DETAILED ACTION
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
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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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 and 3-14 are rejected under 35 U.S.C. 103 as being unpatentable over Fiche et al. (WO 2022/033857 A1).
Regarding claims 1, 4-5 and 11, Fiche teaches a concentrated laundry composition premix, and method of forming it, dilutable in water (abstract, pg.2: 25-30) with the ratios (instant claim 11) of 1/1 to 8/1; [pg. 23: 11-16], viscosity of 150-600 mPa.s. (for dilution of 5 parts water/1 part premix at 25o C and 106 s-1); [pg.6: 18-21, claim 1], water in amounts of at least 20 %w; [pg.2: 35], C14-C20 ethoxylated polyol ester in the amounts of 0.01-8 %w.; [pg.4: 1-21], surfactants in the amounts of 10-60 %w; [pg.2: 31-35, pg.6: 26-30], with anionic surfactants in amounts of 20-50 %w., wherein the ratio of nonionic to anionic surfactant is in the range of 1.5/1 to 20/1; [pg.7: 25-30]. The premix composition comprises opacifier; [pg.19: 26].
Fiche does not teach the amount of surfactants excluding the nonionic surfactant of ethoxylated polyol ester, but from the total amount of surfactants and the ethoxylated polyol ester it is obvious that there is a major overlap between the instantly claimed amounts and that of Fiche which renders the claim obvious. Furthermore, this is similarly evidenced from the major overlap of nonionic surfactant amount to anionic surfactant amount ratios. It would have been obvious to one of ordinary skill in the art at the time, before the effective filing date of the invention, to have selected the overlapping portion of the ranges disclosed by the reference because overlapping ranges have been held to be a prima facie case of obvious. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). See [MPEP § 2144.05].
Regarding claims 3-6 , Fiche teaches anionic surfactant of linear alkylbenzene sulfonate (LAS); [pg.7: 10-15], ethoxylated polyol ester (instant 4-6) which is tri-stearate of stearic acid and polyethyleneglycol ether of sorbitol; [pg.4: 16-20].
Regarding claims 7-10 , Fiche teaches (instant 7, 10) alkylether sulfate in amounts of 0-10 %w.; [pg.8: 1-2], hydrotrope; [pg.4: 25-32], and the instantly claimed viscosity of 150-800 mPa.s. at 21o C and 106 s-1; [pg.2: 25-30].
Regarding claims 12-14 , Fiche teaches a container for instantly claimed appropriate dilution of premix; [pg.23: 11-15], in combination with a keeper container; [pg.24: 16-20].
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Fiche et al. (WO 2022/033857 A1), as applied to claim 1, and further in view of Widder et al. (US 4,009,139).
Regarding claim 2, Fiche does not teach the instantly claimed opacifier of styrene/acrylate copolymer. However, the analogous art of Widder teaches opacifying agents for liquid detergent such as styrene/acrylate copolymer; [2: 1-5]. At the time before the effective filing date of invention to select the opacifier of Widder for Fiche’s composition as an ingredient used similarly in liquid detergents.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1 and 4-14 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 4-14 of copending Application No. 18/837,856 in view of Widder et al. (US 4,009,139).
Claim 1 corresponds to claims 1 and 7 of copending application “856” although not being identical but the corresponding limitations are similar in scope with almost the same ranges. The claim of reference “856” does not teach the opacifier. However, the
the analogous art of Widder teaches opacifying agents for liquid detergent such as styrene/acrylate copolymer; [2: 1-5]. At the time before the effective filing date of invention to select the opacifier of Widder for Fiche’s composition as an ingredient used similarly in liquid detergents.
Claims 4-5 correspond to claims 2-3 of copending application “856” which are identical.
Claims 6-9 correspond to claims 4, 6, 8 and 9, correspondingly, of application “856” which are identical.
Claims 10-14 correspond to claims 10-14 of copending application “856” which are identical.
This is a provisional nonstatutory double patenting rejection.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Dr. M. Reza Asdjodi whose telephone number is (571)270-3295. The examiner can normally be reached on 9 AM- 6 PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Dr. Mark Eashoo can be reached on 571-272-1197. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/M.R.A./
Examiner, Art Unit 1767
2026/07/25
/MARK EASHOO/Supervisory Patent Examiner, Art Unit 1767
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