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.
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 xx are rejected under 35 U.S.C. 103 as being unpatentable over Burgess et al (WO2019/025216), as cited in IDS filed, in view of Sauter (https://p2infohouse.org/ref/37/36491.pdf, Oct 23, 2003).
Regarding claims 15-17, 19 and 20, Burgess et al teaches a plurality of particles comprising a) 10 to 60 w.t.% polyethylene glycol, c) 0.1 to 50 w.t.% ethoxylated non-ionic surfactant and d) 0.1 to 30 w.t. % perfume materials (page 1, lines 25-35). Burgess teaches the preferred ethoxylated non-ionic surfactant is an ethoxylated alcohol having a general formula: RO(C2H40)xH (page 5, lines 21-25). Burgess teaches the composition is used for laundry detergent (page 1, line 5).
Burgess does not explicitly teach the ethoxylate units are derived from biomass.
Sauter teaches oleochemical surfactants are derived from plant oils such as palm, palm kernel or coconut oil, or from animal fats such as tallow, lard or fish oil (page 4). Petrochemical surfactants are derived from crude oil and are also known as ”synthetic” surfactants (page 4). Sauter teaches that regardless if the surfactant is oleochemical or petrochemical, the chemical structure and biodegradation will be the same (see page 6). Sauter further teaches that oleochemically and a petrochemically derived alcohol ethoxylate (AE7) have the same structure and biological activity (see pages 8-9). Sauter also teaches the surfactant are used in detergent formulations (see page 8).
Therefore, the invention as a whole would be obvious to the person of ordinary skill in the art.
It is noted that the limitations of the ethoxylate units “being derived from biomass” and “obtained directly from virgin fossil fuel sources” are product-by-process limitations. Applicant is reminded “[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.” In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966. See MPEP 2113. Sauter teaches the structure and functionality of the surfactants does not change. Regardless if it is obtained through “natural” or “synthetic” means. Therefore, it would have been obvious to the person of ordinary skill before the effective filing date of the claimed invention in the art to make to make the glycols and ethoxylates of Burgess through either natural biomass or synthetic means. Both would make a surfactant that is biodegradable are useful in detergent compositions.
From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole was prima facie obvious to one of ordinary skill in the before the effective filing date of the claimed invention, as evidenced by the references, especially in the absence of evidence to the contrary.
Regarding claim 18, Burgess teaches the wherein the polyethylene glycol has a weight average molecular weight from 4000 to 12000 (page 1, line 30).
Regarding claim 21, Burgess teaches the composition can also contain polysaccharides (page 10, lines 9-14).
Regarding claim 22, Burgess teaches the perfume is free perfume (page 6, line 22).
Regarding claim 23, Burgess teaches the perfume is encapsulated (page 7, line 30).
Regarding claim 24, Burgess teaches the composition also contains a colourant (page 9).
Regarding claims 25-27, Burgess teaches the particle has a mass preferably 0.2-.5 grams, a maximum linear dimension in any direction of 10 mm, and a hemispherical shape (page 11, lines 1-10).
Regarding claim 28, Sauter teaches oleochemical surfactants have a lower CO2 emission rate. It is noted that this claim is drawn to an intended use. In the instant case, the intended use does not create a structural difference, thus the intended use is not limiting (see MPEP 2112).
Regarding claim 29, Burgess teaches the particle is made by taking the PEG or ethoxylated alcohol, heating it, adding the fragrance, cooling and then shaping into a hemispherical shape (bridge pages 12-13).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANGELA C BROWN-PETTIGREW whose telephone number is (571)272-2817. The examiner can normally be reached Mon - Fri, 8-5.
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/ANGELA C BROWN-PETTIGREW/Supervisory Patent Examiner, Art Unit 1761