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 § 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) 46-50, 52, 54-61, and 64-65 are rejected under 35 U.S.C. 103 as being unpatentable over Hauptman (WO 2021/062554 A1) in view of Thomson (USP 5,145,664) alone or in further view of Smigel (USP 11,484,664).
Regarding claims 46-50, 52, 54-61, and 64-65, Hauptman teaches the following:
An oral rinse composition (mouthwash)
See paragraph 0163.
Wherein the oral rinse composition is water up to 99% by weight of the composition.
See paragraph 0164.
Wherein oral rinse composition has an antimicrobial agent which is an essential oil including: (1) Thyme Oil, (2) Lemongrass Oil, (3) Peppermint oil, and (4) Tea tree oil.
See paragraphs 0052-0054,
Wherein the antimicrobial amounts are optimizable between 1-10% by weight, with specificity at .2-2%.
See paragraphs 0055, 0162, and 0168.
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 Hauptman the essential oil amounts would be an optimizable variable depending on the needs of the specific mouthwash formulation.
The addition of an emulsifier.
See paragraphs 0153-0154.
With respect to claims 46-50, 52, 54-61, and 64-65 Hauptman does not explicitly disclose high (95%+) water-based compositions that are alcohol free.
However, Thomson teaches that water based (non-alcohol based) mouthwashes are desired as alcohol use has many known undesirable impacts. (See column 1 lines 7-33).
It would have been obvious to select water at high contents as Thomson has shown effective use as a mouthwash which lead to minimal deleterious impacts.
If it is determined that Hauptman does not provide a teaching of selecting thyme, lemongrass, tea tree and peppermint in combination. It would have been obvious to in view of Smigel’s teaching that Thyme, Lemongrass, Peppermint, and Tea Tree oils are effective antimicrobials in oral care compositions. (See column 2 lines 57-61).
As the prior art has already called out this combination with specificity it would have been an obvious combination for use in oral compositions.
Claim(s) 51, 53, and 62-63 are rejected under 35 U.S.C. 103 as being unpatentable over Hauptman (WO 2021/062554 A1) in view of Thomson (USP 5,145,664) alone or in further view of Smigel (USP 11,484,664) in further view of Hall (US 2015/0139920 A1).
Regarding claims 51,53, and 62-63 the combination of Haputman, Thomson, and Smigel does not teach wherein water and oils are the only constituents (no other chemicals).
However, Hall teaches that creating oral care compositions that are organic and natural are desired and that is why oils are desired in oral compositions. (See paragraph 0023).
It would have been obvious to use only the essential oils and water to create a product that would be marketed as natural and organic.
Conclusion
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.
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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