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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 6/6/23 has been entered.
Receipt is acknowledged of amendment and remarks filed on 6/6/23.
Status of claims
Claims 18, 21,27-32 and 34-45 are pending in the application.
Claims 1-17, 19-20, 22-26 and 33 are cancelled.
Claims 34-35 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 10/6/20.
Claims 28-29 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected species, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 10/6/20.
Claims 18, 21,27, 30-32, and 36-45 are examined in the application and the generic claim is examined to the extent that it reads on “APTES” drawn to alkoxy silane polymer; “ester of palmitic acid and N-hydroxy succinimide” drawn to activated thioester and compositions are applied separately by applying composition (A) and then applying composition B (claim 30).
See in bold the limitation for non-aqueous and see also paragraphs added with respect to WO document.
Claim Rejections - 35 USC § 103
Claims 18, 21,27, 30-32, and 36-45 are rejected under 35 U.S.C. 103 as being unpatentable over combination of US 2015/0272843 (‘843) and US 2016/0220471 (‘471) and WO 2008/156327 (‘327).
WO ‘327 is cited in the IDS dated 2/17/18.
US ‘843 teaches for treating hair and thus teaches claimed method of treating keratin fibers (claim 18). Example teaches formulations. See below for example.
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Formulations C2 and C3 teaches composition comprising claimed APTES (claims 18, 21, 38, 42-45). US ‘843 at ¶ [0141] teaches applying composition is applied to hair and left on hair for 15 minutes (claim 32) and then without rinsing another composition is applied (claims 40 and 43).Thus US ‘843 teaches application of two compositions, one composition with APTES and another composition and there is no rinsing between both the compositions (claims 30 and 43). See claim 20 of US ‘843 wherein the composition is applied in any order and also teaches heating (drying step ) (claims 31 and 41). US ‘843 at ¶ [0131] teaches:
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US ‘843 at ¶¶[ 0135-0136] teaches:
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The above paragraph teaches applying compostion to the curly hair, which may bleached hair or dyed hair and then after applying the composition then hair is shampooed. This meets the third wherein clause for pre-treatment step” since after applying the composition and rinsing… a shampoo is applied which is a cleansing composition.
The difference between US ‘843 and instant application is US ‘843 teaches composition A comprising APTES for treating hair but does not teach explicitly the method is performed as a pre-treatment and/or post treatment for a process of bleaching, dyeing, relaxing and/or permanent waving of hair by applying composition A and composition B (another composition) which has activated thio esters.
US ‘471 teaches a process for treating keratin fibers (claimed hair) applying two compositions wherein one composition has silane to obtain good conditioning properties ( abstract).
US ‘471 at ¶¶ [0002-0005 and 0007] teaches:
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US ‘471 at ¶ [0127] exemplifies two compositions. See below.
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Composition C has the same elected species used alone . This corresponds to composition A of instant application.
US ‘471 at ¶ ¶ [0114-0115] teaches:
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Thus US ‘471 teaches hair treatment process as a pre-treatment to a dyeing or relaxing or permanent waving or post treatment to a bleaching or artificial dyeing or relaxing or permanent waving process claimed in instant application (claims 18 and 36-37). See below for the data.
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US ‘471 teaches that applying composition C which has only APTES ( same as claimed composition A having APTES claimed in the instant application) showed more manageable, soft and pleasant cosmetic feel.
WO document teaches compositions and at page 1 first paragraph teaches that the compositions provide to hair softness, moisturizing , silky or resilient effect that provide conditioning effects to hair.
WO document at ¶¶[8-9 and 15] teaches:
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WO document at¶ [39] teaches that the personal care product is a non-aqueous formulation. This is the limitation added to composition B (claim 18)
and under table 1 and under example 1 teaches claimed elected species, which is “ester of palmitic acid and N-hydroxy succinimide” drawn to activated thioester (18, 22-26, 39 and 42-45). Example 1 teaches 10%. Example 1 does not teach the claimed amount which is from 0.1-5%, however, table 5 teaches another succinimidyl ester which is 18-MEA N-hydroxy succinimidyl ester and the amount is 2% (claims 42 and 45). This ester is also disclosed in table 1 with 10% .
Accordingly it would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to treat the hair by applying formulation C2 or C3 having APTES and without rinsing taught by US ‘853 and also formulation C taught by US ‘471 and apply another composition which is example 1 taught by WO document using “ester of palmitic acid and N-hydroxy succinimide” and change the amount to lower amount since WO document teaches related succinimidyl compounds having lower amount and apply the compositions as a pre-treatment or post treatment taught by US ‘471 with the reasonable expectation of success that by applying APTES provide to the hair soft feel, easy to comb, more body and more manageable and applying then composition which has “ester of palmitic acid and N-hydroxy succinimide” provide hair softness, moisturizing, silky or resilient effect that provide conditioning effects to hair. This is a prima facie case of obviousness.
Response to Arguments
Applicant's arguments filed 6/3/23 have been fully considered but they are not persuasive.
Applicants argue that US ‘843 (the primary reference the Office relies on )discloses a method for relaxing hair. US ‘843 at best teaches application of APTES during a hair relaxing process. Therefore, the Office’s interpretation of the application of APTES during the relaxing process described in [0139] as meeting step (i) of the claimed method is improper, because the claimed method is a pre- or post-treatment process and therefore all steps must take place either before or after a hair relaxing process such as described by US ‘843.
In response to the above argument, US ‘843 under example 1 teaches after applying the composition a cleansing compostion like shampoo is applied. Thus US ‘843 teaches the claimed pre-treatment process.
Applicants can not argue only with respect to US ‘843 regarding the post treatment and pretreatment as US ‘471 explicitly teaches:
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Applicants lastly argue that the claims are not prima facie obvious over the combination of US ‘843 and US ‘471 and WO document at least because the Office is improperly relying on hindsight to modify US ‘843, and because when properly considered as a whole, neither references teach or suggest that at least one nucleophilic alkoxysilane polymer or oligomer derived from a monomer of formula (I) ( claimed elected species) and at least one activated (thio)ester compound (claimed elected species) can be applied in combination as a pre- treatment and/or post-treatment of chemically treated hair, wherein the components are applied to the hair together or separately; and wherein the pre-treatment precedes and/or the post-treatment follows a chemical hair treatment as recited in claim 18.
In response to the above argument, one of ordinary skill in the hair care art would certainly be motivated to treat treated the hair by applying formulation C2 or C3 having APTES and without rinsing taught by US ‘853 and also formulation C taught by US ‘471 and apply another composition which is example 1 taught by WO document using “ester of palmitic acid and N-hydroxy succinimide” and change the amount to lower amount since WO document teaches related succinimidyl compounds having lower amount and apply the compositions on the hair for a process as a pre-treatment to a dyeing or relaxing or permanent waving or post treatment to a bleaching or artificial dyeing or relaxing or permanent waving process claimed taught by US ‘471 with the reasonable expectation of success that by applying APTES provide to the hair soft feel, easy to comb, more body and more manageable and applying then composition which has “ester of palmitic acid and N-hydroxy succinimide” provide hair softness, moisturizing, silky or resilient effect that provide conditioning effects to hair.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JYOTHSNA A VENKAT whose telephone number is (571)272-0607. The examiner can normally be reached M-TH 7:00 am-6pm.
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/JYOTHSNA A VENKAT/ Primary Examiner, Art Unit 1619