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 .
DETAILED ACTION
Status of the application
2. Claims 1-34 are pending in this office action.
Claims 1-34 have been rejected.
Claim Objections
3. Claim 20 is objected to because of the following informalities: Claim 20 has period in the mid of the claim 20 (e.g. ‘120.Of’). There should be only one period at the end of the claim. Appropriate correction is required.
Claim Rejections - 35 USC § 112
4. Claim 20 is 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.
Claim 20 recites “ the lower end limit” and “upper end limit”. Claim 20 also recites “and the upper end point value is 120. Of the foregoing numeric values exceeding the lower end point value”. It is unclear and is difficult to interpret claim 20 with the above phrases all together. This renders claim 20 indefinite.
Applicants are advised to amend claim 20 with proper format and claim language in a simplified manner in order to have better understanding of the claimed invention.
Claim Rejections - 35 USC § 103
5. In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
6. 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.
7. 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.
8. Claim(s) 1-31, 33, 34 is/are rejected under 35 U.S.C. 103 as being unpatentable over Akeroyd et al. (US 2021/0237021 A1) and as evidenced by Lei et al. (US 2020/0170895 A1).
9. Regarding claims 1, 2, Akeroyd et al. teaches an aldehyde-containing dry powder composition which is stable polyurea microcapsule compositions suitable for encapsulating aldehydes with a low viscosity(abstract) which comprises comprising carrier (at least in [0120]) , emulsifier ([0062], [0077]), and at least one aldehyde ingredient encapsulated in the carrier At least in Abstract, [0008], [0031]), wherein the microcapsule core contains a fragrance having 8% to 100% one or more aldehydes by weight of the fragrance, and aldehyde-containing dry powder composition can include many aldehydes including at least one aldehyde e.g. benzaldehyde, decanal, vanillin etc. ([0089]). Akeroyd et al. also discloses that the microcapsule wall is formed of an encapsulating polymer; (at least in [0066]). The encapsulating polymer can be a hybrid polymer which contains a first polymer and a second polymer, the first polymer is a sol-gel polymer and the second polymer is polyacrylamide; para [0077], emulsifiers used in the formation of polyacrylamide capsule walls are typically anionic emulsifiers including gum Arabic ([0077]).
Akeroyd et al. also discloses that such a composition containing product is a spray-dried (anhydrous , dried form) microcapsule composition which is used in a variety of products including various types of products including consumer product, oral care product, food product, etc. ([0014], [0124], comprising carrier (at least in [0120]) , emulsifier ([0062], [0077]), wherein the aldehyde- containing dry powder composition can be with no alcohols or propylene glycol (at least in [0008]).
Regarding the claim limitation of “and contains no alcohols or propylene glycol” as claimed in claim 1, it is to be noted that if we consider the disclosed embodiments of Akeroyd et al., Akeroyd et al., discloses the microcapsule core contains a fragrance having 8% to 100% one or more aldehydes by weight of the fragrance ([0008]), the microcapsule wall is formed of an encapsulating polymer, each microcapsule composition contains by weight 5% to 80% of the fragrance and 0.1% to 15% of the encapsulating polymer; ( [0066]- [0067]), the encapsulating polymer can be a hybrid polymer which contains a first polymer and a second polymer, the first polymer is a sol- gel polymer and the second polymer is polyacrylamide, sol-gel polymer (e.g., silica); ([0077]), emulsifiers used in the formation of polyacrylamide capsule walls are typically anionic emulsifiers including gum Arabic, the amount of anionic emulsifier is anywhere from 0.1 to 40 percent by weight of all constituents ([0077]).
Therefore, the composition only comprises the aldehydes in the fragrance core, sol-gel and polyacrylamide as the carriers, and gum Arabic as the emulsifier, showing that it ‘does not comprise propylene glycol or any alcohols’ as claimed in claim 1.
Akeroyd et al. does not specifically teach wherein the composition has a ‘Twenty-Eight Day Retention Value of at least 93%’ as claimed in claim 1 and “wherein the Twenty-Eight Day Retention Value is greater than at least one of 93%, 93.5%, 94%, 94.5%, 95%, 95.5%, 96%, 96.5%, 97%, 97.5%, 98%, 98.5%, 99%, and 99.5%” as claimed in claim 2.
It is evidenced by Lei et al. that such a first encapsulating polymer and second encapsulating polymer ([0014]-[0016]) as capsule wall material ([0057]) provides capsules having encapsulated material including aldehydes components etc. ([0048]) with excellent storage stability and retention of an encapsulated fragrance) ([0025]).
However, Akeroyd et al. also discloses that one skilled in the art can design and prepare a capsule composition by using different encapsulating polymers, coatings, polyfunctional nucleophiles and/or electrophiles, and/or capsule formation aids, varying the concentrations of these wall-forming materials and/or catalysts to achieve desirable organoleptic or release (i.e. retention) profiles in a consumable product (at least in [0339]). Further, the ratios among polyfunctional nucleophiles and/or electrophiles, capsule forming aids, adjuvants, core modifiers, active materials, and catalysts can also be determined by a skilled artisan through assays known in the art to prepare capsule compositions with desirable properties. Therefore, it is optimizable and addressed below.
Absent showing of unexpected results, the specific amount of ‘28- day retention (or release) value of ‘at least 93%’ as claimed in claim 1 and “at least 93-99.5%” as claimed in claim 2 are not considered to confer patentability to the claims. As the retention variables that can be modified, among others, by adjusting the ‘encapsulating parameters and conditions’ e.g. the amount of ratios among polyfunctional nucleophiles and/or electrophiles, capsule forming aids, adjuvants, core modifiers, active materials, and catalysts, the precise amount would have been considered a result effective variable by one having ordinary skill in the art at the time the invention was made. As such, without showing unexpected results, the claimed ‘retention value’ cannot be considered critical. Accordingly, one of ordinary skill in the art at the time the invention was made would have optimized, by routine experimentation, the amount of the above mentioned ‘encapsulating parameters and conditions’ in Akeroyd et al., to amounts, including that presently claimed, in order to obtain the desired effect e.g. 28- day retention value of ‘at least 93%’ as claimed in claim 1 and “at least 93-99.5%” as claimed in claim 2 (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223).
Also, it is to be noted that the disclosed components containing encapsulating polymers and encapsulated components are identical to the claimed components containing claimed product composition and therefore, it will have identical claimed property including the claimed “Twenty-Eight Day Retention Value of at least 93%” as claimed in independent claim 1.
10. Regarding claims 3-8, Akeroyd et al. discloses that the microcapsule core contains a fragrance having 8% to 100% one or more aldehydes by weight of the fragrance ([0008]) and aldehyde-containing dry powder composition can include many aldehydes including at least one aldehyde e.g. benzaldehyde, decanal, vanillin etc. ([0089]).
11. Regarding claim 9, Akeroyd et al discloses the aldehyde-containing dry powder composition of claim 1, wherein the carrier comprises at least one selected from the group consisting of polysaccharides, proteins, gums, esters, lipids, waxes, and synthetic polymers ( at least in [0120]), the carrier can also be gum Arabic, polyacrylamide, polyurea and also the encapsulating polymer (i.e. carrier) can be a hybrid polymer, the first polymer is a sol-gel polymer and the second polymer is gum Arabic (at least in [0066]).
12. Regarding claims 10, 11, Akeroyd et al discloses the aldehyde-containing dry powder composition of claim 1, wherein the carrier comprises at least one selected from the group consisting of starches, chemically modified starches, hydrolyzed starches , gums, proteins etc. (at least in [0066], [0120]).
13. Regarding claim 12, Akeroyd et al discloses the aldehyde-containing dry powder composition of claim 1, wherein the carrier comprises at least one selected from the group consisting of maltodextrin ([0064]), gums e.g. gum Arabic (at least in [0066], [0120]).
14. Regarding claim 13, Akeroyd et al discloses the aldehyde-containing dry powder composition of claim 1, wherein the carrier comprises at least one selected from the group consisting of cellulose ([0120]), methylcellulose ([0077], [0264]).
15. Regarding claim 14, Akeroyd et al discloses the aldehyde-containing dry powder composition of claim 1, wherein the carrier comprises at least one selected from the group consisting of whey protein, gelatin etc. (at least in [0066], [0067], and [0120]).
16. Regarding claim 15, Akeroyd et al discloses the aldehyde-containing dry powder composition of claim 1, wherein the carrier comprises at least one selected from the group consisting of polyvinylpyrrolidone, polyacrylamides, polyvinyl acetate, polyethylene oxide, and polyacrylic acid (at least in [0064], [0066]), the encapsulating polymer can be a hybrid polymer which contains a first polymer and a second polymer, the first polymer is a sol-gel polymer and the second polymer is polyacrylamide; para [0120], the spray dry carriers can be selected from the group consisting of water-soluble polymers such as polyvinyl pyrrolidone, polyvinyl alcohol).
17. Regarding claim 16, Akeroyd et al. discloses the aldehyde-containing dry powder composition of claim 1, wherein the emulsifier comprises at least one selected from the group consisting of polysorbates, sodium caseinate, low methoxy pectin, gelatin, L-a-dipalmitoyl-phosphaitidylcholine (DPPC), cholesterol, polyvinyl alcohol (PVA), sodium stearoyl lactylate, mono- and di- glycerols, ammonium phosphatide locust bean gum, xanthan gum, and citrem (at least in [0062]).
18. Regarding claim 17, Akeroyd et al discloses the aldehyde-containing dry powder composition of claim 1, wherein the emulsifiers are constituted by a same ingredient having carrier and emulsifier properties e.g. anionic emulsifier is gum Arabic ([0077]) which is also a carrier ([0120]). Similarly, the emulsifier(s) including polyvinylpyrrolidone, polyvinyl alcohol are also can serve as carrier(s) (at least in [0062], [0077], 0120]). t is known that Microcapsule wall encapsulates the core ([0008]), therefore, microcapsule wall containing material is carrier.
19. Regarding claim 18, Akeroyd et al discloses that the microcapsule contains 10 wt.% to 99 wt.% of the microcapsule core and 1wt.% to 90 wt.% of the microcapsule wall ([0031]). Akeroyd et al also discloses that the one or more aldehydes are preferably present at a level of at least 8% -100% by weight of the total encapsulated fragrance ([0008]). Akeroyd et al. discloses that the microcapsule core contains 20-100% by weight of an active material ([0032]) and the microcapsule contains 10-99 wt.% microcapsule core and 1 to 90 wt.% microcapsule wall ([0031]). It is known that Microcapsule wall encapsulates the core (at least in [0008]), therefore, microcapsule wall containing material is carrier. Therefore, if we combine these teachings, it would have been obvious that it meets the claim limitation of “wherein aldehyde ingredient(s) loading is from 2 to 50% by weight, based on weight of the carrier in the aldehyde-containing powder composition” as claimed in claim 18. It shows prima facie case of obviousness according to MPEP 2144.05. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. 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) .
20. Regarding claim 19, it is addressed using different disclosed embodiments of Akeroyd et al.
(a) Akeroyd et al. discloses the aldehyde-containing dry powder composition of claim 1, wherein the amount of encapsulated active material is from 5% to 95% (e.g., 10% to 90%, 15% to 80%, and 20% to 60%) by weight of the microcapsule composition. Akeroyd et al. also discloses that core contains fragrance having 8% to 100% one or more aldehydes by weight of the fragrance material in the core ([0008]) which is active material of claimed “aldehyde ingredient loading material”. Akeroyd et al. also discloses that the amount of the capsule wall (i.e. carrier) is from 0.5% to 30% (e.g., 1% to 25%, 2 to 20% and 5 to 15%) also by weight of the microcapsule composition ([0097]).
Therefore, it meets “wt.% aldehyde ingredient loading is greater than at least one of 2% , 3%.....and up to 50% by weight as claimed in claim 19. It shows prima facie case of obviousness according to MPEP 2144.05. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. 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) .
(b) In aother embodiments, the amount of the encapsulated active material is from 15% to 99.5% (e.g., 20% to 98% and 30% to 90%) by weight of the microcapsule, and the amount of the capsule wall is from 0.5% to 85% (e.g., 2 to 50% and 5 to 40%) by weight of the microcapsule (in [0097]). If we consider this broad range disclosure in combination with the teaching that core contains fragrance having 8% to 100% one or more aldehydes by weight of the fragrance ([0008]), it meets claim limitation of claims 19 and 21. It shows prima facie case of obviousness according to MPEP 2144.05. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. 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) .
(c ) In another embodiment, Akeroyd et al discloses the aldehyde-containing dry powder composition of claim 1, wherein the microcapsule contains 10-99 wt.% microcapsule core and 1 to 90 wt.% microcapsule wall (at least in [0031]) and core contains fragrance having 8% to 100% one or more aldehydes by weight of the fragrance ([0008]). It is known that Microcapsule wall encapsulates the core ([0008]). Akeroyd et al. discloses Microcapsule wall containing material is carrier (at least in [0120]). Akeroyd et al. also discloses that aldehyde contains one or more aldehydes in the core 8 to 100% by weight of the core ([0008]). Therefore, if we consider the broad range values, it encompasses that “ aldehyde(s) ingredient loading based on weight of the carrier in the aldehyde -containing powder composition can be greater than at least one of 2% , 3% up to -50% by weight as claimed in claim 19. It shows prima facie case of obviousness according to MPEP 2144.05. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. 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) . It shows prima facie case of obviousness according to MPEP 2144.05. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. 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).
21. Regarding claim 20, claim 20 can be addressed using the disclosed embodiments from Akeroyd et al. as mentioned for claim 19 above. However, couple of the embodiments are considered below.
Akeroyd et al. discloses the aldehyde-containing dry powder composition of claim 1, wherein the amount of encapsulated active material is from 5% to 95% (e.g., 10% to 90%, 15% to 80%, and 20% to 60%) by weight of the microcapsule composition. The amount of the capsule wall is from 0.5% to 30% (e.g., 1% to 25%, 2 to 20% and 5 to 15%) also by weight of the microcapsule composition. In other embodiments, the amount of the encapsulated active material is from 15% to 99.5% (e.g., 20% to 98% and 30% to 90%) by weight of the microcapsule, and the amount of the capsule wall is from 0.5% to 85% (e.g., 2 to 50% and 5 to 40%) by weight of the microcapsule (in [0097]). If we consider this broad range disclosure in combination with the teaching that core contains fragrance having 8% to 100% one or more aldehydes by weight of the fragrance ([0008]), it meets claim limitation of claim 20.
If we consider another embodiment, Akeroyd et al. discloses the microcapsule contains 10 wt.% to 99 wt.% of the microcapsule core having aldehyde contains one or more aldehydes in the core 8 to 100% by weight of the core containing fragrance material ([0008]). Akeroyd et al. discloses 1 to 90 wt.% of the microcapsule wall ([0031]). The microcapsule contains microcapsule wall ([0031]) and the microcapsule wall is formed of an encapsulating polymer ( [0032]) which is carrier, in the total microencapsulated fragrance. It is evidenced by applicant’s specification that (in PGPUB [0038]) the lower end point value is one of the foregoing numeric values and the upper end point value is one of the foregoing numeric values exceeding the lower end point value, e.g., a range of from 10% to 50%).
It is evidenced by applicant’s specification [0038] that the lower end point value is one of the foregoing numeric values and the upper end point value is one of the foregoing numeric values exceeding the lower end point value e.g. a range from 10 to 50%.
Therefore, If we consider the above disclosed range values of aldehydes (core) and wall material (at least in [0031], [0008]), the above disclosed embodiments meet the claimed invention of lower end point value is 2-50% and the upper end point value of claim 20. However, claim 20 has 112 second paragraph rejection.
Regarding claim 21 can be addressed using the disclosed embodiments from Akeroyd et al. as mentioned for claim 19 above. However, one of the embodiments are considered below.
Akeroyd et al discloses the aldehyde-containing dry powder composition of claim 1, wherein the microcapsule contains 10-99 wt.% microcapsule core and 1 to 90 wt.% microcapsule wall (at least in [0031]) and core contains fragrance having 8% to 100% one or more aldehydes by weight of the fragrance ([0008]). It is known that Microcapsule wall encapsulates the core ([0008]). Akeroyd et al. discloses Microcapsule wall containing material is carrier (at least in [0120]). Akeroyd et al. also discloses that aldehyde contains one or more aldehydes in the core 8 to 100% by weight of the core ([0008]). Therefore, if we consider the broad range values, it encompasses that “ aldehyde(s) ingredient loading based on weight of the carrier in the aldehyde -containing powder composition can be greater than at least one of 2% , 3% up to -50% by weight as claimed in claims 19 and 21. It shows prima facie case of obviousness according to MPEP 2144.05. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. 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) . It shows prima facie case of obviousness according to MPEP 2144.05. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. 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).
It is to be noted that claims 19-21 can be considered as optimizable. One of ordinary skill in the art would have been motivated to consider the proportionate amount from within the disclosed amounts of core material and wall (carrier) material based on the desired amounts of aldehyde loading and desired amount of encapsulating for the desired degree of encapsulation for the desired loaded encapsulated aldehyde containing fragrance with desired controlled release for desired use.
Accordingly, one of ordinary skill in the art at the time the invention was made would have optimized, by routine experimentation, the proportionate amounts of desired ‘fragrance (aldehyde)’ core and encapsulating carrier (Wall) in Akeyod et al., to amounts, including that presently claimed, in order to obtain the desired effect e.g. desired amount of loaded aldehyde (fragrance) with the desired degree of encapsulation (i.e. encapsulating layer) of the final powder composition for specific use of the final powder composition etc. (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223).
22. Regarding claims 22, 23, Akeroyd et al. discloses the aldehyde-containing dry powder composition of claim 1, wherein the disclosed microcapsules in the composition, each have a particle size (in diameter) of 0.1 microns to 1000 microns ([0029]). Hence, all of the powder (100%) particles/microcapsules have a particle size in the range of 0.1-1000 microns) which makes the spray-dried microcapsule composition is well suited for use in a variety of all dry (anhydrous) products: any dry form of personal care products (e.g., shampoo powder), [0029], [0124]) the microcapsules in the compositions of this invention each have a particle size (in diameter) of 0.1 microns to 1000 microns. This meets the claim limitation of “a particle size distribution of the powder, in which at least 50% of powder particles have a size in a range of from 25 micrometers to 250 micrometers” as claimed in claims 22-23. It shows prima facie case of obviousness according to MPEP 2144.05. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. 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).
23. Regarding claim 24, Akeroyd et al. discloses the aldehyde-containing dry powder composition of claim 1, which is a microcapsule composition used for many types of food products, consumer products etc. ([0014], [0124]) having an average particle size in a range of from 0.1 microns to 1000 microns (at least in [0029]), which encompasses the claimed range of from 40 micrometers to 300 micrometers as claimed in claim 24. It shows prima facie case of obviousness according to MPEP 2144.05. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. 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).
For claims 22-24, it is also to be noted that it is within the skill of one of ordinary skill in the art to optimize the particle size as desired including the claimed range amount in order to achieve desired organoleptic property of the final product.
Absent showing of unexpected results, the specific amount of particle size is not considered to confer patentability to the claims. As the organoleptic property, taste, texture are variables that can be modified, among others, by adjusting the particle size , the precise amount would have been considered a result effective variable by one having ordinary skill in the art at the time the invention was made. As such, without showing unexpected results, the claimed amount cannot be considered critical.
Accordingly, one of ordinary skill in the art at the time the invention was made would have optimized, by routine experimentation, the amount of desired particle size in Akeyod et al., to amounts, including that presently claimed, in order to obtain the desired effect e.g. desired organoleptic property, taste, and texture etc. (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223).
24. Regarding claim 25, Akeroyd et al. discloses the aldehyde-containing dry powder composition of claim 1, but does not specifically teach wherein powder particles in the powder composition have a powder particle void volume that is less than at least one of 15%, 14%, 13%, 12%, 11%, 10%, 9%, 8%, 7%, 6%, 5%, 4%, 3%, 2%, 1%, or 0.5% of the total particle volume. It would have been obvious to one of skill in the art to adjust the powder particle void volume of the powder particles in the powder composition to less than at least one of 15%, 14%, 13%, 12%, 11%, 10%, 9%, 8%, 7%, 6%, 5%, 4%, 3%, 2%, 1%, or 0.5% of the total particle' volume to optimize the structural and physical properties of the particles for use.
It is known and as evidenced by applicant’s specification that “the powder particle void volume value is reported as a percentage, calculated by the volume of the air (or other gas) pockets/volume of the entire particle defined by the external particle boundaries” as presented using known volume equation formula applicable to sphere particles (in PGPUB [0041]). It is within the skill of one of ordinary skill in the art to evaluate the “void volume” and to optimize the “powder particle void volume that is less than at least one of 15-0.5% of the total particle volume in order to eliminate desired trapped air/gas from the population of particles for having desired compact form of powder composition with minimal/no trapped air.
Absent showing of unexpected results, the specific amount of ‘powder particle void volume’ that is less than at least one of 15-0.5% of the total particle volume’ is not considered to confer patentability to the claims. As the organoleptic property, taste, texture and compactness of the final powder composition with minimal/no trapped air are variables that can be modified, among others, by adjusting the ‘void volume’, the precise amount would have been considered a result effective variable by one having ordinary skill in the art at the time the invention was made. As such, without showing unexpected results, the claimed amount cannot be considered critical.
Accordingly, one of ordinary skill in the art at the time the invention was made would have optimized, by routine experimentation, the amount of desired ‘void volume’ in Akeyod et al., to amounts, including that presently claimed, in order to obtain the desired effect e.g. desired organoleptic property, taste, texture and compactness of the final powder composition with minimal/no trapped air in the final powder composition etc. (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223).
25. Regarding claim 26, Akeroyd et al. discloses the aldehyde-containing dry powder composition of claim 1 but does not specifically teach the composition having a weight percent moisture content that is less than at least one of 7%, 6%, 5%, 4.5%, 4%, 3.5%, 3%, 2.75%, 2.5%, 2.25%, 2%, 1.8%, 1.7%, 1.6%, 1.5%, 1.4%, 1.3%, 1.2%, 1.1%, 1.0%, 0.9%, 0.8%, 0.75%, 0.7%, 0.65%, 0.6%, 0.55%, 0.5%, 0.45%, 0.4%, 0.35%, 0.3%, 0.25%, 0.2%, 0.15%, and 0.1%, based on total weight of the aldehyde-containing powder composition. However, Akeroyd et al. teaches incorporating a water-absorbing material in the composition (at least in [0125]), Based on the teachings of Akeroyd et al., it would have been obvious to one of skill in the art to utilize such a water-absorbing material (zeolite) or some means to adjust the weight percent moisture content of the composition to less than at least one of 7%, 6%, 5%, 4.5%, 4%, 3.5%, 3%, 2.75%, 2.5%, 2.25%, 2%, 1.8%, 1.7%, 1.6%, 1.5%, 1.4%, 1.3%, 1.2%, 1.1%, 1.0%, 0.9%, 0.8%, 0.75%, 0.7%, 0.65%, 0.6%, 0.55%, 0.5%, 0.45%, 0.4%, 0.35%, 0.3%, 0.25%, 0.2%, 0.15%, and 0.1% to optimize the moisture content (minimal) efficacy with desired texture and stability of the final powder composition for use.
Absent showing of unexpected results, the specific amount of ‘weight percent moisture content’ is not considered to confer patentability to the claims. As the texture and stability of the final powder composition for use are variables that can be modified, among others, by adjusting the moisture content, the precise amount would have been considered a result effective variable by one having ordinary skill in the art at the time the invention was made. As such, without showing unexpected results, the claimed amount cannot be considered critical.
Accordingly, one of ordinary skill in the art at the time the invention was made would have optimized, by routine experimentation, the amount of desired ‘moisture content’ (low/minimal) in Akeyod et al., to amounts, including that presently claimed, in order to obtain the desired effect e.g. desired texture (i.e. powder form) and stability of the final powder composition with minimal/no trapped air in the final powder composition etc. (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223).
26. Regarding claim 27, Akeroyd et al. discloses the aldehyde-containing dry powder composition of claim 1 but does not specifically teach the composition having a bulk density in a range of from 0.8 to 1.4 g/ml. However, Akeroyd et al. teaches incorporating density modifiers in the composition (at least in [0098]). Based on the teachings of Akeroyd et al., it would have been obvious to one of skill in the art to utilize such density modifiers to adjust the bulk density of the composition to 0.8 to 1.4 g/ml to optimize the physical properties and efficacy of the composition for use.
Absent showing of unexpected results, the specific range amount of ‘bulk density’ is not considered to confer patentability to the claims. As the physical properties, texture and stability etc. of the final powder composition for use are variables that can be modified, among others, by adjusting the ‘bulk density’, the precise amount would have been considered a result effective variable by one having ordinary skill in the art at the time the invention was made. As such, without showing unexpected results, the claimed amount cannot be considered critical.
Accordingly, one of ordinary skill in the art at the time the invention was made would have optimized, by routine experimentation, the amount of desired ‘bulk density’ in Akeyod et al., to amounts, including that presently claimed, in order to obtain the desired effect e.g. desired physical properties with stability and efficacy of the final powder composition etc. (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223).
27. Regarding claim 28, Akeroyd et al. teaches a method of using the aldehyde-containing dry powder composition of any one of claims 1 to 27, comprising formulating or processing the aldehyde-containing powder composition with one or more additional components to constitute a final product (at least in abstract, e.g. stable polyurea microcapsule compositions suitable for encapsulating aldehydes with a low viscosity, also disclosed are consumer products containing such a composition and its preparation methods; in [0098] e.g. Adjunct materials and in [0014], [0124] [0107], [0264], [0335] ) , and, therefore, the aldehyde-containing powder composition (microcapsule composition) is formulated with a deposition aid and suspending agent to form a final shampoo product).
28. Regarding claim 29, Akeroyd et al. teaches the method of claim 28, wherein the final product is a product in which the at least one aldehyde ingredient comprises an organoleptic aldehyde ingredient of the final product (at least in abstract, e.g. microcapsule compositions comprising stable polyurea suitable for encapsulating aldehydes with a low viscosity, [0014], the consumer product can be a flavor etc. exemplary aldehydes include benzaldehyde, vanillin, [0098] e.g. Adjunct materials).
29. Regarding claim 30, Akeroyd et al. teaches the method of claim 29, wherein the organoleptic aldehyde ingredient is an aldehyde flavor ingredient e.g. exemplary aldehydes include at least benzaldehyde, vanillin ( [0089]). It is evidenced by applicants specification that the aldehyde-containing dry powder composition of the may comprise one or more aldehyde flavor ingredients, including benzaldehyde, vanillin etc. (in PGPUB [0029]-[0030])
30. Regarding claim 31, Akeroyd et al. teaches the method of claim 30, wherein the final product is a product selected from the group consisting of foods, beverages, nutritional supplements, pharmaceutical products, therapeutic products, etc. (at least in abstract, [0014]).
31. Regarding claim 33, Akeroyd et al. teaches the method of claim 29, wherein the organoleptic aldehyde ingredient is an aldehyde fragrance ingredient (at least in [0008], [0014], [0089]).
32. Regarding claim 34, Akeroyd et al. teaches the method of claim 33, wherein the final product is a product selected from the group consisting of perfumes, colognes, toilet waters, shampoos, soaps, decdorants, detergents, body washes, air fresheners, candles, waxes, apparel, packaging, cosmetics, hygiene products, skincare products, detergents, cleaning products, and aromatherapy products etc. (at least in abstract, [0014], [0124]).
33. Claim(s) 32 is rejected under 35 U.S.C. 103 as being unpatentable over Akeroyd et al. (US 2021/0237021 A1) as applied to claim 1 and in view of Lei et al. (US 2020/0170895 A1).
34. Regarding claim 32, Akeroyd et al. teaches the method of claim 30, wherein the final product is a beverage flavor (abstract, stable polyurea microcapsule compositions suitable for encapsulating aldehydes with a low viscosity, also disclosed are consumer products containing such a composition and its preparation methods; para [0014], the consumer product can be a beverage with flavor which can be microcapsule composition with aldehyde flavored e.g. vanillin, benjaldehyde etc. [0089]). Akeroyd et al. also discloses that this microcapsule composition is used as food flavor and can be used in beverage as beverage flavor ([0014]). It is within the skill of one of ordinary skill in the art to include this beverage flavor of Akeroyd et al. ([0014]) to incorporate into ready to drink beverage with a reasonable expectation of success to achieve desired flavor e.g. vanillin flavor etc. (Akeroyd et al. [0014], [0089]) in the liquid beverage product.
However, Akeroyd et al. is specifically silent about a ready-to-drink (RTD) flavored beverage product that is formed by adding the aldehyde-containing dry powder composition to a drinkable liquid.
Lei et al. discloses that an aldehyde-containing dry powder composition that is incorporated into a ready-to-drink flavored beverage product containing such a micro-capsule composition containing one or more active materials including flavors ingredients etc. (at least in abstract [0092]-[0094], [0111], [0258]) the microcapsule composition of the present invention are well- suited for use in the products including alcoholic and non-alcoholic beverages, ready to drink liquid drinks, powder drinks (at least in para [0397]-[0400]).
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Akeroyd’s beverage flavor (at least in [0014], [0089]) with the teaching of Lei et al. to combine both prior arts with the modification of Akeroyd 's dry powder composition beverage flavor ([0014], [0089]) by
Conclusion
35. One related pertinent art by Pelletier et al. US 2019/0144779 A1 discloses an encapsulated fragrance which includes aldehydes (at least in claim 11 of Pelletier et al.), an alcohol is optional (i.e. can be claimed ‘no alcohol’), (at least in claim 18 of Pelletier et al.) , however, carrier is solvent propylene glycol ([0027]). Independent claim 1 claims the composition without propylene glycol (e.g. ‘no propylene glycol).
Another pertinent prior art by Brahms et al. (2019/0184364 A1) discloses are particularly suitable for encapsulating fragrances containing one or more aldehydes ([0131]) and emulsifiers ([0112]) and wall material (at least in claim 1 of Brahms et al. ) but contains alcohol (at least in Example 46, [0460] and in claim 4 of Brahms et al.). Independent claim 1 claims the composition without alcohol (e.g. ‘no alcohol).
36. Any inquiry concerning the communication or earlier communications from the examiner should be directed to Bhaskar Mukhopadhyay whose telephone number is (571)-270-1139.
If attempts to reach the examiner by telephone are unsuccessful, examiner's supervisor Erik Kashnikow, can be reached on 571-270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/BHASKAR MUKHOPADHYAY/Examiner, Art Unit 1792
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