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 .
Claim Status
Claims 1-20 are currently pending and are examined on the merits herein.
Priority
The instant application claims domestic benefit to U.S. Application Nos. 63/557,812 filed on 02/26/2024, 63/558,670 filed on 2/28/2024, 63/712,718 filed on 0/28/2024, 63/719,856 filed on 11/13/2024, and 63/719,861 filed on 11/13/2024 as reflected in the filing receipt dated on 04/18/2025.
Information Disclosure Statement
The information disclosure statements (IDS) submitted on 04/30/2025, 07/25/2025, 12/23/2025, and 02/22/2026 are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statements have been considered by the Examiner.
Claim Objections
Claims 1, 4, 7, 13, 15, and 17 are objected to because of the following informalities:
Claim 1 recites an extraneous space within the term “hetero arylalkyl” in line 8, which should be removed and amended to recite “heteroarylalkyl”.
Claims 1 and 4 each recite the term “lauroamphoacete”, which is a typographical error as evidenced by Applicant’s instant specification [pg. 13, lines 21-33; pg. 28, table 1] and should be amended to recite “lauroamphoacetate”.
Claim 4 recites the terms “acyl taurate surfactant” and “betaine”. For consistency with parent claim 1 and with claims 5 and 8, which depend from claim 4, the claim should be amended to recite “an acyl taurate surfactant” and “a betaine surfactant”.
Claim 7 recites an extraneous space between the terms “comprises” and “lauroyl”, which should be removed.
Claim 13 recites the terms “Lather Height” and “Blender Lather Height”, which are inappropriately capitalized. The claim should be amended to recite “lather height” and “blender lather height”.
Claim 15 recites the limitations “3-hydroxydeceneoic acid” (line 2) and “3-hydroxydecaneoic acid” (line 4), which contain typographical errors and should read “3-hydroxydecenoic acid” and “3-hydroxydecanoic acid”.
Claim 17 recites the terms “the mono-rhamno, mono-lipid” and “the di-rhamno, mono-lipid”, which incorrectly recite commas rather than hyphens in the middle of each term. The claim should be amended to recite “the mono-rhamno-mono-lipid” and “the di-rhamno-mono-lipid”.
Appropriate correction is required.
Specification
The attempt to incorporate subject matter into this application by reference to “FIG. 1” [pg. 6, line 33] and “FIG. 2” [pg. 7, line 13] is ineffective because no drawings are filed with the instant application.
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.
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.
Claim 1 recites a structure corresponding to structure I, which includes variables Cx and M that are not clearly defined in the claim. It is unclear if these variables correspond to the same as recited under component b) in relation to structure II or whether they represent different chemical substituents. Therefore, the scope of the claim is indefinite. For examination purposes, the Examiner is interpreting Cx and M to respectively correspond to the same recited under component b) of the claim. Claims 2-20 are rejected by virtue of their dependency on claim 1, as they fail to resolve the ambiguity in question.
Claim 4 recites the broad limitation “acyl taurate surfactant” followed by the narrower recitation “N-alkyl acyl taurate surfactant”. A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims. Claims 5-8 are rejected by virtue of their dependency on claim 4, as they fail to resolve the ambiguity in question.
Claim 8 recites the limitation “wherein the betaine surfactant is cocobetaine, cocamidopropyl betaine, and mixtures thereof”. Because the recitation “mixtures thereof” encompasses both cocobetaine and cocamidopropyl betaine, it is unclear if the claim is supposed to mean that the betaine surfactant is selected from cocobetaine, cocamidopropyl betaine, and mixtures thereof (i.e., the betaine surfactant can be cocobetaine or cocamidopropyl betaine or mixtures thereof), or whether the claim means that the betaine surfactant is actually a mixture of cocobetaine and cocamidopropyl betaine, in which case the recitation “mixtures thereof” is redundant and confusing. Accordingly, the scope of the claim is indefinite. For examination purposes and because the claim recites “mixtures thereof” separately from cocobetaine and cocamidopropyl betaine, the Examiner is interpreting the betaine surfactant is selected from one of the three recited choices.
Claims 9 and 10 each recite the limitation “wt.%”. It is unclear whether the term indicates total composition weight or component weight, etc. Therefore, the metes and bounds of the claim are indefinite. For the purpose of the prior art rejections below, the claim is interpreted to mean wt.%, based on the total weight of the composition.
Claim 12 recites the limitations “mono-rhamno-mono-lipid” and “di-rhamno-mono-lipid”. It is unclear whether these respectively refer to the mono- and di-rhamno-mono-lipids of structures I and II (e.g., as in claim 11) or to all mono- or di-rhamno-mono-lipids in the composition, including those with structures other than structures I and II. Therefore, the scope of the claim is indefinite. If the claim is meant to mean the latter, the claim is further indefinite because proper antecedent basis has not been established, since the claims do not recite that the composition further comprises mono- and/or di-rhamno-mono-lipids having structures other than structures I and II.
Claim 14 recites a “a beta hydroxy fatty acid having a formula III”. First, it is unclear what is meant by “having a formula III”. Can the beta hydroxy fatty acid also have/contain additional structures, or is formula III the structure of the beta hydroxy fatty acid? Second, the variables Cx and M that are not defined in the claim. It is unclear if these variables correspond to the same as recited in claim 1 or whether they represent different chemical substituents, particularly in view of fatty acids generally being aliphatic (i.e., not having aryl groups). Therefore, the scope of the claim is indefinite. For examination purposes, the Examiner is interpreting the claim to mean that the composition further comprises a beta hydroxy acid of formula III, wherein Cx and M respectively correspond to the same as recited in claim 1.
Claims 16-18 recite the limitation “based on the total weight of rhamnolipids”. It is unclear whether “rhamnolipids” refers to the combined weight of mono- and di-rhamno-mono-lipids of structures I and II or to all rhamnolipids in the composition, including those with structures other than structures I and II. Therefore, the scope of each claim is indefinite. If the claim is meant to mean the former, claim 17 is further indefinite because it is unclear how the total amount of mono- and di-rhamno-mono-lipids of structures I and II can be less than 100 wt.% of the total rhamnolipids in the composition. If the claim is meant to mean the latter, the claims 16-18 are further indefinite because proper antecedent basis has not been established, since the claims do not recite that the composition further comprises rhamnolipids having structures other than structures I and II. Additionally, for claims 16 and 17, are they rhamnolipids in the claimed composition or some other population of rhamnolipids? Accordingly, the scope of each claim is further indefinite.
Claim 16 recites the limitation “25 wt.% or more, based on the total weight of rhamnolipids”. It is unclear how the composition can comprise “at least one of” the mono-rhamno-mono-lipid of structure I and the di-rhamno-mono-lipid of structure II in a range of 25 wt.% or more, which encompasses embodiments wherein only one of the rhamnolipids is present in an amount of 100 wt.% of the total rhamnolipids, since both rhamnolipids of structures I and II are required according to claim 1. Therefore, the scope of the claim is indefinite.
Claim 18 recites the limitation “less than 25 wt.% of a rhamno di-lipid”. The limitation lacks sufficient antecedent basis because the limitation encompasses embodiments wherein the total rhamnolipids in the composition comprises more than 0 wt.% but less than 25 wt.% of a rhamno di-lipid, yet the claims do not recite that the composition further comprises a rhamno di-lipid. Therefore, the scope of the claim is indefinite.
Claim Interpretation
Because Applicant’s instant specification refers to “the rhamnolipid surfactant system” [pg. 7, lines 3-7] and because the composition requires a co-surfactant, which implies the presence of another surfactant, the Examiner is interpreting claim 10 to mean that the rhamnolipids of structures I and II are included in the “total amount of surfactant present in the composition”.
Claim Rejections - 35 USC § 102/103
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
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, 4, 8-11, 13, and 16-20 are rejected under 35 U.S.C. 102(a)(1) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over Hess et al. (DE19648439A1; published: 05/28/1998; PTO-892) as evidenced by SciFinder (Information Page for DE19648439A1, pg. 1-2; accessed: 08/19/2026).
Hess discloses mixtures used for manual dishwashing detergent compositions comprising glycolipids and surfactants [abstract; claims]. Suitable glycolipids include rhamnolipids of the general formula I shown below:
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278
520
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wherein R1 is hydrogen or a cation, R2 is a hydrogen or CH3(CH2)mCH=CO-, a and b are independently 1 or 2, and m and n are numbers from 4 to 10 [0008]. In exemplary formulations, the rhamnolipid of formula I is defined wherein R1 is a sodium cation, R2 is a hydrogen, a and b are independently 1, and n is 10 [0020].
Because q is the only undefined variable of formula I, and because n does not appear to be a variable of formula I, it is the Examiner’s position that this is a clear typographical error, wherein n is meant to refer to q of Formula I. Further, because an ordinarily skilled artisan would understand that carbon has a valency of 4, it is the Examiner’s position that the H2 on the carbon atom connecting a and b is clearly a typographical error, wherein the carbon is meant to be bonded to only one hydrogen rather than two. The Examiner’s position is further supported by SciFinder, which documents that Hess discloses a compound corresponding to 3-[(6-Deoxy-α-L-mannopyranosyl)oxy]tetradecanoic acid [pg. 1, “Substances”], having the chemical structure shown below:
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296
494
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Accordingly, the exemplary rhamnolipid used by Hess corresponds to the instantly claimed mono-rhamno-mono-lipid of structure I, wherein Cx is a C11 alkyl and M is O-X+, wherein X+ is a sodium cation.
Regarding claim 1: Hess discloses example formulation 6 comprising: 16 wt.% rhamnolipid; 10 wt.% coconut fatty alcohol+2EO sulphate sodium salt; 8 wt.% cocoalkyloligoglucoside; 2 wt.% coconut fatty acid amidopropyl betaine; 4 wt.% polyethylene glycol; 9 wt.% ethanol; and water to 100 wt.% [0021, table 2, ex. 6; table 1 translated on pg. 17 of attached reference]. As discussed above, the exemplary rhamnolipid of Hess reads on the instantly claimed mono-rhamno-mono-lipid of structure I. Coconut fatty acid amidopropyl betaine reads on the instantly claimed co-surfactant. Water reads on the instantly claimed carrier. Regarding the instantly claimed di-rhamno-mono-lipid of structure II: Because the compositions of Hess are drawn to mixtures of glycolipids and surfactants, wherein the glycolipids are selected from the group consisting of rhamnose lipids (plural), etc. [claims 1-2], and because the Hess’s rhamnolipid of formula I includes only two choices for variable a (e.g., 1 or 2), one of ordinary skill in the art could readily envision an embodiment wherein the rhamnolipid component of Hess’s example 6 formulation further includes a rhamnolipid of formula I, wherein R1 is a sodium cation, R2 is a hydrogen, a is 2, b is 1, and n is 10. Note: MPEP 2131.02. A reference disclosure can anticipate a claim when the reference describes the limitations but "'d[oes] not expressly spell out' the limitations as arranged or combined as in the claim, if a person of skill in the art, reading the reference, would ‘at once envisage’ the claimed arrangement or combination." Kennametal, Inc. v. Ingersoll Cutting Tool Co., 780 F.3d 1376, 1381, 114 USPQ2d 1250, 1254 (Fed. Cir. 2015) (quoting In re Petering, 301 F.2d 676, 681(CCPA 1962)).
As discussed above, it is the Examiner’s position that Hess’s rhamnolipids of formula I read on the instantly claimed rhamnolipids of structures I and II. In the event that Applicant demonstrates that Hess’s rhamnolipids do not anticipate the instantly claimed rhamnolipids, alternatively, it would have been prima facie obvious to one of ordinary skill in the art to make the instantly claimed rhamnolipids because q is clearly a repeating number and is taught elsewhere in the reference—in a highly similar glycolipid structure—as a number from 4 to 10 [0009] and because one of ordinary skill in the art would understand that you cannot have a carbon atom having 5 bonds, which would exceed its valence capacity, and thus would obviously build a rhamnolipid in a chemically attainable manner.
It is noted that the recitation “personal care” in the instant claims is an intended use of the claimed composition. A recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. Since the structure of the formulation of Hess is capable of performing the intended use, then it meets the claim. Note: MPEP 2111.02. Moreover, Hess expressly teaches that its mixtures of glycolipids and surfactants possess a particularly high skin-cosmetic compatibility [0004].
Regarding claims 4 and 8: The coconut fatty acid amidopropyl betaine, also written as cocamidopropyl betaine, in the prior art formulation reads on the instantly claimed betaine surfactant.
Regarding claim 9: The total amount of rhamnolipids, which correspond to mono-rhamno-mono-lipid of structure I and di-rhamno-mono-lipid of structure II, in the prior art formulation is 16 wt.% and the amount of co-surfactant is 2 wt.%, which each lie within and thus read on the instantly claimed ranges.
Regarding claim 10: Hess teaches that fatty alcohol ether sulfates (e.g., coconut fatty alcohol+2EO sulphate sodium salt) and alklyl oligoglucosides (e.g., cocoalkyloligoglucoside) are surfactants [0016]. Therefore, the total amount of surfactant in the prior art formulation is 36 wt.%, which lies within and thus reads on the instantly claimed range.
Regarding claim 11: The ratio of the total amount of rhamnolipids, which correspond to mono-rhamno-mono-lipid of structure I and di-rhamno-mono-lipid of structure II, and the total amount of co-surfactant is 8:1, which lies within and thus reads on the instantly claimed ratio of 10:1 to 1:10 (also written as 10:1 to 0.1:1).
Regarding claim 13: While Hess is silent as to the lather height of its formulation, the formulation has the exact same structure as the instantly claimed composition. "Products of identical chemical composition can not have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties Applicant discloses and/or claims are necessarily present. Note MPEP 2112.01. Further, the Examiner directs Applicant's attention to MPEP 2112, section I: "[T]he discovery of a previously unappreciated property of a prior art composition, or of a scientific explanation for the prior art's functioning, does not render the old composition patentably new to the discoverer." Atlas Powder Co. v. Ireco Inc., 190 F.3d 1342, 1347, 51 USPQ2d 1943, 1947 (Fed. Cir. 1999).
Regarding claim 16: Because the rhamnolipids corresponding to mono-rhamno-mono-lipid of structure I and di-rhamno-mono-lipid of structure II are the only rhamnolipids present in the prior art formulation, one or both of them must necessarily be present in an amount of 25 wt.% or more, based on the total weight of rhamnolipids in the composition. In other words, since the two rhamnolipids make up 100 wt.% of the total weight of rhamnolipids in the composition, there is no scenario wherein both rhamnolipids are each present in an amount of less than 25 wt.%, meaning that at least one is always present in an amount of 25 wt.% or more.
Regarding claim 17: The rhamnolipids corresponding to mono-rhamno-mono-lipid of structure I and di-rhamno-mono-lipid of structure II make up 100 wt.% of the total weight of rhamnolipids in the prior art formulation, which lies within and thus reads on the instantly claimed ranges.
Regarding claim 18: No rhamno di-lipids are present in the prior art formulation, it meets the claim.
Regarding claims 19 and 20: The rhamnolipids, which correspond to mono-rhamno-mono-lipid of structure I and di-rhamno-mono-lipid of structure II, in the prior art formulation correspond to 3-(((2R,3R,4R,5R,6S)-3,4,5-trihydroxy-6-methyltetrahydro-2H-pyran-2- yl)oxy)tetradecanoic acid and 3-(((2R,3R,4R,5R,6S)-4,5-dihydroxy-6-methyl-3-(((2R,3S,4S,5S,6S)-3,4,5-trihydroxy-6-methyltetrahydro-2H-pyran-2-yl)oxy)tetrahydro-2H-pyran-2-yl)oxy)tetradecenoic acid, respectively, as evidenced by the stereochemistry portrayed in Hess’s formula I.
Claim Rejections - 35 USC § 103
Claims 1-2, 4, 8-11, 13, and 16-20 are rejected under 35 U.S.C. 103 as being unpatentable over Hess et al. (DE19648439A1; published: 05/28/1998; PTO-892) in view of Schmeling et al. (EP3670637A1; published: 06/24/2020; PTO-892) and as evidenced by SciFinder (Information Page for DE19648439A1, pg. 1-2; accessed: 08/19/2026).
Hess discloses the invention(s) of claims 1, 4, 8-11, 13, and 16-20 as discussed in detail above and further incorporated herein.
However, Hess is silent as to the viscosity of the formulation and thus does not expressly teach the viscosity recited in instant claim 2.
Schmeling teaches that the viscosity of hand dishwashing detergents is of paramount importance, noting that when cleaning agents are too viscous, dosing becomes more difficult, more residue gets left behind in the bottle, and the cleaning agents dissolve more slowly in water [0002]. The reference further teaches that adjusting the solvent and/or surfactant content of the formulation can produce a formulation with a suitable viscosity in the range of 0.1 to 50 mPas (same as 0.1 to 50 cps) [0003-0004].
Regarding claim 2: It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to manipulate the viscosity of the formulation of Hess within range of 0.1 to 50 cps, which substantially overlaps and thus renders obvious the instantly claimed range, because Schmeling teaches this viscosity is known to facilitate dosing, dispensing, and solubilization of hand dishwashing detergents. There is a reasonable expectation of success because Schmeling teaches that optimization of detergent viscosity through adjustment of the solvent and/or surfactant content is customary practice in the art.
Claims 1, 3-4, 8-11, 13, and 16-20 are rejected under 35 U.S.C. 103 as being unpatentable over Hess et al. (DE19648439A1; published: 05/28/1998; PTO-892) in view of Thomas (Homecourt, pg. 1-10; published: 04/19/2023; PTO-892) and as evidenced by SciFinder (Information Page for DE19648439A1, pg. 1-2; accessed: 08/19/2026).
Hess discloses the invention(s) of claims 1, 4, 8-11, 13, and 16-20 as discussed in detail above and further incorporated herein.
However, Hess is silent as to the pH of the formulation and thus does not expressly teach the pH recited in instant claim 3.
Thomas teaches that the pH level of dish soap impacts both its cleaning ability and its gentleness on the skin, noting that most gentle dish soap formulations are typically formulated in the pH range of 7 to 9 [pg. 3, “Testing Methods and Criteria”].
Regarding claim 3: It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to manipulate the pH of the formulation of Hess within the range of 7 to 9, which overlaps and thus renders obvious the instantly claimed range, because Thomas teaches this viscosity is commonly used in gentle dish soap formulations. There is a reasonable expectation of success because Thomas teaches that detergent pH is routinely optimized to balance cleaning power and gentleness on skin, and Hess desires optimal dermatological compatibility [Hess, 0002].
Claims 1, 4-11, 13, and 16-20 are rejected under 35 U.S.C. 103 as being unpatentable over Hess et al. (DE19648439A1; published: 05/28/1998; PTO-892) in view of TGSC 2022 (webpage, <https://www.thegoodscentscompany.com/cosdata/foaming.html>, pg. 1-14, archived: 07/15/2022) and as evidenced by SciFinder (Information Page for DE19648439A1, pg. 1-2; accessed: 08/19/2026) and TGSC 2020 (webpage, <http://www.thegoodscentscompany.com/data/rw1303381.html>, pg. 1-6, archived: 10/23/2020).
Hess discloses the invention(s) of claims 1, 4, 8-11, 13, and 16-20 as discussed in detail above and further incorporated herein.
Hess further teaches that fatty acid taurides (same as taurates) and olefinsulfonates are anionic surfactants suitable for use in its formulations [0013]. However, the reference does not expressly teach that its formulation comprises lauroyl taurate or a salt thereof, a C14-16 alpha olefin sulfonate, or lauroyl methyl taurate or a salt thereof as recited in instant claims 5-7.
TGSC 2022 teaches foaming agents that are known to be suitable for cosmetic use, including sodium lauroyl taurate [pg. 10], sodium C14-16 olefin sulfonate [pg. 7], and sodium methyl lauroyl taurate [pg. 10], among others. Sodium C14-16 olefin sulfonate is an alpha olefin sulfonate as evidenced by TGSC 2020 [pg. 5, “Synonyms”].
Regarding claims 5-7: It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the formulation of Hess by further including a known foaming agent, such as the sodium lauroyl taurate, sodium C14-16 alpha olefin sulfonate, and/or sodium methyl lauroyl taurate taught by TGSC 2022, to yield the predictable result of a formulation having a particularly high skin-cosmetic compatibility and enhanced foaming power due to the combination of glycolipids with anionic, non-ionic, and amphoteric surfactants, as taught by Hess [Hess, 0006]. Generally, it is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use. See MPEP 2144.07.
Claims 1, 4, 8-13, and 16-20 are rejected under 35 U.S.C. 103 as being unpatentable over Hess et al. (DE19648439A1; published: 05/28/1998; PTO-892) in view of Kuppert et al. (US20140296125A1; published: 10/02/2014; PTO-892) and as evidenced by SciFinder (Information Page for DE19648439A1, pg. 1-2; accessed: 08/19/2026).
Hess discloses the invention(s) of claims 1, 4, 8-11, 13, and 16-20 as discussed in detail above and further incorporated herein.
Hess does not expressly teach the ratio of the total amount of mono-rhamno-mono-lipid to the total amount of di-rhamno-mono-lipid as recited in instant claim 12.
Kuppert teaches that rhamnolipids with a high content of di-rhamnolipids in detergent formulations exhibit a more stable foam and/or more foam formation and suggests using a mono- and di-rhamnolipid mixture characterized in that the weight ratio of di-rhamnolipids to mono-rhamnolipids is greater than 51:49 [abstract; 0005; claim 1].
Regarding claim 12: It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to manipulate the weight ratio of mono- to di-rhamnolipids in the formulation of Hess by using a ratio of 49:51 (also written as 0.96:1) as taught by Kuppert, which lies within and thus renders obvious the instantly claimed ratio of 10:1 to 1:10 (also written as 10:1 to 0.1:1), as a starting point for routine optimization to achieve a desired foaming effect. There is a reasonable expectation of success because adjusting the weight ratio of mono- to di-rhamnolipids is a known technique for improving the foaming properties of detergent formulations.
Claims 1, 4, 8-11, and 13-20 are rejected under 35 U.S.C. 103 as being unpatentable over Hess et al. (DE19648439A1; published: 05/28/1998; PTO-892) in view of Holwerda et al. (US20040024020A1; published: 02/05/2004; PTO-892) and as evidenced by SciFinder (Information Page for DE19648439A1, pg. 1-2; accessed: 08/19/2026).
Hess discloses the invention(s) of claims 1, 4, 8-11, 13, and 16-20 as discussed in detail above and further incorporated herein.
However, Hess does not expressly teach that the formulation further comprises a compound of formula III as recited in instant claims 14 and 15.
Holwerda, drawn to antimicrobial cleansing compositions, teaches that compounds including 3-hydroxydecanoic acid, 3-hydroxyoctanoic acid, and 3-hydroxydodecanoic acid are known to have antimicrobial activity [claim 1; 0003; 0056-0057; 0076-0078; 0096-0097, table 1]. These compounds are useful in formulating rinse-off antimicrobial products, such as those that reduce bacteria on skin, and hard surface cleaners [0081].
Regarding claims 14 and 15: It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the formulation of Hess by further including a known antimicrobial agent, such as the 3-hydroxydecanoic acid, 3-hydroxyoctanoic acid, and/or 3-hydroxydodecanoic acid taught by Holwerda, to provide the added benefit of removing bacteria from the dish and/or skin surface while using the formulation. Generally, it is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use. See MPEP 2144.07. There is a reasonable expectation of success because Holwerda teaches that these compounds are suitable for use in hard surface and skin cleansing products, or any product suitable for application to a surface for the purpose of removing dirt, oil, and the like to additionally reduce the number of germs on the surface [0080].
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 1-20 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of copending Application No. 19/397,151 (reference application).
Although the claims at issue are not identical, they are not patentably distinct from each other because the reference claims recite a personal care composition and method of using such, comprising the same components in the same concentrations and having the same properties as the composition recited in the instant claims. The only difference is that the instant claims further recite that the composition comprises a carrier. Because the reference claim 20 recites that the composition is dispensed and massaged into hair, it would have been prima facie obvious to formulate the composition using any known liquid carrier.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1-20 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of copending Application No. 19/062,623 (reference application) in view of Hess et al. (DE19648439A1; published: 05/28/1998; PTO-892), TGSC 2022 (webpage, <https://www.thegoodscentscompany.com/cosdata/foaming.html>, pg. 1-14, archived: 07/15/2022), Schmeling et al. (EP3670637A1; published: 06/24/2020; PTO-892), and Thomas (Homecourt, pg. 1-10; published: 04/19/2023; PTO-892) and as evidenced by TGSC 2020 (webpage, <http://www.thegoodscentscompany.com/data/rw1303381.html>, pg. 1-6, archived: 10/23/2020).
Although the claims at issue are not identical, they are not patentably distinct from each other because the reference claims recite a personal care composition comprising the same components in the same concentrations and having the same properties as the composition recited in the instant claims. The only difference is that the instant claims recite specific co-surfactants, rather than the broad classes of surfactant recited in reference claim 17, and a particular viscosity and pH.
These deficiencies are cured by Hess, TGSC 2022, Schmeling, and Thomas, as evidenced by TGSC 2020, whose teachings are as set forth and further incorporated herein.
Regarding the co-surfactant of instant claims 1 and 4-8: It would have been obvious to one of ordinary skill in the art to modify the composition recited in the reference claims by further including an amphoteric surfactant, such as the cocamidopropyl betaine taught by Hess, and/or an anionic surfactant, such as the known foaming agents sodium lauroyl taurate, sodium C14-16 alpha olefin sulfonate, and/or sodium methyl lauroyl taurate taught by TGSC 2022, to yield the predictable result of a cleansing formulation having a particularly high skin-cosmetic compatibility and enhanced foaming power due to the combination of glycolipids with surfactants, as taught by Hess [Hess, 0006]. Generally, it is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use. See MPEP 2144.07.
Regarding instant claim 2: It would have been prima facie obvious to manipulate the viscosity of the reference composition within range of 0.1 to 50 cps, which substantially overlaps and thus renders obvious the instantly claimed range, because Schmeling teaches this viscosity is known to facilitate dosing, dispensing, and solubilization of liquid cleansing formulations.
Regarding instant claim 3: It would have been prima facie obvious to manipulate the viscosity of the reference composition within the range of 7 to 9, which overlaps and thus renders obvious the instantly claimed range, because Thomas teaches this viscosity is commonly used to balance cleaning power and gentleness on skin.
Regarding instant claims 9-11: It would have been prima facie obvious to include the rhamnolipids and co-surfactants in a total amount of from 5 wt.% to 50 wt.%, wherein the weight ratio of rhamnolipids to surfactants is from 10:90 to 90:10 (also written as 1:9 to 9:1), and to adjust the relative amounts of each within this prior art range to achieve desired balance of properties since Hess teaches that these amounts are useful for formulating cleansers having a particularly high skin-cosmetic compatibility and enhanced foaming power [Hess, claims 4 and 5]. It generally noted that differences in concentration do not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1-20 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-24 of copending Application No. 19/062,608 (reference application) in view of Hess et al. (DE19648439A1; published: 05/28/1998; PTO-892), TGSC 2022 (webpage, <https://www.thegoodscentscompany.com/cosdata/foaming.html>, pg. 1-14, archived: 07/15/2022), Schmeling et al. (EP3670637A1; published: 06/24/2020; PTO-892), Thomas (Homecourt, pg. 1-10; published: 04/19/2023; PTO-892), and Kuppert et al. (US20140296125A1; published: 10/02/2014; PTO-892) and as evidenced by TGSC 2020 (webpage, <http://www.thegoodscentscompany.com/data/rw1303381.html>, pg. 1-6, archived: 10/23/2020).
Although the claims at issue are not identical, they are not patentably distinct from each other because the reference claims recite a composition and method of making such, comprising the same components in the same concentrations and having the same properties as the composition recited in the instant claims. The only difference is that the instant claims further recite that the composition comprises a co-surfactant and a carrier and has a particular viscosity, pH, and lather height.
These deficiencies are cured by Hess, TGSC 2022, Schmeling, Thomas, and Kuppert, as evidenced by TGSC 2020, whose teachings are as set forth and further incorporated herein.
Regarding the co-surfactant of instant claims 1 and 4-8: It would have been obvious to one of ordinary skill in the art to modify the composition recited in the reference claims by further including an amphoteric surfactant, such as the cocamidopropyl betaine taught by Hess, and/or an anionic surfactant, such as the known foaming agents sodium lauroyl taurate, sodium C14-16 alpha olefin sulfonate, and/or sodium methyl lauroyl taurate taught by TGSC 2022, to yield the predictable result of a cleansing formulation having a particularly high skin-cosmetic compatibility and enhanced foaming power due to the combination of glycolipids with surfactants, as taught by Hess [Hess, 0006]. Generally, it is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use. See MPEP 2144.07.
Regarding instant claim 2: It would have been prima facie obvious to manipulate the viscosity of the reference composition within range of 0.1 to 50 cps, which substantially overlaps and thus renders obvious the instantly claimed range, because Schmeling teaches this viscosity is known to facilitate dosing, dispensing, and solubilization of liquid cleansing formulations.
Regarding instant claim 3: It would have been prima facie obvious to manipulate the viscosity of the reference composition within the range of 7 to 9, which overlaps and thus renders obvious the instantly claimed range, because Thomas teaches this viscosity is commonly used to balance cleaning power and gentleness on skin.
Regarding instant claims 9-11: It would have been prima facie obvious to include the rhamnolipids and co-surfactants in a total amount of from 5 wt.% to 50 wt.%, wherein the weight ratio of rhamnolipids to surfactants is from 10:90 to 90:10 (also written as 1:9 to 9:1), and to adjust the relative amounts of each within this prior art range to achieve desired balance of properties since Hess teaches that these amounts are useful for formulating cleansers having a particularly high skin-cosmetic compatibility and enhanced foaming power [Hess, claims 4 and 5]. It generally noted that differences in concentration do not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Regarding instant claim 12: It would have been prima facie obvious to manipulate the weight ratio of mono- to di-rhamnolipids in the reference composition by using a ratio of 49:51 (also written as 0.96:1) as taught by Kuppert, which lies within and thus renders obvious the instantly claimed ratio of 10:1 to 1:10 (also written as 10:1 to 0.1:1), as a starting point for routine optimization to achieve a desired foaming effect.
Regarding instant claim 13: While the combination of reference claims and prior art is silent as to the lather height of the resulting composition, the composition has the exact same structure as the instantly claimed composition. "Products of identical chemical composition can not have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties Applicant discloses and/or claims are necessarily present. Note MPEP 2112.01. Further, the Examiner directs Applicant's attention to MPEP 2112, section I: "[T]he discovery of a previously unappreciated property of a prior art composition, or of a scientific explanation for the prior art's functioning, does not render the old composition patentably new to the discoverer." Atlas Powder Co. v. Ireco Inc., 190 F.3d 1342, 1347, 51 USPQ2d 1943, 1947 (Fed. Cir. 1999).
There is a reasonable expectation of success in modifying the reference claims as proposed because all components, concentrations, and properties are known in the art to be useful in formulating cleansers comprising rhamnolipid surfactants having the same chemical structures as recited in the reference claims.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1-20 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of copending Application No. 19/062,618 (reference application) in view of Hess et al. (DE19648439A1; published: 05/28/1998; PTO-892), TGSC 2022 (webpage, <https://www.thegoodscentscompany.com/cosdata/foaming.html>, pg. 1-14, archived: 07/15/2022), Schmeling et al. (EP3670637A1; published: 06/24/2020; PTO-892), Thomas (Homecourt, pg. 1-10; published: 04/19/2023; PTO-892), and Kuppert et al. (US20140296125A1; published: 10/02/2014; PTO-892) and as evidenced by TGSC 2020 (webpage, <http://www.thegoodscentscompany.com/data/rw1303381.html>, pg. 1-6, archived: 10/23/2020).
The reference claims are rejected for the same/similar reasons as discussed above in the double patenting rejection over claims 1-24 of copending Application No. 19/062,608 in view of Hess, TGSC 2022, Schmeling, Thomas, and Kuppert, as evidenced by TGSC 2020, which is discussed in detail above.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1-20 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of copending Application No. 19/062,169 (reference application) in view of Hess et al. (DE19648439A1; published: 05/28/1998; PTO-892), TGSC 2022 (webpage, <https://www.thegoodscentscompany.com/cosdata/foaming.html>, pg. 1-14, archived: 07/15/2022), Schmeling et al. (EP3670637A1; published: 06/24/2020; PTO-892), Thomas (Homecourt, pg. 1-10; published: 04/19/2023; PTO-892) and as evidenced by TGSC 2020 (webpage, <http://www.thegoodscentscompany.com/data/rw1303381.html>, pg. 1-6, archived: 10/23/2020).
The reference claims are rejected for the same/similar reasons as discussed above in the double patenting rejection over claims 1-20 of copending Application No. 19/062,623 in view of Hess, TGSC 2022, Schmeling, and Thomas, as evidenced by TGSC 2020, which is discussed in detail above.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Conclusion
No claim is allowed.
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/SARAH C WISTNER/Examiner, Art Unit 1616
/Mina Haghighatian/Primary Examiner, Art Unit 1616
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