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 .
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 3 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 3 recites the limitation "the metal sequestration agent" in line 2. There is insufficient antecedent basis for this limitation in the claim. Claim 1 does not recite a metal sequestration agent. Appropriate correction is required.
Claim Rejections - 35 USC § 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 (i.e., changing from AIA to pre-AIA ) 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.
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 1-9 are rejected under 35 U.S.C. 103 as being unpatentable over Sieben et al. (US 2018/0105769 A1; cited on Applicant's IDS filed 04/22/2025).
As to independent claim 1, Sieben teaches a liquid laundry additive composition (see para. 0015: acid-containing textile treatment agent) comprising: from 18% to 40%, by weight of the composition, of citric acid (see para. 0016 & 0024-0025: the quantity of organic acid, e.g. citric acid, is by preference between 5 and 30 wt%); from about 50% to about 95% of water (see para. 0044: textile treatment agents contain water as a principal solvent); the composition being characterized by an acidic pH of from about 2 to about 4 (see para. 0021: it is preferred that the textile treatment agent have a pH in the range from 1.5 to 4.5); the composition further comprising perfume and an organic solvent (see para. 0042: by preference, additionally contains nonaqueous solvents and perfume compositions). A prima facie case of obviousness exists because the claimed ranges "overlap or lie inside ranges disclosed by the prior art". See MPEP 2144.05 I.
With respect to the composition being "substantially free of dyes", Sieben teaches that the textile treatment agent can contain further ingredients, such as dyes (see para. 0042). Thus, Sieben provides a fair motivation for one of ordinary skill in the art to formulate a composition "substantially free of dyes", as required by claim 1. It is noted that the present specification defines the term "substantially free" on pg. 1: "This means that the indicated material is at the very minimum not deliberately added to the composition to form part of it, e.g. at a level of less than 1%." It is recognized that Sieben teaches dyes as one of the "particularly preferred additional ingredients" (see para. 0043), however a reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art, including non-preferred embodiments. See MPEP 2141.02.
Sieben fails to explicitly disclose that the composition is [1] characterized by a percent transmittance (%T) of at least about 50% of light using a 1 centimeter cuvette, at a wavelength of 410-800 nanometers and [2] contained in a transparent container having a transmittance of more than about 25% at a wavelength of from about 410 nm to about 800 nm.
As to difference [1], since the Office does not have the facilities for examining and/or comparing the properties of Applicant's composition with those necessarily possessed in the prior art, the burden is on the Applicant to show that Sieben's composition, which comprises the same ingredients in the claim recited amounts, does not have the claimed percent transmittance (%T) property. See MPEP 2112.01 II.
As to difference [2], Sieben teaches that the textile treatment agents are by preference liquid (see para. 0044). Transparent containers are well-known for laundry detergent dispensing (for example, a clear plastic bottle permits a user to see how much of their detergent remains). It involves no inventive skill to select a transparent container from a list of known containers for storing/transporting laundry detergents or rinse additives. See MPEP 2141 III, KSR rationale (E) "Obvious to try": Transparent containers are chosen from a finite number of identified, predictable solutions for containing liquid laundry/fabric treatment compositions and have a reasonable expectation of success. Further, a transparent formulation of the detergent composition itself reduces the possibility of irritants to a consumer. For instance, commercially available "free and clear" formulations are often transparent and advertised as being free of dyes and unnecessary additives. As to the transmittance of the transparent container, the Office does not have the facilities for examining and comparing Applicant's properties with those necessarily present in the prior art, thus the burden is on the Applicant to show that Sieben's composition, which comprises the same ingredients in the claim recited amounts in a container selection that would be obvious, does not have the claimed transmittance properties. See MPEP 2112.01 II.
As to claims 2 & 4-5, Sieben teaches the composition according to claim 1, but fails to explicitly disclose that the composition is characterized by the Reserve Acidity recited in the claims. However, since the Office does not have the facilities for examining/comparing the properties of Applicant's composition with those necessarily possessed in the prior art, the burden is on the Applicant to show that Sieben's composition, which comprises the same ingredients in the claim recited amounts, does not have the claimed "Reserve Acidity" properties. See MPEP 2112.01 II.
As to claim 3, Sieben teaches the composition according to claim 1, wherein the composition comprises from about 20% to about 30%, by weight of the composition of a metal sequestration agent (see para. 0024-0025: quantity of citric acid is between 5 and
30 wt%). Note that the present specification describes citric acid as the preferred metal
sequestration agent for use in the claimed compositions (see filed spec. pg. 1).
As to claim 6, Sieben teaches the composition of claim 1, wherein the liquid
laundry additive composition is characterized by a pH of from about 2 to about 3 (see para. 0021 pH in the range from 1.5 to 4.5). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to select the portion of the prior art's range which is within the range of applicant's claims
because it has been held to be obvious to select a value in a known range by
optimization for the best results. See MPEP 2144.05.
As to claims 7-8, Sieben teaches the composition according to claim 1, wherein
the liquid laundry additive composition further comprises an additional organic acid
selected from the group consisting of acetic acid, lactic acid, adipic acid, etc. (see para.
0071: citric acid, formic acid, acetic acid, tartaric acid, malic acid, lactic acid and
mixtures thereof); wherein the liquid laundry additive composition further comprises
vinegar (see para. 0071: vinegar is an aqueous solution of acetic acid).
As to claim 9, Sieben teaches the composition according to claim 1, wherein the
liquid laundry additive composition comprises a fabric softening active ("FSA") (see
para. 0042: softening components). As to the recitation of "less than 1%", it is noted that
one of ordinary skill in the art would discover the optimum or workable ranges for the
amount of FSA in the composition based on routine experimentation and the disclosure
of Sieben. Burden is shifted to the Applicant to provide evidence that the claimed
ranges produce a new and unexpected result which is different in kind and not merely in
degree from the results of the prior art. See MPEP 2144.05. Application/Control
Claims 10-19 are rejected under 35 U.S.C. 103 as being unpatentable over
Sieben et al. (US 2018/0105769 A1), in view of Delaney et al. (US 2014/0349908 A1;
cited on Applicant's IDS filed 12/01/2023).
Sieben teaches the liquid laundry additive composition according to claim 1 as
described above but fails to disclose the specific method steps recited in claims 10-11.
However, as to claim 10, Delaney teaches a method of treating a fabric, said
method comprising the steps of: combining a liquid laundry additive composition with
water to form a rinse liquor in a vessel and contact a fabric with the rinse liquor in the vessel and agitating the fabric and removing the rinse liquor from the vessel (see para. 0124: a method for treating a surface, e.g. fabric, comprises contacting the surface with the composition in dilute form, e.g. mixing the composition with wash water, then
treating the surface in an automated fashion, such as by a laundry washing machine).
As to claim 11, Delaney teaches a method of claim 10, further comprising the
steps of: combining a laundry detergent composition with water to form a wash liquor in
the vessel, wherein the laundry detergent composition comprises anionic surfactant;
contacting a fabric with the wash liquor in the vessel and agitating said fabric; removing
the wash liquor from the vessel (see para. 0124: mix the composition with wash water
and treat in a laundry washing machine). With respect to the added feature "wherein the
step of contacting the fabric with the rinse liquor occurs subsequently to contacting the
fabric with the wash liquor", changing the order of steps does not render a claim
process non-obvious over the prior art. See Ex parte Rubin, 128 USPQ 440,441,442
(POBA 1959) and MPEP 2144.04 IV C: Changes in Sequence of Adding Ingredients. Further, it is common practice in laundry to use both a laundry detergent and additives to improve cleaning effectiveness, enhance brightness, add a scent, etc. to the fabrics being washed/treated.
Therefore, in view of the teaching of Delaney, it would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to incorporate the liquid laundry additive composition taught by Sieben into the method taught by Delaney to arrive at the claimed invention because Sieben suggests contacting textiles with his textile treatment agent in a washing machine to remove stains (see Sieben para. 0013). Delaney clearly teaches that the method for treating a fabric may be performed in a laundry washing machine and provide stain removing benefits (see Delaney para. 0124 & 0021). Thus, a person of ordinary skill in the art would be motivated to apply a known laundry composition by the instantly claimed method steps with a reasonable expectation of success for providing cleaning, stain removing or other laundering benefits to fabrics in an automated fashion (see Delaney para. 0021 & 0124) and would expect such a method to have similar properties to those claimed, absent the showing of unexpected results.
As to claim 12, Sieben and Delaney teach the method according to claim 11, wherein the laundry detergent composition is a liquid laundry detergent that is characterized by an acidic pH (see Sieben para. 0021 & Delaney para. 0078).
As to claim 13, Sieben and Delaney teach the method according to claim 10 in an automatic washing machine (see Delaney para. 0124), but fails to disclose the method further comprises the step of providing the liquid laundry additive composition to a dispenser prior to being provided to the vessel and that the dispenser is characterized Application/Control Number: 18/452,106
Page 13
Art Unit: 1761
by a receiving volume of from about 25 mL to about 150 mL. However, adding a liquid
laundry additive to a dispenser before it goes into the machine vessel is common
laundry practice involves no inventive skill. Further, one of ordinary skill in the art would
discover the optimum or workable ranges for the receiving volume of the dispenser
based on routine experimentation and the disclosures of Sieben and Delaney. Burden is
shifted to the Applicant to provide evidence that the claimed ranges produce a new and
unexpected result which is different in kind and not merely in degree from the results of
the prior art. See MPEP 2144.05.
As to claims 14-15 & 18, Sieben and Delaney teach the method according to
claim 10, but fail to explicitly disclose that the rinse liquor comprises from about 150 to
about 1500 ppm [or from about 175 to 1200 ppm; or from about 185 to about 1000 ppm]
of the citric acid. However, it is noted that one of ordinary skill in the art could discover
the optimum/workable ranges for the amount of citric acid in the rinse liquor [formed in method claim 10] based on routine experimentation and the disclosure of Delaney (see para. 0071-0074). Burden is shifted to the Applicant to provide evidence that the
claimed ranges produce a new and unexpected result which is different in kind and not
merely in degree from the results of the prior art. See MPEP 2144.05.
As to claims 16-17, Sieben and Delaney teach the method according to claim
14, wherein the rinse liquor is characterized by a pH of from about 2 to about 6.5 (see
Sieben para. 0021 & Delaney para. 0078); claim 14, wherein the rinse liquor comprises
a fugitive dye (see Delaney para. 0086-0088).
As to claim 19, Sieben and Delaney teach the method according to claim 10 as
described above. When no anionic surfactant is added to the composition or wash water (see Delaney para. 0021 & Sieben para. 0042), then the composition would comprise less than about 500 ppm of anionic surfactant. It is recognized that Delaney teaches that the surfactant system typically comprises anionic surfactant (see Delaney para. 0041), however a reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art, including non-preferred embodiments. See MPEP 2141.02. The term "typically" reads as anionic surfactants being optional, not required, so satisfies the claim feature.
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 1-19 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-19 of U.S. Patent No. 12570934; . Although the claims at issue are not identical, they are not patentably distinct from each other because they overlap in subject matter and obvious variants.
Claims 1-19 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-19 of U.S. Patent No. 11,781,093 (hereinafter Pat. '093). Although the claims at issue are not identical, they are not patentably distinct from each other because both claim a liquid laundry additive composition comprising: from 18% to 40% citric acid, from about 50% to 95% of water, perfume and characterized by an acidic pH of from about 2 to 4 and percent transmittance, is substantially free of dyes and contained in a transparent container (see instant claim 1 and Pat. '093 claim 1). Both also claim a method of treating fabric comprising identical steps: combining the liquid laundry additive composition according to claim 1 with water to form a rinse liquor in a vessel, contacting a fabric with the rinse liquor, agitating the fabric, and removing the rinse liquor from the vessel (see instant claim 10 and Pat. '093 claim 10).
Claims 1-19 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-19 of U.S. Patent No. 12600928.
Although the claims at issue are not identical, they are not patentably distinct from each other because both claim a liquid laundry additive composition comprising: from 18% to 40% citric acid, from about 50% to 95% of water, perfume and characterized by an acidic pH of from about 2 to 4 and percent transmittance, is substantially free of dyes and contained in a transparent container (see instant claim 1 and Pat. '093 claim 1). Both also claim a method of treating fabric comprising identical steps: combining the liquid laundry additive composition according to claim 1 with water to form a rinse liquor in a vessel, contacting a fabric with the rinse liquor, agitating the fabric, and removing the rinse liquor from the vessel. Therefore, the claims are obvious variants of the same.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to NECHOLUS OGDEN JR whose telephone number is (571)272-1322. The examiner can normally be reached 8-4:30 EST M-F.
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/NECHOLUS OGDEN JR/Primary Examiner, Art Unit 1761
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