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 .
DETAILED ACTION
Information Disclosure Statement
The information disclosure statements (IDS) filed on 04/18/2025 and 05/07/2026 have been considered here.
Status of Claims
Claims 1-20 are currently under examination and the subject of the present Office Action.
Claim Rejections - 35 USC § 112
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.
Claims 1-20 are 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.
Claims 1, 5-6, 9, 11, 15-16, and 20 recite the limitation of “at least about” followed by an amount of a compound however it is not clear what at least about means. For example, as recited in claim 1, does at least about 40% by weight mean 39% by weight as it is about 40% by weight. As one with ordinary skill in the art would not understand the metes and bounds of the claim, the claim is indefinite. For purposes of search and consideration, the claims are understood to read “at least” instead about “at least about”.
The term "dry silky feel" in claims 4, 12, and 14 is a relative term which renders the claim indefinite. The term "dry silky feel" is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
Further, claims 4, 12, and 14 teach that the co-carrier is “is of a type and present in an amount to provide said formulation with a dry silky feel when sprayed in the form of an aerosol onto the skin of the person” or “of a type and present in an amount to provide said personal care composition with a dry silky feel when sprayed in the form of an aerosol onto the skin of the person”, but does not teach what that amount nor is “type” discussed in the specification or claims. Does “type” mean the form, specific components or compounds, a phase of matter, etc.? One with ordinary skill in the art at the time of the effective filing date would not understand the metes and bounds of the claims written as is, thus the claims are indefinite.
Further in regards to claim 12, the claim teaches “co-carrier is of a type and present in an amount to provide said personal care composition”, however it is unclear as to if the replacement fluid is actually used in the personal care composition, thus making the claim teach a personal care composition or if the claim is teaching to a replacement fluid as taught in the independent claim 11. The Board has held, “If a claim is amenable to two or more plausible constructions, applicant is required to amend the claim to more precisely define the metes and bounds of the claimed invention or the claim is indefinite under §112, ¶2.” Ex parte Miyazaki, 89 USPQ2d 1207 (BPAI 2008) (expanded panel). One with ordinary skill in the art would not be able to understand the metes and bounds of the claims, thus the claim is indefinite. For the purposes of examination, claim 12 is understood as teaching to the replacement fluid of claim 11, thus the limitation introduced in claim 12 is a future intended use of the replacement fluid of claim 11.
Further in regards to claim 14, the claim recites the limitation "said formulation" in line 2. There is insufficient antecedent basis for this limitation in the claim. Claim 14 is understood as being taught to the replacement fluid of claim 14, thus the limitation introduced in claim 11 is a future intended use of the replacement fluid of claim 11.
For purposes of examination, claims 4, 12, and 14 are understood as a future intended use of the composition, as the claims are drawn to a product, not a method of use of the product, such as being sprayed in the form of an aerosol onto the skin of a person. Further, in order to further examination, the “type” of co-carrier is understood to be those listed in claims 2, 8, 13, and 18, and the amount is understood as listed in claims 5 and 15.
All other dependent claims are indefinite as they depend from an indefinite claim.
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.
Claims 1-20 are rejected under 35 U.S.C. 103 as being unpatentable over US PGPUB 20180110714 A1 (Glenn, Jr. et al., 2018; referred as Glenn hereinafter) in view of US PGPUB 20190183753 A1 (Doering et al., 2019) as evidenced by US PGPUB 20110162668 A1 (Coffindaffer et al., 2011) (all references are cited on IDS of 04/18/2025).
In regard to claims 1, 6, 11, and 16, Glenn teaches a hair care composition in an aerosol comprising from about 20% to about 45% of a surfactant system and from about 3% to about 20% of 1, 3, 3, 3-hydrofluoropropene foaming agent (see Glenn, abstract). Said surfactant system comprises from about 10% to about 40% of one or more anionic surfactants by weight of the hair care composition (see Glenn, paragraph 0004). Further, said hydrofluoropropene foaming agent is trans-1-chloro-3, 3, 3-trifluoropropene (see Glenn, paragraph 0196) and that the foaming agent is a propellant as well (see Glenn, paragraph 0191). The amounts taught by Glenn allow for the claimed ratio of trans-1233zd to co-carrier from about 0.25:1 to about 4:1 to be met. For example, if the anionic surfactant comprises 20% of the composition and the foaming agent comprises 10% of the composition, the ratio is 2:1 which is within the claimed range. MPEP 2144.05 states that "[i]n the case where the claimed ranges 'overlap or lie inside ranges disclosed by the prior art' a prima facie case of obviousness exists" quoting In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976).
Further in regard to claims 1, 3, and 10, Glenn teaches the use of different active ingredients, such as conditioning agents (see Glenn, paragraph 0154), anti-dandruff particulates (see Glenn, paragraph 0213), anti-microbial actives (see Glenn, paragraph 0217) such as zinc-containing layered materials such as clay-type minerals (see Glenn, paragraph 0230) and aluminum chloride (see Glenn, paragraph 0217), which is also an antiperspirant active (see Doering et al., paragraph 0035), moisturizers, and deodorants, among others (see Glenn, paragraph 0212). These ingredients comprise from about 0.001 wt. % to about 10 wt. % of the composition (see Glenn, paragraph 0210).
Glenn is silent on the co-carrier comprising (i) triglycerides of linear or branched, saturated or unsaturated, C30 fatty acids; (ii) esters of at least one C2-C9 monocarboxylic, dicarboxylic or tricarboxylic acid and at least one linear or branched, saturated or unsaturated alcohol having 1 to 30 carbon atoms; (iii) C10 - C20 iso paraffin; (iv) volatile silicone fluids other than D-4 and D-5, and combinations of two or more of these, and is silent on the use of hydrophobized clay.
In regard to claims 2, 4-5, 7-9, 12-15, and 17-20, Doering et al. teaches a sweat suppressing composition comprising an antiperspirant composition, selected from an aluminum salt such as aluminum chloride (see Doering et al., paragraph 0035) and a non-volatile oil carrier as a sprayable antiperspirant product (see Doering et al., paragraph 0015). The non-volatile oil is preferably comprised of trimethyl citrate (an ester of a tricarboxylic acid), isopropyl myristate, isopropyl palmate, isopropyl stearate (all examples of an ester of a linear or branched saturated or unsaturated fatty acid having 1-30 carbon atoms), or mixtures of said esters (see Doering et al., paragraph 0067). Further, the non-volatile oil is comprised of safflower oil, palm oil, and palm kernel oil, among others (see Doering et al., paragraph 0071).
In regards to the hydrophobized clay of claim 1, Doering et al. teaches that the hydrophobized clay is used as a thickener (see Doering et al., paragraph 0115).
In regards to claims 1-10, it would be obvious to one with ordinary skill in the art at the time of the effective filing date to formulate a composition comprising 0.001 wt. % to 10wt% of active ingredients, such as aluminum chloride and a hydrophobized clay, a 20 wt. % of surfactant, such as safflower oil, and 10 wt. % of hydrofluoropropene foaming agent/propellant, such as trans-1-chloro-3, 3, 3-trifluoropropene. One with ordinary skill in the art would be motivated to use safflower oil as a surfactant for the formulation as Coffindaffer et al. teaches safflower oil as an anionic surfactant (see Coffindaffer et al., paragraph 0012). One with ordinary skill in the art would be motivated to combine the hydrophobized clay with the composition of Glenn as Glenn teaches the use of phyllosilicates (see Glenn, paragraph 0230), under which the clays mentioned in Doering et al., such as hectorites (see Doering et al., paragraph 0115) fall under. Further, it would be obvious to one with skill in the art to use the hydrophobized clays as thickeners (see Doering et al., paragraph 0115) to achieve a desirable viscosity and feel. As such, one with ordinary skill in the art would be motivated to combine the prior art elements of Glenn with the teachings of Doering et al. according to the known method of reducing and/or regulated sweat production of Doering et al. (see Doering et al., paragraph 0014) to yield predictable results.
In regards to claims 11-20, the composition taught by the combination of Glenn and Doering et al., is without silicone and comprises as trans-1-chloro-3,3,3-trifluoropropene and a surfactant, such as safflower oil. As such, this component of the composition is effectively a replacement for any silicone fluids. If the amounts mentioned above are used, the claimed range of ratios is met and the combination of as trans-1-chloro-3, 3, 3-trifluoropropene and safflower oil comprise at least 90% of this component of the overall composition. Further, in regards to claim 16, in the combination of as trans-1-chloro-3, 3, 3-trifluoropropene and safflower oil, the as trans-1-chloro-3, 3, 3-trifluoropropene comprises about 33% of the component.
Further in regards to claims 4, 12, and 14, as the combination of teachings of Glenn and Doering et al. would yield an identical composition as instantly claimed, the properties, such as providing a dry silky feel when sprayed in the form of an aerosol would be present since physical properties are not separable from the products themselves. Claims 4, 12, and 14 claim a future intended use, however the future intended use of a product is not patentable when the product itself is claimed and that same product is taught in the prior art.
In regard to claims 5, 7, 15, and 17, it is noted that for the purposes of searching for and applying prior art under 35 U.S.C. 102 and 103, absent a clear indication in the specification or claims of what the basic and novel characteristics actually are, "consisting essentially of" will be construed as equivalent to "comprising." See, e.g., PPG, 156 F.3d at 1355, 48 USPQ2d at 1355 (see MPEP 2111.03). The instant specification provides no such teaching or guidance, thus supporting the interpretation of "consisting essentially of' as equivalent to "comprising."
Conclusion
No claims allowed.
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/ISIS A GHALI/Primary Examiner, Art Unit 1611
/A.A.A./Examiner, Art Unit 1611
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