A, Patent Published: 14-Apr-2005).
In regards to claim 1, Vermeer teaches an antiperspirant composition (antiperspirant compositions example 161, page 56-57) comprising Propylene Glycol, and an alkali salt of a C14-22 fatty acid specifically sodium stearate (Octadecanoic acid, having 18 carbon atoms) at 12 wt% (Example 161, page 56-57).
Vermeer further teaches that such personal care compositions may optionally include additional constituents to modify product performance or aesthetics (Col 14, line 43-49). Vermeer teaches the inclusion of polyols as skin conditioning and moisturization agents such as glycerin (page 19, col 34, line 11) or propylene glycol (page 19, col 34, line 21-22) (the instantly claimed polyol), suspending agents or auxiliary thickening agents such as xanthan gum (as an auxiliary thickening agent: page 20, col 36, line 27; as a suspending agent page 21, col 37, line 56) (the instantly claimed xanthan gum, and esters of glycerin and a C8-18 fatty acid such as stearic acid for use as an opacifier or pearlescent agent (opacifier and pearlescent agent, page 22, col 39, line 35) (the instantly claimed glycerin and C8-C18 fatty acid).
Vermeer additionally teaches the wt% of the additional constituents such as a polyol used as a skin conditioning agent from “about 1% to about 40% by weight” (Page 24, col 43, line 15-16) or 77.5% for Example 161 (page 56-57), xanthan gum from "0% to about 8% by weight" (Page 24, col 44, line 15-20 for auxiliary thickening agent, suspending agent), an ester of glycerin and a C8-18 fatty acid such as stearic acid for use as an opacifier or pearlescent agent from "0% to about 6% by weight" (Page 24, col 44, line 25-27). Vermeer’s disclosed ranges for xanthan gum (0% to about 8%), and for the glycerin ester (0% to about 6%) each encompass the corresponding instantly claimed ranges.
Vermeer teaches a base antiperspirant composition in Example 161 and further provides guidance for formulation components such as polyols, thickening agents, and fatty acid ester may be added to improve product properties such as moisturization, viscosity, stability, and aesthetic characteristics.
However, Vermeer does not teach the presence of alkyl glyceryl ethers. For this reason, Yoneda is added.
Yoneda teaches the addition of alkyl glyceryl ethers (page 6, line 45) in personal care composition, and further teaches that such compounds are commonly used ingredients in cosmetic formulations (page 6, line 16-17) such as an emulsifier or skin conditioning agent.
It would have been prima facie obvious to one of ordinary skill in the art at the time of the instant invention to modify the antiperspirant composition of Example 161 of Vermeer to further include an alkyl glyceryl ether as taught by Yoneda in order to provide additional or better emulsification or skin conditioning benefits. The motivation to make that modification comes from Vermeer’s teaching that personal care compositions that include skin conditioning agents like emollients or emulsifiers contribute to a “soft, smooth, silky, and moisturized feeling to the skin surface” (page 17, column 30, lines 47-48, lines 51-52), and from Vermeer’s express contemplation to add further known components to tailor performance and aesthetics, Vermeer teaches that a wide variety of essential ingredients can be used in personal product compositions dependent on characteristics and the sought after end purpose, combined with Yoneda’s teaching that alkyl glyceryl ethers are well known cosmetic ingredients suitable for those purposes. Thus, each of the prior art references supply the rationale for the combination: Vermeer calls known skin conditioning agents and auxiliary ingredients, and Yoneda identifies alkyl glyceryl ethers as such known ingredients. It would have been obvious to add alkyl glyceryl ethers to the composition of Vermeer in order to add additional emulsifiers to improve the emulsion properties of the composition.
Such an addition or substitution of a known ingredient to achieve its known function represents a predictable use of prior arts according to their established function, and would have yielded predictable results. For the foregoing reasons, the instant claims are rendered obvious by the teachings of the prior art.
Claims 2-3 and 9-15 are rejected under 35 U.S.C. 103 as being unpatentable over Vermeer and Yoneda further in view of Burgo (US20210363086A1, Patent Published: 25-Nov-2021).
The teachings of Vermeer and Yoneda are discussed above.
Vermeer and Yoneda does not teach the use of methylheptylglycerin as the alkyl glyceryl ether. For this reason, Burgo is added.
Burgo teaches methylheptylglycerin as a part of the alkyl glyceryl ether class. Burgo is directed to ingredients for cosmetic and personal care compositions. Burgo teaches that alkyl glyceryl ethers are “particularly useful in the formulation of cosmetics and/or personal care products, where such compounds can function as surfactants, cleansing agents, foam boosters, emulsifiers, skin conditioning agents, humectants, and deodorant agents (Paragraph 3). Burgo further discloses “Branched alkyl glyceryl ethers such as 2-ethylhexylglycerin, isodecyl glyceryl ether, and isostearyl glyceryl ether are especially useful due to their branched alkyl chains, which impart greater fluidity at low temperatures ( e.g., many are viscous fluids at 5° C. and lower) and can enhance the ease of processing formulations as well as the compatibility of various excipients” (Paragraph 4). Burgo identifies that a key drawback of the conventional alkyl glyceryl ether such as 2-ethylhexylglycerin is that “the well-known synthetic route for EHG relies on the non-renewable feedstock propylene, which is typically obtained from petroleum or natural gas. As such, EHG is considered neither "natural" nor "sustainable" by consumers, and incorporation of EHG into consumer products is increasingly undesirable. There remains a need for biobased alkyl, alkenyl, and/or alkynyl glyceryl ethers prepared from sustainable, renewable, plant-based feedstocks (Paragraph 9-10). In order to meet that need, Burgo discloses “1-methylheptylglycerin” (Paragraph 14), further disclosing that 1-methylheptylglycerin can be incorporated into personal care products (Paragraph 21). Burgo further discloses that “a biobased C6 to C16 branched alcohol is reacted with bio-ECH via the simultaneous etherification-hydrolysis pathway to yield 100% biobased BAGEs with identical or improved performance compared to petrochemical derived BAGEs and the benefit of improved sustainability and better consumer perception” (Paragraph 75).
The composition of Vermeer as modified by Yoneda already contains an alkyl glyceryl ether as an emulsifier or skin conditioning agent in an antiperspirant composition, and because Burgo expressly discloses that methylheptylglycerin is a branched alkyl glyceryl ether that performs the functions as a conventional alkyl glyceryl ether while providing identical or improved performance and better consumer perceptions than petrochemical derived alkyl glyceryl ether, it would have been prima facie obvious to one of ordinary skill in the art at the time of the instant invention to use methylheptylglycerin in the personal care compositions taught in Vermeer and Yoneda and have a reasonable expectation of success. The selection of a known prior art material based on its suitability for its intended use in a known composition represents simple substitution of one known element for another to obtain predictable results. See MPEP 2143 (I)(B).
and "the well-known synthetic route for EHG relies on the non-renewable feedstock propylene, which is typically obtained from petroleum or natural gas. As such, EHG is considered neither "natural" nor “sustainable” by consumers, and incorporation of EHG into consumer products is increasingly undesirable" (page 2, paragraph 9), therefore using branched alkyl, alkenyl, and alkynyl glyceryl ether (BAGE) like methylheptylglycerin results in better consumer perception and performance (page 9, paragraph 75). For the foregoing reasons, the instant claims are rendered obvious by the teachings of the prior art.
Claims 16-18 are rejected under 35 U.S.C. 103 as being unpatentable over Vermeer, Yoneda, and Burgo in view of Dziekonski et al. (US 12,064,501 B2, Patent Filed: 07-Apr-2023, with provisional patent priority benefit filed: 07-Apr-2022).
The teachings of Vermeer, Yoneda, and Burgo are discussed above.
Vermeer, Yoneda, and Burgo does not expressly teach the measurement of sweat and sweat reduction of 21% at 1 hours (instant claim 16), 9% at 24 hours (instant claim 17), and reducing malodor by applying the personal care composition to skin (instant claim 18).
For this reason, Dziekonski et al. is added. Instant claims 16-18 are drawn to a composition and the recitation of resulted derived from using the composition. The use of the composition does not limit a composition claim beyond requiring that the composition is capable of that result. Where the claimed and prior art composition are substantially identical, the claimed properties are inherent. Particularly, a recitation of an intended use will not limit the scope of the claim because it merely defines a context in which the invention may operate. Boehringer Ingelheim Vetmedica, Inc. v. Schering-Plough Corp., 320 F.3d 1339, 1345 (Fed. Cir. 2003). Although “[s]uch statements often…appear in the claim’s preamble…”, a statement of intended use or purpose can appear elsewhere in a claim. (In re Stencel, 808 F.2d 751, 754 (Fed. Cir. 1987)). Moreover, “the patentability of apparatus or composition claims depends on the claimed structure, not on the use or purpose of that structure.” Catalina Mktg. Int’l, Inc. v. Coolsavings.com, Inc., 289 F.3d 801, 809 (Fed. Cir. 2002). It has long been held that “apparatus claims cover what a device is, not what a device does.” Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1468 (Fed. Cir. 1990). An inventor of a structure (machine or article of manufacture) is entitled to benefit from all of its uses, even those not described, Roberts v. Ryer, 91 U.S. 150, 157 (1875), and conversely, patentability of the structure cannot turn on the use or function of the structure. In re Michlin, 256 F.2d 317, 320 (CCPA 1958). In determining the meaning of language present in a claim, and therefore the scope of the invention defined, the objective reach of the language of the claim presented is controlling. See In re Hiniker Co., 150 F.3d 1362, 1369, 47 USPQ2d 1523, 1529 (Fed. Cir. 1998) (“[T]he name of the game is the claim.”). Method claim limitations define steps or acts to be performed, product claims discrete physical structures or materials.
Dziekonski is in directed to the same field of antiperspirant and deodorant compositions (Col 1, line 24-33) in the form of roll-on, gel, cream, stick, or aerosol form (Col 10, line 4-13) comprising polyols such as glycerin and propylene glycol (Col 7, line 25 and 31-32). Dziekonski discloses that “there is an unmet need for personal care products that can provide the sweat and perspiration reduction qualities of products with aluminum salts but at the same time use an active other than aluminum compounds” (Col 1, line 58-61). Dziekonski demonstrates that its sweat reduction is not attributable to metal oxalate actives, rather, Composition E consisting of xanthan gum and glycerin reduced sweat by 25.5% (Col 22, Table 1). Dziekonski teaches that all gum based deodorant roll-on deodorant personal care compositions delivered greater than 20% sweat reduction (Col 21, line 11-14).
It would have been prima facie obvious to one of ordinary skill in the art at the time of the instant invention that a personal care composition with an embodiment of an antiperspirant/deodorant would reduce sweat and malodor. One would have been motivated to so since Dziekonski et al. teaches that “[w]ithout being limited to any particular theory, it is believed that by reducing the underarm sweat, the personal care compositions may reduce the formation of the detrimental bacteria responsible for the malodor (Col 4, line 59-63). The teaching of Burgo directly links to the teachings of Vermeer, Yoneda, and Burgo because Vermeer’s example 161 is in the form of an antiperspirant stick, and Vermeer further teaches that antiperspirant and deodorant agents inhibit the flow of perspiration and reduces malodor. Burgo teaches that alkyl glyceryl ethers function as deodorant agents, and teaches methylheptylglycerin for its deodorant and antiperspirant products. Since the composition of Vermeer, Yoneda, and Burgo is an antiperspirant composition containing the same polyol and xanthan gum that Dziekonski demonstrates to reduce sweat by more than 20%, a person having ordinary skill in the art would have expected that the composition would reduce sweat and malodor. For the foregoing reasons, the instant claims are rendered obvious by the teachings of the prior art.
Claims 19-20 are rejected under 35 U.S.C. 103 as being unpatentable over Vermeer and Yoneda in light of Burgo.
The teachings of Vermeer, Yoneda, and Burgo are discussed above.
Instant claims 19 and 20 require the limitation that the composition take the form of a stick type deodorant, a stick type antiperspirant, a roll-on type deodorant, a roll-on type antiperspirant, a lotion, a cream, or a balm.
Vermeer teaches the personal care compositions take the form of “aersols, liquids, gels, creams, lotions, sprays, pastes, roll-on, stick, tablet, powdered and bar form” (page 26, column 47, line 2-4) and balm compositions (page 59, column 114, line 12), and Example 161 is an antiperspirant stick (Col 109, line 64).
It would have been prima facie obvious to one of ordinary skill in the art at the time of the instant invention for a personal care composition to use methylheptylglycerin instead of another emollient or moisturizer for the manufacture of a personal care product and would take on the forms of a stick-type deodorant, a stick-type antiperspirant, a roll-on type deodorant, a roll-on type antiperspirant, a lotion, a cream, and a balm. One would have been motivated to do so since Vermeer teaches that “successful personal product compositions should not leave the skin tight or taut after frequent routine use. After accomplishing the cleansing action, the personal product composition should leave the skin feeling soft, smooth, silky and moisturized” (page 3, column 1, line 26-31) and Vermeer teaches that the personal care products take various forms because these are “products which are applied to either the whole of the body or to specific areas of the body such as the hands, arms, face, legs, lips or feet” (page 3, column 1, line 17-19). For the foregoing reasons, the instant claims are rendered obvious by the teachings of the prior art.
Response to Arguments
The Applicant’s arguments, filed on 08-Jul-2026, have been fully considered but are not persuasive.
1: Applicant’s attack on the prior references individually is not responsive to the rejection as combined.
Applicant argues that Vermeer alone does not teach the instantly claimed alkyl glyceryl ether and xanthan gum limitations, and further that “Yoneda cannot remedy the deficiencies of Vermeer”, “Burgo cannot remedy the deficiencies of Vermeer, and that “Dziekonski cannot remedy the deficiencies of Vermeer”.
The examiner respectfully disagrees; these arguments attack each reference individually for lacking a teaching that the rejection does not rely on any single reference solely to provide. Instead, the rejection is based on the combined teachings of Vermeer with Yoneda and Burgo and Dziekonski for the respective dependent claims, and not on any one reference in isolation. Nonobviousness cannot be established by attaching the references individually when the rejection is based on a combination of references. MPEP § 2145(IV), see In re Keller, 642 F.2d 413, 426 (C.C.P.A. 1981) (citing Application of Young, 403 F.2d 754, 757 (C.C.P.A. 1968) (indicating that "[O]ne cannot show non-obviousness by attacking references individually where ... the rejections are based on combinations of references").
The applicant further asserts that there is no motivation to combine Vermeer with Yoneda. This is not persuasive. To be sure, the court has acknowledged that “demonstrating a teaching, suggestion, or motivation to combine known elements in order to show that the combination is obvious...capture[s] a helpful insight’; However, the Court then nearly immediately establishes that “the obviousness analysis cannot be confined by a formalistic conception of the words teaching, suggestion, and motivation.” KSR International Co. v. Teleflex, Inc., 82 USPQ2d 1385, 1396 (U.S. 2007). The court clearly and unequivocally indicates that “our cases have set forth an expansive and flexible approach” to the question of obviousness, requiring only “some articulated reasoning with some rational underpinning [is required] to support the legal conclusion of obviousness.” Id. at 1395-96. As set forth in the rejection, the examiner has articulated the reasoning that Vermeer expressly welcomes the addition of known skin conditioning agents and auxiliary ingredients, and Yoneda teaches that alkyl glyceryl ethers are such known ingredients.
Applicants assert, without explanation, that the cited art does not teach or suggest the required limitations. Applicants’ arguments are legally insufficient to properly raise an issue concerning the patentability of the invention claimed. In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (“[T]he Board reasonably interpreted Rule 41.37 to require more substantive arguments in an appeal brief than a mere recitation of the claim elements and a naked assertion that the corresponding elements were not found in the prior art.”).
Applicant has not addressed the combination relied upon nor the rationale provided by the examiner for combining the references in the manner discussed: Vermeer’s teaching of xanthan gum and esters of glycerin and a C8-C18 fatty acid as an optional formulation additive combined with Yoneda’s teaching that alkyl glyceryl ethers are conventional cosmetic skin conditioning agents. Applicant’s argument do not address any of the cited text support and therefore does not rebut the rejection. This argument is not found persuasive.
2: Applicant has not rebutted obviousness arising from overlapping ranges.
The rejection relies on Vermeer’s disclosure of xanthan gum in an amount of 0% to about 8% by weight, and that an ester of glycerin and a C8-18 fatty acid is in an amount of 0% to about 6% by weight, both of which fully encompasses the instantly claimed range of about 0.1 wt% to about 0.6 wt% xanthan gum and 0.25 wt% to 2.25 wt% glycerin ester. When the claimed ranges overlap, the burden shifts to the applicant to show that the instantly claimed narrower range is critical and achieves unexpected results relative to the broader disclosed range. The prima facie case stands unrebutted; this argument is not found persuasive.
Argument 3: Applicant’s evidence of unexpected results is insufficient to overcome the rejection
Applicant argues that the malodor and perspiration reduction data represents unexpected results, and is sufficient to rebut the prima facie case of obviousness.
The examiner respectfully disagrees; the malodor and perspiration reduction data does not overcome the prima facie case of obviousness due to the following reasons:
The specific reduction percentages cited of 21% reduction at 1 hour and 9% at 24 hours correspond to the limitations of dependent claims 16 and 17, and not to independent claims 1, 9, and 14 being argued.
The data is derived from a discrete formulation such as 1.5 wt% methylheptylglycerin, 0.3 wt% xanthan gum, and not from testing the full scope of the instantly claimed ranges.
For your files:
Once the examiner establishes a prima facie case of obviousness, the burden shifts to the applicant to rebut that case. In re Kao, 639 F.3d 1057, 1066 (Fed. Cir. 2011). When unexpected results are proffered, Applicants must “provide an adequate basis to support the conclusion that other embodiments falling within the claim will behave in the same manner” in order to “establish that the evidence is commensurate with [the] scope of the claims.” Id. at 1068. One data point is insufficient to “to ascertain a trend in the exemplified data which would allow [one having ordinary skill in the art] to reasonably extend the probative value thereof.” In re Kollman, 595 F.2d 48, 56 (Fed. Cir. 1979).
The data presented is not presented as a side-by-side comparison of a composition representative of the closest prior art. Evidence of unexpected results must compare the claimed subject matter with the closest prior art to be effective to rebut a prima facie case of obviousness. In re Burckel, 592 F.2d 1175, 201 USPQ 67 (CCPA 1979). That comparison is to the closest prior art such as the antiperspirant composition of Vermeer’s Example 161. The applicant’s data is shown against an unspecified comparative composition 1 and 2, which applicant has not shown to represent any composition of the prior art.
There is no indication that a composition containing xanthan gum without methylheptylglycerin, or methylheptylglycerin without xanthan gum has been tested. Applicant has not controlled for each variable and has not shown which component is responsible for the asserted effect. “[A]ppellants have the burden of explaining the data…they proffer as evidence of non-obviousness.” Ex parte Ishizaka, 24 USPQ2d 1621, 1624 (Bd. Pat. App. & Inter. 1992). The evidence relied upon should establish “that the differences in results are in fact unexpected and unobvious and of both statistical and practical significance.” Ex parte Gelles, 22 USPQ2d 1318, 1319 (Bd. Pat. App. & Inter. 1992).
The unexpected results relies on the core narrative on the efficacy of the personal care product in the absence of aluminum, magnesium, titanium, zirconium, and zinc based actives. Claims 1, 9 and 14 do not recite exclusion of any such actives. Constant v. Advanced Micro-Devices, Inc., 848 F.2d 1560, 1571-72, 7 USPQ2d 1057, 1064-1065 (Fed. Cir.), cert. denied, 488 U.S. 892 (1988) (Various limitations on which appellant relied were not stated in the claims; the specification did not provide evidence indicating these limitations must be read into the claims to give meaning to the disputed terms.); In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993) (although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims).
For each of the three reasons above, Applicant’s argument does not satisfy the requirements of unexpected results and does not rebut the prima facie case of obviousness. This argument is not persuasive.
For the reasons set forth in arguments 1-3 above, the rejection of claims 1-20 under 35 U.S.C. 103 is maintained.
Conclusion
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 WENHAN LI whose telephone number is (571)272-9143. The examiner can normally be reached Monday-Friday 7:30 am-5 pm EST.
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/W.L./Examiner, Art Unit 1614
/SEAN M BASQUILL/Primary Examiner, Art Unit 1614
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