The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
This action is responsive to the amendment filed on August 6, 2026.
Claims 1 and 3-15 are pending. Claim 2 was previously cancelled. Claims 1 and 8 are currently amended.
The objection to claim 1 for minor informality is withdrawn in view of Applicant’s amendment.
The rejection of claims 1 and 3-15 under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph is withdrawn in view of Applicant’s amendment.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1, 3-6, 8-9 and 11-15 stand rejected under 35 U.S.C. 103 as being unpatentable over Salesses et al. (US Pat. No. 6,949,500, already of record), hereinafter “Salesses.”
Regarding claims 1, 3-4, 8-9, 11, 13 and 15, Salesses teaches an aqueous fabric softening composition having its rheological properties of flow elasticity and viscosity capable of being readily modified as needed independently of each other to satisfy a consumer preference, said composition comprising from about 0.01% to about 25%, by weight, of a cationic fabric softener, at least about 0.001%, by weight, of a mixture of cationic polymers capable of modifying rheological properties (i.e., rheology modifiers or thickener) comprising a cationic linear homopolymer and a cationic cross-linked polymer; from 0% to about 10% by weight of a sequestering compound like amino-carboxylic acid compounds; from 0% to about 10% by weight of an emulsifier, among others, and balance water (see abstract; see also col. 2, line 34 to col. 3, line 6; claim 1), wherein a particularly preferred cationic softener is a fatty ester quaternary ammonium compound (see col. 4, lines 30-62), wherein one selection of a suitable aminocarboxylic acid compound is ethylenediamine tetraacetic acid (EDTA) (see col. 7, lines 46-52), and wherein the emulsifier is a fatty alcohol ethoxylate, a nonionic surfactant, having an alkyl chain length from about 13 to 15 carbon atoms and wherein the number of ethylene groups is from about 15 to 20 per mole to disperse the softening ingredient in the composition and to insure the physical stability of the composition (see col. 6, lines 12-22). Salesses also teaches a method for softening fabrics comprising forming an aqueous solution containing an effective amount of the fabric softening composition and then contacting the fabrics to be softened with said aqueous solution (see claim 9) in the rinse cycle of an automatic laundry washing machine (see col. 1, lines 7-12; see also col. 4, lines 8-11; col. 5, lines 56-58). In Example 2, Salesses teaches a typical concentrated fabric softening composition intended for 4:1 dilution (i.e., mixing 1 part concentrate with 4 parts water) before use, wherein the concentrated fabric softening composition comprises 15 wt% Esterquat B (cationic softener which is a fatty ester quaternary ammonium compound, see col. 4, lines 12-62), 0.5 wt% cationic cross-linked polymer (Flosoft DP 200; i.e., cross-linked copolymer of acrylamide and methacrylate with 150 ppm of methylene bisacrylamide) and 0.18 wt% linear polymer (a total of 0.68 wt% rheology modifiers), QS perfume, QS dyes, QS preservatives and QS sequestering agent (see col. 9, lines 10-25, col. 10, lines 22-26). Salesses, however, fails to specifically disclose a concentrated fabric softener suitable for dilution before use, say in Example 2, wherein the sequestering agent is ethylenediaminetetraacetic acid (EDTA) or salt thereof, and further comprising from 2 to 30 wt% non-ionic surfactant as recited in claim 1; and the desalination coefficient of the cationic acrylamide copolymer of greater than 0.6 as recited in claim 15.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have incorporated EDTA as the specific sequestering agent in Example 2 because this is one of the suitable selection of sequestering agent as disclosed in col. 7, lines 46-52, and to have incorporated an emulsifier like a fatty alcohol ethoxylate, a nonionic surfactant, in its optimum proportions because this would disperse the softening ingredient in the composition and to insure the physical stability of the composition as taught by Salesses. With respect to the specific amount of the nonionic surfactant, considering that Salesses teaches from 0% to about 10% by weight of an emulsifier, i.e., nonionic surfactant, as discussed above, the subject matter as a whole would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have selected the overlapping portion of the range disclosed by the reference (e.g., 2-10 wt%) because overlapping ranges have been held to be a prima facie case of obviousness, see In re Malagari, 182 U.S.P.Q 549; In re Woodruff, 919 F.2d 1575, 1578, 16 USPQ2d 1934, 1936-37 (Fed. Cir. 1990); In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976). In addition, a prima facie case of obviousness exists because the claimed ranges "overlap or lie inside ranges disclosed by the prior art", see In re Wertheim, 541 F.2d 257,191 USPQ 90 (CCPA 1976; In re Woodruff; 919 F.2d 1575,16USPQ2d 1934 (Fed. Cir. 1990). See MPEP 2144.05(I).
Even though Salesses does not explicitly disclose the desalination coefficient of the cationic acrylamide copolymer, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to reasonably expect the Flosoft DP 200; i.e., cross-linked copolymer of acrylamide and methacrylate with 150 ppm of methylene bisacrylamide of Salesses to have a desalination coefficient within those recited because similar cationic acrylamide copolymer have been utilized, hence would have similar properties.
Regarding claim 5, Salesses further teaches that the product viscosity when used by the consumers should not exceed about 10000 centipoise for products intended for dilution (see col. 7, lines 9-14). Salesses, however, fails to specifically disclose a viscosity of 300 mPa.s to 500 mPa.s
Considering that Salesses teaches a viscosity not to exceed 10000 cps or 10000 mPa.s, the subject matter as a whole would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have selected the overlapping portion of the range disclosed by the reference (e.g., 300-500 cps) because overlapping ranges have been held to be a prima facie case of obviousness, see In re Malagari, 182 U.S.P.Q 549; In re Woodruff, 919 F.2d 1575, 1578, 16 USPQ2d 1934, 1936-37 (Fed. Cir. 1990); In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976). In addition, a prima facie case of obviousness exists because the claimed ranges "overlap or lie inside ranges disclosed by the prior art", see In re Wertheim, 541 F.2d 257,191 USPQ 90 (CCPA 1976; In re Woodruff; 919 F.2d 1575,16USPQ2d 1934 (Fed. Cir. 1990). See MPEP 2144.05(I).
Regarding claim 6, Salesses further teaches that the composition may contain from 0% to about 5% of a perfume, and the term “perfume” is used in its ordinary sense to refer to and include any non-water soluble fragrant substance or mixture of substances including natural, artificial and synthetically produced odoriferous substances such as alcohols, aldehydes, ethers, aromatic compounds and varying amounts of essential oils (see col. 6, lines 24-38), hence would read on free perfume.
Regarding claim 12, Salesses further teaches that the aqueous fabric softening composition further comprises adjuvants like opacifying agent (see col. 3, lines 3-5).
Regarding claim 14, as discussed above, in Example 2, Salesses teaches a typical concentrated fabric softening composition intended for 4:1 dilution (i.e., mixing 1 part concentrate with 4 parts water) before use (see col. 9, lines 10-25, col. 10, lines 22-26), hence, the water content after dilution is 4/5 x 100 = 80 wt% water.
Claims 7 and 10 stand rejected under 35 U.S.C. 103 as being unpatentable over Salesses as applied to claims 1, 3-6, 8-9 and 11-15 above, and further in view of Carus (US 2022/0025298).
Regarding claims 7 and 10, Salesses teaches the features as discussed above. As discussed above, Salesses teaches that the composition may contain from 0% to about 5% of a perfume (see col. 6, lines 24-38). Salesses, however, fails to disclose from 0.01 to 10 wt% perfume microcapsules as recited in claim 7, wherein the perfume microcapsules further comprises zeolites or cyclodextrins as recited in claim 10.
Carus, an analogous art, teaches that fabric conditioners comprises perfume materials, i.e., free perfume and/or perfume microcapsules to provide the consumer with perfume hits at different points during the wash cycle (see [0046]), and the fabric conditioner comprises 0.1 to 15 wt% perfume microcapsules, preferably 0.5 to 8 wt% perfume microcapsules (see [0054]), wherein the microcapsules may comprise perfume components and a carrier of the perfume ingredients, such as zeolites or cyclodextrins (see [0060]).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have incorporated perfume microcapsules in an amount from 0.5 to 8 wt%, wherein the microcapsules comprise perfume components and a carrier of the perfume ingredients, such as zeolites or cyclodextrins because the combination of free perfume and perfume microcapsules provides the consumer with perfume hits at different points during the wash cycle as taught by Carus.
Response to Arguments
Applicant's arguments filed on August 6, 2026 have been fully considered but they are not persuasive.
With respect to the rejection of claims 1, 3-6, 8-9 and 11-15 under 35 U.S.C. 103 as being unpatentable over Salesses, and the rejection of claims 7 and 10 under 35 U.S.C. 103 as being unpatentable over Salesses as applied to claims 1, 3-6, 8-9 and 11-15 above, and further in view of Carus Applicant argues that the Office Action asserts that it would have been obvious to modify Example 2, first by selecting EDTA from a list of optional sequestrants disclosed elsewhere in Salesses and second by additionally incorporating a nonionic surfactant, and this reasoning is based upon improper hindsight reconstruction rather than the teachings of Salesses. Applicant also argues that Example 2 itself is a complete concentrated formulation and identifies only unspecified “QS sequestering agent” among its optional minor ingredients, and nowhere identifies the sequestering agent used in Example 2 as EDTA.
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). It is noted, as discussed in the previous office action and which is repeated in paragraph 7 above, that Salesses teaches an aqueous fabric softening composition comprising from about 0.01% to about 25%, by weight, of a cationic fabric softener, at least about 0.001%, by weight, of a mixture of cationic polymers; from 0% to about 10% by weight of a sequestering compound like amino-carboxylic acid compounds; from 0% to about 10% by weight of an emulsifier, among others, and balance water (see col. 2, line 34 to col. 3, line 6; claim 1), wherein a particularly preferred cationic softener is a fatty ester quaternary ammonium compound (see col. 4, lines 30-62), wherein one selection of a suitable aminocarboxylic acid compound is ethylenediamine tetraacetic acid (EDTA) (see col. 7, lines 46-52), and wherein the emulsifier is a fatty alcohol ethoxylate, a nonionic surfactant (see col. 6, lines 12-22). Salesses also teaches that the fabric softener composition is in concentrated or diluted form (see col. 7, lines 9-10). Salesses also teaches a concentrated fabric softening composition in Example 2, intended for 4:1 dilution, which comprises Esterquat B (cationic softener which is a fatty ester quaternary ammonium compound, see col. 4, lines 12-62), and QS sequestering agent (see col. 9, lines 10-25), wherein the dilution is before use (see col. 10, lines 22-26). In view of the teachings of Salesses, one having ordinary skill in the art before the effective filing date of the claimed invention would have selected EDTA as the specific QS sequestering agent in Example 2 in “quantity sufficient” within the range disclosed in col. 2, lines 64-67, i.e., from 0% to about 10% by weight, which overlaps the range of the present claim 1. Even though Example 2 is a complete concentrated formulation by itself, which does not comprise an emulsifier, in view of the teachings of Salesses, one having ordinary skill in the art before the effective filing date of the claimed invention would have prepared a concentrated formulation similar to Example 2 but with the emulsifier because the emulsifier may also be present as disclosed by Salesses in col. 3, line 2, and to have selected a nonionic surfactant as the specific emulsifier because this is one of the preferred emulsifiers as disclosed in col. 6, lines 12-23. Please note that a reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art, including nonpreferred embodiments. Merck & Co. v. Biocraft Labs., Inc. 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir. 1989), cert. denied, 493 U.S. 975 (1989).
Applicant also argues that Salesses is directed to a solution for a fundamentally different problem, i.e., to provide aqueous fabric softening compositions having independently adjustable viscosity through the use of specific combination of cationic rheology-modifying polymers whereas independent claim 1 recites a concentrated composition containing both EDTA and nonionic surfactant in the recited amounts and employing that concentrate in a defined dilution method prior to laundering.
Rationale different from Applicant’s is permissible. 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) (motivation question arises in the context of the general problem confronting the inventor rather than the specific problem solved by the invention); Cross Med. Prods., Inc. v. Medtronic Sofamor Danek, Inc., 424 F.3d 1293, 1323, 76 USPQ2d 1662, 1685 (Fed. Cir. 2005) (“One of ordinary skill in the art need not see the identical problem addressed in a prior art reference to be motivated to apply its teachings.”); In re Linter, 458 F.2d 1013, 173 USPQ 560 (CCPA 1972); In re Dillon, 919 F.2d 688, 16 USPQ2d 1897 (Fed. Cir. 1990), cert. denied, 500 U.S. 904 (1991). See MPEP 2144IV.
Applicant also argues that although the Office Action references Example 2 as being “intended for 4:1 dilution,” this merely corresponds to a single embodiment (one part concentrate to four parts water) and is cited only to demonstrate that dilution may occur, and the Office Action does not identity any teaching or suggestion in Salesses that the disclosed concentrate, after being modified to contain both EDTA and the claimed amount of nonionic surfactant, should be employed throughout the presently claimed dilution range.
The Examiner respectfully disagrees with the above arguments because in col. 10, lines 8-10, Salesses teaches that “[T]wo different categories of products can be differentiated: ready to use products on the one hand and products to be diluted before use on the other hand.” Salesses further teaches in col. 10, lines 22 that “[F]or products intended to be diluted before use and for which the viscosity is above 500 cps higher flow elasticity index can be tolerated. Preferred range is between 300 and 1500 Pa. Products to be diluted are concentrated and commonly diluted to 4:1 or 8:1 ratio.” There is nowhere in Salesses wherein it is disclosed that the products were only intended for Example 2, rather for the teachings of the invention as a whole.
Applicant also argues the overlapping-range rationale with respect to the claimed nonionic surfactant concentration, the only overlap is a relatively narrow portion of the Applicant’s claimed range, and Salesses provides no teaching that the lower endpoint of 2 wt% is critical, preferred, or should be used together with EDTA.
As stated above, overlapping ranges have been held to be a prima facie case of obviousness, see In re Malagari, 182 U.S.P.Q 549; In re Woodruff, 919 F.2d 1575, 1578, 16 USPQ2d 1934, 1936-37 (Fed. Cir. 1990); In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976). See also MPEP 2144.05(I). In addition, Applicant has not shown criticality of the claimed range of the nonionic surfactant and the EDTA.
Conclusion
THIS ACTION IS MADE FINAL. 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 LORNA M DOUYON whose telephone number is (571)272-1313. The examiner can normally be reached Mondays-Fridays; 8:00 AM-4:30 PM.
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/LORNA M DOUYON/Primary Examiner, Art Unit 1761
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