DETAILED ACTION
Status of Claims
Claims 1-13 are currently pending and are the subject of this Office Action. This is the first Office Action on the merits of the claims. 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 Office Action: Non-Final
Claim Objections
The following claims are objected to because of the following informalities:
A. Claims 3 and 5-6 are objected to for the parenthetical use of “cavity(ies),” and “is/are” instead of consistent singular or plural terminology since claim 1 recites “at least one cavity.”
B. Claim 4 is objected to because the claim should read:
4. ([…]) The solid composition according to claim 1, said composition comprising one or a plurality of cavities, wherein the plurality of cavities are either identical or different.
C. Claim 7 is objected to because the claim should read:
7. ([…]) The solid composition according to claim 1, wherein said composition comprises at least one lipophilic gelling agent, at least one oil, or combintions
Appropriate correction is required.
Claim Rejections – 35 U.S.C. § 112 - Indefiniteness
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.
Claims 3, 5-6 and 11-12 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 pre-AIA , that applicant regards as the invention.
A. Claim 3 is drawn to:
3. ([…]) The solid composition according to claim 1, wherein the cavity(ies) is/are through.
wherein, the recitation, “the cavity(ies) is/are through,” is indefinite because it is unclear as to whether or not the “cavity(ies) is/are through” the entirety of “solid composition,” a portion thereof, or some other structural feature. In this regard, it is noted that the Board has held: “if a claim is amenable to two or more plausible claim constructions, the USPTO is justified in requiring the applicant to more precisely define the metes and bounds of the claimed invention by holding the claim unpatentable under 35 U.S.C. §112, second paragraph, as indefinite.” Ex parte Miyazaki, 89 USPQ2d 1207, 1211 (BPAI 2008) (expanded panel).
B. Claim 5 is drawn to:
5. ([…]) The solid composition according to claim 1, wherein the cavity(ies) is/are round, oblong, ovoid, triangular, polygonal, honeycomb, or in the shape of a paving (or cutout).
wherein, the recitation, “paving (or cutout),” is indefinite because it is unclear as to whether or not the parenthetical recitation of “cutout” is further limiting, or an exemplary embodiment that can be separately excluded.
C. Claim 6 is drawn to:
6. ([…]) The solid composition according to claim 1, wherein the ratio between the volume of the cavity(ies) and the total volume of the composition is comprised between 0.2 and 0.9.
wherein the recitation, “the ratio between the volume of the cavity(ies) and the total volume of the composition is comprised between 0.2 and 0.9,” is indefinite because it is unclear as to whether the required ratio is obtained from “the volume of the cavity(ies)” to “the total volume of the composition,” or vice versa. To the extent applicant intends the former, examiner suggests amending claim 6 to recite:
6. ([…]) The solid composition according to claim 1, wherein a[[the]] ratio between the volume of the cavity(ies) to[[and]] the total volume of the composition is comprised between 0.2 and 0.9.
D. Claim 11 is drawn to:
11. ([…]) A method for manufacturing the solid composition according to claim 1, comprising at least the steps consisting of:
(i) having available a fatty phase, a phase derived from a saponification reaction and/or a phase comprising at least one synthetic detergent (or surfactant) (i.e. SYNDET phase), in liquid or semi-liquid form;
(ii) casting the phase of step (i) into a mold and drying until reaching a solid phase,
(iii) cutting the solid phase to the desired shape, and
(iv) forming cavities whereby the solid composition is obtained.
wherein the use of recitation, “comprising at least the steps consisting of,” is indefinite because it is unclear as to whether or not the claim is open or closed with respect to further method steps because both open (“comprising”) and closed (“consisting or”) transitional phrasing is used. See MPEP § 2111.03 regarding the use of open and closed transitional language.
E. Claim 11 is also indefinite with respect to the recitation, “at least one synthetic detergent (or surfactant) (i.e. SYNDET phase),” because it is unclear as to whether or not the parenthetical recitations of “surfactant” and “SYNDET phase” are further limiting, or an exemplary embodiment that can be separately excluded.
F. Claim 11 is also indefinite with respect to the use of “and/or” and “or” in step (i) because it is unclear as to whether “in liquid or semi-liquid form” pertains to:
the previously recite “phase comprising at least one synthetic detergent” embodiment, alone, or
any of the previously recited “fatty phase,” “phase derived from a saponification reaction” or “phase comprising at least one synthetic detergent” embodiments.
G. Claim 11 is also indefinite in the recitation, “the desired shape.” There is insufficient antecedent basis for this limitation in the claim as no “desired shape” is previously recited, or recited in claim 1 from which claim 11 depends.
H. Claim 12 is drawn to:
12. ([…]) The method for manufacturing the solid composition according to claim 1, comprising at least the steps consisting of:
(a) having available a fatty phase, a phase derived from a saponification reaction and/or a phase comprising at least one synthetic detergent (or surfactant) (i.e. SYNDET phase), in liquid or semi-liquid form;
(b) passing the phase of step (a) through an extrusion device equipped with a die (or extrusion grating) with a shape suitable for forming a solid bar, and
(c) cutting the solid bar obtained in step (b), whereby a the solid composition is obtained.
wherein the use of recitation, “comprising at least the steps consisting of,” is indefinite because it is unclear as to whether or not the claim is open or closed with respect to more method steps because both open (“comprising”) and closed (“consisting or”) transitional phrasing is used. See MPEP § 2111.03 regarding the use of open and closed transitional language.
I. Claim 12 is also indefinite with respect to the recitation, “at least one synthetic detergent (or surfactant) (i.e. SYNDET phase),” because it is unclear as to whether or not the parenthetical recitations of “surfactant” and “SYNDET phase” are further limiting, or an exemplary embodiment that can be separately excluded.
J. Claim 12 is also indefinite with respect to the use of “and/or” and “or” in step (a) because it is unclear as to whether “in liquid or semi-liquid form” pertains to:
the previously recited “phase comprising at least one synthetic detergent” embodiment, alone, or
any of the previously recited “fatty phase,” “phase derived from a saponification reaction” or “phase comprising at least one synthetic detergent” embodiments.
Further clarification is required.
Claim Rejections – 35 U.S.C. § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. § 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1-7 and 9-13 are rejected under 35 U.S.C. § 102(a)(1) as being anticipated by GLENN I (US 8,349,341 B2, Issued Jan. 8, 2013; on 10/25/2024 IDS; hereinafter, “Glenn I”).
Glenn I is directed to:
POROUS, DISSOLVABLE SOLID SUBSTRATE AND A SURFACE RESIDENT COATING OF CATIONIC SURFACTANT CONDITIONER
ABSTRACT
The present invention relates to hair care compositions, especially those hair care compositions in the form of a hair care article that is a porous dissolvable solid substrate. The porous dissolvable solid substrate has a surface resident coating comprising the cationic surfactant conditioner active that can provide a conditioning benefit.
Glenn I, title & abstract. In this regard, Glenn I discloses a claim embodiment drawn to a hair care article comprising “a.) a porous dissolvable solid substrate” and “b.) a surface resident coating”:
1. A hair care article comprising:
a.) a porous dissolvable solid substrate comprising:
i. from about 10% to about 75% by weight of an anionic surfactant;
ii. from about 10% to about 50% by weight of a water-soluble polymer;
iii. from about 1% to about 30% by weight of a plasticizer; and
b.) a surface resident coating comprising from about 10% to about 100% by weight of one or more cationic surfactant conditioner actives;
wherein the weight ratio of the porous dissolvable solid substrate to the surface resident coating is from about 110:1 to about 0.5:1, and
wherein the porous dissolvable solid substrate comprises a percent open cell content from about 80% to about 100.0%.
Glenn I, claim 1.
Regarding independent claim 1 and the requirements:
1. ([…]) A solid cosmetic composition intended for the hygiene, cleaning and/or the beautifying of a keratin material comprising at least one cavity such that the said composition comprises a porosity greater than or equal to 20% by volume relative to the total volume of said solid composition.
Glenn I discloses a claim embodiment drawn to a hair care article comprising “a.) a porous dissolvable solid substrate” and “b.) a surface resident coating” (Glenn I, claim 1), WHEREBY it is noted:
a “porous dissolvable solid substrate” (Glenn I, claim 1) reads on a “solid cosmetic composition” of claim 1,
“open cell content” (Glenn I, claim 1) reads on “at least one cavity” of claim 1,
wherein a “a percent open cell content from about 80% to about 100.0%.” reads on the broadest reasonably interpretation for “a porosity greater than or equal to 20% by volume relative to the total volume of said solid composition” of claim 1, as well as the requirements of claims 2 and 6 for:
2. ([…]) The solid composition according to claim 1, wherein the porosity is greater than or equal to 30%, by volume relative to the total volume of said solid composition.
[…]
6. ([…]) The solid composition according to claim 1, wherein the ratio between the volume of the cavity(ies) and the total volume of the composition is comprised between 0.2 and 0.9.
(see MPEP § 2131.03 regarding prior art anticipating claimed numerical ranges).
It is further noted that the requirement of claim 1, “intended for the hygiene, cleaning and/or the beautifying of a keratin material,” is a recitation of intended use. In this regard, it is noted that recitations of intended use must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it reads on the claim. See MPEP § 2103 (I)(C)). Since Glenn I teaches a “hair care article” (Glenn I, claim 1) reading on the structure of the instant claims, as discussed above, then it reasonably follows that Glenn I’s “hair care article” would be capable of performing the intended use.
Thus, Glenn I anticipates claims 1-2 and 6.
Regarding claims 3-5 and the requirements:
3. ([…]) The solid composition according to claim 1, wherein the cavity(ies) is/are through.
4. ([…]) The solid composition according to claim 1, said composition comprising one or a plurality of cavities, either identical or different.
5. ([…]) The solid composition according to claim 1, wherein the cavity(ies) is/are round, oblong, ovoid, triangular, polygonal, honeycomb, or in the shape of a paving (or cutout).
Glenn I teaches a “Solid Shampoo Substrate” that is “predominantly open-celled and exhibits fast dissolution performance”:
Example 4
Structural Characterization of Porous Dissolvable
Solid Shampoo Substrate
The below tables summarize the structural measurements and qualitative physical integrity ratings taken on the Porous Dissolvable Solid Shampoo Substrate of Example 3. SEM and micro-CT images were also taken for the lower density Articles and are referenced in the attached FIGS. 5-6. The data was collected by the methods as described herein.
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The above data and referenced images demonstrate the Porous Dissolvable Solid Shampoo Substrate of Example 3 to be predominantly open-celled and exhibits fast dissolution performance (6 to 8 strokes) within the simulated hand dissolution protocol as described herein.
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(Glenn I, col. 26, ln. 56 to col. 27, ln. 15, Ex. 4, Table 1 & Fig.’s 5-6), whereby it is noted:
“predominantly open-celled” for “dissolution performance” (Glenn I, col. 27, ln. 11-15, Ex. 4), thereby reading on the requirements of claim 3 for “wherein the cavity(ies) is/are through”;
the “Solid Shampoo Substrate” (Glenn I, col. 26, ln. 56 to col. 27, ln. 15, Ex. 4) shows an irregular network of pores (Glenn I, Fig.’s 5-6), thereby reading on a “a plurality of cavities” that appear “different” of claim 4; and
the “Solid Shampoo Substrate” is “open-celled” (Glenn I, col. 26, ln. 56 to col. 27, ln. 15, Ex. 4) and shows round or ovular pores (Glenn I, Fig.’s 5-6), thereby reading on at least “round” and “ovoid” cavities of claim 5.
Thus, Glenn I anticipates claims 3-5.
Regarding claim 7 and the requirements:
7. ([…]) The solid composition according to claim 1, wherein said composition comprises at least one lipophilic gelling agent, at least one oil, and/or at least one detergent, and mixtures thereof.
Glenn I teaches a hair care article comprising “a surface resident coating comprising from about 10% to about 100% by weight of one or more cationic surfactant conditioner actives” (Glenn I, claim 1) reads on “at least one detergent” of claim 7.
Thus, Glenn I anticipates claim 7.
Regarding claim 9 and the requirements:
9. ([…]) The solid composition according to claim 1, wherein said composition is a single-dose composition.
Glenn I teaches a “Porous Dissolvable Solid Shampoo Substrate (approximately 2 to 2.2 grams of solid shampoo per two squares) would constitute a single dose for application to 150 grams of hair” (Glenn I, col. 27, ln. 31-35, Ex. 5), which reads on a “single-dose composition” of claim 9.
Thus, Glenn I anticipates claim 9.
Regarding claim 10 and the requirements:
10. ([…]) The solid composition according to any one of the preceding claim 1, wherein said composition is a topical composition.
Glenn I teaches “hair care compositions in the form of a hair care article that is a porous dissolvable solid substrate” (Glenn I, abstract), wherein “the term ‘hair care composition’ means a composition that may be applied to mammalian hair and skin without undue undesirable effects” (Glenn I, col. 3, ln. 49-51), which reads on a “topical composition” of claim 10.
Thus, Glenn I anticipates claim 10.
Regarding claim 11 and the requirements:
11. ([…]) A method for manufacturing the solid composition according to claim 1, comprising at least the steps consisting of:
(i) having available a fatty phase, a phase derived from a saponification reaction and/or a phase comprising at least one synthetic detergent (or surfactant) (i.e. SYNDET phase), in liquid or semi-liquid form;
(ii) casting the phase of step (i) into a mold and drying until reaching a solid phase,
(iii) cutting the solid phase to the desired shape, and
(iv) forming cavities whereby the solid composition is obtained.
Glenn I teaches a “Preparation of Liquid Processing Mixture”:
Example 1
Preparation of Liquid Processing Mixture
The following surfactant/polymer liquid processing compositions are prepared at the indicated weight percentages as described below.
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(Glenn I, col. 24, ln. 53 to col. 25, ln. 17, Ex. 1), and a “Preparation of Open-Celled Porous Dissolvable Solid Shampoo Substrate”:
Example 2
Preparation of Open-Celled Porous Dissolvable
Solid Shampoo Substrate
An open-celled Porous Dissolvable Solid Shampoo Substrate was prepared from the liquid processing mixture from Examples 1 as described below.
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300 grams of the processing mixture (from Examples 1) is stored within a convection oven for greater than two hours at 70° C. to pre-heat the processing mixture. The mixture is then transferred into a pre-heated 5 quart stainless steel bowl (by placing into 70° C. oven for greater than 15 minutes) of a KITCHENAID® Mixer Model K5SS (available from Hobart Corporation, Troy, Ohio) fitted with a flat beater attachment and with a water bath attachment comprising tap water at 70-75° C. The mixture is vigorously aerated at a maximum speed setting of 10 until a wet density of approximately 0.26 grams/cm3 is achieved (time recorded in table). The density is measured by weighing a filling a cup with a known volume and evenly scraping off the top of the cup with a spatula. The resulting aerated mixture is then spread with a spatula into square 160 mm×160 mm aluminum molds with a depth of 6.5 mm with the excess wet foam being removed with the straight edge of a large metal spatula that is held at a 45° angle and slowly dragged uniformly across the mold surface. The aluminum molds are then placed into a 130° C. convection oven for approximately 35 to 45 minutes. The molds are allowed to cool to room temperature with the substantially dry porous solids removed from the molds with the aid of a thin spatula and tweezers.
Each of the resulting 160 mm×160 mm square substrates in pad form is cut into nine 43 mm×43 mm squares (with rounded edges) using a cutting die and a Samco SB20 cutting machine (each square representing surface area of approximately 16.9 cm2). The resulting smaller substrates are then equilibrated overnight (14 hours) in a constant environment room kept at 70° F. and 50% relative humidity within large zip-lock bags that are left open to the room atmosphere. Each substrate is then weighed and placed on an individual weight boat with the original mold side facing downward. The average substrate weights are recorded and the basis weight computed by dividing the average substrate weight by 0.00169 square meters. The resulting substrate thickness is measured with a digital caliper and recorded.
(Glenn I, col. 25, ln. 40 to col. 26, ln. 33, Ex. 2), WHEREBY it is noted:
Glenn I’s “Liquid Processing Mixture” (Glenn I, col. 24, ln. 53 to col. 25, ln. 17, Ex. 1) reads on “having available a fatty phase, a phase derived from a saponification reaction and/or a phase comprising at least one synthetic detergent (or surfactant)” that is “in liquid or semi-liquid form” of claim 11;
“[t]he resulting aerated mixture is then spread with a spatula into square 160 mm×160 mm aluminum molds with a depth of 6.5 mm with the excess wet foam being removed with the straight edge of a large metal spatula that is held at a 45° angle and slowly dragged uniformly across the mold surface,” and wherein “[t]he aluminum molds are then placed into a 130° C. convection oven for approximately 35 to 45 minutes” (Glenn I, col. 26, ln. 7-15, Ex. 2) reads on “(ii) casting the phase of step (i) into a mold and drying until reaching a solid phase” of claim 11; AND
“Each of the resulting 160 mm×160 mm square substrates in pad form is cut into nine 43 mm×43 mm squares (with rounded edges) using a cutting die and a Samco SB20 cutting machine (each square representing surface area of approximately 16.9 cm2),” wherein “[t]he resulting smaller substrates are then equilibrated overnight (14 hours) in a constant environment room kept at 70° F. and 50% relative humidity within large zip-lock bags that are left open to the room atmosphere” (Glenn I, col. 26, ln. 19-27, Ex. 2) reads on “(iii) cutting the solid phase to the desired shape” and “(iv) forming cavities whereby the solid composition is obtained” of claim 11.
Thus, Glenn I anticipates claim 11.
Regarding claim 12 and the requirements:
12. ([…]) The method for manufacturing the solid composition according to claim 1, comprising at least the steps consisting of:
(a) having available a fatty phase, a phase derived from a saponification reaction and/or a phase comprising at least one synthetic detergent (or surfactant) (i.e. SYNDET phase), in liquid or semi-liquid form;
(b) passing the phase of step (a) through an extrusion device equipped with a die (or extrusion grating) with a shape suitable for forming a solid bar, and
(c) cutting the solid bar obtained in step (b), whereby the solid composition is obtained.
Glenn I teaches:
A. Preparation of Processing Mixture
The processing mixture is generally prepared by dissolving the polymer structurant in the presence of water, plasticizer and other optional ingredients by heating followed by cooling. This can be accomplished by any suitable heated batch agitation system or via any suitable continuous system involving either single screw or twin screw extrusion or heat exchangers together with either high shear or static mixing. Any process can be envisioned such that the polymer is ultimately dissolved in the presence of water, the surfactant(s), the plasticizer, and other optional ingredients including step-wise processing via pre-mix portions of any combination of ingredients.
(Glenn I, col. 14, ln. 51-63), WHEREBY it is noted:
Glenn I’s “Liquid Processing Mixture” (Glenn I, col. 24, ln. 53 to col. 25, ln. 17, Ex. 1) reads on “having available a fatty phase, a phase derived from a saponification reaction and/or a phase comprising at least one synthetic detergent (or surfactant)” that is “in liquid or semi-liquid form” of claim 12;
“processing mixture is generally prepared” “via any suitable continuous system involving either single screw or twin screw extrusion” (Glenn I, col. 14, ln. 51-63), then “[t]he resulting aerated mixture is then spread […] across the mold surface,” and wherein “[t]he aluminum molds are then placed into a 130° C. convection oven for approximately 35 to 45 minutes” (Glenn I, col. 26, ln. 7-15, Ex. 2) reads on “(b) passing the phase of step (a) through an extrusion device equipped with a die (or extrusion grating) with a shape suitable for forming a solid bar” of claim 12; and
“Each of the resulting 160 mm×160 mm square substrates in pad form is cut into nine 43 mm×43 mm squares (with rounded edges) using a cutting die and a Samco SB20 cutting machine (each square representing surface area of approximately 16.9 cm2),” wherein “[t]he resulting smaller substrates are then equilibrated overnight (14 hours) in a constant environment room kept at 70° F. and 50% relative humidity within large zip-lock bags that are left open to the room atmosphere” (Glenn I, col. 26, ln. 19-27, Ex. 2) reads on “((c) cutting the solid bar obtained in step (b), whereby the solid composition is obtained” of claim 12.
Thus, Glenn I anticipates claim 12.
Regarding claim 13 and the requirements:
13. ([…]) A non-therapeutic method for cosmetic treatment for the hygiene or the beautifying of a keratin material, comprising at least one step of applying to said keratin material at least the solid composition according to claim 1.
Glenn I teaches “Methods of Use” involving “c) applying the dissolved material to either the hair or scalp such as to treat”:
IV. Methods of Use
The compositions of the present invention may be used for treating mammalian keratinous tissue such as hair and/or scalp, and provide rapid rinse-ability. The method for conditioning the hair may comprise the steps of: a) applying an effective amount of the hair care product to the hand, b) wetting the hair care product with water and rubbing to dissolve the solid, c) applying the dissolved material to either the hair or scalp such as to treat, and d) rinsing the diluted treatment from the hair or scalp using water. These steps can be repeated as many times as desired to achieve the desired treatment benefit.
(Glenn I, col. 24, ln. 28-40), which reads on the active step requirement of claim 13 of “at least one step of applying to said keratin material at least the solid composition according to claim 1.”
Thus, Glenn I anticipates claim 13.
Claim Rejections – 35 U.S.C. § 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 pre-AIA 35 U.S.C. § 103(a) 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 C.F.R. § 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 1-13 are rejected under 35 U.S.C. § 103 as being unpatentable over GLENN I (US 8,349,341 B2, Issued Jan. 8, 2013; on 10/25/2024 IDS; hereinafter, “Glenn I”), and in view of GLENN II (US 2011/0182956 A1, Publ. Jul. 28, 2011; on 10/25/2024 IDS; hereinafter, “Glenn II”).
The teachings of Glenn I, as set forth in the above rejection of claims 1-7 and 9-13 under 35 U.S.C. § 102 (a)(1) are hereby incorporated. However, Glenn I DOES NOT EXPRESSLY TEACH the requirements of claim 8 for:
8. ([…]) The solid composition according to claim 1, wherein said composition further comprises at least one aqueous phase dispersed in the solid composition.
which is well within the purview of the ordinarily skilled artisan.
Glenn II, for instance is directed to:
POROUS, DISSOLVABLE SOLID SUBSTRATE AND SURFACE RESIDENT COATING COMPRISING MATRIX MICROSPHERES
ABSTRACT
The present invention relates to personal care compositions, especially those personal care compositions in the form of a personal care article that is a porous dissolvable solid substrate. The porous dissolvable solid substrate has a surface resident coating comprising a surface resident coating comprising from about 25% to about 70% of a starch derived material, from about 5% to about 60% of a cationic surfactant conditioner, and from about 5% to about 60% of a perfume, that can provide a consumer benefit.
(Glenn II, title & abstract). In this regard, teaches “surface resident coatings” comprising a “cationic surfactant conditioner” with an “aqueous phase,” wherein “water will re-enter the particulate complexes subsequently, for example during storage” and “may not only comprise water, but may also comprise additional water-soluble components”:
[0083] The surface resident coatings comprising the cationic surfactant conditioner and perfume containing matrix microspheres according to the present invention are anhydrous. However, water remnants are likely to be present even immediately after manufacture as a result of processing limitations. It may typically occur that water will re-enter the particulate complexes subsequently, for example during storage. The aqueous phase may not only comprise water, but may also comprise additional water-soluble components, such as alcohols; humectants, including polyhydric alcohols (e.g. glycerine and propylene glycol); active agents such as d-panthenol, vitamin B3 and its derivatives (such as niacinamide) and botanical extracts; thickeners and preservatives. The aqueous phase does not represent more than 20% by weight of the encapsulate and may comprise from about 0.001% but no more than about 20%, no more than about 10%, no more than about 5%, or no more than about 2%, by weight of the particulate complex.
(Glenn II, par. [0083]), which relates to “at least one aqueous phase dispersed in the solid composition” of claim 8.
In light of these teachings, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to formulate Glenn I’s hair care article (comprising “a.) a porous dissolvable solid substrate” and “b.) a surface resident coating comprising from about 10% to about 100% by weight of one or more cationic surfactant conditioner actives”) (Glenn I, claim 1) with an “aqueous phase” per Glenn II (Glenn II, par. [0083]). One would have been motivated to do so with a reasonable expectation of success in order to obtain the advantage of an “aqueous phase” that “may also comprise additional water-soluble components, such as alcohols; humectants, including polyhydric alcohols (e.g. glycerine and propylene glycol); active agents such as d-panthenol, vitamin B3 and its derivatives (such as niacinamide) and botanical extracts; thickeners and preservatives” (Glenn II, par. [0083]).
Thus, the prior art renders claim 8 obvious.
Claim Rejections - Nonstatutory 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 obviousness-type 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); and 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 a nonstatutory double patenting ground provided the conflicting application or patent either is shown to be commonly owned with this application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement.
Effective January 1, 1994, a registered attorney or agent of record may sign a terminal disclaimer. A terminal disclaimer signed by the assignee must fully comply with 37 CFR 3.73(b).
Claims 1-8, 10 and 13 are provisionally rejected on the ground of nonstatutory double patenting over claims 1, 3-7, 9-10, 14 and 20 of copending Application No. 18/584,735 (‘735 Application). This is a provisional double patenting rejection since the conflicting claims have not in fact been patented.
Although the conflicting claims are not identical, they are not patentably distinct because the instant claims as well as the copending claims are drawn to a solid composition comprising at least one cavity such that the composition has a porosity greater than or equal to 20 % by volume relative to the total volume of the composition.
Claim 1 is anticipated by claim 1 of the ‘735 Application.
Claim 2 is anticipated by claim 3 of the ‘735 Application.
Claim 3 is anticipated by claim 4 of the ‘735 Application.
Claim 4 is anticipated by claim 5 of the ‘735 Application.
Claim 5 is anticipated by claim 6 of the ‘735 Application.
Claim 6 is anticipated by claim 7 of the ‘735 Application.
Claim 7 is anticipated by claim 9 of the ‘735 Application.
Claim 8 is anticipated by claim 10 of the ‘735 Application.
Claim 10 is anticipated by claim 14 of the ‘735 Application.
Claim 13 is anticipated by claim 20 of the ‘735 Application.
Claims 1-13 are provisionally rejected on the ground of nonstatutory double patenting over claims 1-6, 8-10 and 13-15 of copending Application No. 18/859,467 (‘467 Application). This is a provisional double patenting rejection since the conflicting claims have not in fact been patented.
Although the conflicting claims are not identical, they are not patentably distinct because the instant claims as well as the copending claims are drawn to a solid composition comprising at least one cavity such that the composition has a porosity greater than or equal to 20 % by volume relative to the total volume of the composition.
Claim 1 is anticipated by claim 1 of the ‘467 Application.
Claim 2 is anticipated by claim 2 of the ‘467 Application.
Claim 3 is anticipated by claim 3 of the ‘467 Application.
Claim 4 is anticipated by claim 4 of the ‘467 Application.
Claim 5 is anticipated by claim 5 of the ‘467 Application.
Claim 6 is anticipated by claim 6 of the ‘467 Application.
Claim 7 is anticipated by claim 8 of the ‘467 Application.
Claim 8 is anticipated by claim 9 of the ‘467 Application.
Claim 9 is anticipated by claim 10 of the ‘467 Application.
Claim 10 is anticipated by claim 1 of the ‘467 Application.
Claim 11 is obvious over claims 8 and 13 of the ‘467 Application. See MPEP § 2123 [R-5] regarding the obviousness of rearranging a reference according to the teachings of that same reference.
Claim 12 is anticipated by claims 8 and 14 of the ‘467 Application. See MPEP § 2123 [R-5] regarding the obviousness of rearranging a reference according to the teachings of that same reference.
Claim 13 is anticipated by claim 15 of the ‘467 Application.
Claims 1-13 are provisionally rejected on the ground of nonstatutory double patenting over claims 1-6, 8-10 and 13-15 of copending Application No. 18/859,808 (‘808 Application). This is a provisional double patenting rejection since the conflicting claims have not in fact been patented.
Although the conflicting claims are not identical, they are not patentably distinct because the instant claims as well as the copending claims are drawn to a solid composition comprising at least one cavity such that the composition has a porosity greater than or equal to 20 % by volume relative to the total volume of the composition.
Claim 1 is anticipated by claim 1 of the ‘808 Application.
Claim 2 is anticipated by claim 2 of the ‘808 Application.
Claim 3 is anticipated by claim 3 of the ‘808 Application.
Claim 4 is anticipated by claim 4 of the ‘808 Application.
Claim 5 is anticipated by claim 5 of the ‘808 Application.
Claim 6 is anticipated by claim 6 of the ‘808 Application.
Claim 7 is anticipated by claim 8 of the ‘808 Application.
Claim 8 is anticipated by claim 9 of the ‘808 Application.
Claim 9 is anticipated by claim 10 of the ‘808 Application.
Claim 10 is anticipated by claim 1 of the ‘808 Application.
Claim 11 is obvious over claims 8 and 13 of the ‘808 Application. See MPEP § 2123 [R-5] regarding the obviousness of rearranging a reference according to the teachings of that same reference.
Claim 12 is obvious over claims 8 and 14 of the ‘808 Application. See MPEP § 2123 [R-5] regarding the obviousness of rearranging a reference according to the teachings of that same reference.
Claim 13 is anticipated by claim 15 of the ‘808 Application.
Claims 1-13 are provisionally rejected on the ground of nonstatutory double patenting over claims 1-6, 9-11 and 14-16 of copending Application No. 18/859,866 (‘866 Application). This is a provisional double patenting rejection since the conflicting claims have not in fact been patented.
Although the conflicting claims are not identical, they are not patentably distinct because the instant claims as well as the copending claims are drawn to a solid composition comprising at least one cavity such that the composition has a porosity greater than or equal to 20 % by volume relative to the total volume of the composition.
Claim 1 is anticipated by claim 1 of the ‘866 Application.
Claim 2 is anticipated by claim 2 of the ‘866 Application.
Claim 3 is anticipated by claim 3 of the ‘866 Application.
Claim 4 is anticipated by claim 4 of the ‘866 Application.
Claim 5 is anticipated by claim 5 of the ‘866 Application.
Claim 6 is anticipated by claim 6 of the ‘866 Application.
Claim 7 is anticipated by claim 9 of the ‘866 Application.
Claim 8 is anticipated by claim 10 of the ‘866 Application.
Claim 9 is anticipated by claim 11 of the ‘866 Application.
Claim 10 is anticipated by claim 1 of the ‘866 Application.
Claim 11 is obvious over claims 9 and 14 of the ‘866 Application. See MPEP § 2123 [R-5] regarding the obviousness of rearranging a reference according to the teachings of that same reference.
Claim 12 is obvious over claims 9 and 15 of the ‘866 Application. See MPEP § 2123 [R-5] regarding the obviousness of rearranging a reference according to the teachings of that same reference.
Claim 13 is anticipated by claim 16 of the ‘866 Application.
Claims 1-13 are provisionally rejected on the ground of nonstatutory double patenting over claims 1-6, 9-11 and 14-16 of copending Application No. 18/860,473 (‘473 Application). This is a provisional double patenting rejection since the conflicting claims have not in fact been patented.
Although the conflicting claims are not identical, they are not patentably distinct because the instant claims as well as the copending claims are drawn to a solid composition comprising at least one cavity such that the composition has a porosity greater than or equal to 20 % by volume relative to the total volume of the composition.
Claim 1 is anticipated by claim 1 of the ‘473 Application.
Claim 2 is anticipated by claim 2 of the ‘473 Application.
Claim 3 is anticipated by claim 3 of the ‘473 Application.
Claim 4 is anticipated by claim 4 of the ‘473 Application.
Claim 5 is anticipated by claim 5 of the ‘473 Application.
Claim 6 is anticipated by claim 6 of the ‘473 Application.
Claim 7 is anticipated by claim 9 of the ‘473 Application.
Claim 8 is anticipated by claim 10 of the ‘473 Application.
Claim 9 is anticipated by claim 11 of the ‘473 Application.
Claim 10 is anticipated by claim 1 of the ‘473 Application.
Claim 11 is obvious over claims 9 and 14 of the ‘473 Application. See MPEP § 2123 [R-5] regarding the obviousness of rearranging a reference according to the teachings of that same reference.
Claim 12 is obvious over claims 9 and 15 of the ‘473 Application. See MPEP § 2123 [R-5] regarding the obviousness of rearranging a reference according to the teachings of that same reference.
Claim 13 is anticipated by claim 16 of the ‘473 Application.
Claims 1-13 are provisionally rejected on the ground of nonstatutory double patenting over claims 1-7, 9-11 and 14-16 of copending Application No. 18/874,998 (‘998 Application). This is a provisional double patenting rejection since the conflicting claims have not in fact been patented.
Although the conflicting claims are not identical, they are not patentably distinct because the instant claims as well as the copending claims are drawn to a solid composition comprising at least one cavity such that the composition has a porosity greater than or equal to 20 % by volume relative to the total volume of the composition.
Claim 1 is anticipated by claim 1 of the ‘998 Application.
Claim 2 is anticipated by claim 2 of the ‘998 Application.
Claim 3 is anticipated by claim 3 of the ‘998 Application.
Claim 4 is anticipated by claim 4 of the ‘998 Application.
Claim 5 is anticipated by claim 5 of the ‘998 Application.
Claim 6 is anticipated by claim 6 of the ‘998 Application.
Claim 7 is anticipated by claims 7 and 9 of the ‘998 Application.
Claim 8 is anticipated by claim 10 of the ‘998 Application.
Claim 9 is anticipated by claim 11 of the ‘998 Application.
Claim 10 is anticipated by claim 1 of the ‘998 Application.
Claim 11 is obvious over claims 7, 9 and 14 of the ‘998 Application. See MPEP § 2123 [R-5] regarding the obviousness of rearranging a reference according to the teachings of that same reference.
Claim 12 is obvious over claims 7, 9 and 15 of the ‘998 Application. See MPEP § 2123 [R-5] regarding the obviousness of rearranging a reference according to the teachings of that same reference.
Claim 13 is anticipated by claim 16 of the ‘998 Application.
Claims 1-7 and 9-13 are provisionally rejected on the ground of nonstatutory double patenting over claims 1-9 and 12-14 of copending Application No. 18/879,666 (‘666 Application). This is a provisional double patenting rejection since the conflicting claims have not in fact been patented.
Although the conflicting claims are not identical, they are not patentably distinct because the instant claims as well as the copending claims are drawn to a solid composition comprising at least one cavity such that the composition has a porosity greater than or equal to 20 % by volume relative to the total volume of the composition.
Claim 1 is anticipated by claim 1 of the ‘666 Application.
Claim 2 is anticipated by claim 2 of the ‘666 Application.
Claim 3 is anticipated by claim 3 of the ‘666 Application.
Claim 4 is anticipated by claim 4 of the ‘666 Application.
Claim 5 is anticipated by claim 5 of the ‘666 Application.
Claim 6 is anticipated by claim 6 of the ‘666 Application.
Claim 7 is anticipated by claims 7 and 9 of the ‘666 Application.
Claim 9 is anticipated by claim 8 of the ‘666 Application.
Claim 10 is anticipated by claim 1 of the ‘666 Application.
Claim 11 is anticipated by claim 12 of the ‘666 Application.
Claim 12 is anticipated by claim 13 of the ‘666 Application.
Claim 13 is anticipated by claim 14 of the ‘666 Application.
Conclusion
Claims 1-13 are rejected. No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DOMINIC LAZARO whose telephone number is (571)272-2845. The examiner can normally be reached on Monday through Friday, 8:30am to 5:00pm EST; alternating Fridays out.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, BETHANY BARHAM can be reached on (571)272-6175. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/DOMINIC LAZARO/Primary Examiner, Art Unit 1611
