DETAILED ACTION
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 .
Formal Matters
Claims 1 and 18-36 are pending.
Claims 2-17 are canceled.
Claim Objections
Claim 1 is objected to because each of the commas appearing after “stick” in line 1, “comprising” in line 2, and “magnesium hydroxide” in line 2 should be deleted for grammatical correctness.
Claims 31-32 are objected to because in each of the claims, “Sodium Bicarbonate” should be amended to “sodium bicarbonate” for grammatical correctness (i.e., sodium bicarbonate is a common noun).
Claim 36 is objected to because “and” should be added between “wax,” and “butyrospermum” in line 4 for grammatical correctness.
Appropriate correction is required.
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 and 18-36 are rejected under 35 U.S.C. 103 as being unpatentable over Sturgis et al (US 2019/0000747 A1, published 01/03/2019) in view of Sainuo (hereafter Sainuo (1), “Discover the Advantages of Erucamide Wax for Cosmetics and Personal Care Products”, published 07/19/2023) and Sainuo (hereafter Sainuo (2), “The Many Applications of Erucamide Wax in Different Industries”, published 07/02/2023).
Sturgis et al teach a deodorant stick composition (See entire document, e.g., Title, Abstract).
The deodorant stick composition comprises structurants to help provide the compositions with the desired viscosity, rheology, texture and/or product hardness, or to otherwise help suspend any dispersed solids or liquids within the composition (e.g., [0026]). The primary structurant may have a melting point of at least about 50° C, in some embodiments from about 50° C to about 70° C, and in other embodiments from about 50° C to about 75° C, and in other embodiments from about 60° C to 80° C, may comprise from about 5% to about 20%, in some cases 7-17% of the deodorant stick, and suitable primary structurants include sunflower wax (e.g., [0027]-[0028], [0032]). The deodorant stick composition may further comprise one or more structural elements selected from a group including coconut oil and fractionated coconut oil (caprylic/capric triglyceride), and the total structurant concentration ranges from about 5% to about 35%, more typically from about 10% to about 30%, or from about 7% to about 20%, by weight of the composition (e.g., [0036]-[0037]).
Sturgis et al teach that an effective and consumer-preferred emollient may be a liquid triglyceride, for example caprylic/capric triglyceride (coconut oil fractionated), and additionally may include coconut oil and shea butter (e.g., [0041]-[0042], [0043]). The deodorant stick composition may comprise from about 25% to about 60%, by weight of the composition, of one or more liquid triglyceride, from about 25% to about 50%, from about 30% to about 50%, from about 35% to about 60%, from about 35% to about 50%, from about 40% to about 60%, or from about 40% to about 50%, by weight of the composition, of one or more liquid triglyceride (e.g., [0043]).
The deodorant stick composition may comprise one or more antimicrobials, for example baking soda (i.e., sodium bicarbonate) and magnesium hydroxide, and the total amount of antimicrobial used in the present invention may be from about 0.1% to about 30%, by weight, of the deodorant (e.g., [0045]-[0047]). Sturgis et al teach that if using magnesium hydroxide, it may be used in amounts as high as about 25% by weight of the deodorant stick (e.g., [0047]).
The deodorant stick composition may comprise a starch powder for dry feel or wetness absorption, for example arrowroot powder, which is exemplified in inventive compositions at 19% and at 23% (e.g., Table 1, [0064]-[0065]).
Although Sturgis et al teach suitability of hydrogenated high erucic acid rapeseed oil wax as a structurant in the composition (See Par. [0031]), Sturgis et al do not teach erucamide (a fatty acid amide derived from erucic acid which is found in high erucic acid rapeseed oil) as suitable in the composition.
This deficiency is made up for in the teachings of Sainuo (1) and Sainuo (2).
Sainuo (1) teaches that erucamide wax is a commonly used ingredient in the cosmetics and personal care industry; it is a natural wax that is extracted from rapeseed oil and is widely used in the production of many products such as lip balms, lotions, sunscreens, and many others (See entire document, e.g., First Par.). Sainuo (1) teaches that one of the main advantages of using erucamide wax in cosmetics and personal care products is that it has excellent lubricating properties, which helps to keep the skin soft and supple by reducing the friction between the skin and other surfaces (e.g., Sixth Par.).
Sainuo (2) teaches that erucamide wax is used in the cosmetics industry as an emulsion stabilizer and a thickener, preventing the separation of oil and water-based ingredients in cosmetic products, ensuring a consistent texture and appearance and improving the viscosity and texture of cosmetic products, such as creams and lotions (See entire document, e.g., “5. Cosmetics Industry” Par.). Sainuo (2) teaches addition of erucamide wax to cosmetic formulation at concentrations ranging from 0.5% to 3%, depending on the application (e.g., “5. Cosmetics Industry” Par.).
It would have been prima facie obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to provide a deodorant stick composition comprising sunflower wax as primary structurant and comprising coconut oil and fractionated coconut oil (caprylic/capric triglyceride) as additional structurants, wherein the amount of sunflower wax is from 5% to about 20% and the total amount of structurants is from about 5% to about 35%, comprising caprylic/capric triglyceride (coconut oil fractionated), coconut oil, and shea butter as emollients from about 25% to about 60%, comprising baking soda (i.e., sodium bicarbonate) and magnesium hydroxide as antimicrobials, wherein the amount of magnesium hydroxide is up to 25% and the total amount of antimicrobials is from about 0.1% to about 30%, comprising arrowroot powder as starch powder in an amount of from about 19% to about 23%, and erucamide wax in an amount of from 0.5% to 3%, where percents are based on the weight of the deodorant stick composition.
One of ordinary skill in the art would have been motivated to add erucamide wax in an amount of from 0.5% to 3% based on the weight of the deodorant stick composition because Sainuo (1) and Sainuo (2) teach it as a commonly used ingredient in the cosmetics and personal care industry that offers benefits including excellent lubricating properties, which helps to keep the skin soft and supple by reducing the friction between the skin and other surfaces, preventing the separation of oil and water-based ingredients in cosmetic products, ensuring a consistent texture and appearance, and improving the viscosity and texture of cosmetic products and Sainuo (2) teaches that it should be used in cosmetic formulations at concentrations ranging from 0.5% to 3%. There would have been a reasonable expectation of success in doing so because Sturgis et al already teach compatibility of the deodorant stick composition with a rapeseed oil derived erucic acid compound, i.e., hydrogenated high erucic acid rapeseed oil wax.
Regarding instant claim 1, the teaching of Sainuo (1) that the erucamide wax reduces the friction between the skin and other surfaces meets the required limitation that erucamide be present in the personal care product as a non-cationic slip-modifying agent.
The amounts of each of the aforementioned components in the modified deodorant stick composition of Sturgis in view of Sainuo (1) and Sainuo (2) render obvious each of the claimed amounts of the components of the instant claims.
Claim 36 is a product-by-process claim and therefore the product is given patentable weight, not the process by which the product is made. “[Elven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.” In re Thorne, 777 F.2d 695, 698, 227 USPQ S64, 966 (Fed. Cir. 1985). Therefore, claim 36 is being examined to the extent of the resultant personal care product, i.e., “a personal care product in the form of a deodorant stick, comprising, magnesium hydroxide, and, based on total weight of the product, about 2.0 wt.% to about 5.0 wt.% erucamide, wherein the erucamide is present as a non-cationic slip-modifying agent”, rather than the method for formulating the personal care product, i.e., “1) adding cocos nucifera (coconut) oil, caprylic/capric triglyceride, helianthus annuus (sunflower) seed wax, butyrospermum parkii (shea) butter to a vessel to form a mixture, 2) heating the mixture to 85°C, 3) adding the erucamide and mixing the mixture until the mixture is uniform, 4) with moderate mixing, adding the magnesium hydroxide, arrowroot powder, and sodium bicarbonate to the mixture, 5) mixing the mixture until the mixture is uniform, 6) cooling the mixture to 70°C, 7) removing the mixture from heat and continuing cooling the mixture, and 8) keep mixing while pouring the mixture into a container at 60°C”.
Thus, the modified deodorant stick composition of Sturgis in view of Sainuo (1) and Sainuo (2) renders obvious instant claims 1 and 18-36.
Conclusion
No claims are allowable.
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/K.E.O./Examiner, Art Unit 1619
/NICOLE P BABSON/Primary Examiner, Art Unit 1619
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