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 .
Amendment Summary
Claims 46-61 and 64 are still pending.
Claims 62-63 and 65 are cancelled.
Claims 46, 52, and 58 are currently amended.
Applicant’s argument
Applicant argues that Hauptman was drawn to toothpaste formulations which require abrasive materials.
This is incorrect, as cited in the CTNF dated 1/5/26, Examiner cited paragraph 00163 of Hauptman which teaches that the invention includes mouth washes.
Applicant further argues that Hauptman’s teaching of 70 essential oils would preclude the selection of the claimed essential oils.
Applicant fails to discuss the teachings of Smigel which that Thyme, Lemongrass, Peppermint, and Tea Tree oils are effective antimicrobials in oral care compositions. (See column 2 lines 57-61).
There is clear direction in the art to work with the claimed essential oils which are used for the same purposes.
Alterations to the rejection below are due to applicant’s amendments to claims 46, 52, and 58 limiting the claims to a liquid formulation, free of abrasive formulation, and formulation if just water and essential oils.
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.
Claim(s) 46-61, and 64 are rejected under 35 U.S.C. 103 as being unpatentable over CN Dental in further view of Kolazi et al. (US 20130224125 A1).
Regarding claims 46-48, 50-53, 55-61, and 64 CN Dental teaches that you can make a liquid oral care rinse that is nearly 100% water by just adding a few drops of essential oil in water with nothing else. (See CN Dental – Tea Tree Oil). SN Dental teaches Tea Tree oil plus Lemongrass Oil are the only constituents other than water.
This is a two-component mouth wash that used only water and essential oil with no abrasives or any other constituent and whose end product is a near water pure liquid oral rinse.
This would be a product that is more than 99% water.
With respect to claims 46, 52, and 58 CN dental does not expressly teach:
Wherein thyme and peppermint is used with lemongrass.
The claimed percentages.
However, in the analogous art of water based oral rinses, Kolazi teached that common essential oils for water based mouthwashes include peppermint, spearmint, clove, tea tree, lemongrass, and clove oil. (See paragraph 0039). Kolazi further teaches the use of .01-1 wt % of the antimicrobial agents. (See claims 26-30).
It would have been obvious to select known antimicrobial agents at known percentages, known to be used in water based solutions, for the known use as a mouth wash.
Because of the notoriously well-known use of essential oils in mouthwashes for antibacterial/antimicrobial effects and the overlap between the claimed ranges and the ranges described in the prior art essential oil amounts would be an optimizable variable depending on the needs of the specific mouthwash formulation. (See paragraph 0042 of Kolazi).
With respect to claims 49 and 54, CN dental does not teach the addition of an emulsifier or stabilizing agent. However, Kolazi teaches that the antimicrobial agents can be an emulsion to make a water soluble matrix and have stabilizers. (See paragraphs 0037, 0043, 0035, 0064).
It would have been obvious to those having the ordinary skill in the art to add emulsifier and stabilizers to allow proper dispersion of the antimicrobial agents in the mouthwash and the creation of a stable formulation for commercial sale.
Claim(s) 46-48, 50-53, 55-61, and 64 are rejected under 35 U.S.C. 103 as being unpatentable over Doterra Simple Mouthwash in further view of Kolazi et al. (US 20130224125 A1).
Regarding claims 46-48, 50-53, 55-61, and 64 Doterra teaches using 10 drops of peppermint oil with 2 cups of water to make a natural simple mouthwash. (See Doterra full document).
This is a two component mouth wash that used only water and essential oil with no abrasives or any other constituent and whose end product is a near water pure liquid oral rinse.
This would be a product that is more than 99% water.
With respect to claims 46, 52, and 58 Doterra does not expressly teach:
Wherein thyme and lemongrass is used with peppermint oil.
The claimed percentages.
It would have been obvious to select known antimicrobial agents at known percentages, known to be used in water-based solutions, for the known use as a mouth wash.
Because of the notoriously well-known use of essential oils in mouthwashes for antibacterial/antimicrobial effects and the overlap between the claimed ranges and the ranges described in the prior art essential oil amounts would be an optimizable variable depending on the needs of the specific mouthwash formulation. (See paragraph 0042 of Kolazi).
With respect to claims 49 and 54, Doterra does not teach the addition of an emulsifier or stabilizing agent. However, Kolazi teaches that the antimicrobial agents can be an emulsion to make a water soluble matrix and have stabilizers. (See paragraphs 0037, 0043, 0035, 0064).
It would have been obvious to those having the ordinary skill in the art to add emulsifier and stabilizers to allow proper dispersion of the antimicrobial agents in the mouthwash and the creation of a stable formulation for commercial sale.
Conclusion
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to AMJAD A ABRAHAM whose telephone number is (571)270-7058. The examiner can normally be reached Mon-Friday 830 AM to 500 PM.
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, Amjad A Abraham can be reached at 571-270-7058. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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AMJAD A. ABRAHAM
SPE AU 1663
Art Unit 1663
/Amjad Abraham/SPE, Art Unit 1663
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