DETAILED ACTION
Claims 1-12 are pending and under consideration on the merits.
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 .
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 2/28/25 was filed prior to the mailing date of a first Action on the merits. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, it was considered by the Examiner.
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 1-12 are rejected under 35 U.S.C. 103 as unpatentable over Thomson et al. (US Pat. Pub. 2017/0367948).
As to claims 1-12, Thomson discloses oral care compositions comprising a zinc ion source such as zinc citrate (an “organic zinc compound” of claims 1 and 4), a polyphosphate (Abstract and paragraphs 6, 8, 36), an anti-calculus agent such as sodium hexametaphosphate (a “polyphosphate” of claim 1 that is a linear polyphosphate of claims 5-7)(paragraph 122), and a buffering agent such as monopotassium phosphate, dipotassium phosphate, monosodium phosphate, or disodium phosphate (a “phosphate ion source” of claims 1 and 3 and a “potassium ion source” of claims 1 and 3)(paragraph 119) and a fluoride source such as potassium fluoride (a “potassium ion source” of claims 1 and 3)(paragraph 35). Thomson discloses at Table 8 a specific embodiment comprising zinc citrate, phosphate salt, and polyphosphate, but this formulation does not comprise a potassium ion source as required by claim 1.
As to claim 8, the organic zinc compound may be present in the amount of 0.5 wt% which is within the recited range (paragraph 87), the polyphosphate in the amount of 0.5-5 wt% which overlaps the claimed range (paragraph 35), and one or more potassium or phosphate salts may be present in the amount of 1-20 wt% (paragraph 38), which encompasses the recited ranges. Additionally, discovering optimum or working ranges involves only routine skill in the art in cases where the general conditions of a claim are disclosed in the prior art. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Regarding claims 10-11, the composition may be an “oral product” of claim 10 such as a toothpaste, mouthwash, oral swab, oral patch, or gum of claim 11 (paragraph s 94 and 99-100).
As to claims 9 and 12, the composition may be a pharmaceutical composition for whitening the teeth, strengthening enamel, or for improving dentin hypersensitivity (paragraph 93).
As to claims 1-12, Thomson does not further expressly disclose a specific embodiment comprising a potassium ion source, phosphate ion source, organic zinc compound, and a polyphosphate in combination.
As to claim 1-12, it would have been prima facie obvious to one of ordinary skill in the art at the effective filing date of the present invention to modify the disclosure of Thomson by selecting a potassium ion source, phosphate ion source, organic zinc compound, and a polyphosphate in combination, because Thomson expressly teaches that the composition taught therein may comprise each of these ingredients. Such a modification is merely the combining of known elements according to known methods to achieve predictable results, which is prima facie obvious. MPEP 2143. "Reading a list and selecting a known compound to meet known requirements is no more ingenious than selecting the last piece to put in the last opening in a jig-saw puzzle." (325 U.S. at 335, 65 USPQ at 301). MPEP § 2144.07.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to GAREN GOTFREDSON whose telephone number is (571)270-3468. The examiner can normally be reached on M-F 9AM-6PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, David Blanchard can be reached on 5712720827. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/GAREN GOTFREDSON/Examiner, Art Unit 1619
/ANNA R FALKOWITZ/ Primary Examiner, Art Unit 1600
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