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 . Claims included in the prosecution are claims 1-21.
Information Disclosure Statement
The information disclosure statements (IDS) submitted on June 25, 2025 and December 15, 2025 were in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
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 16 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 16 recites the limitation “wherein the second wax further comprises the jojoba ester,” which renders the claim indefinite. The second wax is in a Markush group according to claim 1, therefore, there should not be second waxes outside of the group recited in claim 1. The claim is indefinite since it is unclear what the second wax encompasses due to the contradicting limitations between claim 1 and claim 16.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
1. Claim(s) 1, 3-6, 11-19, and 21 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lindsay et al. (US 2022/0071878 A1, March 10, 2022) (hereinafter Lindsay), as evidenced by Fiume et al. (Amended Safety Assessment of Triglycerides as Used in Cosmetics, 2022), Milliard Product (Milliard Product Name Non-GMO Emulsifying Wax Pastilles), and Eitenmiller et al. (Eitenmiller et al., Vitamin E: Food Chemistry, Composition, and Analysis, 1st Edition; Taylor & Francis Group: 2004, Sections 1.1-1.2) (PDF copy provided, hereinafter Eitenmiller).
In regards to claims 1 and 11-12, Lindsay teaches an acidic stick deodorant ([0011]) with high odor control performance and excellent tactile properties in a smooth, easy-to-use, substantially uniform deodorant stick ([0014]). Lindsay teaches that alpha hydroxy acids, particularly mandelic acid, in combination with caffeine for control of the skin microbiome as a natural deodorant that can dramatically reduce odor without requiring the use of aluminum or zirconium salts ([0002]). Thus, it is noted that mandelic acid in combination with caffeine reads on the claimed “deodorant agent.” Lindsay teaches the composition of Run 35 comprising 5.50 g caprylic capric triglycerides MCT, 1.10 g candelilla wax, 0.18 g Vitamin E, 2.39 g cacao, 0.18 g caffeine, 0.79 g emulsifying wax, 3.1 g stearyl alcohol, 0.50 g shea butter, 1.71 g lauryl laurate, 1.53 g coconut oil, 1.52 g beeswax, and 0.25 g palmitic acid. It was prepared at about 70° C. Then 1.57 g of Acid Paste 7 was blended in, and after cooling to about 59° C., 4.91 g of arrowroot starch was blended in. This was then poured into a deodorant mold ([0163]). Furthermore, Lindsay teaches Acid Paste 7 was prepared by diluting Acid Paste 6 with 22 ml added water ([0156]). Acid Paste 6 was prepared by blending 25.0 g of Acid Solution 6 (consisting of 17.5 g of mandelic acid and 45 ml of water) with 3.11 g of tapioca starch and 3.1 ml of water ([0152] and [0156]). It is noted that caprylic capric triglycerides MCT read on the claimed “esterified oil,” as evidenced by Lindsay disclosing caprylic/capric triglycerides as an oil ([0057]) and Fiume. Fiume discloses caprylic/capric triglyceride if manufactured by hydrolyzing coconut oil, separating the medium chain length fatty acids by fractional distillation, and esterification with glycerin (Methods of Manufacture, page 39S).
Regarding the amounts in the deodorant composition of claim 1, there is 6.02 wt% of beeswax in the composition of Run 35 (total mass of components = 25.23 g), which reads on the claimed range “1% wt/wt beeswax to 12% wt/wt beeswax.” Furthermore, there is 6.06 wt% of coconut oil in the composition of Run 35, which reads on the claimed range “10% wt/wt or less.” The beeswax, coconut oil, arrowroot starch, cacao, shea butter, water, tapioca starch, lauryl laurate, Vitamin E, caffeine, emulsifying wax, stearyl alcohol, caprylic/capric triglycerides, and candelilla wax of Run 35 all read on “natural or natural-derived ingredients.” The emulsifying wax is specified to be Milliard® Emulsifying Wax ([0094]), which is a plant-derived as evidenced by Milliard Product. As previously discussed, Fiume discloses that caprylic capric triglycerides are manufactured from coconut oil, making it natural-derived (Methods of Manufacture, page 39S). These ingredients make up 95.3 wt% of the composition of Run 35 and read on the claimed “comprises at least 95% by weight natural or natural-derived ingredients.” This weight percentage was calculated by the following: (1.52 g beeswax + 1.53 g coconut oil + 4.91 g arrowroot powder + 2.39 g cacao + 0.50 g shea butter + 1.27 g water + 0.13 g tapioca starch + 1.71 g lauryl laurate + 0.18 g Vitamin E + 0.18 g caffeine + 0.79 g emulsifying wax + 3.1 g stearyl alcohol + 5.50 g caprylic capric triglycerides MCT + 1.10 g candelilla wax/25.23 g total mass of Run 35)*100.
The prior art is not anticipatory of claim 1 insofar as Lindsay does not teach a deodorant composition comprising at least 20% wt/wt of a starch, or about 1% wt/wt to about 10% wt/wt of an esterified oil.
However, Lindsay discloses 1.65 wt% of tapioca starch in Acid Paste 7. The 1.72 g of Acid Paste 7 added to the composition of Run 35 (total mass of components = 25.23 g) contains 0.03 g of tapioca starch (1.72 g * 0.0165 = amount of tapioca starch). The weight percent of the tapioca starch in the composition of Run 35 is 0.16 wt%. It is noted the weight percent of arrowroot starch is 19.50 wt%. Together, there is 19.66 wt% of starch in the composition of Run 35. Accordingly, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. See MPEP 2144.05(I).
In regard to the limitation in claim 1 reciting about 1% wt/wt to about 10% wt/wt of an esterified oil, Lindsay discloses lipids can be waxes and oils ([0027]) and the acidic stick may, in one embodiment, have 10% to 40% lipids ([0011]). As previously discussed, caprylic/capric triglycerides are esterified oils as evidenced by Fiume and caprylic/capric triglycerides are oils as evidenced by Lindsay ([0057]). Accordingly, the claimed ratio would have been obvious due to overlap of the range of lipids for one of ordinary skill in the art. 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).
In regard to claim 3, reciting wherein the deodorant composition is free of silicone, this limitation would have been obvious since Run 35 does not comprise silicone. Furthermore, the limitation wherein the deodorant composition is substantially free of water would have been obvious because Lindsay teaches a stick that is substantially water free (claim 2).
In regard to claims 4-5, reciting the deodorant composition further comprising about 18% wt/wt or less or about 10% wt/wt to about 16% wt/wt of caprylic/capric triglycerides, Lindsay discloses lipids can be waxes and oils ([0027]) and the acidic stick may, in one embodiment, can have 10% to 40% lipids ([0011]). As previously discussed, caprylic/capric triglycerides are esterified oils as evidenced by Fiume and caprylic/capric triglycerides are oils as evidenced by Lindsay ([0057]). Accordingly, the claimed ratio would have been obvious due to overlap for one of ordinary skill in the art. 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).
In regard to claim 6 and 14-15, the prior art discloses a composition containing the deodorant composition of claim 1 (Run 35, [0163]), glyceryl stearate ([0056]), lauryl laurate ([0069]), and behenyl alcohol ([0055]).
In regard to claim 13, Lindsay discloses 0.50 g of shea butter in Run 35, which reads on the claimed range “1% wt/wt to 8% wt/wt” when one converts the grams of shea butter into weight percent based on the total composition to arrive at a value of 2% wt/wt.
In regard to claim 16, the prior art discloses a composition containing the deodorant composition of claim 1 (Run 35, [0163]) and jojoba esters ([0056]).
In regard to claim 17, the prior discloses a composition containing the deodorant composition of claim 1 (Run 35, [0163]) and behenyl alcohol ([0055]).
In regard to claim 18, the prior discloses a composition containing the deodorant composition of claim 1 (Run 35, [0163]) and magnesium stearate ([0060]).
In regard to claim 19, Lindsay teaches other ingredients such as fragrances can optionally be added to the acid paste ([0017]).
In regard to claim 21, Lindsay teaches Run 35, which consists of 0.18 g (0.71 wt%) of Vitamin E. Vitamin E is a collective term for fat-soluble tocopherols, as evidenced by Eitenmiller (Sections 1.1-1.2), and 0.71 wt% reads on the claimed range “about 1% wt/wt or less.”
2. Claim(s) 2, 7-10, and 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lindsay et al. (US 2022/0071878 A1, March 10, 2022) (hereinafter Lindsay) in view of Plescia et al. (US 2022/0183960 A1, June 16, 2022) (hereinafter Plescia).
The teachings of Lindsay are discussed above.
Lindsay does not teach wherein the composition comprises coco-caprylate, or wherein a fragrance comprises about 0.1% wt/wt to about 5% wt/wt of the deodorant composition. Lindsay also does not teach wherein the glyceryl stearate, lauryl laurate, and behenyl alcohol are present in a ratio of 3:1:1 to about 3:1.5:1.
However, Plescia discloses an alcohol (e.g., ethanol, fatty alcohol) as a dermatologically acceptable carrier ([0168]), and in an amount of about 0.05% to about 95% w/w of the composition ([0169]). Plescia also teaches an emollient as the dermatologically acceptable carrier. In some embodiments, the emollient comprises one or more of: elastin, cetyl alcohol, a silicone, a coconut alkane, coco-caprylate/caprate, diheptyl succinate, capryloyl glycerin/sebacic acid copolymer, triethyl citrate, caprylic/capric triglyceride, a butter (e.g., Butyrospermum parkii butter (shea butter) or Theobroma cacao (cocoa) seed butter), collagen, colloidal oatmeal, elastin, glyceryl stearate, isopropyl palmitate, shea butter, coconut oil (Cocos nucifera oil), lauryl laurate, isoamyl laurate, isoamyl cocoate, and stearic acid ([0035]). Plescia teaches an “emollient” as used herein refers to an agent that softens or soothes the skin by filling spaces between skin flakes and creating a smooth skin surface ([0178]), and the emollient is present in an amount of about 0.1% to about 50% w/w of the composition ([0181]). Plescia also teaches compositions as described further include a fragrance ([0200]) present in an amount of about 0.05% to about 10% w/w of the composition ([0201]).
Lindsay discloses a “waxy phase” consisting of non-aqueous or non-polar materials that are combined as part of the process for forming the deodorant stick, and this phase may comprise fatty esters such as isopropyl myristate, isopropyl palmitate: used in cosmetics both as a thickening agent and emollient ([0056]). Furthermore, Lindsay teaches that Run 35 comprises emollients, such as shea butter and lauryl laurate.
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. Accordingly, it would have been obvious for one of ordinary skill in the art to have incorporated coco-caprylate into the composition of Lindsay since it is known emollient acceptable for use in a deodorant as taught by Plescia.
In regard to claim 7, as previously discussed, Lindsay discloses a composition containing the deodorant composition of claim 1 (Run 35, [0163]), glyceryl stearate ([0056]), lauryl laurate ([0069]), and behenyl alcohol ([0055]). Plescia discloses an emollient in an amount of about 0.1% to about 50% w/w of the composition ([0181]), and teaches the emollient comprises one or more of glyceryl stearate and lauryl laurate ([0035]). Furthermore, Plescia discloses an alcohol (e.g., ethanol, fatty alcohol) as a dermatologically acceptable carrier ([0168]), and in an amount of about 0.05% to about 95% w/w of the composition ([0169]). The alcohol taught by Plescia would read on behenyl alcohol because it is an effective alcohol as taught by Lindsay ([0055]). Thus, the claimed ratio would have been obvious when one selects an amount of emollients (glyceryl stearate and lauryl laurate) and an amount of alcohol (behenyl alcohol) and arrive at a ratio between the three ingredients that overlaps with the claimed range. 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 8, as previously discussed, Lindsay teaches the waxy phase of the deodorant composition may comprise isopropyl palmitate ([0056]).
In regard to claims 9-10, Plescia discloses an emollient in an amount of about 0.1% to about 50% w/w of the composition ([0181]), and coco-caprylate and isopropyl palmitate as effective emollients ([0035]). Accordingly, the claimed ratio would have been obvious when one selects an amount of the emollients coco-caprylate and isopropyl palmitate that overlaps with the claimed ratio. 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 20, as previously discussed, Lindsay discloses other ingredients such as fragrances can optionally be added to the acid paste ([0017]). Plescia teaches an amount of fragrance of about 0.05% to about 10% w/w of the composition ([0201]). Accordingly, it would have been obvious to one of ordinary skill in the art to have formulated the composition of Lindsay with about 0.05% to about 10% w/w fragrance since Lindsay does not disclose an amount of fragrance and this is a known and effect amount as taught by Plescia.
Conclusion
Claims 1-21 are rejected.
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
