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 .
Applicant’s response filed on January 2, 2026 has been fully considered.
The previous claim rejection made under 35 U.S.C. 103 over Zimmerman et al. (US 5443817) in view of Vermeer (US 5641480) and Schmidt et al. (GB 2172298 A) as indicated in the Office action dated October 1, 2025 has been modified to address applicant’s amendment made to claim 1, which excludes alkyl glucosides from the claimed composition. The previous grounds of rejection has been maintained.
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.
Claims 1-12, 15 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Zimmerman et al. (US 5443817, published on August 22, 1995, cited in IDS) (“Zimmerman” hereunder) in view of Vermeer (US 5641480, published on June 24, 1997) and Schmidt et al. (GB 2172298 A, published November 23, 1988) (“Schmidt” hereunder).
The present claim 1 is directed to a personal care composition comprising:
a carrier comprising a thickener; and
a surfactant system comprising at least one amphoteric surfactant and at least one anionic surfactant;
wherein the thickener comprises a polymer;
wherein the polymer is a poloxamer;
wherein the at least one anionic surfactant comprises an alpha olefin sulfonate;
wherein the surfactant system is present in an effective amount to treat or prevent lipid peroxidation of skin;
wherein the personal care composition is free of alkyl glucosides, salt thickeners, or combinations thereof; and
wherein the personal care composition is free of any one or more of sodium lauryl sulfate (SLS), ammonium lauryl sulfate (ALS), sodium laureth sulfate (SLES), ammonium laureth sulfate (ALES), or combinations thereof; wherein the personal care composition is free of any sulfate-containing surfactants.
Zimmerman discloses a self-foaming cleanser comprising a carrier (water) and a surfactant system comprising an amphoteric surfactant (cocoamidopropyl betaine) 3.3 wt % and an anionic surfactant (sodium alpha-olefin sulfonate) 6.8 wt%. See Table 1, composition 1. Composition 1 is formulated without alkyl glucosides, salt thickeners or any sulfate-containing surfactants.
The limitation “wherein the surfactant system is present in an effective amount to treat or prevent lipid peroxidation of skin” is met since the disclosed concentrations of the amphoteric surfactant and the anionic surfactant are well within the effective amount as defined by applicant. See instant claims 1-9.
Although the reference generally suggests adding thickeners in the formulation, the reference fails to teach poloxamers. See col. 5, lines 9 – 14.
Vermeer teaches poloxamer is a conventional thickener suitable to use in an aqueous formulation comprising at least one water miscible solvent The reference teaches an aqueous topical composition comprising an active ingredient and at least one thickener, wherein the thickener can be poloxamer. See col. 31, lines 13 – 62.
Schmidt teaches mild cleansing mousse formulations comprising a mild non-soap anionic or amphoteric surfactant such as alkyl glyceryl ether sulfonate or cocoamidopropyl betaine and a polymeric skin feel aid. The reference teaches that block copolymers of propylene oxide and ethylene oxide can be used as a nonionic surfactant rinse aid; the reference teaches using block copolymers that are sufficiently hydrophilic to give adequate stable foam. See p. 5, line 63 – p. 6, line 24.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the present application to modify the teachings of Zimmerman and incorporate to the foaming composition poloxamers as motivated by Vermeer and Schmidt. The skilled artisan would have been motivated to do so, as 1) Zimmerman teaches and suggests adding thickeners to the composition; 2) Vermeer teaches poloxamers are conventionally used as a thickener in a water miscible solvent in topical formulations; and 3) Schmidt teaches that block copolymers of propylene oxide and ethylene oxide are useful as a nonionic surfactant rinse aid in a mild cleansing mousse formulation. Since all references teach aqueous based topical formulations and particularly Zimmerman and Schmidt are pertaining to formulating creamy mousse comprising betaine amphoteric and sulfonate nonionic surfactants, the skilled artisan would have had a reasonable expectation of successfully combining the teachings of the references and produce a stable cleansing mousse with a targeted viscosity and improved rinseability. See the present claim 1.
Regarding the limitation “wherein the surfactant system is present in an effective amount to treat or prevent lipid peroxidation of skin” in claim 1, the disclosed amounts of the surfactant system is well within the amount of the surfactant system defined by the applicant.
Regarding claim 10, for the purposes of searching for and applying prior art under 35 U.S.C. 102 and 103, absent a clear indication in the specification or claims of what the basic and novel characteristics actually are, "consists essentially of" will be construed as equivalent to "comprises". If an applicant contends that additional steps or materials in the prior art are excluded by the recitation of "consisting essentially of" applicant has the burden of showing that the introduction of additional steps or components would materially change the characteristics of applicant’s invention.
Regarding claim 15, the pH of the prior art compositions range between 3-6.5. See abstract.
Regarding claim 16, the reference teaches mixing the surfactants and the carrier in which the contact between the component necessarily occurs.
Response to Arguments
Applicant’s arguments with respect to claims 1-12, 15 and 16, field on January 2, 2026, have been considered but are unpersuasive.
Combining Zimmerman and Vermeer does not necessarily result in operational incompatibility.
Applicant argues that Vermeer teaches away from the “sprayable” composition of Zimmerman. However, Zimmerman clearly indicates that the disclosed composition is not “a mist-like spray aerosol” but a “creamy foam mousse, resembling shaving cream in consistency” that is dispensed through the nozzle upon actuation, “much to the user’s astonishment”. See Zimmerman, lines 32-37. Vermeer also teaches that mousse is among the intended formulations and suggests the suitability of poloxamer for making a creamy foam products. It is also noted that Vermeer states, “[t]hese products are complex mixtures of copolymer produced in a wide range of molecular weights (1,100-14,000) with varying degrees of ethylene oxide and propylene oxide. The block polymers are prepared by polymerizing propylene oxide in a controlled fashion to give a desired weight followed by ethoxylation with ethylene oxide.” See col. 31, lines 34-42. In view of such disclosure, one of ordinary skill in the art would know how to choose a thickening agent suitable for a targeted viscosity.
2. Zimmerman teaches a formulation without alkyl glucosides.
Applicant’s arguments are unpersuasive. as the reference discloses a specific formulation made without alkyl glucosides.
Claim 10 is prima facie obvious over the combined teachings of the references.
Applicant asserts that the presence of a propellant “fundamentally alters the product form”, and materially affect the basic and novel properties of the invention. The argument is not well taken, since there is nothing in the record, that indicates that the basic and novel properties of the invention is formulating a composition without propellant.
If an applicant contends that additional steps or materials in the prior art are excluded by the recitation of “consisting essentially of”, applicant has the burden of showing that the introduction of additional steps or components would materially change the characteristics of the claimed invention. In re De Lajarte, 337 F.2d 870, 143 USPQ 256 (CCPA 1964); MPEP 2111.03, III. In this case, no such evidence of shown.
4. Zimmerman also teaches a sulfate-free, glucoside-free composition.
Applicant asserts that there is no evidence that Zimmerman’s propellant-based mixture would provide the benefit of reducing malondialdehyde. However, it is well established in patent law, "[w]hen the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." See In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).
In this case, the Office has shown that the Zimmerman composition comprises the same the same betaine/alpha olefin sulfonate surfactant system of the present claims and established that the composition must inherently result in the same effect to “treat or prevent” lipid peroxidation of skin. The burden is on applicant to show otherwise.
Conclusion
No claims are allowed.
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure: US 8709385 B2 teaches an aerosol foamable pharmaceutical composition comprising a poloxamer.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
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/GINA C JUSTICE/Primary Examiner, Art Unit 1617