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 .
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 14 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claim 14 recites “wherein the alkyl alkoxy sulfate surfactant has an average degree of alkoxylation of less than about 0.25”. This is identical to the limitation in claim 1 of “wherein the alkyl sulfated anionic surfactant has an average degree of alkoxylation of less than about 0.25”. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
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 CFR 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 1-8 and claims 10-20 are rejected under 35 U.S.C. 103 as being unpatentable over Lant (US 20170355933 A1) in view of Siklosi (US 4769172 A).
With regard to claims 1-8, 10, 14-15, and 18-19, Lant discloses a cleaning composition which may be a liquid (see [0025]). Lant further discloses that the composition may comprise a surfactant system (see [0063]) at 1-80wt% (see [0066]). Lant further teaches 1-40wt% of anionic surfactants (see [0071]). Lant further discloses the anionic surfactant may be an alkyl sulfate (see [0068]) and may further be an alkyl ethoxy sulfate having an average degree of ethoxylation of less than 5 (see [0069]). Lant further discloses 0.5-15wt% of amphoteric and/or zwitterionic surfactants (see [0071]). Lant further discloses 0.1-40wt% of nonionic surfactants (see [0087]) and alkylpolyglucosides as suitable nonionic surfactants (see [0088]).
However, Lant fails to disclose from about 0.1 to about 10wt% of a mid-chain 1,2-alkanediol, wherein the mid-chain alkyl chain of the 1,2-alkanediol comprises from 6 to 14 carbon atoms.
Siklosi discloses a dishwashing liquid, an analogous art (see Col 3 line 56-62). Siklosi further discloses 1-45wt% of surfactants (see Col 3 line 56-57), which may be anionic surfactants (see Col 3 line 16-18). Siklosi further discloses 1-50wt% of solvents (see Col 6 line 5-6), diols as preferred solvents due to their good grease cutting ability (see Col 5 line 64-65), and 1,2-octanediol as a suitable diol solvent (see Table 1).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to utilize the 1,2-octanediol of Siklosi in the cleaning composition of Lant for the purpose of improving the grease cutting ability of the composition, as disclosed by Siklosi.
With regard to claim 11, Lant and Siklosi disclose all of the limitations of claim 1.
However, while Lant does not specifically disclose at least about 40% by weight of the surfactant system of the anionic surfactant, Lant discloses 1-80wt% of a surfactant system and 1-40wt% of anionic surfactants. Through routine experimentation, one of ordinary skill in the art would select 60wt% of a surfactant system and the anionic surfactant at 65wt% of the surfactant system. This would result in the anionic surfactant at 39wt% of the overall composition.
With regard to claim 12, Lant and Siklosi disclose all of the limitations of claim 1. Lant further discloses the anionic surfactant comprises at least 70wt% of a sulfate surfactant (see [0083]).
With regard to claim 13, Lant and Siklosi disclose all of the limitations of claim 1. Lant further discloses C8-C18 primary, branched chain and random alkyl sulfates as suitable sulfate surfactants (see [0081]).
With regard to claim 16, Lant and Siklosi disclose all of the limitations of claim 1. Lant further teaches 1-40wt% of anionic surfactants (see [0071]) and 0.5-15wt% of amphoteric surfactants (see [0071]).
With respect to the ratio of anionic surfactant to amphoteric surfactant of 1:1 to 8:1 considering that Lant teaches anionic surfactants in the range of 1-40wt% as disclosed in [0071] and amphoteric surfactants in the range of 0.5-15wt% as disclosed in [0071], 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. 39 wt% anionic surfactants: 5 wt% amphoteric surfactants or 7.8:1) 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).
With regard to claim 17, Lant and Siklosi disclose all of the limitations of claim 1. Lant further discloses alkyl dimethyl amine oxides as suitable amphoteric surfactants (see [0900]).
With regard to claim 20, Lant and Siklosi disclose all of the limitations of claim 1.
With respect to the ratio 1,2-alkanediol to surfactant system of from about 1:60 to about 1:1 considering that Lant teaches a surfactant system in the range of 1-80wt% as disclosed in [0063] and [0066] and Siklosi discloses 1,2-alkanediol in the range of 1-50wt% as disclosed in (see Col 6 line 5-6) and Table 1, 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. 5 wt% 1,2-alkanediol: 60 wt% surfactant system or 1:12) 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).
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Lant (US 20170355933 A1) in view of Siklosi (US 4769172 A), as applied to claims 1-8 and claims 10-20 above, and further in view of Zuniga (US 20200392427 A1).
With regard to claim 9, Lant and Siklosi disclose all of the limitations of claim 1.
However, Lant and Siklosi fail to disclose divalent metal salts, selected from the group consisting of: magnesium and/or calcium salts of: chlorides, sulphates, carbonates, bicarbonates, linear alkyl benzene sulphonic acid, and mixtures thereof.
Zuniga discloses aqueous cleaning compositions, an analogous art (see Abstract). Zuniga further discloses the composition may be a dish soap (see [0055]). Zuniga further discloses sodium carbonate as a pH adjusting agent and pH adjusting agents present in a total amount effective to maintain the composition in an acceptable pH range.
It would have been obvious to one of ordinary skill in the art, before the effective filing date, to utilize the sodium carbonate of Zuniga in the composition of Lant in view of Siklosi for the purpose of maintaining the composition in an acceptable pH range, as disclosed by Zuniga.
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 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); 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 nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-10, 12-13, 16-17, and 20 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-10, 12-13, 15-16, and 19 of copending Application No. 18/906,213. Although the claims at issue are not identical, they are not patentably distinct from each other because both applications are directed toward a liquid hand dishwashing detergent composition. Both applications comprise anionic surfactants, nonionic surfactants, amphoteric surfactants, identical ratios of said surfactants, 1,2-octanediol, and identical ratios of the 1,2-alkanediol to the surfactant system.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Conclusion
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/B.S.H./ Examiner, Art Unit 1761
/GREGORY R DELCOTTO/ Primary Examiner, Art Unit 1761
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