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 the prosecution are claims 1-3 and 5-7.
Claim Objections
Claim 1 is objected to because of the following informalities: “12 to 22 less carbon atoms” should be recited as --- 12 to 22 carbon atoms ---. Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 5 and 6 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claims 5 and 6 recite a mass ratio of a content of carbon dioxide in the propellant (Y) to the content of component (a) or component (b). The claims are indefinite since it is not clear how one would arrive at the claimed ratios from the contents recited in claim 1. For example, claim 1 recites wherein the propellant comprises 51 mass % to 100 mass % of carbon dioxide. If this content is interpreted as the content of carbon dioxide in the propellant, one would not arrive at the mass ratios claimed in claims 5 and 6. For sake of compact prosecution, the Examiner has interpreted a content of carbon dioxide in the propellant (Y) to mean the amount of carbon dioxide present in the oral cavity aerosol agent and the content of the component (a) or component (b) in the stock solution (X) to be the values recited in claim 1.
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.
Claim(s) 1-3 and 5-7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Stoltz (US 6,251,369, Jun.26, 2001) (IDS reference) in view of Ogihara (US 2018/0015008, Jan. 18, 2018).
Stoltz discloses a foamable dental fluoride composition (claimed (X)). The composition includes an oil in water emulsion which is preferably dispensed in combination with an aerosol propellant (claimed (Y)) to provide a microcell-stable foam which exhibits enhanced foam retention properties (abstract). The foamable dental fluoride composition comprises from about 0.5 to about 5 percent by weight of an emulsion stabilizer, such as stearyl alcohol (i.e., monovalent alcohol having 12 to 22 carbon atoms) and from about 0.5 to about 3.0 percent by weight of an anionic or nonionic surfactant (claim 1). As shown in Example 2, the foamable dental fluoride composition comprises water and inactives and may be free of ethanol (i.e. meeting 8 mass % of less). Inactives include sweetening, preservation, coloring, and flavor ingredients (col. 8, lines 39-40). The ratio of formulation to propellant may be 91.4% formulation and 8.6% propellant (col. 9, lines 46-56).
Stoltx differs from the instant claims insofar as not disclosing wherein the propellant comprises 51 mass % to 100 mass % carbon dioxide and wherein the surfactant is sorbitan fatty acid esters.
However, Ogihara discloses a liquid composition for oral cavity contained in a foam-discharging container (abstract). As the foam-discharging container into which the liquid composition for oral cavity is filled, the container may be an aerosol type container (¶ [0066]). An aerosol type container is a container filled with a compressed gas as a propellant. The compressed gas used is preferably a gas containing 90 mass % or more of carbon dioxide gas (¶ [0070]). The liquid composition for oral cavity contained in a foam-discharging container may comprise sorbitan fatty acid ester as a nonionic surfactant (¶ [0048]).
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. Stoltx discloses a propellant. Accordingly, it would have been obvious to one of ordinary skill in the art to have incorporated a propellant containing 90 mass % or more of carbon dioxide gas since this is a known and effective propellant for foamable oral compositions as taught by Ogihara.
Additionally, Stoltx discloses wherein the foamable dental fluoride composition comprises a nonionic surfactant. Accordingly, it would have been obvious to one of ordinary skill in the art to have incorporated a sorbitan fatty acid ester into the foamable dental fluoride composition of Stoltx since it is a known and effective nonionic surfactant as taught by Ogihara.
In regards to instant claim 1 reciting wherein a mass ratio of a content of component (b) to a content of the component (a) is 0.08 to 10, this mass ratio would have been obvious from Stoltx disclosing from about 0.5 to about 3.0 percent by weight of an anionic or nonionic surfactant (component (b)) and from about 0.5 to about 5 percent by weight of an emulsion stabilizer, such as stearyl alcohol (component (a)).
In regards to instant claims 3 and 7 reciting wherein a content of a binder in the stock solution is 1 mass % or less, Stoltx does not disclose in Example 2 wherein the composition comprises a binder and does not disclose wherein a binder is an inactive. As such, a composition free of a binder (i.e., meeting 1 mass % or less) would have been obvious.
In regards to instant claim 5 reciting wherein a mass ratio of the content of carbon dioxide in the propellant (Y) to the content of the component (a) in the stock solution is 0.02 to 5, Stoltx discloses wherein a ratio of formulation to propellant may be 91.4% formulation and 8.6% propellant and wherein the formulation comprises from about 0.5 to about 5 percent by weight of an emulsion stabilizer, such as stearyl alcohol (component (a)). Ogihara discloses wherein the propellant comprises 90 mass % or more of carbon dioxide gas. The claimed mass ratio would have been obvious from these ranges. For example, when the formulation comprises 5 percent stearyl alcohol (component (a)) and the propellant comprises 90% carbon dioxide, the mass ratio of carbon dioxide to component (a) is 1.55.
In regards to instant claim 6 reciting wherein a mass ratio of the content of carbon dioxide in the propellant (Y) to the content of the component (b) in the stock solution is 0.02 to 25, Stoltx discloses wherein a ratio of formulation to propellant may be 91.4% formulation and 8.6% propellant and wherein the formulation comprises from about 0.5 to about 3.0 percent by weight of an anionic or nonionic surfactant (component (b)). Ogihara discloses wherein the propellant comprises 90 mass % or more of carbon dioxide gas. The claimed mass ratio would have been obvious from these ranges. For example, when the formulation comprises 3 percent nonionic surfactant (component (b)) and the propellant comprises 90% carbon dioxide, the mass ratio of carbon dioxide to component (b) is 2.58.
Conclusion
Claims 1-3 and 5-7 are rejected.
No claims are allowed.
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/TRACY LIU/ Primary Examiner, Art Unit 1614
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