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
Applicant’s Request for Reconsideration dated December 5, 2025 is acknowledged.
Claims 1, 2, 4-7, 16-18, 21-24, 38, 42-44, 71, 72, 74 and 77-82 are pending.
Claims 3, 8-15, 19, 20, 25-37, 39-41, 45-70, 73, 75 and 76 are cancelled.
Claims 1, 2, 23, 38, 43, 44, 71, 72 and 77 are currently amended.
Claims 78-82 are new.
Claim 23 remains withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim.
Claims 1, 2, 4-7, 16-18, 21, 22, 24, 38, 42-44, 71, 72, 74 and 77-82 as filed on December 5, 2025 are under consideration to the extent that it reads on “vanillin” as the aldehyde bearing group and to the extent that the anion coating step precedes the application of the composition to the fiber (e.g., claim 22).
This action is made FINAL.
Withdrawn Objections / Rejections
In view of the amendment of the claims, all previous claim rejections under 35 USC 112(a) are withdrawn.
Applicant’s arguments have been fully considered. Rejections and/or objections not reiterated from previous office actions are hereby withdrawn. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application.
Claim Objections
Claims 38, 43 and 71 are objected to because of the following informalities: “an aqueous solvent” in the “subsequently exposing” clause should recite “the aqueous solvent” in view of the re-arranged limitations. Appropriate correction is required.
Maintained Grounds of Rejection / New Grounds of Rejection Necessitated by Amendment
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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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, 2, 4-7, 16-18, 21, 24, 38, 42-44, 71, 72, 74 and 77-82 are rejected under 35 U.S.C. 103 as being unpatentable over Gross et al. (US 4,134,412, published January 16, 1979, of record) in view of D’Ottavi (WO 2012/175221, published December 27, 2012, of record); Rose et al. (WO 2015/036053, published March 19, 2015, of record); Muzzarelli (GB 2,272,447, published May 18, 1994, of record); and Breuer (US 4,278,659, published July 14, 1981, of record).
Gross teaches a hair setting lotion consisting of an aqueous or aqueous alcoholic solution of a film-forming resin (forms a film on the hair) which contains a water soluble salt of chitosan and a process of setting the (human) hair comprising the step of applying the composition (title; abstract; claims, in particular claim 1; columns 1-6), as required by instant claims 18, 44, 72. The composition improves the permanence and shape of the hair style even after washing of the hair with a customary shampooing (semi-permanent as described in paragraph [0040] of the instant specification) (column 1, lines 7-10; column 1, line 68 through column 2, line 2; column 3, lines 27-37). The chitosan salts form hard and non-sticky films (column 1, lines 38-44).
The composition comprises 0.05 to 4 wt% water soluble chitosan salt (claim 1; column 2, lines 35-38). In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). See MPEP 2144.05. Chitosan is a high polymer amine (comprises nitrogen atoms) made by deacetylation of chitin; commercially available chitosan is about 70 to 90% deacetylated (claim 1; column 2, lines 39-51; Examples 1-4), as required by instant claim 4. Suitable acids for making the salts include inter alia lactic acid (monobasic) (claim 2; column 2, lines 52-62). An exemplary aqueous composition comprises 1.5 wt% chitosan and 0.74 wt% lactic acid (Example 3, column 4). The composition may further comprise additional cosmetic additives (column 3, lines 19-21).
The composition may be applied to washed (dampening), towel dry hair and the hair is then set and dried (exposing the hair to a temperature for a duration of time sufficient to drive off water) as customary such as under a drying hood (hair dryer) (column 3, lines 59-60; column 4, lines 43-47), as required by instant claims 17, 42. An alkaline aftertreatment may improve results; alkalizing treatment b) comprises carboxylic vinyl (anionic) polymer (column 3, lines 27-29; Example b), as required by instant claims 21, 24.
Gross does not teach the composition comprises about 0.5 to 3 wt% aldehyde, a pH of about 3.5 to 4.5, a temperature of about 60 to 190 ºC, the formation of a chitosan:aldehyde Schiff base in situ on the hair, and persistence after 3 to 20 washings as required by claims 1, 38.
Gross does not teach the composition comprises about 0.5 to 3 wt% aldehyde, a pH of about 3.5 to 4.5, a temperature of about 60 to 190 ºC, and the formation of a chitosan:aldehyde Schiff base in situ on the hair as required by claims 2, 43, 71.
Gross does not teach the composition comprises an aldehyde comprising a phenolic aldehyde that is vanillin, 0.1 to 2.0 wt% of a divalent metal ion, a temperature of about 60 to 190 ºC, the formation of a chitosan:aldehyde Schiff base in situ on the hair as required by claim 73 and the elected embodiment.
Gross does not teach the chitosan MW of claim 4.
Gross does not teach the aldehyde is vanillin as required by claims 5-7, 78-82 and the elected embodiment.
Gross does not teach a temperature of 100 to 160 ºC as required by claim 16.
Gross does not teach persistence after 3 to 20 washings as required by claim 44.
Gross does not teach the weight ratio of chitosan to aldehyde of about 4:1 as required by claim 74.
Gross does not teach a magnesium salt as required by claim 77.
These deficiencies are made up for in the teachings of D’Ottavi, Rose, Muzzarelli and Breuer.
D’Ottavi teaches a process capable of straightening hair in a semi-permanent way – meaning for at least 8 shampoos -- by using (aqueous) solutions containing chitosan, allantoin, and glyoxylic acid derivatives combined with heat; glyoxylic acid comprises a carboxylic functional group and an aldehyde functional group (title; abstract; claims; Examples; page 4, lines 11-14; page 17, lines 2-5). Chitosan reacts with the glyoxylic acid forming a Schiff base:
PNG
media_image1.png
335
878
media_image1.png
Greyscale
wherein the aldehyde group of the glyoxylic acid reacts with the nitrogen of the chitosan forming an imine (page 6, lines 1-9; page 8, Example of solution 1; page 17, reaction schematic). The concentration of the chitosan is between 0.5 and 5 wt% (claims 2, 4, 6). The process comprises steps of hair drying with a hairdryer and hair-straightening using an iron set to a temperature higher than 170 ºC (broadly and reasonably construed as rendering obvious 160 ºC because a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close (MPEP 2144.05)) (claims 1, 3, 5; also page 10, lines 8-15), as required by instant claim 16. The semi-permanence was checked by washing with hair with water and shampooing and drying several times; straightening proved to be stable over time up to 8 shampoos and in certain cases reaching 16 shampoos (page 10, line 16 through page 11, line 4; Tables).
Rose teaches a hair treatment process for straightening the hair comprising treating the hair with a composition comprising 0.1 to 40 wt% of at least one carboxylic acid or/and a salt thereof inclusive of glyoxylic acid and drying under hot air flow with a hair dryer at a temperature of 60 to 140 ºC (title; abstract; claims, in particular 1, 3, 4; paragraph bridging pages 2 and 3; paragraph bridging pages 5 and 6; page 22, lines 19-33), as required by instant claim 16. Salts include alkaline earth metal (divalent) salts such as magnesium salts (page 7, lines 11-26 ), as required by instant claim 77. The compositions have a pH of 4 or less (claims 1, 4; paragraph bridging pages 18 and 19).
Muzzarelli teaches a polymeric product which is the reaction product of a chitosan with a methoxyphenyl-containing aldehyde such as vanillin or o-vanillin; the reaction occurs at a pH of less than 7 (title; abstract; claims, in particular claim 9; page 3, 1st full paragraph; page 4, lower half; page 5, upper half; Examples; Table 1), as required by instant claims 5-7, 78-82. The molecular weight of the chitosans are from 100,000 to 1,000,000 (Daltons) and the degree of acetylation is 0 to 45% (degree of deacetylation of 100 to 55%) (page 3, 3rd full paragraph; page 8, 6th full paragraph), as required by instant claim 4. The preferred aldehydes are naturally-derived and react with chitosan within a matter of minutes to form a Schiff base (abstract; page 5, last full paragraph; paragraph bridging pages 5 and 6). O-vanillin is the aldehyde which is collected to the greatest extent on chitosan (highest reaction efficiency) ranging from 23% at 10 min (ratio of 1:4) to 54% at 3 days (ratio of 1:2) and yields fairly insoluble materials (paragraph bridging pages 6 and 7; page 10, last two full paragraphs; Table 1), as required by instant claim 74.
Breuer teaches compositions and methods for imparting shampoo resistant body and settability to human hair comprising the application of an aqueous solution comprising a precondensate of glyceraldehyde and resorcinol under conditions promoting in situ polymerization (title; abstract; claims; columns 1-8).
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 aqueous hair setting compositions of Gross comprising 0.05 to 4 wt% chitosan to further comprise glyoxylic acid as taught by D’Ottavi or/and 0.1 to 40 wt% of glyoxylic acid or/and a salt thereof inclusive of a magnesium salt as taught by Rose because D’Ottavi teaches the reaction product of the aldehyde group of glyoxylic acid with the nitrogen in the pendant amine of chitosan when applied to hair in an amount of 0.5 to 5 wt% is capable of straightening hair in a semi-permanent way meaning for at least 8 shampoos. 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 temperature of the hair drying in the process of Gross, D’Ottavi and Rose to 60 to 140 ºC as taught by Rose because this range is suitable for hair drying. There would be a reasonable expectation of success because Gross does not delimit the temperature thereof.
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 hair setting compositions of Gross or/and of Gross and D’Ottavi and Rose to further comprise a methoxyphenyl-containing aldehyde such as vanillin or o-vanillin as taught by Muzzarelli because the reaction of these aldehydes with chitosan yields a fairly insoluble material comprising a Schiff base. One would be motivated to do so because Gross, as a whole, concerns, permanence of the hair styling even after washing where longer permanence is better. Because the reaction product of vanillin or o-vanillin with chitosan is fairly insoluble, in view of Breuer it would have been obvious to one of ordinary skill in the art that the reaction should occur in situ on the hair such that the chitosan of the compositions of Gross remains water soluble prior to application.
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 chitosan compositions of Gross in view of D’Ottavi in view of Muzzarelli to comprise o-vanillin in an amount ranging from 23% (ratio of 1:4) to 54% (ratio of 1:2) of the amount of chitosan because Muzzarelli teaches this stoichiometry range for the reaction of o-vanillin and chitosan in solution.
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 chitosan compositions of Gross in view of D’Ottavi in view of Muzzarelli to have a pH of less than 7 as taught by Muzzarelli because the reaction of chitosan with aldehydes occurs within this range. There would be a reasonable expectation of success because Gross does not delimit the pH of the compositions and because Rose evidences compositions of pH or 4 or less are suitable for application to the hair.
Regarding claim 4, 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 chitosan of the compositions of Gross in view of D’Ottavi in view of Muzzarelli to have a molecular weight from 100,000 to 1,000,000 (Daltons) and a degree of acetylation is 0 to 45% (degree of deacetylation of 100 to 55%) as taught by Muzzarelli because such chitosans are suitable for reacting with aldehydes inclusive of vanillin for the formation of insoluble films. There would be a reasonable expectation of success because Gross does not delimit the size the chitosan and because the degree of acetylation of Muzzarelli is analogous to the deacetylation taught by Gross.
Claims 21, 22 and 24 are rejected under 35 U.S.C. 103 as being unpatentable over Gross et al. (US 4,134,412, published January 16, 1979, of record) in view of D’Ottavi (WO 2012/175221, published December 27, 2012, of record); Rose et al. (WO 2015/036053, published March 19, 2015, of record); Muzzarelli (GB 2,272,447, published May 18, 1994; of record); and Breuer (US 4,278,659, published July 14, 1981, of record) as applied to claims 1, 2, 4-7, 16-18, 21, 24, 38, 42-44, 71, 72, 74 and 77-82 above, and further in view of Soane et al. (US 2007/0108418, published May 17, 2007, of record).
Soane is applied herewith on a different interpretation of claims 21, 24 and the elected embodiment in the interest of compact prosecution
The teachings of Gross, D’Ottavi, Rose, Muzzarelli and Breuer have been described supra.
They do not teach coating the hair with an anionic formulation comprising an anionic material and a carrier prior to the application of the composition as required by claims 21, 22 and by the elected embodiment thereof.
They do not teach the anionic material is selected from the group of claim 24.
These deficiencies are made up for in the teachings of Soane.
Soane teaches hair hold formulations comprising a first and a second formulation for separate application to the hair, the first formulation comprising a polycation such as chitosan and the second formulation comprising a polymer capable of complexing or binding with the polycation (title; abstract; claims, in particular 1, 14, 26). The polymer of the second formulation may be comprise a polyanion (claim 2). The polyanions can be any polymer such as polyacrylic acid (synthetic) or xanthan gum (natural) (paragraph [0043]). The formulations may be applied simultaneously (claim 36).
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 process of Gross to further comprise a step of applying a formulation comprising a polyanion polymer (synthetic or natural) to the hair before, with or after the application of the chitosan composition as taught by Soane in order to improve the hair hold. One would be motivated to do so because Gross, as a whole, concerns permanence of the hair styling even after washing where longer permanence is better.
Claims 43 and 44 are rejected under 35 U.S.C. 103 as being unpatentable over Gross et al. (US 4,134,412, published January 16, 1979, of record) in view of D’Ottavi (WO 2012/175221, published December 27, 2012, of record); Rose et al. (WO 2015/036053, published March 19, 2015, of record); Muzzarelli (GB 2,272,447, published May 18, 1994, of record); Breuer (US 4,278,659, published July 14, 1981, of record); and Soane et al. (US 2007/0108418, published May 17, 2007, of record).
Soane is applied herewith on a different interpretation of claims 43, 44 in view of the deletion of the UV filter from the body of the claim and in the interest of compact prosecution
The teachings of Gross have been described supra.
Gross does not teach the composition comprises about 0.5 to 3 wt% aldehyde, a pH of about 3.5 to 4.5, a temperature of about 60 to 190 ºC, the formation of a chitosan:aldehyde Schiff base in situ on the hair and a UV protective film as required by claim 43.
Gross does not teach persistence after 3 to 20 washings as required by claim 44.
These deficiencies are made up for in the teachings of D’Ottavi, Rose, Muzzarelli, Breuer and Soane.
The teachings of D’Ottavi have been described supra.
The teachings of Rose have been described supra.
The teachings of Muzzarelli have been described supra.
The teachings of Breuer have been described supra.
The teachings of Soane have been described supra. Soane further teaches the first and/or second formulation include(s) an additive inclusive of a UV blocker (filter) (paragraph [0012]; claims 16, 18).
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 hair setting compositions of Gross comprising chitosan to further comprise glyoxylic acid as taught by D’Ottavi or/and 0.1 to 40 wt% of glyoxylic acid or/and a salt thereof inclusive of a magnesium salt as taught by Rose because D’Ottavi teaches the reaction product of the aldehyde group of glyoxylic acid with the nitrogen in the pendant amine of chitosan when applied to hair in an amount of 0.5 to 5 wt% is capable of straightening hair in a semi-permanent way meaning for at least 8 shampoos. 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 temperature of the hair drying in the process of Gross, D’Ottavi and Rose to 60 to 140 ºC as taught by Rose because this range is suitable for hair drying. There would be a reasonable expectation of success because Gross does not delimit the temperature thereof.
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 hair setting compositions of Gross or/and of Gross, D’Ottavi and Rose to further comprise a methoxyphenyl-containing aldehyde such as vanillin or o-vanillin as taught by Muzzarelli because the reaction of these aldehydes with chitosan yields a fairly insoluble material comprising a Schiff base. One would be motivated to do so because Gross, as a whole, concerns, permanence of the hair styling even after washing where longer permanence is better. Because the reaction product of vanillin or o-vanillin with chitosan is fairly insoluble, in view of Breuer it would have been obvious to one of ordinary skill in the art that the reaction should occur in situ on the hair such that the chitosan of the compositions of Gross remains water soluble prior to application.
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 hair setting compositions of Gross or/and of Gross and D’Ottavi in view of Muzzarelli to further comprise additives inclusive of a UV blocker as taught by Soane in order to reap the expected benefits thereof inclusive of UV protection. There would be a reasonable expectation of success because Gross embraces the presence of additional cosmetic additives in the compositions.
Response to Arguments: Claim Rejections - 35 USC § 103
Applicant’s arguments have been fully considered but they are not persuasive.
Applicant’s contention at page 11 of the Remarks that Example 3 of Gross does not comprise 0.74 wt% lactic acid as stated in the narrative of the rejection but rather 7.4 wt% lactic acid is not found persuasive. Example 3 of Gross comprises:
PNG
media_image2.png
150
514
media_image2.png
Greyscale
Lactic acid is included as lactic acid (10%), meaning Example 3 comprises 7.4 g of a 10% solution of lactic acid, meaning the lactic acid per se is present at 0.74 g or 0.74 wt%. That is must be so is clear from the paragraph bridging columns 2 and 3 describing an aqueous solution comprising 10% acetic acid consistent with Example 4. That it must be so is also clear in view of the expectation that a 7.4 wt% lactic acid solution will be very acidic. Applicant’s contention at pages 11-13 that the additional cited art does not render obvious the claimed amount of acid is unpersuasive because Gross meets this limitation.
Therefore, the rejections over Gross are properly maintained in modified form as necessitated by Applicant’s amendments.
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, 2, 4-7, 16-18, 21, 22, 24, 38, 42-44, 71, 72, 74 and 77-82 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable (1) over claims 21-26 of copending Application No. 18/741,918 and (2) over claims 21-30 of copending Application No. 18/741,947 in view of Gross et al. (US 4,134,412, published January 16, 1979, of record); D’Ottavi (WO 2012/175221, published December 27, 2012, of record); Rose et al. (WO 2015/036053, published March 19, 2015, of record); Muzzarelli (GB 2,272,447, published May 18, 1994, of record); Breuer (US 4,278,659, published July 14, 1981, of record); and Soane et al. (US 2007/0108418, published May 17, 2007, of record).
The instant claims are drawn to methods comprising topically applying an effective amount of an aqueous composition having a pH from about 3.5 to 4.5 comprising about 1.5 to 4 wt% chitosan, about 0.5 to 3 wt% aldehyde-bearing compound that is vanillin, and about 0.9 to 2 wt% organic acid that is mono- or di-basic to hair or any other fiber and exposing the hair / the fiber to a temperature of about 60 to 190 ºC for a duration of time sufficient to drive off at least a portion of the aqueous solvent from the hair / the fiber, wherein the chitosan and aldehyde form a Schiff base polymer film in situ on the hair / the fiber to form a semi-permanent film that may persist after 3 to 20 washings. The chitosan may have a circumscribed MW and deacetylation The temperature may be achieved with inter alia a hair dryer. The methods may further comprise a step of coating the hair with an anionic formulation comprising inter alia an anionic polymer before application of the chitosan composition. The weight ratio of the chitosan to the aldehyde-bearing compound may be about 4:1. The aqueous composition may further comprise a magnesium salt.
The copending ‘918 claims are drawn to methods comprising inter alia topically applying an effective amount of a chitosan composition comprising a chitosan, dehydroxanthan gum, an aldehyde-bearing compound, and an organic acid to the rinsed hair and subsequently drying the hair so that the chitosan composition forms a crosslinked complex with the hair. The crosslinked complex may be maintained on the hair for 10 washes with a clarifying shampoo. The step of drying may comprise blowing the hair with air at temperature of about 50 ºC or greater for about 2 minutes.
The copending ‘947 claims are drawn to methods comprising inter alia topically applying an effective amount of a chitosan composition comprising a chitosan, dehydroxanthan gum, an aldehyde-bearing compound, and an organic acid to the rinsed hair and subsequently drying the hair so that the chitosan composition forms a crosslinked complex with the hair. The crosslinked complex may be maintained on the hair for 10 washes with a clarifying shampoo. The step of drying may comprise blowing the hair with air at temperature of about 50 ºC or greater for about 2 minutes, or the step of drying may include brushing the hair while applying heated air with a blow dryer.
The copending claims differ from the instant claims with respect to the aqueous solvent, with respect to vanillin as the aldehyde and the amount thereof, with respect to the types and amount of chitosan, with respect to the species and amount of organic acid, with respect to the pH, with respect to the step of pre-applying an anionic composition comprising anionic polymers. These deficiencies are rendered obvious in view the prior art to Gross, D’Ottavi, Rose, Muzzarelli, Breuer and Soane as summarized supra. In view of Gross, it would have been prima facie obvious to modify the compositions of the copending claims to comprise aqueous solutions of chitosan in an amount from 0.05 to 4 wt% in combination with acids inclusive of lactic acid in an amount such as 0.74 wt% as exemplified because such is known in the art as suitable for application to the hair for purposes of hair setting. In view of Gross and Muzzarelli, it would have been prima facie obvious to modify the chitosan of the copending claims to be 70 to 90% deacetylated or/and to be 100 to 55% deacetylated and to have a molecular weight from 100,00 to 1,000,000 because such chitosan polymers are suitable for forming films inclusive of films on hair. In view of D’Ottavi and Muzzarelli, it would have been prima facie obvious to substitute glyoxylic acid (also an organic acid) or/and vanillin for the aldehyde-bearing compound of the copending claims. In view of Rose, it would have been prima facie obvious to include the glyoxylic acid or salts thereof inclusive of a magnesium salt in amounts from 0.1 to 40 wt% because such amounts are suitable for aqueous hair setting compositions. In view of Muzzarelli, it would have been prima facie obvious to modify the pH of the compositions of the copending claims to a value less than 7 because in order for the reaction to occur and to include the aldehyde in lesser amounts than the chitosan such as in a ratio of about 1:4. In view of Rose, it would have been prima facie obvious to modify the drying step of the method of the copending ‘918 claims to utilize a hair dryer as taught by Rose because a hair dryer is suitable for blowing air at temperatures set forth in the copending ‘918 claims. In view of Gross and Soane, it would have been prima facie obvious to modify the compositions of the copending claims to further comprise additional cosmetic additives such as UV blockers (filters) in order to impart UV protection and it would have been prima facie obvious to modify the methods of the copending claims to further comprise a step of applying a formulation comprising a polyanion polymer to the hair before, with or after the application of the chitosan composition in order to improve the hair hold. The instant claims are therefore an obvious variant of the copending claims in view of the prior art.
This is a provisional nonstatutory double patenting rejection.
Double Patenting
Applicant’s request to hold the double patenting rejections in abeyance is acknowledged but is denied because a request to hold a rejection in abeyance is not a proper response to a rejection. Rather, a request to hold a matter in abeyance may only be made in response to an OBJECTION or REQUIREMENTS AS TO FORM. A complete response to a nonstatutory double patenting (NDP) rejection is either a reply by applicant showing that the claims subject to the rejection are patentably distinct from the reference claims or the filing of a terminal disclaimer in accordance with 37 CFR 1.321 in the pending application(s) with a reply to the Office action (see MPEP § 1490 for a discussion of terminal disclaimers). Such a response is required even when the nonstatutory double patenting rejection is provisional. MPEP 804 I(B)(1). Therefore, the provisional double patenting rejections are properly maintained and made again.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Zhang et al. “Enhancing mechanical properties of chitosan films via modification with vanillin,” International Journal of Biological Macromolecules 81:638-643, 2015 teaches a solution comprising 3 wt% chitosan, 2 vol% acetic acid and 0.5, 1, 5, 10 or 50 wt% vanillin relative to the amount of chitosan and films thereof; while chitosan has film-forming ability, mechanical properties are improved with cross-linking agents inclusive of glutaraldehyde or natural alternatives inclusive of vanillin (title; abstract; Introduction; 2.2 Film Preparation; Figure 5).
Biato et al. (US 2015/0306012) teaches hair straightening at a temperature of at least 150 ºC and a composition comprising at least 3 wt% dicarbonyl compounds inclusive of glyoxylic acid and at least one polymer inclusive of chitosan and having a pH less than 4 (title; abstract; claims).
Kobayashi et al. (US 2010/0062262) teaches aqueous coating solutions for water insoluble chitosan coatings comprising deacetylated chitin (chitosan) and glyoxylic acid (aldehyde, monobasic acid) and optionally further comprising an acid; the solutions have a pH of 2 or higher and may be applied to fibers and dried using heat (title; abstract; claims; paragraphs [0003], [0008], [0023], [0043], [0047], [0048], [0053]; Table 1).
Goldman (US 2005/0002893) teaches compositions comprising an aqueous solution of at least one polymer having amino groups inclusive of chitosan which crosslink with an aqueous solution of at least one aldehyde; the solutions have a pH between 3 and 8, however, a high pH may precipitate chitosan (title; abstract; claims; paragraphs [0040], [0041]).
Kischka et al. (US 5,609,168) teaches hair treatments for permanent wave comprising 0.1 to 10 wt% of film-forming polymers inclusive of chitosan and 0.01 to 2 wt% organic acid (title; abstract; claims).
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALISSA PROSSER whose telephone number is (571)272-5164. The examiner can normally be reached M - Th, 10 am - 6 pm.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, DAVID BLANCHARD can be reached on (571)272-0827. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/ALISSA PROSSER/
Examiner, Art Unit 1619
/MARIANNE C SEIDEL/Primary Examiner, Art Unit 1600
Prosecution Insights