DETAILED ACTION
Status of Application
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Rejections – 35 U.S.C. 103
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 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.
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.
Claims 1-20 are rejected under 35 U.S.C. 103 as being unpatentable over Midha et al. (US20170281486A1).
Regarding claims 1-20, Midha is drawn to oral care composition containing a gel phase, potassium nitrate, a peroxide source, an abrasive, and a fluoride source (abstract and claims 1-19).
Midha discloses oral care compositions can include fluoride, peroxide, potassium nitrate, abrasives, flavors, and other ingredients to provide benefits like reducing plaque and tartar, reducing pain from sensitive teeth, preventing cavities, preventing and reversing gingivitis, building protection against sensitivity, freshening bad breath, and whitening teeth. Some consumers are particularly interested in a product that contains both potassium nitrate to help alleviate dentinal hypersensitivity and peroxide to help whiten teeth [0007].
Midha discloses in order to improve rheology, oral care products can include a gel network phase as a structurant. The gel network phase can include a fatty amphiphile, such as a fatty alcohol [0009]. Midha discloses the toothpaste composition can contain a gel network phase, greater than about 1% hydrogen peroxide, an effective amount of potassium nitrate, a fatty amphiphile [0011]. Midha discloses the composition can contain a silica abrasive [0094].
Midha does not explicitly disclose the composition as claimed together in one single embodiment.
However, it would have been obvious to one of ordinary skill in the art at the time the invention was made to modify the teachings of Midha to arrive at the instant invention, with the motivation that Midha discloses each of the required components and amounts, and for the same purpose of a product that contains both potassium nitrate to help alleviate dentinal hypersensitivity and peroxide to help whiten teeth [0007].
Further, one having ordinary still in the art would reasonably expect success in combining prior art elements according to known methods to yield predictable results, see MPEP 2141.
The Supreme Court has acknowledged:
When a work is available in one field of endeavor, design incentives and other market forces can prompt variations of it, either in the same field or a different one. If a person of ordinary skill can implement a predictable variation... 103 likely bars its patentability...if a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious unless its actual application is beyond that person’s skill. A court must ask whether the improvement is more than the predictable use of prior-art elements according to their established functions......the combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results (see KSR International Co. v. Teleflex Inc., 82 USPQ2d 1385 U.S. 2007) (emphasis added).
From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole was prima facie obvious to one of ordinary skill in the art at the time the invention was made, as evidenced by the references, especially in the absence of evidence to the contrary.
Conclusion
No claims are allowed.
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/QUANGLONG N TRUONG/Examiner, Art Unit 1615
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