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 .
Priority
The instant application was filed 12 July 2024 and the Applicant claims priority to provisional application 63/514,369 filed 19 July 2023. The effective filing date of the instant application is 19 July 2023.
Election/Restrictions
Applicant’s election without traverse of Group I (claims 1-10) in the reply filed on 07 July 2026 is acknowledged.
Claims 11-15 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 07 July 2026.
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.
Claim(s) 1-10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Cardoso et al. (US 20200330949 A1).
Regarding claim 1, Cardoso teaches a population of inorganic (para. 39) capsules comprising a core with a benefit agent and a shell surrounding the core (abs), a condensed layer with a condensation product of precursors (para. 11). The shell may comprise metal oxides (para. 9) and silica precursors (para. 42).
Regarding claim 2, Cardoso teaches tetrakis(trimethoxy)titanium (M and X) (pg. 26, Table 1), wherein the precursor can be combined with fragrance formula A, such as hexyl acetate (L) (ester group) (para. 318).
Regarding claims 3-5, the tetrakis(trimethoxy)titanium (M and X) (pg. 26, Table 1) precursor can be combined with fragrance formula A, such as hexyl acetate (L) (ester group) (para. 318).
Regarding claim 6, Cardoso teaches tetraethyl orthosilicate (TEOS) (Table 26, Table 1), where Y of instant claim 6 is -OR2 and R2 is a C1 to C20 alkyl.
Regarding claim 7, Cardoso teaches tetrakis(trimethoxy)titanium (M and X) (pg. 26, Table 1).
Regarding claim 8, Cardoso teaches a population of inorganic (para. 39) capsules comprising a core with a benefit agent and a shell surrounding the core (abs), a condensed layer with a condensation product of precursors (para. 11). The shell may comprise metal oxides (para. 9) and silica precursors (para. 42). The ratio of catalyst (tetrakis(trimethylsiloxy)titanium) to TAOS (TEOS) may be 0.3% (3000 ppm).
Regarding claim 9, the ratio of catalyst (tetrakis(trimethylsiloxy)titanium) to TAOS (TEOS) may be 0.3% (3000 ppm).
Regarding claim 10, the composition may comprise metal oxides of titanium (claim 6).
Cardoso does not teach an exact combination of ingredients in at least claim 1.
In regards to selecting the combination of silica precursor, crosslinking metal oxide precursor, benefit agent in at least claim 1, “[w]hen a patent simply arranges old elements with each performing the same function it had been known to perform and yields no more than one would expect from such an arrangement, the combination is obvious.” KSR v. Teleflex, 127 S.Ct. 1727, 1740 (2007) (quoting Sakraida v. A.G.Pro, 425 U.S. 273, 282 (1976)). “When the question is whether a patent claiming the combination of elements of prior art is obvious,” the relevant question is “whether the improvement is more than the predictable use of prior art elements according to their established functions.” (Id.). Addressing the issue of obviousness, the Supreme Court noted that the analysis under 35 USC 103 “need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.” KSR at 1741. The Court emphasized that “[a] person of ordinary skill is… a person of ordinary creativity, not an automaton.” Id. at 1742.
Consistent with this reasoning, it would have been obvious to have selected various combinations of various disclosed ingredients from within a prior art disclosure, to arrive at compositions “yielding no more than one would expect from such an arrangement.”
Cardoso teaches a population of inorganic (para. 39) capsules comprising a core with a benefit agent and a shell surrounding the core (abs), a condensed layer with a condensation product of precursors (para. 11), wherein the shell may comprise metal oxides (para. 9) and silica precursors (para. 42), whereas the claimed invention is directed towards a population of capsules comprising a core with a benefit agent, a shell surrounding the core, wherein the shell is a mixture of precursors of silica and crosslinking metal oxides. Since Cardoso teaches the individual components of the claimed composition, it is obvious for one of ordinary skill in the art to select the different combinations of ingredients to arrive at the claimed invention with a reasonable expectation of success.
Conclusion
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/D.A.K./Examiner, Art Unit 1613
/ANDREW S ROSENTHAL/Primary Examiner, Art Unit 1613
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