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 .
Information Disclosure Statement
The information disclosure statements (IDS) submitted on January 10, 2025 and September 4, 2026 are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Priority
Acknowledgment is made of applicant’s claim for foreign priority under 35 U.S.C. 119 (a)-(d). The certified copy has been received and placed in the file.
Election/Restrictions
Applicant’s election without traverse of Group I in the reply filed on September, 4, 2026 is acknowledged. Accordingly, claims 10, 12, 14, 16-17, and 20 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.
Claim Objections
Claim 5 is objected to because of the following informalities: claim 5 recites “according to anyone of claim 1,” which should read “according to claim 1.” Appropriate correction is required.
Claim Rejections - 35 USC § 112(b)
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 13 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 13 recites “optionally free perfume oil,” which renders the claim indefinite. It is unclear if the composition is optionally free of perfume oil or if it optionally comprises a component called “free perfume oil.” Clarification by amendment of claim 13 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.
1. Claim(s) 1-9, 11, 13, 15, and 18-19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Gruijthuijsen et al. (WO 2021/018947 A1, February 4, 2021) (hereinafter Gruijthuijsen).
In regard to claim 1, Gruijthuijsen discloses a composite microcapsule slurry including at least one microcapsule having an oil-based core including a hydrophobic material, and a composite shell including a first material and a second material. The first material and the second material are different, the first material is a coacervate, the second material is a polymeric material (Abstract). A “microcapsule”, or the similar, is a core-shell microcapsules (page 2, lines 29-30). According to a particular embodiment, the coacervate is a complex coacervate. The complex coacervate comprises at least a first polyelectrolyte and a second polyelectrolyte (page 3, lines 21-23). A first polyelectrolyte (Polyelectrolyte I) of one charge is preferably selected among proteins (page 23, lines 9-10). Preferably, the protein is selected from the group consisting of a plant protein (page 24, lines 6-8).
The prior art is not anticipatory insofar as one must select plant protein from a list. It would have been obvious, however, to make the combination since all the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination yielded nothing more than predictable results to one of ordinary skill in the art. See MPEP 2143(I)(A).
In regard to claim 2, reciting wherein the polymeric material and the coacervate of the core-shell microcapsule are homogenously distributed within the shell, Gruijthuijsen discloses a process for preparing microcapsules. The process comprises the steps of providing as a dispersion in an aqueous vehicle comprising a first polyelectrolyte, a hydrophobic internal phase comprising at least a polyfunctional monomer and a hydrophobic material to form an oil-in-water emulsion. Then, a second polyelectrolyte in the oil-in-water emulsion and conditions to form a suspension of complex coacervate nodule are provided. Conditions are provided to induce interfacial polymerization of the polyfunctional monomer inside the outer shell to form an inner shell (page 35, lines 13-27). The dispersion of the oil phase into the water phase can be carried out by different well- known techniques. As non-limiting methods, one may cite a Ultrasonic homogenizer and a high pressure homogenizer (APV, SPX Flow, USA) (page 37, lines 18-22). Accordingly, it would have been obvious to one of ordinary skill of the art to have homogenously distributed the polymeric material and the coacervate in the shell because Gruijthuijsen teaches a known and effective method of preparing microcapsules with a coacervate and polyfunctional polymer using an ultrasonic homogenizer or high pressure homogenizer, which would create a homogenous distribution.
In regard to claim 3, the prior art discloses the protein is selected from the group consisting of a plant protein, preferably, pea proteins, soy proteins, rice proteins, wheat proteins, potato proteins, corn proteins, whey proteins, lupin proteins or mixtures thereof (page 24, lines 6-8).
In regard to claim 4, the prior art discloses the previously discussed microcapsule slurry and a protein selected from a group consisting of a plant protein, preferably, potato proteins (page 24, lines 6-7).
In regard to claim 5, the prior art discloses the second polyelectrolyte is selected from the group consisting of gum arabic, xanthan, alginate salts, cellulose derivatives, for example carboxymethyl cellulose, sodium carboxymethyl guar gum, pectinate salts, carrageenan, polyacrylic and methacrylic acid, xanthan gum and plant gums (page 24, lines 16-20).
In regard to claim 6, the prior art discloses the previously discussed microcapsule slurry and the second polyelectrolyte is gum arabic (page 24, lines 21-22).
In regard to claim 7, the prior art discloses the second polymeric material is selected from the group consisting of polyurea, polyurethane, polyamide, polyester, polyacrylate, polysiloxane, polycarbonate, polysulfonamide, polymers of urea and formaldehyde, melamine and formaldehyde, melamine and urea, or melamine and glyoxal and mixtures thereof (page 25, lines 13-18).
In regard to claim 8, the prior art discloses the hydrophobic material is a hydrophobic active ingredient, and in a preferred embodiment, a perfume oil (page 5, lines 17-19); the first electrolyte is a potato protein (page 24, lines 6-7); the second electrolyte is gum arabic (page 24, lines 21-22); and the second material is polyurea and/or polyurethane (page 25, lines 13-18).
In regard to claim 9, reciting wherein the polymeric material is present in an amount less than 10% by weight, Gruijthuijsen discloses the second material is present in an amount less than 3%, preferably less than 1% by weight based on the total weight of the microcapsule slurry (page 26, lines 16-17). In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists. See MPEP 2144.05 A.
In regard to claim 11, Gruijthuijsen discloses a consumer product comprising a consumer product base and the previously discussed microcapsule slurry including at least one microcapsule (claim 10).
In regard to claim 13, the prior art discloses a liquid detergent composition comprising a liquid detergent active base and the previously discussed microcapsule slurry comprising at least one microcapsule (page 46, lines 17-30).
In regard to claim 15, Gruijthuijsen discloses wherein the consumer product is in the form of a home care or a fabric care composition (page 45, line 5).
In regard to claim 18, Gruijthuijsen discloses wherein the liquid detergent active base is selected from the group consisting of an anionic surfactant, a nonionic surfactant, and mixtures thereof, wherein the anionic surfactant is selected from the group consisting of alkylbenzenesulfonate (ABS), secondary alkyl sulfonate (SAS), primary alcohol sulfate (PAS), lauryl ether sulfate (LES), and methyl ester sulfonate (MES), and wherein the nonionic surfactant is selected from the group consisting of alkyl amines, alkanolamide, fatty alcohol poly (ethylene glycol) ether, fatty alcohol ethoxylate (FAE), ethylene oxide (EO), propylene oxide (PO) copolymers, amine oxydes, alkyl polyglucosides, and alkyl polyglucosamides (page 46, lines 20-26).
In regard to claim 19, Gruijthuijsen discloses wherein the consumer product is in the form of a liquid detergent composition and comprises between 85 and 99.95% of a liquid detergent active base (page 47, lines 5-7). In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists. See MPEP 2144.05 A.
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 1-9, 11, 13, 15, and 18-19 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 2-3, 7, 9, and 15 of U.S. Patent No. US 12,383,477 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because the conflicting claims recite a more specific version of the instant claims (i.e. the conflicting claims recite the additional components, e.g. a microcapsule slurry that comprises the microcapsule) and thus read on the instant claims.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Conclusion
Claims 1-9, 11, 13, 15, and 18-19 are rejected.
Claims 10, 12, 14, 16-17, and 20 are withdrawn.
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to EMILY L KRINOS whose telephone number is (571)270-1412. The examiner can normally be reached Monday -Thursday 9 AM - 4 PM ET.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Ali Soroush can be reached at (571) 272-9925. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/E.L.K./Examiner, Art Unit 1614
/TRACY LIU/Primary Examiner, Art Unit 1614
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