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 Claims
Claims 1-2, 5, and 8-18 are pending and currently under examination. Claims 3-4 and 6-7 are canceled. Claims 1 and 5 are amended. Claims 17-18 are newly added.
Claim 15 is withdrawn as being drawn to a non-elected invention or species, there being no allowable generic or linking claim.
Claims 1-2, 5, 8-14 and 16-18 are examined on their merits in light of the sodium methyl cocoyl taurate as the taurate surfactant and sodium cocoyl glutamate as the amino acid surfactant elected species.
Previous Rejections
Rejections and/or objections not reiterated from previous office actions are hereby withdrawn as are those rejections and/or objections expressly stated to be withdrawn. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application.
Rejections Maintained/New Rejections
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 of this title, 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.
The rejection of claims 1-2, 5, 8-14, 16 and newly applied to claims 17-18 under 35 U.S.C. 103 as being unpatentable over Allef et al. WO 2013/098066 (7/4/2013) is maintained.
Allef et al. (Allef) teaches compositions comprising water, a biotenside and at least one fatty acid that are used for cleansers. (See Abstract). The compositions can comprise rhamnolipids as one of their preferred biosurfactants as called for in instant claim 2 which is a glycolipid as called for in instant claim 1. (See Product Example 2b). The amount of rhamnolipids can be around 0.1 to 30% (See page 5, lines 1-11). 0.1 to 30% overlaps with the 2% to 10% called for in instant claim 1(a). Cleansers are called for in instant claim 13.
Allef teaches that the composition can comprise 1.0% Sodium Cocoyl Glutamate (See Product Example 2b). Sodium Cocoyl Glutamate is the elected species of amino acid surfactant called for in instant claim 6 which falls within the scope of formula A in claims 1 and 17-18. Allef teaches that the composition can comprise from 1.0% to 30 wt% surfactant. (See claim 1). 1.0% to 30 wt% surfactant overlaps with the from 2% to 10% range called for in instant claim 1.
Allef teaches that oleic acid is a fatty acid that has a positive effect on the cleansing composition and no significant effect on the foam or thickening properties. The fatty acid can be present in an amount of preferably less than 0.1% wt. (See page 7, lines 5-15). Oleic acid is a fatty acid and reads on a higher fatty acid that is called for in instant claim 14 and less than 0.1 wt% overlaps with the 1% by weight or less called for in instant claim 14. Less than 0.1 wt% oleic acid also overlaps with the less than 0.01% by weight or less called for in instant claim 16.
Allef also teaches citric acid for adjusting pH and citric acid is a monovalent non-polymeric acid as called for in instant claim 11. (See Product Example 2b). The pH can be 5.7 which falls within the from 4 to 8 pH range called for instant claim 12.
Allef teaches that the composition can also comprise sodium methyl cocoyl taurate in the amount of 0.7% (See Product Example 2b). Sodium methyl cocoyl taurate is the elected species of taurate surfactant that falls within formula I in claims 1 and 17-18. 0.7% falls within the from 0.6% to 3% called for in instant claim 1. 1.0% to 30 wt% surfactant overlaps with the from 0.75% to 3% range called for in instant claim 5.
0.7% sodium methyl cocoyl taurate to 1.0% Sodium Cocoyl Glutamate falls within the scope of the range of from 3:1 to 1:10 taurate surfactant to amino acid surfactant called for in instant claim 9. With the amount of rhamnolipids around 0.1% and the amounts of 0.7% sodium methyl cocoyl taurate and 1.0% Sodium Cocoyl Glutamate, the total amount of the glycolipids, taurate surfactant and amino acid surfactant falls within the range of from 1% to 25% called for in instant claim 10.
Product Example 2b contains rhamnolipids, citric acid, 0.7% sodium methyl cocoyl taurate and water. Water is called for in instant claim 1. The amount of water is approximately 80% in Product Example 2b. 80% falls within the from 50% to 99% called for in instant claim 8. Allef teaches that it is a mild and effective cleanser that is useful to clean skin and hair that also has good storage stability and good foaming behavior that has surfactants based on renewable raw materials. (See Allef, pg. 2, last par.).
It would have been prima facie obvious for one of ordinary skill in the art making the Allef cleansing composition to combine 0.1 to 30% rhamnolipids, 0.7% sodium methyl cocoyl taurate, oleic acid and 1.0% Sodium Cocoyl Glutamate and use citric acid to adjust the pH to around 5.7 in order to have a mild and effective cleanser that is useful to clean skin and hair that also has good storage stability and good foaming behavior that has surfactants based on renewable raw materials.
Response to Arguments
Applicants comments of December 29, 2025 have been considered carefully and are not found to be persuasive. Applicants note the amendments to the claims and where support for the amendments can be found.
Applicants assert that claim 1 is patentable over Allef because the claimed invention provides unexpected results which are seen in the Examples. The inventors surprisingly discovered that the content of the taurate surfactant is important for stability and at least 0.5 wt% provided superior stability with respect to temperature change. This is remarkable and unexpected from Allef, since Allef does not disclose or suggest that the combination of the specific amount of the surfactants (a) to (c) can achieve a stable composition with regard to temperature change. The amount of the (a) glycolipid in the Examples of Allef is different from the claimed amount of 2 to 10%.
Applicants note the amendments to the claims and assert that the claims are now commensurate in scope with the showing of unexpected results. Applicants note the recitation of particular glycolipids in the claims and assert that the at least one glycolipid can be generalized from rhamnolipid used in the Examples. Applicants note that the structure of the taurate surfactant is limited with the formula I in claim 1. Applicants assert that though only sodium methyl cocoyl taurate is used in the Examples, the taurate surfactant of formula I can be generalized from sodium methyl cocoyl taurate. Applicants additionally assert that the amino acid surfactant according to formula A is well within the scope generalized from sodium cocoyl glutamate.
Applicants assert that Allef does not teach stability because the word stability is not expressly mentioned in relation to the Allef composition, was not evaluated in the test results and that Allef is silent regarding the superior temperature stability demonstrated for the claimed invention. In view of the silence in Allef, Applicants assert that the superior temperature stability could not have been expected from its teachings.
Applicants suggest that Allef recommends avoiding sulphosuccinate systems for stability and that because sulphosuccinate surfactants are anionic surfactants like the taurate surfactants and amino acid surfactants. Applicants argue that Allef somehow suggests that a composition containing taurate surfactants and amino acid surfactants would have inferior stability.
Applicants’ arguments have been carefully considered and are not found to be sufficiently persuasive.
Allef does teach that its compositions have stability. Allef states that the drawbacks of prior art compositions included a lack of stability. (See page 2). Allef then states at page 3 that its composition addresses all of the drawbacks of the prior art compositions.
The object of the present invention was to provide compositions, in particular hair and skin cleansing compositions, particularly preferably formulations for cleansing and care of human or animal body parts, in particular skin and hair or feathers, which do not have one of the several disadvantages of the known formulations. The composition according to the invention should preferably be biodegradeable to the greatest possible extent, well tolerated, in particular cause only little or no reddening of the skin and/or eyes have a good skin are performance and/or be based as completely as possible on natural raw materials.
Since Allef teaches that its compositions do not have even one of the several disadvantages of the prior art compositions, and Allef teaches that a lack of stability was a problem with several prior art compositions, Allef does at least suggest that its composition is stable. Experimental data is not needed since the suggestion and teaching is made in the reference.
Furthermore, none of the claimed surfactants are a sulphosuccinate system. Respectfully, the suggestion that Allefs recommendation to avoid sulphosuccinate systems for stability somehow suggests that any anionic surfactant would provide inferior stability is an unconvincing overgeneralization. This is a reach too far and does nothing to undermine the teaching that Allef’s composition has good stability. Furthermore, Allefs’ recommendation to avoid sulphosuccinate systems also indicates that stability is preferred by Allef.
Applicants’ assertion of unexpected results is still not found to be persuasive for the reason that the results do not appear to be that unexpected because they appear to be at least suggested by the prior art. Allef teaches that it has good storage stability, which is a teaching of stability over the long term and potentially over temperature fluctuations. (See Allef, pg. 2, last par.). Since the results are suggested by the prior art, superior stability would be expected rather than unexpected.
Further, as stated in the rejection, it would have been prima facie obvious for one of ordinary skill in the art making the Allef cleansing composition to combine 0.1 to 30% rhamnolipids, 0.7% sodium methyl cocoyl taurate, oleic acid and 1.0% Sodium Cocoyl Glutamate and use citric acid to adjust the pH to around 5.7 in order to have a mild and effective cleanser that is useful to clean skin and good foaming behavior that has surfactants based on renewable raw materials. Thus, one of ordinary skill in the art would have been led to the claimed invention for the benefits of a mild cleanser, having good foaming behavior and which is based on renewable raw materials. The strongest rationale for combining references is a recognition, expressly or impliedly in the prior art or drawn from a convincing line of reasoning based on established scientific principles or legal precedent, that some advantage or expected beneficial result would have been produced by their combination. In re Sernaker, 702 F.2d 989, 994-95, 217 USPQ 1, 5-6 (Fed. Cir. 1983). Assuming arguendo, to the extent that Allef doesn’t test for stability or provide stability data, Applicant is reminded that the reason or motivation to modify the reference may often suggest what the inventor has done, but for a different purpose or to solve a different problem. It is not necessary that the prior art suggest the combination to achieve the same advantage or result discovered by applicant. See, e.g., In re Kahn, 441 F.3d 977, 987, 78 USPQ2d 1329, 1336 (Fed. Cir. 2006). The stability would have been intrinsic to the Allef cleansing composition comprising 0.1 to 30% rhamnolipids, 0.7% sodium methyl cocoyl taurate, oleic acid and 1.0% Sodium Cocoyl Glutamate and use citric acid to adjust the pH to around 5.7, supra, which is identical/substantially identical to the claimed cosmetic composition. Applicant is reminded that mere recognition of latent properties in the prior art does not render nonobvious an otherwise known invention. In re Wiseman, 596 F.2d 1019, 201 USPQ 658 (CCPA 1979). "The fact that appellant has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious." Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985). Applicant is reminded that the ultimate determination of patentability must be based on consideration of the entire record, by a preponderance of evidence, with due consideration to the persuasiveness of any arguments and any secondary evidence. In re Oetiker, 977 F.2d 1443, 24 USPQ2d 1443 (Fed. Cir. 1992). The submission of objective evidence of patentability does not mandate a conclusion of patentability in and of itself.
Additionally, Applicants’ assertion of unexpected results is also still not found to be persuasive for the reason that the results are still not commensurate in scope with the claims. Claim 1, while narrower in overall scope due to the narrowing amendments, is still significantly broader than the Examples tested. The Examples show only certain amino acid surfactants tested (sodium methyl cocoyl taurate, disodium cocoyl glutamate and sodium cocoyl glutamate).
Respectfully, sodium methyl cocoyl taurate is still the only taurate surfactant tested and the taurate surfactant of Formula I still covers many different types of taurate surfactants whose data cannot reasonably be generalized from the experimental results of a single tested taurate surfactant. Similarly, sodium cocoyl glutamate, sodium methyl cocoyl taurate and disodium cocoyl glutamate are the only three amino acid surfactants tested and the many amino acid surfactants still covered by formula A cannot reasonably be generalized from these three amino acid surfactants. In short, the scope of claim 1, while narrower, is still broader than the Example compositions tested in the instant specification.
All showings of secondary considerations of obviousness must be commensurate in scope with the claims. Unexpected results must be commensurate in scope with the claims which the evidence is offered to support. See In re Clemens, 622 F.2d 1029, 1036, 206 USPQ 289, 196 (CCPA 1980). See MPEP 716.02(d).
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 SARAH CHICKOS whose telephone number is (571)270-3884. The examiner can normally be reached on M-F 9-6.
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/SARAH CHICKOS/
Examiner, Art Unit 1619
/DAVID J BLANCHARD/Supervisory Patent Examiner, Art Unit 1619
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