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 .
Claim Rejections - 35 USC § 112
Claims 2 and 8 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or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention are withdrawn.
Claim Rejections - 35 USC § 102
Claim(s) 1-9 and 11-13 is/are rejected under 35 U.S.C. 102(a1) as being anticipated by JP H0820795 are withdrawn.
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.
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.
Claim(s) 1-13 is/are rejected under 35 U.S.C. 103 as being unpatentable over JP (H0820795) in view of WO (2021/154570).
JP (H0820795) discloses as Example 15 in table 2 DGP50, which is a 50 mol propylene oxide adduct of diglycerin (see paragraph [0013] of the enclosed machine translation). The polyol core in this case consists essentially of 4-OH groups. Dividing the 50 mol of propylene oxide by the number of 4 OH groups, the average number of POs per propylene oxide branch is 12.5. It is therefore considered that the propoxylated polyol disclosed in JP (H0820795) is encompassed by the definition given in claim 1. JP (H0820795) discloses further in paragraphs [0020] and [0021] of the enclosed machine translation that a predetermined amount of the respective alkylene oxide adduct was added to a shampoo-based detergent composition. The shampoo composition includes 20 parts of potassium laurate, 5 parts of potassium myristic acid salt, 4 parts of coconut oil fatty acid alkanolamide, 6 parts of lauric acid amide propyl betaine and water in balance amount. As claim 1 merely requires that the composition comprises a fabric and home care ingredient, it is considered that the composition disclosed in JP (H0820795) is suitable for that use. As can be derived from table 2, 5% of the DGP50 are added. The polyol core of the DGP50 is diglycerin and thus a dimer (oligomer). Calculating the average number of POs per propylene oxide branch X to be 12.5; assuming further the average number of ether linkages P in the polyol core to be 1 and the average number of-OH groups Q in the polyol core to be 4, the following values of F (formula (I)) = 0.337 and F (formula (II)) = 0.0182 can be calculated. In view of the different reactivities of primary and secondary-OH groups, as also recognized in the present application on page 7, lines 9 to 14 of the description, and in view of points i) and ii) on page 12, lines 9 to 15 of the description, the amount of secondary alcohol groups in the propoxylated diglycerin disclosed in Example 15 in JP (H0820795) is considered to be 50-100%. As diglycerin (diglycerol) is one of the preferred polyol cores as claimed in claim 8, and the average number of POs per propylene oxide branch falls into the ranges claimed in claims 3 and 4, the weight of the polyol core claimed in claim 5 and the weight average molecular weight of the propoxylated polyol claimed in claim 7 are considered to be implicitly disclosed.
Specifically, the polyols in their requisite proportions are not suggested with sufficient specificity to anticipate.
WO ‘570 discloses a cleaning composition comprising: (a) linear alkyl benzene sulphonate surfactant; (b) alkyl ethoxylated sulphate surfactant; and (c) alkoxylated polymer, wherein the alkoxylated polymer comprises a core structure selected from sugar alcohol comprising at least 4 hydroxy moieties, wherein at least one of the hydroxy moieties of the core structure is modified with an alkylene oxide moiety selected from ethylene oxide (EO), propylene oxide (PO), butylene oxide (BO) and mixtures thereof, and wherein at least one of the hydroxy moieties derived from the alkylene oxide moiety is further substituted with an amino functional group, wherein the weight ratio of non-soap surfactant to polymer is greater than 4.0:1, and wherein the weight ratio of linear alkyl benzene sulphonate surfactant to alkyl ethoxylated sulphate surfactant is less than 2.0:1 (abstract). Specifically, the polyol core may further be selected from meso Erythritol, D-threitol, L-threitol, 1,2,5,6-hexanetetrol, xylitol, ribitol, arabitol, pentitol, triglycerol and polyglycerol. In the examples of the present application, it appears that the applicant did not demonstrate a technical effect for choosing one of the polyol cores over the other. In the absence of unexpected result to the contrary for D-threitol, L-threitol, 1,2,5,6 hexanetetrol, ribitol and arabitol, the sugar polyol cores are considered obvious to the skilled artisan as obvious choices to substitute in cleaning applications where polyols are included and suggested as in the case of JP ‘795.
[W]hen a patent 'simply arranges old elements with each performing the same function it had been known to perform' and yields no more than one would expect from such an arrangement, the combination is obvious. [KSR Int'l Co. v.Teleflex Inc., 550 U.S. at 418 (quoting Sakraida v. Ag Pro, Inc., 425 U.S. 273,282 (1976).]
“The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages” Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382; In re Hoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969) Merck & Co. Inc. v. Biocraft Laboratories Inc., 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir.), cert. denied, 493 U.S. 975 (1989); In re Kulling, 897 F.2d 1147, 14 USPQ2d 1056 (Fed. Cir. 1990); and In re Geisler, 116 F.3d 1465, 43 USPQ2d 1362 (Fed. Cir. 1997).
Response to Arguments
Applicant's arguments filed 6-4-2026 have been fully considered but they are not persuasive.
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
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, the combination of reference each refer to cleansing or detergency. The motivation to cleanse or remove, regardless of substate, is an obvious variation to the skilled artisan.
Applicant agues that the prior art does not suggest the preferred 5-6 hydroxy polyol core as claimed and suggested in Table 7 but suggest sorbitol as a preferred polyol.
The examiner maintains that non-preferred embodiments are still indicative of obviousness. Absent a showing to the contrary, commensurate in scope with the claims enables the skilled artisan to choose polyols of similar scope with the expectations that the teachings of WO ‘570 suggest the polyols with greater than 4 hydroxyl groups are preferred and suggested. The teaching of WO ‘570 enable the skilled artisan to select said polyols as claimed and optimize their amounts, to satisfy the claims.
A reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill the art, including nonpreferred embodiments. Merck & Co. v. Biocraft Laboratories, 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir.), cert. denied, 493 U.S. 975 (1989).
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 NECHOLUS OGDEN JR whose telephone number is (571)272-1322. The examiner can normally be reached 8-4:30 EST M-F.
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 571-272-1498. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/NECHOLUS OGDEN JR/Primary Examiner, Art Unit 1761
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