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
A third request for continued examination under 37 CFR 1.114 was filed in this application after a decision by the Patent Trial and Appeal Board, but before the filing of a Notice of Appeal to the Court of Appeals for the Federal Circuit or the commencement of a civil action. 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examination under 37 CFR 1.114 and the fee set forth in 37 CFR 1.17(e) has been timely paid, the appeal has been withdrawn pursuant to 37 CFR 1.114 and prosecution in this application has been reopened pursuant to 37 CFR 1.114. Applicant’s submission filed on August 20, 2025 has been entered.
Claims 22-27, 32-40 and 44-46 are pending.
Claims 1-21, 28-31 and 41-43 are cancelled.
Claims 22-27 and 32-40 are currently amended.
Claims 44-46 are new.
Claims 44-46 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim.
Claims 22-27 and 32-40 as filed on August 20, 2025 are pending and under consideration to the extent of the elected species, e.g., the composition is a shampoo.
Withdrawn Objections / Rejections
In view of the amendment of the claims, all previous claim objections are withdrawn.
In view of the amendment of the claims and the PTAB decision not reaching all of the cumulative rejections of record, all previous claim rejections under 35 USC 103 are withdrawn. Modified / new grounds of rejection over Scheunemann and over Tanabe are applied herewith as necessitated by Applicant’s amendments.
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 Rejections and/or objections not reiterated from previous office actions are hereby withdrawn.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.
Information Disclosure Statement
The information disclosure statements (IDS) submitted on April 5, 2024, July 25, 2024, October 21, 2024, November 22, 2024 (2x), February 4, 2025 (2x), March 19, 2025 (2x) were considered.
Claim Objections
Claim 32, 33, 36, 39 and 40 are objected to because of the following informalities:
Claim 32, final wherein clause: “taurine and/or salts thereof” should presumably recite “taurine and/or the salt thereof” consistent with the antecedent.
Claim 33, final wherein clause and claim 40: “glycine and/or salts thereof” should presumably recite “glycine and/or the salt thereof” consistent with the antecedent.
Claim 33, final wherein clause and claim 39: “citric acid and/or salts thereof” should presumably recite “citric acid and/or the salt thereof” consistent with the antecedent.
Claim 36: “the total amount of silicones” should presumably recite “the total amount of the one or more silicones” consistent with the antecedent.
Appropriate correction is required.
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 22-27 and 32-40 are rejected under 35 U.S.C. 103 as being unpatentable over Scheunemann et al. (EP 1,690,524 A2, published August 16, 2006, as evidenced by the Google translation, of record) optionally in view of Mathews et al. (US 4,793,992, published December 27, 1988, IDS reference filed October 28, 2019) or Konrad et al. (US 4,855,130, published August 8, 1989, of record).
Scheunemann teaches cleaning- and conditioning agents inclusive of shampoos, for skin and hair, comprising (title; abstract; claims; paragraph [0046]):
0.001 to 10 wt% of at least one quaternized hydroxyethylene cellulose (cationic) polymer, and
at least one other substance selected from the group inclusive of protein hydrolysates, amino acids inclusive of glycine or taurine at 0.01 to 5 wt% (claim 12; paragraph [0023]) and organic acids inclusive carboxylic acids having a molecular weight of less than 750 having one, two or three carboxy groups such citric acid at 0.01 to 10 wt% (claim 13; paragraphs [0024]-[0028]), as required by instant claims 23-27, 37-40.
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). "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See MPEP 2144.05.
The cleansing agents further comprise 0.1 to 50 wt% of a surfactant system selected from anionic, amphoteric, zwitterionic or/and nonionic (claim 6), as required by instant claim 34. The surfactant system comprises alkyl ether sulfates (anionic, non-taurate), amine oxides (nonionic), alkyl polyglucosides (nonionic) and/or betaines (amphoteric/zwitterionic) (claims 7-8; paragraphs [0049]-[0050], [0054], [0058]-[0059]). The exemplary aqueous shampoo comprises inter alia (pages 15, 18):
about 0.27*(40 wt%) ~= 10 wt% sodium lauryl ether (laureth) sulfate (anionic, non-taurate),
about 0.30*(6 wt%) ~= 1.8 wt% disodium cocoamphodiacetate (amphoteric),
0.4 wt% polyquaternium-10 (cationic polymer),
0.8 wt% PEG-7 glyceryl cocoate (nonionic),
about 0.675*(4 wt%) ~= 2.7 wt% alkyl polyglucoside (nonionic),
2.5 wt% citric acid,
0.5 wt% sodium benzoate (preservative) (paragraphs [0095]-[0096]), and
0.2 wt% Polymer SL (at least one quaternized hydroxyethylene cellulose (cationic)).
The compositions may (optionally) further comprise 0.01 to 10 wt% of a silicone (claims 15-16; paragraph [0068]), as required by instant claims 35, 36.
The shampoo compositions may (optionally) contain, in addition to the water base, preservatives and optionally oil body and components for adjusting the viscosity (thickeners) (paragraphs [0046]-[0047], [0066]-[0067], [0089]). Regarding the at least one thickener present up to 2 wt% as required by instant claim 32, because the components for adjusting the viscosity (thickeners) are optional (optional inclusion of a particular component teaches compositions that both do and do not contain that component (see MPEP 2123)), Scheunemann renders obvious 0 wt% which falls within the claimed range. Furthermore, it would have been obvious to optimize in order to adjust the viscosity. See MPEP 2144.05.
Scheunemann further teaches care products for the hair affect the natural structure and properties of the hair (paragraph [0001]). The cleaning- and conditioning agents of Scheunemann improve hair grip, improve wet and dry combability, increase the softness of the skin and hair and increase skin and hair smoothness (claims 17-20; paragraphs [0090]-[0094]).
Regarding the sufficiency for restructuring hair as required by independent claims 22, 32 and 33 and the preamble recitation of an intended use for restructuring hair, the instant specification at page 4 states the term “restructuring hair” relates to repairing, strengthening and/or compensating for damage meaning the hair exhibits improved smoothness, gloss, combability and strength:
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Because the instant claims define a structurally complete invention, these recitations are not limiting of the claims. Because Scheunemann renders obvious compositions comprising overlapping amounts of the same carboxylic acids and amino acids as instantly claimed, these amounts are suitable for restructuring hair. Additionally, because the compositions of Scheunemann achieve results falling within the scope of restructuring, e.g., improved combability, the compositions of Scheunemann meet the claims.
Alternatively, Mathews teaches hair treatment compositions comprising hydrolyzed proteins are enhanced in combination with amino acids such as taurine (title; abstract; claims). Taurine forms charge bridges between the surface of hair and charged protein fragments in a hair conditioning composition (column 3, lines 9-22, 34-52; paragraph bridging columns 2 and 3). Hydrolyzed proteins condition hair and skin (column 1, lines 5-16). In view of Mathews, 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 shampoo compositions of Scheunemann inclusive of the exemplary aqueous shampoo comprising inter alia 2.5 wt% citric acid to comprise taurine as the amino acid present from 0.01 to 5 wt% because taurine forms charge bridges between the surface of hair and charged protein fragments, improving the deposition of conditioners.
And Konrad teaches hair treating compositions comprising glycine, an organic acid inclusive of citric acid and a wax and/or oil component act on the hair so as to disentangle it, smooth the hair surface and improve the feel as well as the ability of the hair to be combed (title; abstract; claims; column 1, lines 14-21; paragraph bridging columns 3 and 4). In view of Konrad, 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 shampoo compositions of Scheunemann inclusive of the exemplary aqueous shampoo comprising inter alia 2.5 wt% citric acid to comprise glycine as the amino acid present from 0.01 to 5 wt% and a wax and/or oil because glycine works in combination with citric acid to improve hair.
Claims 22, 23, 25, 27, 33, 39 and 40 are rejected under 35 U.S.C. 103 as being unpatentable over Tanabe et al. (US 6,348,189, published February 19, 2002, IDS reference filed November 30, 2020) in view of Rizk (US 9,006,162, published April 14, 2015, of record).
Tanabe teaches aqueous hair cleansing compositions / shampoos comprising (title; abstract; claims; column 3, lines 59-61; Table 1):
0.01 to 20 wt% of glycine or alanine for imparting deepness to hair (column 1, lines 61-65), as required by instant claims 23, 25, 27, 40,
0.01 to 5 wt% of a hydroxy- or/and carboxylic acid inclusive of citric acid for imparting transparency to hair (paragraph bridging columns 1-2; column 2, lines 13-18), as required by instant claim 39,
5 to 40 wt% of an anionic surfactant (non-taurate), and, optionally,
0.01 to 5 wt% of a cationic polymer (claims 2, 5; column 2, line 62 through column 3, line 26), and, optionally,
0.01 to 10 wt% silicone (claims 3, 6; column 3, lines 27-46).
See MPEP 2144.05. The compositions may further comprise inter alia additional surfactants, viscosity modifiers (thickeners), or/and preservatives (column 3, lines 47-55). Tanabe further teaches the composition is excellent improving optical or mechanical properties of hair such as luster, softness and body (abstract; column 1, lines 11-14).
Tanabe does not specifically teach about 0.1 to 15 wt% amphoteric surfactants as required by claims 22, 33.
These deficiencies are made up for in the teachings of Rizk.
Rizk teaches an aqueous cleansing composition comprising (title; abstract; claims; column 1, line 60 through column 2, line 8; column 10, lines 13-35):
about 6 to 20 wt% of at least one nonionic surfactant;
about 3 to 10 wt% of at least one amphoteric surfactant (columns 5-6, “Amphoteric Surfactant”);
about 2 to 8 wt% of at least one anionic surfactant (claims 6, 18-19; columns 6-8, “Anionic Surfactant”); and
about 0.01 to 5 wt% of at least one cationic conditioning (claim 8; columns 8-9, “Cationic Conditioning Polymer”).
The composition may further comprise adjuvants or additives inclusive of preservatives or/and thickeners (column 9, lines 20-38 and 49-58; claim 9). Shampoos contain standard surfactants such as anionic, nonionic and/or amphoteric; the surfactant blend of Rizk enables the composition to incorporate increased amounts of conditioning surfactants in comparison to classical compositions (column 1, lines 13-27; column 2, lines 22-32; column 4, lines 14-21).
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 cleansing compositions / shampoos of Tanabe to further comprise the surfactant blend of Rizk comprising about 3 to 10 wt% of at least one amphoteric surfactant and at least one nonionic surfactant because the combination of these standard surfactants with anionic surfactants enables the incorporation of increased amounts of conditioners. There would be a reasonable expectation of success because the compositions of Tanabe comprise the same anionic surfactants as taught by Rizk and because Tanabe expressly teaches the compositions may further comprise additional surfactants.
Regarding the sufficiency for restructuring hair as required by independent claims 22, 33 and the preamble recitation of an intended use for restructuring hair, the instant specification at page 4 states the term “restructuring hair” relates to repairing, strengthening and/or compensating for damage meaning the hair exhibits improved smoothness, gloss, combability and strength (see above). Because the instant claims define a structurally complete invention, these recitations are not limiting of the claims. Because Tanabe renders obvious compositions comprising overlapping amounts of the same carboxylic acids with glycine as instantly claimed, these amounts are suitable for restructuring hair. Additionally, because the compositions of Tanabe achieve results falling within the scope of restructuring, e.g., improved mechanical properties such as softness (smoothness), the compositions of Tanabe in view of Rizk meet the claims.
Claims 24, 26, 32 and 34-38 are rejected under 35 U.S.C. 103 as being unpatentable over Tanabe et al. (US 6,348,189, published February 19, 2002, IDS reference filed November 30, 2020) in view of Rizk (US 9,006,162, published April 14, 2015, of record) as applied to claims 22, 23, 25, 27, 33, 39 and 40 above, and further in view of Waldmann-Laue et al. (WO 2013/092080 published June 27, 2013, as evidenced by the Google translation, of record).
The teachings of Tanabe and Rizk have been described supra.
They render obvious nonionic surfactants, as required by instant claim 34.
Tanabe teaches 0.01 to 10 wt% silicone, as required by instant claims 35, 36.
Tanabe teaches citric acid, as required by instant claim 37.
They do not teach taurine as required by claims 24, 26, 32, 34-38.
They do not teach about 3 wt% taurine as required by claim 38.
These deficiencies are made up for in the teachings of Waldmann-Laue.
Waldmann-Laue teaches compositions for cleansing hair comprising 0.1 to 5 wt% pyrrolidonecarboxylic acid, 0.1 to 5 wt% lactic acid (carboxylic acid) and 0.01 to 10 wt% of at least one amino acid inclusive of taurine (title; abstract; claims). Cleanser must not only have good detergency, but should also be well tolerated by the skin and not cause dryness (page 2). Waldmann-Laue further teaches thickeners in an amount from 0.005 to 5 wt% (claim 6; page 3, last 5 full paragraphs; page 4). Waldmann-Laue further teaches preservatives to prevent spoilage in amounts from 0.001 to 10 wt% (paragraph bridging pages 8 and 9).
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 cleansing compositions / shampoos of Tanabe in view of Rizk to further comprise the compositions of Waldmann-Laue comprising 0.01 to 10 wt% of at least one amino acid inclusive of taurine in order mitigate skin dryness.
Regarding the up to 2 wt% thickener and up to 2 wt% preservative as required by claims 32 and 34-38, because Tanabe teaches the compositions may optionally further comprise inter alia viscosity modifiers (thickeners) or/and preservatives (column 3, lines 47-55) and optional inclusion of a particular component teaches compositions that both do and do not contain that component (see MPEP 2123)), Tanabe renders obvious 0 wt% which falls within the claimed range. Alternatively, it would have been obvious to modify the aqueous hair cleansing compositions / shampoos of Tanabe in view of Rizk and Waldmann-Laue to comprise 0.005 to 5 wt% thickeners and 0.001 to 10 wt% preservatives as taught by Waldmann-Laue because such amounts are suitable for including within hair cleansing compositions.
Response to Arguments: Claim Rejections - 35 USC § 103
Applicant’s arguments have been fully considered but they are not persuasive.
Applicant’s position that the prior art of record does not reach the newly claimed results of “restructuring hair” articulated at page 10 of the Remarks is acknowledged but not found persuasive for at least the reasons set forth in the grounds of rejection applied infra.
Conclusion
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.
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/ALISSA PROSSER/Examiner, Art Unit 1619
/BENNETT M CELSA/Primary Examiner, Art Unit 1600