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, 3-6, 9-11 and 14 are pending and under current examination. Claims 2, 7-8, and 13 are cancelled.
Withdrawn Claim Objections and Rejections
All objections to claims 5 and 9 are withdrawn in view of the amendments to the claims filed 3/31/2026.
All rejections pertaining to claims 2, 7-8, and 13 are moot because the claims are cancelled in the amendments to the claims filed 3/31/2026.
All rejections under 35 U.S.C. 112(b) have been withdrawn in view of the amendments to the claims filed 3/31/2026.
All rejections under 35 U.S.C 102 have been withdrawn in view of the amendments to the claims filed 3/31/2026.
All rejections not reiterated have been withdrawn.
Claim Rejections - 35 USC § 103
Applicant’s amendments to the claims filed 3/31/2026 have necessitated the new grounds of rejection.
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, 3-4, 5, 9-10, and 14 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, of record), as evidenced by PubChem (Lauryl Glucoside, available 10/26/2006, of record).
Determination of the scope and the content of the prior art
(MPEP §2141.01)
Regarding claim 1, 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) and may be present from 0.005 wt.% to 20wt.% (pg. 5 line 35). 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). The composition may also contain at least one further surfactant such as sodium lauryl sarcosinate (pg. 9 line 2) in an amount of 0.01 wt.% to about 10 wt.% (pg. 9 line 10).
Regarding claims 3 and 4, Wenk teaches that the composition may also contain at least one further surfactant such as sodium lauryl sarcosinate (pg. 9 line 2).
PNG
media_image1.png
276
215
media_image1.png
Greyscale
Regarding claim 5, Wenk teaches an exemplary toothpaste comprising 0.5% by weight lauryl glucoside (pg. 36, Example Formulation 22). PubChem teaches that lauryl glucoside has a chemical structure (pg. 3, 2D Structure):
.
Regarding claim 9, Wenk teaches an oral care composition that contains biosurfactant and fluoride (pg. 2 lines 3 and 4). The oral care compositions can be present in various different forms, including a dentifrice, paste, gel, medicament, powder, mouthrinse, mouthwash, tooth hardener, oral film, slurry, injectable solution, chewing gum and lozenge (pg. 2 lines 24-27). The instant specification defines suitable oral carriers to include a mouthrinse, a dentifrice, chewing gum, or lozenge (instant specification pg. 14 lines 10-16), therefore the Examiner considers the oral care composition forms taught by Wenk to read on the limitations of the instant claim 9. The Examiner considers the term “fluoride” to read on the “active ingredients” limitation of the instant claim.
Regarding claim 10, Wenk teaches that the oral care compositions can be present in various different forms, including a dentifrice, paste, gel, medicament, powder, mouthrinse, mouthwash, tooth hardener, oral film, slurry, injectable solution, chewing gum and lozenge (pg. 2 lines 24-27).
Regarding claim 14, Wenk 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)
Regarding claims 1, 3-4, 5, 9-10, and 14, Wenk does not teach a single embodiment or example meeting all limitation of the invention of claims 1, 3-4, 5, 9-10, and 14.
Finding of a Prima Facie Obviousness Rationale and Motivation
(MPEP §2142-2143)
Regarding claims 1, 3-4, 5, 9-10, and 14, Within the broader scope of Wenk all of the limitations of the invention of claims 1, 3-4, 5, 9-10, and 14 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, 3-4, 5, 9-10, and 14, 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, of record).
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.
PNG
media_image2.png
48
371
media_image2.png
Greyscale
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, 3-4, 5, 9-10, and 14 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.
Response to Arguments
Applicant's arguments filed 3/31/2026 have been fully considered but they are not persuasive.
On page 6, Applicant argues that Wenk does not disclose or suggest the specific combination as claimed in the instant claim 1 and that there is no reason for the ordinary skilled artisan to make all of the adjustments required to arrive at the specific combination of the amended claim 1. This is not found persuasive. In response, the Examiner respectfully draws attention to MPEP 2123 (I), which states “a reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art, including nonpreferred embodiments”. As described in the obviousness rejection above, Wenk teaches all of the limitations of the instant claim 1. Therefore, there are no modifications required in order for the artisan of ordinary skill to arrive at the claimed invention. In regards to the relative amount of sophorolipid as recited in the amended claim 1, please refer to MPEP 2144.05 (I) which states: “in the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists”. As described in the obviousness rejection above, the claimed weight range of sophorolipids recited in the instant claim 1 lies inside the weight range of a biosurfactant, including sophorolipids, taught by Wenk. Therefore, a prima facie case of obviousness exits.
On page 6, Applicant argues that the instant invention provides unexpected improvements and synergies that can be attributed to the unique combination of sophorolipid and alkyl polyglycoside surfactant, carboxylate alkyl polyglycoside surfactant, or N-acyl amino acid surfactant. This is not found persuasive. In response, please refer to MPEP 716.02 (b) which details the burden on Applicant to establish that results in a side-by-side comparison to the closest prior art are unexpected and significant. Specifically, Applicant must establish that differences in results are in fact unexpected and unobvious and are of both practical and statistical significance. Additionally, evidence of unexpected properties must be commensurate in scope with the claims.
Differences in results are in fact unexpected and unobvious: The evidence of unexpected results amounts to a synergistic effect of sophorolipids and alkyl polyglycoside surfactants, carboxylate alkyl polyglycoside surfactants, N-acyl amino surfactants, and mixtures thereof demonstrating improved dental plaque removal efficacy. However, Hees (DE19600743A1, publication year: 1997) teaches that mixtures of glycolipids, such as sophorose lipids, with non-ionic surfactants such as alkyl oligoglycosides exhibit a synergistic effect in terms of rinsing performance, dispersing ability, and foaming power (see machine translation [0006-0007]). Therefore, the synergistic effect demonstrated by the evidence of unexpected results is not unexpected or unobvious.
Differences are of both practical and statistical significance: The differences are of practical and statistical significance.
Evidence of unexpected properties must be in commensurate scope with the claims: The instant claims embrace any alkyl polyglycoside surfactant, and carboxylate alkyl polyglycoside surfactant, any carboxylate alkyl polyglycoside surfactant, or any combination of any of the preceding surfactants in combination with a sophorolipid with a specific ratio of acidic to lactone form. In order to be in commensurate scope with the claims, the evidence of unexpected results must demonstrate the claimed synergistic effect for each and every species of surfactant embraced by the instant claims. The evidence of unexpected results demonstrates a synergistic effect between a single concentration of sophorolipid and a single concentration of a single species of alkyl polyglycoside surfactant, a single species of carboxylate alkyl polyglycoside surfactant, and a single species of N-acyl amino acid surfactant. Therefore, the evidence of unexpected results are not in commensurate scope with the claims.
Additionally, no side-by-side comparison to the closest prior art is provided to establish unexpectedly superior performance. There is no nexus between the purportedly unexpected property and the differences between the instant invention, as claimed, and the closest prior art. Thus, the Applicant’s argument is not persuasive and the rejection is maintained.
Conclusion
No claims are allowed.
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 ELIZABETH ANNE MEYERS whose telephone number is (571)272-2271. The examiner can normally be reached Monday-Friday 8am-5pm ET.
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, Ali Soroush can be reached at 571-272-9925. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
ELIZABETH ANNE MEYERSExaminer, Art Unit 1617
/ALI SOROUSH/Supervisory Patent Examiner, Art Unit 1614
Prosecution Insights