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 . Claims included in prosecution are claims 1-10.
Claim Objections
1. Claim 1 is objected to because of the following informalities: “nOSA starch” in line 3 should be recited as --- n-octenyl succinic anhydride modified starch ---. Appropriate correction is required.
2. Claim 4 is objected to because of the following informalities: “nOSA starch” in line 2 should be recited as --- n-octenyl succinic anhydride modified starch ---. Appropriate correction is required.
3. Applicant is advised that should claim 2 be found allowable, claim 10 will be objected to under 37 CFR 1.75 as being a substantial duplicate thereof. When two claims in an application are duplicates or else are so close in content that they both cover the same thing, despite a slight difference in wording, it is proper after allowing one claim to object to the other as being a substantial duplicate of the allowed claim. See MPEP § 608.01(m).
Claim Rejections - 35 USC § 102
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.
1. Claim(s) 1 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Belhaj et al. (WO 2020/190697, Sep. 24, 2020) (hereinafter Belhaj).
Belhaj discloses personal care compositions (Abstract). In one aspect, the formulation is in the form of an emulsion (¶ [0010]). The emulsions utilize a starch blend of HP starch and nOSA starch (¶ [0032]). The starch blend can additionally contain other dry ingredients in the final emulsions such as texturizers and fragrances. Preferred texturizers include sclaroglucan (¶ [0033]).
The prior art anticipates the indicated claim because it discloses a composition comprising sclaroglucan (i.e., a 1,3-β-D-glucan), a mixture of HP starch and nOSA starch, and fragrances (i.e., an active) as instantly claimed.
Claim Rejections - 35 USC § 103
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.
1. Claim(s) 1-6 and 8-10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Belhaj et al. (WO 2020/190697, Sep. 24, 2020) (hereinafter Belhaj) in view of Jager et al. (WO 2018/122165, Jul. 5, 2018) (hereinafter Jager).
Belhaj discloses personal care compositions (Abstract). The invention provides a topical formulation comprising a starch component wherein the starch component comprises a nOSA starch and a HP starch wherein the nOSA starch and HP starches are present in the formulation at a concentration of 2-10% (¶ [0003]). An HP starch refers to a hydroxypropylated starch (¶ [0009]). In one aspect, the formulation is in the form of an emulsion (¶ [0010]). The preferred oil phase comprises a silicone oil (i.e., an oil comprising at least one silicon atom) (¶ [0015]). The formulations may provide fragrances to the skin (satisfies active of claim 1) (¶ [0023]). The personal care composition comprise deodorants and antiperspirants, along with other formulations (¶ [0024]). The emulsion may contain at least one further ingredient such as a skin active or a silicone (satisfies claim 6) (¶ [0029]). The emulsions utilize a starch blend of HP starch in an amount 5-25% and nOSA starch in an amount of 75-95% (satisfies claim 4) (¶ [0032]). The starch blend can additionally contain other dry ingredients if desired in the final emulsions such as texturizers. Preferred texturizers include sclaroglucan and texturizers are preferably included in an amount of 0.5-5% (¶ [0033]).
Belhaj differs from the instant claims insofar as not disclosing wherein the composition comprises an antiperspirant active such as an aluminum salt in an amount such as 15-25%.
However, Jager discloses a cosmetic composition comprising an oily phase comprising
at least one silicone oil (Abstract). The inventors have found, surprisingly, that the use of a sclaroglucan gum can give a dispersion of oil in an aqueous gel stability and sensory properties never before obtained, namely dry-effect, fresh-effect and/or non-wetting-effect sensations, and also a non-tacky sensory property in the presence of an antiperspirant active agent and most particularly of an aluminum salt (Pg. 2). An "antiperspirant active agent" means a salt which, by itself, has the effect of reducing the flow of sweat, of reducing the sensation on the skin of moisture associated with human sweat or of masking human sweat (Pg. 22). Suitable antiperspirant active agents for use in the composition include aluminum salts (Pg. 22). The antiperspirant active agents may preferably be present in an amount of from 0.5% to 25% by weight (Pg. 23). Thus, the composition may advantageously be in the form of an antiperspirant or deodorant composition (Pg. 23).
As discussed above, Belhaj discloses wherein the compositions may be antiperspirant/ deodorant compositions. Accordingly, it would have been obvious for one of ordinary skill in the art, prior to the filing of the instant claims, to have formulated the composition of Belhaj to contain an aluminum salt in an amount of from 0.5% to 25% motivated by the desire to utilize a an antiperspirant active which would have a non-tacky sensory property when used along with sclaroglucan as taught by Jager.
Alternatively, generally, it is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use. See MPEP 2144.07. As discussed above, Belhaj discloses wherein the compositions may be antiperspirant/deodorant compositions and further discloses wherein the compositions may comprise skin actives. Accordingly, it would have been prima facie obvious for one of ordinary skill in the art to have formulated the composition of Belhaj to contain an aluminum salt in an amount of from 0.5% to 25%, since it is a known skin active and amount thereof for use in antiperspirant/deodorant compositions comprising silicone oils and sclaroglucan as taught by Jager.
Regarding the amounts of sclaroglucan recited in instant claim 3 (i.e., 0.25-5%), in the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I). As discussed above, Belhaj’s composition preferably comprises sclaroglucan in an amount of 0.5-5%. Accordingly, because the range recited in the instant claims overlaps with the range disclosed by Belhaj, the range disclosed by Belhaj meets the instantly recited limitations. Accordingly, a composition comprising 0.25-5% sclaroglucan would have been obvious.
Regarding the amounts of texturizer recited in instant claim 3 (i.e., 2-5%), in the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I). As discussed above, Belhaj’s composition preferably comprises nOSA starch and HP starches at a concentration of 2-10%. Accordingly, because the range recited in the instant claims lies within the range disclosed by Belhaj, the range disclosed by Belhaj meets the instantly recited limitations. Accordingly, a composition comprising 2-5% texturizer would have been obvious.
Regarding the amounts of HP/nOSA starch recited in instant claim 4 (i.e., 5-25% & 75-95%), in the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I). As discussed above, Belhaj’s starch blend comprises HP starch in an amount 5-25% and nOSA starch in an amount of 75-95%. Accordingly, because the range recited in the instant claims lies within the range disclosed by Belhaj, the range disclosed by Belhaj meets the instantly recited limitations. Accordingly, a blend comprising 5-25% HP starch and 75-95% nOSA starch would have been obvious.
Therefore, the combined teachings of Belhaj and Jager render obvious claims 1-6 and 8-10.
2. Claim(s) 7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Belhaj et al. (WO 2020/190697, Sep. 24, 2020) (hereinafter Belhaj) in view of Jager et al. (WO 2018/122165, Jul. 5, 2018) (hereinafter Jager) and further in view of Dihora et al. (US 2017/0189281, Jul. 6, 2017) (hereinafter Dihora).
The combined teachings of Belhaj and Jager are discussed above.
The combined teachings of Belhaj and Jager do not disclose wherein the silicone used is cyclomethicone.
However, Dihora discloses antiperspirant compositions comprising a starch (Abstract). The compositions may comprise a volatile silicone carrier (¶ [0046]). Such silicones are cyclic and can have from about 3 silicone atoms to about 7 atoms. Suitable volatile silicones for use include cyclomethicone (¶ [0047]).
Generally, it is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use. See MPEP 2144.07. As discussed above, Belhaj discloses wherein the composition may comprise silicon oils. Accordingly, it would have been prima facie obvious for one of ordinary skill in the art to have formulated the composition of Belhaj to comprise cyclomethicone, since it is a known silicone oil for use in antiperspirant compositions comprising starches as taught by Dihora.
Conclusion
Claims 1-10 are rejected
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Abdulrahman Abbas whose telephone number is (571)270-0878. The examiner can normally be reached M-F: 8:30 - 5:30.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sahana S. Kaup can be reached at 571-272-6897. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/A.A./Examiner, Art Unit 1612
/LEZAH ROBERTS/Primary Examiner, Art Unit 1612
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