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 .
Status of the Claims
Claims 1-11 and 13 are pending and under current examination.
Claim Objections
Claims 5 and 9 are objected to because of the following informalities:
Claim 5 recites the conjunction “and” twice in the same sentence. This is grammatically incorrect and should be amended so that “and” appears only once in the final clause of the sentence.
Claim 9 recites the limitation “further comprising one or more active ingredient”. This is a clear typographical error and should be amended to read “further comprising one or more active ingredients”.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 5-8 are 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.
Claims 5 and 6 recite the limitation “and any combination thereof”. This renders the claims indefinite because it is not clear if every component of the formulas recited by the claims is required by the claims.
Claim 7 recites the limitation “an amount of more than 0 to 5%”. This renders the claim indefinite because it is not clear if the amount should be greater than the upper limit of the range (i.e. greater than 5%) or if it should be greater than the lower limit of the range (i.e. greater than 0% but less than 5%).
Claim 8 recites the limitation “an amount of more than 0 to 10%”. This renders the claim indefinite because it is not clear if the amount should be greater than the upper limit of the range (i.e. greater than 10%) or if it should be greater than the lower limit of the range (i.e. greater than 0% but less than 10%).
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 2 is rejected under 35 U.S.C. 112(d) as being of improper dependent form for failing to contain a reference to a claim previously set forth. Claim 2 is dependent from claim 13 (i.e., claim 13 is not a claim previously set forth). Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1, 5, and 7-11 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Wenk (WO2018/145966, publication date: 8/16/2018, cited in the IDS filed 3/4/2024), as evidenced by PubChem (Lauryl Glucoside, available 10/26/2006).
Regarding claim 1, Wenk discloses a toothpaste formulation that contains rhamnolipid and lauryl glucoside (pg. 36, Example formulation 22).
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Regarding claim 5, Wenk discloses a toothpaste formulation that contains rhamnolipid and lauryl glucoside (pg. 36, Example formulation 22). PubChem teaches that lauryl glucoside has a chemical structure (pg. 3, 2D Structure):
.
Regarding claim 7, Wenk discloses a toothpaste formulation that contains rhamnolipid and lauryl glucoside. The lauryl glucoside is present at 0.5% by weight (pg. 36, Example formulation 22).
Regarding claim 8, Wenk discloses a toothpaste formulation that contains rhamnolipid and lauryl glucoside. The rhamnolipid is present at 1.5% by weight (pg. 36, Example formulation 22).
Regarding claim 9, Wenk discloses a toothpaste formulation that contains rhamnolipid and lauryl glucoside. The composition also contains tetrapotassium pyrophosphate (pg. 36, Example formulation 22). Wenk teaches that pyrophosphates function as abrasive polish material (pg. 6, lines 34-40), therefore the Examiner considers the tetrapotassium pyrophosphate to read on the “active ingredient” limitation of the instant claim. The instant specification defines a “suitable oral carrier” to include a dentifrice such as toothpaste (pg. 14 lines 10-12 of instant specification). The Examiner therefore considers the toothpaste disclosed by Wenk to read on the “suitable oral carrier” limitation of the instant claim.
Regarding claim 10, Wenk discloses a toothpaste formulation that contains rhamnolipid and lauryl glucoside (pg. 36, Example formulation 22).
Regarding claim 11, Wenk discloses a toothpaste formulation that contains rhamnolipid and lauryl glucoside (pg. 36, Example formulation 22). Wenk also teaches that the compositions reduce dental plaque (pg. 2 line 14) and that the preferred use uses the oral care compositions (pg. 11 line 25). Toothpastes are by definition compositions that are applied to the teeth. Under the principles of inherency, if a prior art device, in its normal and usual operation, would necessarily perform the method claimed, then the method claimed will be considered to be anticipated by the prior art device. Therefore, the fact that the method steps of the instant claim result in the removal or prevention of plaque is inherent to the disclosure of Wenk. See MPEP 2112.02 (I).
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.
Claims 1-5, 7-10, and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Wenk (WO2018/145966, publication date: 8/16/2018, cited in the IDS filed 3/4/2024).
Determination of the scope and the content of the prior art
(MPEP §2141.01)
Regarding claims 1, 5, and 7-10, Wenk discloses the relevant limitations as described in the anticipation rejection above.
Regarding claim 2, Wenk teaches an oral care composition that contains biosurfactant and fluoride (pg. 2 lines 3 and 4). The biosurfactant may be a sophorolipid (pg. 2 line 30). Sophorolipids can be used in acid or lactone form and the weight ratio of lactone to acid form is in the range from 20:80 to 80:20 (pg. 3 line 12).
Regarding claims 3 and 4, Wenk teaches that the oral care composition may include sodium lauryl sarcosinate (pg. 9 line 2).
Regarding claim 13, Wenk teaches an oral care composition that contains biosurfactant and fluoride (pg. 2 lines 3 and 4). The biosurfactant may be a sophorolipid (pg. 2 line 30).
Ascertainment of the Difference Between Scope of the Prior Art and the Claims
(MPEP §2141.02)
Regarding claims 1, 5, and 7-10, Wenk discloses the relevant limitations as described in the anticipation rejection above.
Regarding claims 2-4 and 13, Wenk does not teach a single embodiment or example meeting all limitation of the invention of claims 2-4 and 13.
Finding of a Prima Facia Obviousness Rationale and Motivation
(MPEP §2142-2143)
As noted in the anticipation in the rejection above Wenk anticipated claims 1, 5, and 7-10; so in anticipating claims 1, 5, and 7-10, said claims are also considered obvious under 35 U.S.C. 103 over Wenk for the reasons set forth below (“lack of novelty is the epitome of obviousness” May, 574 F.2d at 1089, 197 USPQ at 607 (citing in re Pearson, 494 F.2d 1399, 1402, 181 USPQ 641, 644 (CCPA 1974))).
Within the broader scope of Wenk all of the limitations of the invention of claims 2-4 and 13 are met. It would have been prima facie obvious for one having ordinary skill in the art to choose the limitations in the instant claims from those disclosed by Wenk and arrive at this conclusion because such was contemplated by Wenk.
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Wenk (WO2018/145966, publication date: 8/16/2018, cited in the IDS filed 3/4/2024), as applied to claims 1-5, 7-10 and 13 above, and further in view of Lazarowitz (U.S. Patent No. 6,248,792, issue date: 6/19/2021, cited in the IDS filed 3/29/2024).
Determination of the scope and the content of the prior art
(MPEP §2141.01)
Wenk anticipates the relevant limitations of claim 1 above. Wenk also teaches that the biosurfactant present in the composition may be a glucose lipid (pg. 2 line 30) and that the composition may also contain an anionic surfactant (pg. 8 line 38).
Ascertainment of the Difference Between Scope of the Prior Art and the Claims
(MPEP §2141.02)
Wenk does not teach the inclusion of a carboxylate alkyl polyglycoside surfactant. However, this deficiency is cured by Lazarowitz.
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Lazarowitz teaches the use of a carboxylated alkyl polyglycoside in combination with an anionic surfactant to increase foam (col. 1 line 58-59). The carboxylated alkyl polyglycosides have the general formula:
wherein R1 is a monovalent organic radical having about 6 to 30 carbon atoms, R2 is a divalent alkylene radical with about 2 to 4 carbon atoms, Z is a saccharide residue having from about 5 or 6 carbon atoms, b is a number from 0 to about 13, a is a number from 1 to about 6, and X is an alkali metal ion (col. 2 lines 1-7). The combination may be employed to improve foaming in personal care products (col. 4 line 36).
Finding of a Prima Facia Obviousness Rationale and Motivation
(MPEP §2142-2143)
The idea for combining compounds each of which is known to be useful for the same purpose, in order to form a composition which is to be used for the same purpose, flows logically from their having been used individually in the prior art. See In re Kerkhoven 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980). As shown by the recited teachings, the instant claims define nothing more than the concomitant use of conventional glucose lipid surfactants used in personal care products. It would follow that the recited claims define prima facie obvious subject matter. See MPEP 2144.06.
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Wenk (WO2018/145966, publication date: 8/16/2018, cited in the IDS filed 3/4/2024), as applied to claims 1-5, 7-10 and 13 above, and further in view of The McKenzie Center (available 4/30/2021).
Determination of the scope and the content of the prior art
(MPEP §2141.01)
Wenk anticipates the relevant limitations of claim 1 above. Wenk also teaches that the compositions reduce dental plaque (pg. 2 line 14) and that the preferred use uses the oral care compositions (pg. 11 line 25).
Ascertainment of the Difference Between Scope of the Prior Art and the Claims
(MPEP §2141.02)
Wenk does not teach a method for removing plaque present on a dental surface. However, this deficiency is cured by The McKenzie Center.
The McKenzie Center teaches that in order to brush teeth, toothpaste is first applied to a toothbrush and then the brush is applied to the teeth and tongue (pg. 3, How to Brush Your Teeth). The McKenzie Center also teaches that teeth brushing is the only way to remove the bacteria that make up plaque (pg. 4, Use Floss).
Finding of a Prima Facia Obviousness Rationale and Motivation
(MPEP §2142-2143)
It would have been prima facie obvious to one of ordinary skill in the art of filing to use the toothpaste disclosed by Wenk in a method for removing plaque present on a dental surface. One would have understood in view of The McKenzie Center that toothpaste may be applied to the teeth using a toothbrush in a process of brushing teeth that removes bacteria that makes up plaque. It would have been obvious to use the toothpaste disclosed by Wenk in a process of brushing teeth. One of ordinary skill in the art of filing would have been motivated to use the toothpaste disclosed by Wenk in a process of brushing teeth in order to reduce dental plaque. The artisan of ordinary skill would have had reasonable expectation of success because Wenk teaches that the compositions reduce dental plaque and because The McKenzie Center teaches that toothpaste may be applied with a toothbrush to the teeth in a process of brushing teeth.
Conclusion
No claims are allowed.
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ELIZABETH ANNE MEYERSExaminer, Art Unit 1617 /ALI SOROUSH/Supervisory Patent Examiner, Art Unit 1614