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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 29 November 2024 has been entered.
Election/Restrictions
The species election as it pertains to the “at least one amino acid or amino sulfonic acid, and/or salt thereof” being taurine is withdrawn.
Claim Status
Applicant’s claim amendments and arguments in the response filed 29 November 2024 are acknowledged.
Claims 25 & 48-66 are pending.
Claims 48-66 are new.
Claims 1-24 & 26-47 are cancelled.
Claim 25 is amended.
No claims are withdrawn.
Claims 25 & 48-66 are under consideration.
Examination on the merits is to the extent of the following species:
Number of hair treatment compositions in kit: 3- (i.e. a shampoo, conditioner & an enhancing composition);
Types of Hair Treatments: A shampoo, conditioner & an enhancing composition;
At least one non-polymeric mono, di, or tricarboxylic acid, and/or salt and where included: citric acid in shampoo & conditioner;
A second non-polymeric mono, di, or tricarboxylic acid, and/or salt thereof and the hair treatment composition(s) that include it: maleic acid, included in the enhancing composition;
-and-
E. At least one surfactant & hair treatment composition(s) that include it: sodium laureth sulfate-in the shampoo; behentrimonium chloride in conditioner.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 25 July 2024, 21 October 2024, 22 November 2024, 04 February 2025, and 19 March 2025, have been fully considered by the examiner. A signed and initialed copy of each IDS is included with the instant Office Action.
New & Maintained Objections/Rejections
Claim Objections
Claim 65 is objected to because of the following informalities: Line 4 of the enhancing composition in claim 65 is missing the word, “more”. This portion of the claim should read “one or more polyhydric alcohols”.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 25 & 48-62 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. This is a new matter rejection.
The reply filed 29 November 2024 states that pg. 2, ll. 1-3 discloses “[m]any chemical treatments are available for changing the appearance of hair. For example, hair may be lightened or bleached, and oxidative dyes can be used to change the color of the hair." (reply, pg. 11). Applicant further argues “ the as-filed application states that it relates to "kits and methods for minimizing and/or compensating for damage to hair, for example damage caused by ... cosmetic treatments (e.g .... chemical processing, etc.). Id., p. 2, II. 23-27" (reply, pg. 11). Applicant further argues the application explains that "the enhancing composition enhances the repairing, strengthening, and protective properties imparted to the hair." Id., p.11, ll. 15-17 (reply, pg. 11).
This is not persuasive. Nowhere does Applicant’s representative point to where support for the amendment for the added limitation of "the enhancing composition is not a hair color-altering treatment composition". Nowhere in the as-filed specification is the limitation for exclusion of “a hair color-altering treatment composition” positively recited. No description is provided within the instant specification or original claims for the newly added limitation of "the enhancing composition is not a hair color-altering treatment composition" as the limitation “a hair color-altering treatment composition” is not positively recited beyond the background section and this only discusses mechanisms of how people can damage their hair. A negative limitation that does not appear in the Specification as filed may “introduce new concepts and violate the description requirement of the first paragraph of 35 U.S.C. 112.” HYPERLINK "http://scholar.google.com/scholar_case?case=15785973736914870022" Ex parte Grasselli, 231 USPQ 393, 394 (BPAI 1983), aff' d mem. 738 F.2d 453 (Fed. Cir. 1984). According to MPEP § 2173.05(i), negative limitations may be claimed as long as they are clear and supported by the specification. Negative limitations must have basis in the original disclosure. The mere absence of a positive recitation is not basis for a negative limitation. In the instant case, pg. 2, lines 1-3 of the specification is drawn to chemical hair treatments known in the prior art. In other words, pg. 2, lines 1-3 of the specification is not a description of Applicant’s invention. Page 3, lines 3-4 merely states that the inventive compositions may be in a kit which “typically include two or more separately contained hair treatment compositions”. Page 3, lines 18-25 teaches the inventive compositions may be “a shampoo, a conditioner, a hair gel, a hair spray, a hair rinse, a hair lotion, etc.” “Hair color-altering treatment composition[s]", hair dyes, hair lighteners, hair bleaches, or hair colorants are not positively recited anywhere in the originally filed, claims, examples or specification beyond the background and a description of how people damage their hair. In other words, the as-filed specification did not contemplate any reagent, process or concept affiliated with altering hair color with respect to their invention. Thus, the claim amendments change the scope of the disclosure; thereby, constituting new matter.
Claims 48-62 are rejected under 35 USC 112(a) because they ultimately depend from rejected claim 25 and do not resolve the issue. Claims 43-45 are rejected under 35 USC 112(a) because they ultimately depend from rejected claim 42 and do not resolve the issue.
Claims 25 & 48-66 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. This is a written description rejection.
Claims 25, 49, 54, 59 & 61-66 recite the enhancing composition comprises a salt of maleic acid. The issue is possession of the genus of “salts of maleic acid”. While Applicant of page 18 of the their specification contemplate “di-carboxylic acids, and a salt thereof” with maleic acid contemplated as one of the di-carboxylic acids, Applicant does not disclose or show any species of salts of maleic acid in their specification or examples. This is important because the genus of salts of maleic acid is very broad with much variation including drug salts (e.g. a maleate salt of the 5-aminolevulinic acid), simple salts (e.g. disodium maleate), and polymeric salts (sodium acrylate maleate). Because no species have been contemplated, and no reduction to practice with maleic acid salts are present in the examples, there is no correlation of what in the structure of the salt is critical to the function of maleate salt in the enhancing composition. To have possession of a genus, a representative number of species must be shown (see MPEP 2163. II. (ii)). “Thus, when there is substantial variation within the genus, one must describe a sufficient variety of species to reflect the variation within the genus.” See AbbVie Deutschland GmbH & Co., KG v. Janssen Biotech, Inc., 759 F.3d 1285, 1300, 111 USPQ2d 1780, 1790 (Fed. Cir. 2014).
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 25 & 48-66 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 25 recites “one or more carboxylic acids chosen from maleic acid… wherein the total amount of carboxylic acids and salts thereof ranges from 0.5% to 20% by weight”. It is unclear if the carboxylic acids required to reach the amount of “0.5% to 20% by weight” are limited to the just the
“one or more carboxylic acids chosen from maleic acid…” or if other unrecited carboxylic acids are used in calculating this percentage.
Applicant may wish to consider whether an amendment to recite “wherein the total amount of the one or more carboxylic acids and salts thereof ranges from 0.5%...” is reflective of the invention and corrects the issue.
The analysis is the same as it pertains to the amino acids in the claim 25 (B) conditioner, the carboxylic acids and salts in the claim 25 (B) conditioner, the amino acids in the claim 25 (C) enhancing composition, the carboxylic acids and salts thereof in claims 50, 55 & 60, the amino acids in the claim 63 (A) shampoo, the amino acids in the claim 63 (B) conditioner, the amino acids in the claim 63 (C) enhancing composition, the amino acids in the claim 65 shampoo (A), and the amino acids in the claim 65 (B) conditioner.
Claim 63 recites the limitation "the total amount of carboxylic acids and salts thereof" in lines 9-10, 25-26 & 34-35. There is insufficient antecedent basis for this limitation in the claim.
Claim 65 recites the limitation "the total amount of carboxylic acids and salts thereof" in lines 9-10 & 24-25. There is insufficient antecedent basis for this limitation in the claim.
Claims 48, 49, 51-54, 56-59, 61, 62 are rejected under 35 USC 112(b) because they ultimately depend from rejected claim 25. Claim 64 is rejected under 35 USC 112(b) because it depends from rejected claim 63. Claim 66 is rejected under 35 USC 112(b) because it depends from rejected claim 65.
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 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.
Claim 25 is rejected under 35 U.S.C. 103 as being unpatentable over Beumer (US 2009/0068136; Published: 03/12/2009).
Beumer teaches hair care compositions comprising condensation polymers as serve a conditioning agent, strengthening agent, film forming agent, surfactant, anti-static agent, moisturizer, emulsifier or hair styling agent (abstract; [0069]) With regard to claims 25(A), Beumer teaches inclusion of the amino acids “ (e.g. glycine, histidine, tyrosine, tryptophan)” as an antioxidant with antioxidants present in an amount of “ at least 0.01 wt. % of the total weight of the composition. Preferably about 0.01 wt. % to about 10 wt. % of the total weight of the composition…Most preferred, one or more preservatives/antioxidants are present in an amount about 0.1 wt. % to about 1 wt. %” [0087]. With regard to claim 25(A), Beumer teaches inclusion of citric acid and lactic acid as β-hydroxy acids which are antioxidants [0087]. Beumer in the Example 63 Shine Shampoo teaches inclusion of citric acid in an amount of 0.01% [0319]. Beumer also teaches lactic acid as a moisturizer which retains water on the hair surface with the moisturizer present in an amount of “about 0.5 wt. % to about 8 wt. % in a product of the present invention, preferably about 1 wt. % to about 5 wt. %.” As such, with regard to claim 25(A), Beumer teaches citric acid and lactic acid in a combined amount of about 0.51 to about 5.01%. With regard to claim 25(A), Beumer in the Example 63 Shine Shampoo teaches inclusion of sodium laureth sulfate (elected species; anionic surfactant), cocamidopropyl betaine (amphoteric surfactant), laureth-4 (nonionic surfactant), hydroxypropyl guar hydroxypropyltrimonium chloride (i.e. cationic polymer) and water [0319]. With regard to claim 25(B), Beumer in Example 21 teaches an Extra Shine Revitalizing Hair Cream (conditioner) comprising behentrimonium chloride (cationic surfactant), polysilicone-15 (silicones) and water [0253]. With regard to claim 25(B), Beumer teaches inclusion of the amino acids “(e.g. glycine, histidine, tyrosine, tryptophan)” as an antioxidant with antioxidants present in an amount of “ at least 0.01 wt. % of the total weight of the composition. Preferably about 0.01 wt. % to about 10 wt. % of the total weight of the composition… Most preferred, one or more preservatives/antioxidants are present in an amount about 0.1 wt. % to about 1 wt. %” [0087]. With regard to claim 25(B), it would have been prima facie obvious to the ordinary skilled artisan before the effective filing date to have modified Beumer’s conditioner by adding the amino acids, glycine and histidine, in the amount of about 0.01 wt. % to about 10 wt. % of composition in order to provide antioxidant properties to the formulation. With regard to claim 25(B), Beumer teaches inclusion of citric acid and lactic acid as β-hydroxy acids as antioxidants [0087]. Beumer in the Example 63 Shine Shampoo teaches inclusion of citric acid in an amount of 0.01% [0319]. Beumer also teaches lactic acid as a moisturizer which retains water on the hair surface with the moisturizer present in an amount of “about 0.5 wt. % to about 8 wt. % in a product of the present invention, preferably about 1 wt. % to about 5 wt. %.” As such, with regard to claim 25(B), Beumer teaches citric acid and lactic acid in a combined amount of about 0.51% to about 5.01%. It would have been prima facie obvious to the ordinary skilled artisan at the time of filing to have modified Beumer’s Example 21 extra shine revitalizing hair cream by adding citric acid and lactic acid in a combined amount of about 0.51 to about 5.01% in order to provide moisturization and antioxidant properties to the hair conditioner. With regard to claim 25(c), Beumer in Example 24 teaches a silky hair cocktail (i.e. enhancing composition; [0257]). With regard to claim 25(c), Beumer in Example 24 teaches the hair cocktail comprises phenyl trimethicone (i.e. a silicone) and water [0257]. With regard to claim 25(c), Beumer teaches inclusion of antioxidants present in an amount of “ at least 0.01 wt. % of the total weight of the composition. Preferably about 0.01 wt. % to about 10 wt. % of the total weight of the composition…Most preferred, one or more preservatives/antioxidants are present in an amount about 0.1 wt. % to about 1 wt. %” [0087]. With regard to claim 25(c), Beumer teaches inclusion of citric acid as a β-hydroxy acid which is an antioxidants [0087]. It would have been prima facie obvious to the ordinary skilled artisan before the effective filing date to have modified Beumer’s silky hair cocktail by adding citric acid in an amount of about 0.01 wt. % to about 10 wt.% in order to provide antioxidant properties to the silky hair cocktail. With regard to claim 25 the Example 63 Shine Shampoo, the Example 21 Extra Shine Revitalizing Hair Cream, and the Example 24 silky hair cocktail are all separately contained in their own reaction vessels. With regard to claim 25, the Example 24 silky hair cocktail is not a hair coloring altering treatment composition.
While there is not a single example comprising each of the Shine Shampoo, Extra Shine Revitalizing Hair Cream, and silky hair cocktail packaged together as a kit or bundle, it would have been prima facie obvious to the ordinary skilled artisan before the effective filing date to combine these elements as claimed by known methods with no change in their respective functions to provide a kit for making the hair shiny and silky, and the combination yielding nothing more than predictable results.
With regard to amount of amino acids in the shampoo, the amount of carboxylic acids in the shampoo, the amount of amino acids in the conditioner, amount of carboxylic acids in the conditioner, and the amount of carboxylic acids in the enhancing composition/silky hair cocktail, Beumer teaches these reagents in amounts which overlap 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. 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).
Claim 25, 48-50, 53-55 & 58-60 are rejected under 35 U.S.C. 103 as being unpatentable over Beumer (US 2009/0068136; Published: 03/12/2009) in view of Okuno (US Patent No. 6,607,718; Published: 08/19/2003).
The teachings of Beumer are described above. In brief, Beumer teaches a shine shampoo, a shine hair cream/conditioner, and a silky hair cocktail (i.e. enhancing composition). Beumer teaches inclusion of citric acid as an antioxidant and lactic acid as an antioxidant and moisturizing agent in the shampoo and hair cream/conditioner. With regard to claims 50 & 55, Beumer teaches inclusion of citric acid and lactic acid as β-hydroxy acids are antioxidants [0087]. Beumer in the Example 63 Shine Shampoo teaches inclusion of citric acid in an amount of 0.01% [0319]. Beumer also teaches lactic acid as a moisturizer which retains water on the hair surface with the moisturizer present in an amount of “about 0.5 wt. % to about 8 wt. % in a product of the present invention, preferably about 1 wt. % to about 5 wt. %.” As such, with regard to claims 50, 55 & 60, Beumer teaches citric acid and lactic acid in a combined amount of about 0.51% to about 5.01%. With regard to claim 50, it would have been prima facie obvious to the ordinary skilled artisan at the time of filing to have modified Beumer’s Example 63 shine shampoo by adding lactic acid in an amount of about 1 wt. % to about 5 wt. % [yielding a combined amount of about 0.51 to about 5.01% lactic acid and citric acid] in order to provide moisturization and antioxidant properties to the hair shampoo. With regard to claim 55, it would have been prima facie obvious to the ordinary skilled artisan at the time of filing to have modified Beumer’s hair cream by adding lactic acid in an amount of about 1 wt. % to about 5 wt. % and adding citric acid in an amount of 0.01% [yielding a combined amount of about 0.51 to about 5.01% lactic acid and citric acid] in order to provide moisturization and antioxidant properties to the hair cream. With regard to claim 60, it would have been prima facie obvious to the ordinary skilled artisan at the time of filing to have modified Beumer’s silky hair cocktail by adding lactic acid in an amount of about 1 wt. % to about 5 wt. % and adding citric acid in an amount of 0.01% [yielding a combined amount of about 0.51 to about 5.01% lactic acid and citric acid] in order to provide moisturization and antioxidant properties to the hair cocktail. Beumer teaches the compositions of their invention impart shine to the hair [0141].
Beumer does not teach the shampoo comprises benzoic acid and maleic acid, hair cream/conditioner comprises benzoic acid and maleic acid, or that the silky hair cocktail/enhancing composition comprises benzoic acid and maleic acid.
In the same field of invention of hair cosmetics, Okuno teaches a hair cosmetic composition. Okuno teaches a component (B) for providing hair with luster which include hydroxycarboxylic acid with maleic acid and benzoic acid taught as preferred acids (col. 2, ll. 60-end to col. 3, ll. 1-10). Component (B) is taught to be most preferably 0.1 to 25% (col. 3, ll. 15-25).
The Supreme Court in KSR International Co. v. Teleflex Inc., 550 U.S. 398, 127 S. Ct. 1727, 82 USPQ2d 1385, 1395-97 (2007) identified a number of rationales to support a conclusion of obviousness which are consistent with the proper “functional approach” to the determination of obviousness as laid down in Graham. The key to supporting any rejection under 35 U.S.C. 103 is the clear articulation of the reason(s) why the claimed invention would have been obvious. The Supreme Court in KSR noted that the analysis supporting a rejection under 35 U.S.C. 103 should be made explicit.
Exemplary rationales that may support a conclusion of obviousness include:
(A) Combining prior art elements according to known methods to yield predictable results;
(B) Simple substitution of one known element for another to obtain predictable results;
(C) Use of known technique to improve similar devices (methods, or products) in the same way;
(D) Applying a known technique to a known device (method, or product) ready for improvement to yield predictable results;
(E) “Obvious to try” – choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success;
(F) Known work in one field of endeavor may prompt variations of it for use in either the same field or a different one based on design incentives or other market forces if the variations are predictable to one of ordinary skill in the art;
(G) Some teaching, suggestion, or motivation in the prior art that would have led one of ordinary skill to modify the prior art reference or to combine prior art reference teachings to arrive at the claimed invention.
Note that the list of rationales provided is not intended to be an all-inclusive list. Other rationales to support a conclusion of obviousness may be relied upon by Office personnel.
With regard to claims 48-50, at least rationale (A) may be employed in which it would have been prima facie obvious to the ordinary skilled artisan before the effective filing date to have modified Beumer’s shine shampoo composition by adding maleic acid and benzoic acid in a combined amount of 0.1 to 25% [yielding a total carboxylic acid content of 0.61 to about 30.01%] as suggested by Okuno because Beumer teaches a shine shampoo and maleic acid and benzoic acid are reagents which enhance hair luster as taught by Okuno. The ordinary skilled artisan would have been motivated to do so, with an expectation of success, in order to increase the shine/luster of imparted by the composition to hair.
With regard to claims 53-55, at least rationale (A) may be employed in which it would have been prima facie obvious to the ordinary skilled artisan before the effective filing date to have modified Beumer’s extra shine hair cream/conditioner by adding maleic acid and benzoic acid in a combined amount of 0.1 to 25% [yielding a total carboxylic acid content of 0.61 to about 30.01%] as suggested by Okuno because Beumer teaches a shine cream and maleic acid and benzoic acid are reagents which enhance hair luster as taught by Okuno. The ordinary skilled artisan would have been motivated to do so, with an expectation of success, in order to increase the shine/luster of imparted by the shine cream to hair.
With regard to claims 58-60, at least rationale (A) may be employed in which it would have been prima facie obvious to the ordinary skilled artisan before the effective filing date to have modified Beumer’s silky hair cocktail cream/conditioner by adding maleic acid and benzoic acid in a combined amount of 0.1 to 25% [yielding a total carboxylic acid content of 0.11 to about 25.01%] as suggested by Okuno because Beumer teaches the compositions of their invention provide shine to hair and maleic acid and benzoic acid are reagents which enhance hair luster as taught by Okuno. The ordinary skilled artisan would have been motivated to do so, with an expectation of success, in order to increase the shine/luster of imparted by the silky hair cocktail/enhancing composition to hair.
With regard to amount of amino acids in the shampoo, the amount of carboxylic acids in the shampoo, the amount of amino acids in the conditioner, amount of carboxylic acids in the conditioner, and the amount of carboxylic acids in the enhancing composition/silky hair cocktail, the combined teachings of Beumer and Okuno teach these reagents in amounts which overlap 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. 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).
Claims 25, 51 and 56 are rejected under 35 U.S.C. 103 as being unpatentable over Beumer (US 2009/0068136; Published: 03/12/2009) in view of Crotein (https://www.kutilov.cz/user/related_files/crotein_cashmere_pe_ds-250r-11.pdf; Published: 06/16/2008).
The teachings of Beumer are described above. In brief, Beumer teaches a shampoo and hair cream (i.e. conditioner) comprising amino acids in which glycine and histidine are exemplified [0087].
Beumer does not teach the amino acids in the shampoo comprise “alanine and/or a salt thereof… and valine and/or a salt thereof” or that the conditioner comprises ““alanine and/or a salt thereof… and valine and/or a salt thereof”
In the same field of invention, Crotein teaches an amino acid complex comprising alanine, arginine, aspartic acid, glycine, histidine, isoleucine, phenylalanine, proline, serine, threonine, and valine (Table 1, pg. 2). Crotein teaches the amino acid complex is for use in conditioning shampoo, hair conditioners, intensive conditioning treatments, and styling product (pg. 1). Crotein teaches this amino acid complex is a “added value” ingredient with the amino acids exhibiting powerful moisture binding properties (pg. 1). The amino acids are able to penetrate the hair cuticle to help prevent breakage and split ends (pg. 1).
Here at least rationale (A) may be employed in which it would have been prima facie obvious to the ordinary skilled artisan before the effective filing date to have modified Beumer’s shine shampoo and shine hair cream/conditioner by adding Crotein, comprising the amino acids “alanine… valine” as suggested by Crotein because Beumer teaches the compositions of their invention may comprise amino acids, Beumers compositions include shampoos and conditioners, and Crotein which comprise “alanine… valine” is taught for inclusion in shampoos and conditioners by Crotein as an added-value reagent. The ordinary skilled artisan would have been motivated to do so, with an expectation of success, in order to increase hair moisture while preventing breakage and split ends as taught by Crotein.
With regard to amount of amino acids in the shampoo, the amount of carboxylic acids in the shampoo, the amount of amino acids in the conditioner, amount of carboxylic acids in the conditioner, and the amount of carboxylic acids in the enhancing composition/silky hair cocktail, the combined teachings of Beumer and Crotein teach these reagents in amounts which overlap 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. 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).
Claims 52 & 57 are rejected under 35 U.S.C. 103 as being unpatentable over Beumer and Okuno as applied to claims 25, 48-50, 53-55 & 58-60 above, and further in view of Crotein (https://www.kutilov.cz/user/related_files/crotein_cashmere_pe_ds-250r-11.pdf; Published: 06/16/2008).
The teachings of Beumer and Okuno are described above. In brief, the combined teachings of Beumer and Okuno suggest a shine shampoo compositions comprising the amino acids, glycine and histidine, maleic acid and benzoic acid in a combined amount of 0.1 to 25% [yielding a total carboxylic acid content of 0.61 to about 30.01%]; a shine cream/conditioner comprising the amino acids, glycine and histidine, maleic acid and benzoic acid in a combined amount of 0.1 to 25% [yielding a total carboxylic acid content of 0.61 to about 30.01%]; and a silky hair cocktail cream/conditioner comprising the amino acids, glycine and histidine, maleic acid and benzoic acid in a combined amount of 0.1 to 25% [yielding a total carboxylic acid content of 0.11 to about 25.01%].
Neither Beumer nor Okuno teach the shampoo (A) comprises “alanine and/or a salt thereof…and valine and/or a salt thereof”
The teachings of Crotein are described above.
With regard to claims 52 and 57, at least rationale (A) may be employed in which it would have been prima facie obvious to the ordinary skilled artisan before the effective filing date to have modified Beumer’s shine shampoo and shine hair cream/conditioner by adding Crotein, comprising the amino acids “alanine… valine” to the compositions as suggested by Crotein because Beumer teaches the compositions of their invention may comprise amino acids, Beumer’s compositions include shampoos and conditioners, and Crotein which comprises “alanine… valine” is taught for inclusion in shampoos and conditioners by Crotein as an added-value reagent. The ordinary skilled artisan would have been motivated to do so, with an expectation of success, in order to increase hair moisture while preventing breakage and split ends as taught by Crotein.
Claims 61 & 62 are rejected under 35 U.S.C. 103 as being unpatentable over Beumer and Okuno as applied to claims 25, 48-50, 53-55 & 58-60 above, and further in view of Brady (US Patent No. 5,376,145; Published: 12/27/1994) and McKay (https://www.beautycon.com/article/is-water-damaging-my-hair; Published: 07/01/2010).
The teachings of Beumer and Okuno are described above. In brief, the combined teachings of Beumer and Okuno suggest a silky hair cocktail/enhancing composition comprising citric acid, benzoic acid and maleic acid.
Neither Beumer nor Okuno teach the enhancing composition comprises a salt of maleic acid.
In the related field of processing textile materials comprising keratin fibers which include human hair, Brady teaches fabrics of textile undergo hygral expansion which produce faults and that damage occurs to keratinous fibers when they are heated above room temperature in water (abstract; col. 1, ll. 5-25). The ordinary skilled artisan would recognize hot to warm showers are warmer than room temperature; it is why the shower feels warm. To solve these problems, Brady teaches treatment with ammonium and sodium salts derived from “especially maleic acid” and in Example 1 teaches use of sodium hydrogen maleate (col. 5, ll. 10-20; col. 6, ll. 30-35).
McKay teaches “water can also be very damaging to your hair. In fact, the more damaged your hair is, the more damaging water is to it” (pg. 2).
With regard to claims 61 & 62, at least rationale (G) may be employed in which it would have been prima facie to the ordinary skilled artisan before the effective filing date to have modified the enhancing composition suggested by the combined teachings of Beumer and Okuno by adding sodium hydrogen maleate (i.e. salt of maleic acid) to the composition because Beumer, Okuno, Brady, and McKay are all drawn to the treatment of hair and work in one field of endevor may be applied in a related field based on design incentives or other market forces if the variations are predictable to one of ordinary skill in the art. The ordinary skilled artisan would have been motivated to do so, with an expectation of success, in order to protect hair from damage from water and wet hair from heat (i.e. hot water as when treated with a blow-dryer).
Claims 65-66 are rejected under 35 U.S.C. 103 as being unpatentable over Beumer (US 2009/0068136; Published: 03/12/2009) in view of Reich (US 6,287,546; Published: 09/11/2001), and Okuno (US Patent No. 6,607,718; Published: 08/19/2003).
In a different embodiment, with respect to claim 65(A), Beumer in Example 19 teaches a hydrating shampoo [0212]. With regard to claim 65(A), Beumer teaches inclusion of the amino acids “ (e.g. glycine, histidine, tyrosine, tryptophan)” as an antioxidant with antioxidants present in an amount of “ at least 0.01 wt. % of the total weight of the composition. Preferably about 0.01 wt. % to about 10 wt. % of the total weight of the composition…Most preferred, one or more preservatives/antioxidants are present in an amount about 0.1 wt. % to about 1 wt. %” [0087]. With regard to claim 65(A), Beumer teaches inclusion of citric acid and lactic acid as β-hydroxy acids which are antioxidants [0087]. Beumer in the Example 63 Shine Shampoo teaches inclusion of citric acid in an amount of 0.01% [0319]. With regard to claim 65(A), it would have been prima facie obvious to the ordinary skilled artisan before the effective filing date to have modified Beumer’s Example 19 hydrating shampoo by adding 0.01% citric acid to the formulation to provide the composition with antioxidant properties. With regard to claim 65(A), Beumer also teaches lactic acid as a moisturizer which retains water on the hair surface with the moisturizer present in an amount of “about 0.5 wt. % to about 8 wt. % in a product of the present invention, preferably about 1 wt. % to about 5 wt. %.” As such, with regard to claim 65(A), Beumer teaches citric acid and lactic acid in a combined amount of about 0.51 to about 5.01%. With regard to claim 65(A), Beumer in Example 19 teaches the hydrating shampoo comprises sodium laureth sulfate, cocoamidopropyl betaine, decyl glucoside, polyquaternium-10 and water [0249]. Beumer teaches polyquaternium -10 and PQ-11 (i.e. polyquaternium-11) to be typical conditioning agents [0212]. It would have been prima facie obvious to the ordinary skilled artisan before the effective filing date to have modified Beumer’s Example 19-hydrating shampoo by substituting the polyquaternium-10 with the polyquaternium-11 polymer because they are both taught as typical conditioning agents for inclusion in the invention. Beumer in the silky hair cocktail/enhancing composition teaches inclusion of acrylates copolymer [0257]. With regard to claim 65(A), more broadly, Beumer teaches inclusion of acrylate copolymer (i.e. acrylates copolymer) as an additional polymer which may be used in combination with their inventive condensation polymers [0118]. With regard to claim 65(A), Beumer teaches a concern for stability of their product by teaching hair care compositions contain emulsifiers which act to stabilize the composition and these emulsifiers include fatty alcohols, including stearyl alcohol (i.e. a C18 alcohol; [0088]). With regard to claim 65(B), Beumer in Example 21 teaches an Extra Shine Revitalizing Hair Cream (conditioner) comprising behentrimonium chloride (cationic surfactant), tocopheryl acetate, cocodimonium hydroxypropyl hydrolyzed wheat protein (i.e. one or more cationic polymers), propylene glycol (polyhydric acid), and water [0253]. With regard to claim 65(B), Beumer teaches tocopherol and derivates (such as vitamin E acetate, (i.e. tocopherol acetate)) as an antioxidant suitable for inclusion in the compositions of their invention [0087]. With regard to claim 65(B), Beumer teaches inclusion of the amino acids “(e.g. glycine, histidine, tyrosine, tryptophan)” as an antioxidant with antioxidants present in an amount of “ at least 0.01 wt. % of the total weight of the composition. Preferably about 0.01 wt. % to about 10 wt. % of the total weight of the composition… Most preferred, one or more preservatives/antioxidants are present in an amount about 0.1 wt. % to about 1 wt. %” [0087]. With regard to claim 65(B), it would have been prima facie obvious to the ordinary skilled artisan before the effective filing date to have modified Beumer’s conditioner by adding the amino acids, glycine and histidine, in the amount of about 0.01 wt. % to about 10 wt. % of composition in order to provide antioxidant properties to the formulation. With regard to claim 65(B), Beumer teaches inclusion of citric acid and lactic acid as β-hydroxy acids as antioxidants [0087]. Beumer in the Example 63 Shine Shampoo teaches inclusion of citric acid in an amount of 0.01% [0319]. Beumer also teaches lactic acid as a moisturizer which retains water on the hair surface with the moisturizer present in an amount of “about 0.5 wt. % to about 8 wt. % in a product of the present invention, preferably about 1 wt. % to about 5 wt. %.” As such, with regard to claim 65(B), Beumer teaches citric acid and lactic acid in a combined amount of about 0.51% to about 5.01%. It would have been prima facie obvious to the ordinary skilled artisan at the time of filing to have modified Beumer’s Example 21 extra shine revitalizing hair cream/conditioner by adding citric acid and lactic acid in a combined amount of about 0.51 to about 5.01% in order to provide moisturization and antioxidant properties to the hair conditioner. With regard to claim 65(C), Beumer in Example 24 teaches a silky hair cocktail (i.e. enhancing composition; [0257]). With regard to claim 65(C), Beumer in Example 24 teaches the hair cocktail comprises caprylic/capric triglyceride (i.e. a thickener) and water [0257]. With regard to claim 65(C), more broadly, Beumer teaches humectants including glycerine and propylene glycol may be used to bind water to retain it on the hair surface with low diols being incorporated into the aqueous phase ( [0106] & [0107]). It would have been prima facie obvious to the ordinary skilled artisan before the effective filing date to have modified Beumer’s hair cocktail by adding propylene glycol (i.e. a polyhydric alcohol) to the composition to bind moisture and retain it on the hair surface. With regard to claim 65(C), Beumer teaches inclusion of antioxidants present in an amount of “ at least 0.01 wt. % of the total weight of the composition. Preferably about 0.01 wt. % to about 10 wt. % of the total weight of the composition…Most preferred, one or more preservatives/antioxidants are present in an amount about 0.1 wt. % to about 1 wt. %” [0087]. With regard to claim 65(C), Beumer teaches inclusion of citric acid as a β-hydroxy acid which is an antioxidant [0087]. It would have been prima facie obvious to the ordinary skilled artisan before the effective filing date to have modified Beumer’s silky hair cocktail by adding citric acid in an amount of about 0.01 wt. % to about 10 wt.% in order to provide antioxidant properties to the silky hair cocktail. With regard to claim 65(C), Beumer’s silky hair composition comprises phenyl trimethicone, macadamia nut oil and tocopheryl acetate [0257]. With regard to claim 65(C), Beumer teaches tocopherol and derivates (such as vitamin E acetate, (i.e. tocopherol acetate)) as an antioxidant suitable for inclusion in the compositions of their invention [0087]. It would have been prima facie obvious to the ordinary skilled artisan before the effective filing date to have substituted tocopheryl acetate with tocopherol because they are both suitable antioxidant for inclusion in the invention based upon vitamin E. With regard to claim 65(C), Beumer teaches inclusion of neopentylglycol dihepanoate as other fatty compounds which may be advantageously incorporated into the hair care compositions of the invention [0101]. It would have been prima facie obvious to the ordinary skilled artisan before the effective filing date to have modified Beumer’s silky hair cocktail by adding neopentylglycol dihepanoate to the composition in order to provide fat/lubricity to the hair. With regard to claim 65 the hydrating shampoo, the Example 21 Extra Shine Revitalizing Hair Cream, and the Example 24 silky hair cocktail are all separately contained in their own reaction vessels. While there is not a single example comprising each of the hydrating shampoo, Extra Shine Revitalizing Hair Cream, and silky hair cocktail packaged together as a kit or bundle, it would have been prima facie obvious to the ordinary skilled artisan before the effective filing date to combine these elements as claimed by known methods with no change in their respective functions to provide a kit for making the hair moisturized, shiny and silky, and the combination yielding nothing more than predictable results.
Beumer does not provide motivation to select acrylates copolymer for inclusion in the shampoo, Beumer does not teach inclusion of benzoic acid in the shampoo, conditioner or silky hair cocktail/enhancing composition, inclusion of maleic acid in the shampoo, conditioner or enhancing composition, or inclusion of quaternium-91 in the silky hair cocktail composition.
With regard to claim 65(A), Reich teaches a stabilized shampoo in which the stabilizers are at least one of (i) long chain fatty alcohols with greater than 14 carbons and (ii) acrylates copolymer (abstract; Example 16-col. 12, ll. 35-65; Reich’s claim 1).
The teachings of Okuno are described above. In brief, in the same field of invention of hair cosmetics, Okuno teaches a component (B) for providing hair with luster which include hydroxycarboxylic acid with maleic acid and benzoic acid taught as preferred acids (col. 2, ll. 60-end to col. 3, ll. 1-10). Component (B) is taught to be most preferably 0.1 to 25% (col. 3, ll. 15-25).
With regard to claims 65(A) & 66, at least rationale (A) may be employed in which it would have been prima facie obvious to the ordinary skilled artisan before the effective filing date to have modified Beumer’s hydrating shampoo composition by adding maleic acid and benzoic acid in a combined amount of 0.1 to 25% [yielding a total carboxylic acid content of 0.61 to about 30.01%] as suggested by Okuno because Beumer teaches a hydrating shampoo and maleic acid and benzoic acid are reagents which enhance hair luster as taught by Okuno. The ordinary skilled artisan would have been motivated to do so, with an expectation of success, in order to increase the shine/luster of imparted by the hydrating shampoo to hair.
With regard to claim 65(A), at least rationale (A) may be employed in which it would have been prima facie obvious to the ordinary skilled artisan before the effective filing date to have modified Beumer’s hydrating shampoo composition by adding acrylates copolymer to the composition as suggested by Reich because Beumer and Reich are both drawn to shampoo compositions and it is obvious to modify similar compositions in the same way. The ordinary skilled artisan would have been motivated to do so, with and expectation of success, in order to stabilize the hydrating shampoo.
With regard to claims 65(B) & 66, at least rationale (A) may be employed in which it would have been prima facie obvious to the ordinary skilled artisan before the effective filing date to have modified Beumer’s extra shine hair cream/conditioner by adding maleic acid and benzoic acid in a combined amount of 0.1 to 25% [yielding a total carboxylic acid content of 0.61 to about 30.01%] as suggested by Okuno because Beumer teaches a shine cream and maleic acid and benzoic acid are reagents which enhance hair luster as taught by Okuno. The ordinary skilled artisan would have been motivated to do so, with an expectation of success, in order to increase the shine/luster of imparted by the shine cream to hair.
With regard to claim 65(C), at least rationale (A) may be employed in which it would have been prima facie obvious to the ordinary skilled artisan before the effective filing date to have modified Beumer’s silky hair cocktail cream/conditioner by adding maleic acid and benzoic acid in a combined amount of 0.1 to 25% [yielding a total carboxylic acid content of 0.11 to about 25.01%] as suggested by Okuno because Beumer teaches the compositions of their invention provide shine to hair and may comprise conditioning compounds and maleic acid and benzoic acid are reagents which enhance hair luster as taught by Okuno. The ordinary skilled artisan would have been motivated to do so, with an expectation of success, in order to increase the shine/luster imparted by the silky hair cocktail/enhancing composition to hair.
With regard to amount of amino acids in the shampoo, the amount of carboxylic acids in the shampoo, the amount of amino acids in the conditioner, amount of carboxylic acids in the conditioner, and the amount of carboxylic acids in the enhancing composition/silky hair cocktail, the combined prior teachings of Beumer, Reich, and Okuno suggest these reagents in amounts which overlap 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. 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).
Claims 63 & 64 are rejected under 35 U.S.C. 103 as being unpatentable over Beumer, Reich, and Okuno as applied to claims 65-66 above, and further in view of Glynn JR (US Pub No. 2007/0141007; Published: 06/21/2007).
The teachings of Beumer, Reich, and Okuno are relied upon as above with respect to the hydrating shampoo, shine conditioner and silky hair cocktail. Further, with regard to claim 63(C), Beumer’s silky hair cocktail comprises dimethicone copolyol and centrimonium chloride [0257]. More broadly, with regard to claim 63(c), Beumer teaches the compositions of their invention can comprise “typical conditioning agents” which may be combined with the inventive condensation polymers in a haircare composition with “dimethicondopolyole” (sic; dimethicone copolyol) being one such conditioning active [0096].
Neither Beumer, Reich, nor Okuno teach the enhancing composition comprises quaternium-91.
In the same field of treating hair, Glynn JR teaches cetyltrimonium chloride and quaternium-91 are cationic hair conditioning compounds/actives [0051].
With regard to claim 65(C), at least rationale (A) may be employed in which it would have been prima facie obvious to the ordinary skilled artisan before the effective filing date to have modified the silky hair cocktail cream/conditioner suggested by the combined teachings of Beumer, and Okuno by adding quaternium-91 as suggested by Glynn JR because Beumer teaches the compositions of their invention provide shine to hair and may comprise conditioning compounds and quaternium-91 is a conditioning compound used in hair treatments as taught by Glynn JR. The ordinary skilled artisan would have been motivated to do so, with an expectation of success, in order to the conditioning imparted by the silky hair cocktail/enhancing composition to hair.
With regard to amount of amino acids in the shampoo, the amount of carboxylic acids in the shampoo, the amount of amino acids in the conditioner, amount of carboxylic acids in the conditioner, and the amount of carboxylic acids in the enhancing composition/silky hair cocktail, the combined prior teachings of Beumer, Reich, Okuno and Glynn JR suggest these reagents in amounts which overlap 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. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff