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 .
Response to Amendments
Status of claims
The amendment, filed on 8/25/2026, is acknowledged.
Claims 1, 12-13, and 15-16 are amended.
Claims 19-20 are withdrawn.
Claims 1-18 are pending and under consideration in the instant Office Action, to the extent of the elected species:
The antiperspirant component is maltobionic acid
The alpha hydroxy acid is lactic acid
The emollient is isododecane
The polyol is glycerin
Rejections Withdrawn
The rejection of claims 15-16 made under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which applicant regards as the invention is withdrawn in light of the amendment.
The rejection of claim 14 made under 35 U.S.C. 112(d) as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends is withdrawn in light of the amendment.
The rejection of claims 1, 13 and 16-17 made under 35 U.S.C. 102 as being anticipated by SO.DI.CO. (2020, published by Mintel, cited in IDS filed 11/8/24) is withdrawn in light of the amendment.
Maintained Rejections
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 1-5 and 7-18 are rejected under 35 U.S.C. 103 as being obvious over Guzman (US20230082090A1, published 3/16/2023, priority to 9/3/2021) in view of Yu (US20040180854A1, published 9/16/2004).
It is noted that Guzman is being applied as of its publication date as (a)(1) type prior art, and as of its earliest effectively filed date as (a)(2) type prior art.
The applied reference (Guzman) has a common assignee/applicant with the instant application. Based upon the earlier effectively filed date of the reference, it constitutes prior art under 35 U.S.C. 102(a)(2).
This rejection under 35 U.S.C. 103 might be overcome by: (1) a showing under 37 CFR 1.130(a) that the subject matter disclosed in the reference was obtained directly or indirectly from the inventor or a joint inventor of this application and is thus not prior art in accordance with 35 U.S.C.102(b)(2)(A); (2) a showing under 37 CFR 1.130(b) of a prior public disclosure under 35 U.S.C. 102(b)(2)(B); or (3) a statement pursuant to 35 U.S.C. 102(b)(2)(C) establishing that, not later than the effective filing date of the claimed invention, the subject matter disclosed and the claimed invention were either owned by the same person or subject to an obligation of assignment to the same person or subject to a joint research agreement. See generally MPEP § 717.02.
Guzman teaches a personal care composition for sweat reduction comprising humectants, thickeners, alpha hydroxy acids, and a carrier. Further, the composition is free of added aluminum-based antiperspirant actives (abstract). Guzman teaches that the antiperspirant/deodorant composition can also comprise polyhydroxy acids, including gluconolactone, as well as galactose or lactobionic acid, in amounts ranging from about 0.05 to about 2 wt% (cf. claims 1 and 3-4) (par. [0070]). Carriers are also included in the composition, and are typically water or alcohols (cf. claim 1) (par. [0067]). The composition may further comprise an alpha hydroxy acid, wherein the alpha hydroxy acid is lactic acid in an amount from about 0.05 to about 2 wt% (cf. claim 5) (par. [0022]). As demonstrated by the abstract and mentioned above, the composition may also comprise a humectant, which may comprise vegetable refined glycerin in an amount from about 5 to about 30 wt% (cf. claim 7 and 12) (par. [0014-0015]). The composition may also comprise thickeners (par. [0058]). Thickeners are also categorized as structuring agents. The thickener may be present in about 1 to about 10 wt% (par. [0062]), and may be xanthan gum (par. [0059]) (cf. claims 8-9 and 12). The composition may also comprise preservatives that range from about 0.1 to about 10 wt%, and said preservatives may be caprylyl glycol, phenoxyethanol, butylated hydroxytoluene (BHT), ethylenediaminetetraacetic acid (EDTA), ethylhexylglycerin, citric acid, benzoic acid, and combinations thereof (par. [0063-0064]) (cf. claims 10-11). Finally, the disclosure claims that the composition is free of aluminum salts, and also free of zinc-based antiperspirant actives, iron-based antiperspirant actives, zirconium-based antiperspirant actives, titanium-based antiperspirant actives, and magnesium-based antiperspirant actives (abstract and claim 2) (cf. claims 15-16).
Regarding claims 13-14, the alpha hydroxy acid or polyhydroxy acid including gluconolactone taught by Guzman is reasonably interpreted as the “antiperspirant component” in the absence of a limiting definition. Further, as Guzman’s composition is lacking typical antiperspirant actives (i.e. aluminum, zinc and iron salts), it appears Guzman excludes other antiperspirant components, thereby meeting the antiperspirant component as consisting of gluconolactone. Therefore, claims 13-14 are rejected.
Guzman does not teach the inclusion of maltobionic acid.
This is made up for by the teachings of Yu.
Yu teaches oligosaccharide aldonic acids and their use in topical compositions. These aldonic acids may be included in antiperspirants, as they are known to be beneficial in general care, as they provide moisturization to dry skin, skin smoothing, and treatments for itchiness. They also are used for treatment and prevention of various cosmetic conditions and dermatological disorders, which is why they may be included in antiperspirants (par. [0086]). The oligosaccharide aldonic acid may be maltobionic acid, which will impart the benefits previously described (claim 7).
It would have been prima facie obvious to one of ordinary skill in the art prior to the effective filing date of the instant invention to include maltobionic acid for its moisturizing and skin soothing properties. One would be motivated to include maltobionic acid in the teachings of Guzman based on these benefits. There would be reasonable expectation of success as Yu teaches that maltiobionic acid may be included in antiperspirants to impart said benefits.
The inclusion of the maltobionic acid is motivated by these benefits, but as an additional polyhydroxy component aside from being an antiperspirant active. As this may be combined with gluconolactone, which is another polyhydroxy acid and the key antiperspirant component ingredient, claims 2, 17 and 18 are rejected.
Therefore, the invention as a whole was prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, as evidenced by the references.
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Guzman (US20230082090A1, published 3/16/2023, priority to 9/3/2021) and Yu (US20040180854A1, published 9/16/2004) as applied to claims 1-5 and 7-18 above, and further in view of Banowski (US20160206529A1, published 7/21/2016, cited in IDS filed 11/8/2024).
It is noted that Guzman is being applied as of its publication date as (a)(1) type prior art, and as of its earliest effectively filed date as (a)(2) type prior art.
The applied reference (Guzman) has a common assignee with the instant application. Based upon the earlier effectively filed date of the reference, it constitutes prior art under 35 U.S.C. 102(a)(2).
This rejection under 35 U.S.C. 103 might be overcome by: (1) a showing under 37 CFR 1.130(a) that the subject matter disclosed in the reference was obtained directly or indirectly from the inventor or a joint inventor of this application and is thus not prior art in accordance with 35 U.S.C.102(b)(2)(A); (2) a showing under 37 CFR 1.130(b) of a prior public disclosure under 35 U.S.C. 102(b)(2)(B); or (3) a statement pursuant to 35 U.S.C. 102(b)(2)(C) establishing that, not later than the effective filing date of the claimed invention, the subject matter disclosed and the claimed invention were either owned by the same person or subject to an obligation of assignment to the same person or subject to a joint research agreement. See generally MPEP § 717.02.
Guzman and Yu have been described supra.
Banowski teaches a cosmetic antiperspirant agent comprising a cosmetic oil, odorant, or wax in conjunction with at least one antiperspirant aluminum salt in a total quantity to 1 to 80 wt% (abstract). The cosmetic oil is required to impart a benefit as an antiperspirant component (claim 4). Though the inclusion of the oil is driven by its use as an antiperspirant, oils may also act as emollients, which impart their own benefit as softening or soothing skin. Banowski teaches that the oil may be isododecane (claim 8). The oils may be in an amount of 0.5 to 15% by weight (par. [0052]).
It would have been prima facie obvious to include isododecane as an ingredient in the composition, as it is an oil that would impart soothing benefits that are desirable in antiperspirant/deodorant compositions. Banowski teaches that the oil may actually have a benefit as an antiperspirant active ingredient, which would further promote the inclusion of the isododecane in the composition. Not only would isododecane impart the soothing benefits of an oil, but also, according to Banowski, as an antiperspirant. It would have been obvious to include isododecane in a composition as taught by Guzman and Yu, as it imparts significant benefits as an oil in the composition. One would have reasonable expectation of success as Banowski teaches the inclusion of isododecane in an antiperspirant composition, similar to that as taught by Guzman and Yu. Therefore, claim 6 is rejected.
Therefore, the invention as a whole was prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, as evidenced by the references.
Claims 1-18 are rejected under 35 U.S.C. 103 as being unpatentable over Yu (US20040180854A1, published 9/16/2004) in view of Banowski (US20160206529A1, published 7/21/2016, cited in IDS filed 11/8/2024).
Claim interpretation: Regarding claims 15-16, in light of the instant specification paragraph [0057], “essentially free” is being interpreted as about 3 wt% or less.
Yu teaches a composition comprising oligosaccharide aldonic acids useful for general care (abstract). The composition may have various applications pertaining to personal care, including cosmetic types of compositions. Yu continues in stating that the composition may be used in antiperspirants (par. [0081]). Yu teaches that the composition may comprise gluconolactone (par. [0083]) (i.e., antiperspirant component), as well as a cosmetically acceptable carrier such as water or ethanol (par. [0108]) (cf. claim 1). Yu also teaches the composition include maltobionic acid (par. [0044]), which is also reasonably interpreted to be an ‘antiperspirant component’ (cf. claim 2). Yu further teaches that lactobionic acid may be present in the composition as the oligosaccharide aldonic acid (claim 97) and that the acid may be present in a total amount of 0.5 to 25% by weight of the total composition (par. [108]) (cf. claims 4. Further, Yu does not mention any aluminum, zinc, iron, zirconium, titanium, or magnesium-based actives in the composition that may be included in an antiperspirant. The lack of inclusion indicates that these ingredients may be excluded from the composition (cf. claim 15-16).See AC Technologies S.A. v. Amazon.com, Inc., 912 F.3d 1358, 1367 (Fed. Cir. 2019) (“[A] reference need not state a feature’s absence in order to disclose a negative limitation.”); Sud-Chemie, Inc. v. Multisorb Techs., Inc., 554 F.3d 1001, 1004–05 (Fed. Cir. 2009) .
However, Yu does not teach the inclusion of lactic acid in a specific amount, isododecane, glycerin (i.e. a polyol), a thickening agent, or a preservative.
These deficiencies are made up for by the teachings of Banowski.
Banowski teaches antiperspirant cosmetic agents having alpha hydroxy acids. These alpha hydroxy acids are also accompanied by cosmetic oil and at least one antiperspirant aluminum salt in a total quantity as low as 0.1 wt% up to 80% (abstract and claim 1). Lactic acid is taught as being the alpha hydroxy acid, and can be included as a component of the composition in an amount ranging from 0.05 to 8 wt% (par. [0098]) (cf. claim 5). Banowski also teaches the inclusion of isododecane as an oil, which may be present in 0.5 to 15% by weight of the total composition (par. [0051]) (cf. claim 6). Banowski continues that the composition may also include a water-soluble alkanol, including glycerin (par. [0128]). Glycerin is also a polyol. One specific example outlined by Banowski includes glycerin in 5 wt% of the total composition (par. [0216] examples) (cf. claim 7 and 12). Banowski also teaches another preferred embodiment wherein the composition comprises 0.01 to 2% by weight of a hydrogel-forming substance, which may be categorized as a structuring agent (par. [0144]) (cf. claim 8). Banowski continues to disclose that the composition may also include thickening agents, including xanthan gum or guar gum (par. [0125]). These thickening agents are also referred to as hydrogel-forming agents, which may in the composition in an amount of 0.01 to 2 wt% (par. [0144]) (cf. claim 9 and 12). Another part of the composition may be phenoxyethanol in an amount of 1.5 to 5% by weight as a deodorant active substance (par. [0127]) (cf. claims 10-11).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the instant invention to combine the teachings of Banowski with the teachings of Yu to arrive at an antiperspirant that comprises gluconolactone and maltobionic acid as taught by Yu, and that further comprises lactic acid, isododecane, glycerin, a thickening agent, and preservative. One would have a reasonable expectation of success as both teach antiperspirants and the ingredients as listed are combinable in the art. The modification of Yu with Banowski would result in an antiperspirant comprising gluconolactone, maltobionic acid, lactic acid, isododecane, glycerin, xanthan or guar gum, and phenoxyethanol, all of which would read on the instant claims.
Regarding claims 15-16, Banowski teaches the inclusion of at least one antiperspirant aluminum salt. However, this amount may be in as little as 0.1 wt% based on the total weight of the antiperspirant agent. This can be qualified as being essentially free of aluminum salt given the minute amount that is present in the composition. As there is no definition of “essentially free,” it is reasonable to label Banowski’s composition as essentially free of the aluminum salt (cf. claim 15). Zinc-based actives are also listed as being a potential ingredient. However, the amount may be as little as 0.0001% by weight of the total antiperspirant agent, which is interpreted as “essentially free” (par. [0127]). Aluminum zirconium salts are also recited, but again may be in as little as 0.1% by weight, and is therefore “essentially free” (par. [0082]). Banowski does not refer to any antiperspirant actives that are iron, titanium, or magnesium-based, and it can therefore be interpreted as excluding these ingredients (cf. claim 16). see case law above.
Response to Arguments
The Applicant’s arguments, filed 8/25/2026, have been fully considered but are not persuasive.
Applicant argues that the claimed invention is not obvious over the references. Further, Applicant argues unexpected results of their instantly claimed invention.
In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
In response to applicant's argument that the secondary references do not cure deficiencies of the primary references, the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981).
In response to applicant’s argument that there is no teaching, suggestion, or motivation to combine the references, the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, see below.
Guzman teaches a personal care composition, specifically an antiperspirant/deodorant, that comprises glycerin, a nonionic surfactant, a thickener (i.e. structuring agent), and an alpha hydroxy acid, wherein the composition is free of aluminum salts. The composition may further comprise a polyhydroxy acid selected from the group including gluconolactone, wherein the polyhydroxy acid is present in amounts from about 0.05 to about 2 wt. % of the total composition (In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990)). The composition also comprises a carrier (i.e. water or alcohol). As the composition as taught by Guzman comprises, in part, a carrier, gluconolactone in about 0.05 to about 2 wt. %, and a thickener, Guzman renders claim 1 obvious. As glycerin is a polyol, and is present in an amount as a humectant in about 5 to about 30 wt. %, and the thickener is present in about 1 to about 10 wt. %, Guzman render claims 12-13 obvious.
Yu is relied upon to remedy the deficiency of Guzman regarding the inclusion of maltobionic acid. As Yu teaches that oligosaccharide aldonic acids, such as maltobionic acid, are beneficial to consumer goods including antiperspirants for moisturization, smoothing, and anti-itch, one would reasonably include an oligosaccharide aldonic acid such as maltobionic acid as suggested by Yu into the antiperspirant of Guzman. One would be motivated to do so, and reasonably expect success, as Yu teaches that maltobionic acid can be successfully incorporated into an antiperspirant and provide skin benefits to areas of application.
Banowski is relied upon to remedy the deficiency of Guzman and Yu regarding the inclusion of the emollient oil isododecane. As Banowski teaches inclusion of cosmetic oils, including isododecane, as being beneficial to an antiperspirant composition and providing skin benefits, one would reasonably include a cosmetic oil into the antiperspirant of Guzman. One would be motivated to do so, and reasonably expect success, as Banowski teaches that isododecane can successfully be incorporated into an antiperspirant.
Further, Guzman teaches that the composition can comprise other optional ingredients, and names skin soothing agents as one such ingredient. As maltobionic acid and isododecane are both skin soothing agents, one would reasonably look from Guzman to Yu and Banowski to identify such agents, as all references relate to the antiperspirant and general care art.
Applicant argues that no case of prima facie obviousness exists. Applicant argues that this lack of obviousness arises from an inability of any secondary references to remedy the deficiencies of the primary reference. However, as described supra, one would reasonably look from one reference to the other and apply the teachings of one reference to the other. The references relied upon, when taken as a whole, suggest the combination of ingredients in the specified amounts as described supra that meet the limitations of the instant claims. "A person of ordinary skill in the art is also a person of ordinary creativity, not an automaton." KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 421, 82 USPQ2d 1385, 1397 (2007). "[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 1397.
Regarding the unexpected results, Applicant has not shown criticality of the claimed range. To establish unexpected results over a claimed range, applicants should compare a sufficient number of tests both inside and outside the claimed range to show the criticality of the claimed range. In re Hill, 284 F.2d 955, 128 USPQ 197 (CCPA 1960). Applicant has demonstrated one embodiment, wherein gluconolactone is present in 2 wt. %, though the instant claims recite about 0.2 to about 11 wt. %. The claims are much broader than the tested composition. It is unclear if the same effect would be seen for all amounts within the scope of the claims. This embodiment consists of various other ingredients as well, and Applicant has not shown that the gluconolactone and carrier alone would be effective or have the same result of antiperspirant activity. 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).
Further, Applicant has not compared to the closest prior art. Applicant has not compared the instant invention with other antiperspirant compositions that comprise gluconolactone as a component, such as those taught by Guzman. As the inventive concept lies in the use of gluconolactone as an antiperspirant component, and Guzlman teaches the use of gluconolactone in an antiperspirant, Applicant must compare to the closest prior art such as an antiperspirant that comprises gluconolactone as taught by Guzman. The comparison Applicant has made is between a composition that comprises in part gluconolactone and a composition that lacks gluconolactone. A composition as taught by Guzman, which comprises in part gluconolactone, is therefore more closely related prior art, which Applicant has not compared the instant invention to. An affidavit or declaration under 37 CFR 1.132 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) (see MPEP 716.02(e)).
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, 5-7, 9, 13 and 15-17 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 5-6, and 8-13 of U.S. Patent No. 12,064,501 in view of Yu (US20040180854A1, published 9/16/2004).
Although the claims at issue are not identical, they are not patentably distinct from each other because both the instant claim set and the ‘501 claims recite a personal care composition comprised of an antiperspirant active, wherein the composition comprises isododecane and glycerin, wherein the composition comprises a thickening agent of xanthan gum, wherein the composition is free of aluminum salts, and wherein the composition comprises an acceptable carrier.
Claims 1, 5-6, and 8-13 of the ‘501 patent do not recite gluconolactone.
This deficiency is made up for in the teachings of Yu.
Yu has been described supra.
Instant claims 1, 5-7, 9, 13 and 15-17 are an obvious variant of claims 1, 5-6, and 8-13 of the ‘501 patent because it would have been prima facie obvious to one of ordinary skill in the art to include gluconolactone as described by Yu in a composition as described by Pat. ‘501. Yu has been described supra. The inclusion of gluconolactone would be motivated by its inclusion as a polyhydroxy acid which is known to exfoliate and hydrate skin, which would be desirable in an antiperspirant. One would have a reasonable expectation of success as Yu teaches that gluconolactone may be an ingredient in antiperspirants. The instant claims are patentably indistinct from the claims as outlined in Pat. ‘501 as the inventive concept of an aluminum-free antiperspirant along with the previously outlined ingredients is the same between the instant application and the patented case.
Claims 1, 5-7, 9, 13 and 15-17 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 4-7, 9 and 12 of copending Application No.18/808982 in view of Yu (US20040180854A1, published 9/16/2004).
Both the instant claim set and App. ‘982 recite a personal care composition comprised of an antiperspirant active, wherein the composition comprises isododecane and glycerin, wherein the composition comprises a thickening agent of xanthan gum, wherein the composition is free of aluminum salts, wherein there is an acceptable carrier.
Claims 1, 4-7, 9 and 12 of copending Application No.18/808982 do not recite gluconolactone.
This deficiency is made up for in the teachings of Yu.
Yu has been described supra.
Instant claims 1, 5-7, 9, 13 and 15-17are an obvious variant of claims 1, 4-7, 9 and 12 of copending Application No.18/808982 because it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include gluconolactone as described by Yu in a composition as taught by App. ‘982 because. Yu teaches polyhydroxy acid (i.e. gluconolactone) which is known to exfoliate and hydrate skin, which would be desirable in an antiperspirant. One would have reasonable expectation of success as Yu teaches the inclusion of the gluconolactone in an antiperspirant. The instant claims are patentably indistinct from the claims as outlined in App. ‘982 as the inventive concept of an aluminum-free antiperspirant along with the previously outlined ingredients is the same between the instant application and the patented case.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Response to Arguments
Applicant argues that in view of the assertions made in the Remarks filed 8/25/2026, the provisional rejection for non-statutory double patenting be held in abeyance.
The above assertions are not found persuasive because a request to hold a rejection in abeyance is not a proper response to a rejection. Rather, a request to hold a matter in abeyance may only be made in response to an OBJECTION or REQUIREMENTS AS TO FORM (see MPEP 37 CFR 1.111(b) and 714.02). Thus, the double patenting rejections of record have been maintained as no action regarding these rejections has been taken by applicants at this time.
Conclusion
No claims are allowed.
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 MATTHEW RYAN BURKE whose telephone number is (571)272-8949. The examiner can normally be reached Mon-Fri. 8am-5pm.
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, David Blanchard can be reached at 5712720827. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/MATTHEW RYAN BURKE/Examiner, Art Unit 1619
/DAVID J BLANCHARD/Supervisory Patent Examiner, Art Unit 1619
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