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 .
Status of Claims
Claims 1-2, 4-21, 23-26, 44-50, 52-54 and 57-63 are currently pending. Claim 63 is newly added. Claims 3, 22, 27-43, 51 and 55-56 are canceled.
Claims 44-50, 52-54 and 57-59 are withdrawn as being drawn to a nonelected invention. Claims 1-2, 4-21, 23-26 and 60-63 are examined on their merits.
Previous Rejections
Rejections and/or objections not reiterated from previous office actions are hereby withdrawn as are those rejections and/or objections expressly stated to be withdrawn.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.
Rejections Maintained/New Grounds of Rejection
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.
The rejection of claims 1-2, 4-7, 9-21, 23 and 26 and newly applied to claim 63 under 35 U.S.C. 103 as being unpatentable over Knohl et al. US 3,997,659 (12/9/2020) in view of Larkin et al. US 6872228 (3/29/2005) is maintained.
Claim Interpretation
Claim 1 is being interpreted to require the presence of all of metasilicate, ammonium hydroxide and ethanolamine.
Knohl teaches a hair care composition for bleaching hair that comprises hydrogen peroxide and an arginine compound. (See Abstract and claim 2). The composition also comprises 2% sodium metasilicate as called for in claims 2 and 16, which is a metasilicate as called for in instant claims 1, 9 and 15. (See Example 4). 2% falls within the about 1 to about 3% metasilicate called for in instant claim 1. Hydrogen peroxide is called for in instant claim 5 and it is an oxidizing agent as called for in instant claim 1. Hydrogen peroxide is present in an amount of 3% (See Examples 1-II). 3% falls within the about 0.1 to about 15% oxidizing agent as called for in instant claim 1. 3% falls within the about 3 to about 12% oxidizing agent as called for in instant claim 6.
Arginine carbonate can be the arginine compound (called for instant claims 1 and 17) as called for in instant claims 14 and 21. (See Example II). Arginine carbonate is an arginine salt as called for in instant claims 13 and 20. Arginine carbonate is present in an amount of 9%. (See Examples I-II). 9% falls within the about 0.1 to about 10% called for in instant claims 11 and 18. 9% also falls within the about 0.1 to about 10% called for in instant claim 1. Knohl also comprise ethanolamine and ammonium hydroxide as called for in claims 1, 15 and 25. (See col. 4 lines 45-50 and Knohl claim 3).
Knohl teaches that with the presence of the arginine, there is less damage to the hair and scalp and no irritation to the skin during the process of bleaching the hair. (See cols. 1-2) Thus, this is an amount that soothes the scalp during the coloring process as called for in instant claims 1, 12 and 19. Knohl teaches that its composition has pH of about 8 to about 11 which overlaps with the about 9 to about 12 called for in instant claim 1. (See col. 4, lines 45-60). Knohl teaches that peroxide containing hair bleaches are used in the basic pH range and pH adjustors such as the alkali metal hydroxides, ethanolamine and the like can be used to adjust the pH. (See col. 4, lines 46-50).
Knohl teaches a kit in which the solutions are kept separate for mixing just before using. (See col. 5, lines 25-47). Knohl teaches a dye as called for in instant claims 7 and 23, and a conditioning agent as called for in claims 10 and 26. (See col. 3, lines 1-27 and col. 5, lines 20-25). The composition is a liquid solution as called for in instant claim 4, and is used on the scalp while containing the arginine as called for in claim 19. (See Examples).
Knohl teaches ammonium hydroxide and monoethanolamine can be used in its composition. Specifically, Knohl teaches that peroxide containing hair bleaches are used in the basic pH range and pH adjustors such as the alkali metal hydroxides, ammonium hydroxide, ethanolamine and the like can be used to adjust the pH. (See col. 4, lines 46-50). Knohl teaches that pH adjustors such as ammonium hydroxide are results effective variables and it would be no more than routine experimentation to experiment to arrive at the amount of ammonium hydroxide claimed in claim 63.
While Knohl teaches ammonium hydroxide and monoethanolamine, it does not teach specific amounts of ammonium hydroxide and monoethanolamine. This deficiency is made up for with the teachings of Larkin et al.
Larkin et al. (Larkin) teaches a hair care composition for bleaching hair with a rheology adapted to maintain the product in the reservoir or an applicator until application. (See Abstract). The composition comprises a peroxide based developer, a powder activator containing a persulfate oxidizing system and an alkalizing agent. (See column 1, lines 5-25). The alkalizing agent can be ammonium hydroxide and it can be monoethanolamine. (See Larkin claim 3). The alkalizing agent can be present in an amount of about 3 to about 15%. (See Larkin claim 4). 3 to about 15% ammonium hydroxide overlaps with the from about 2 to about 4% ammonium hydroxide called for in instant claims 1 and 15. 3 to about 15% overlaps with the from about 2 to about 5% monoethanolamine called for in instant claims 1 and 15.
With respect to claim 12 and claim 19’s language of “when the system is used on a scalp of a mammal having the keratin-containing fibers” this is language of intended use. A recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, as it is in this instance, then it meets the claim.
One of ordinary skill in the art before the earliest effective filing date would have followed the teachings of Knohl to combine 2% sodium metasilicate, 9% arginine carbonate, and ammonium hydroxide in one solution and 3% hydrogen peroxide in another solution so that they can be stable until they are combined and applied to the scalp for bleaching in order to have a bleaching composition that was not damaging on hair and scalp and that required less peroxide and ammonium hydroxide then previous bleaching compositions while still being effective.
One of ordinary skill in the art before the earliest effective filing date making the Knohl composition of 2% sodium metasilicate, 9% arginine carbonate, and ammonium hydroxide in one solution and 3% hydrogen peroxide in another solution would have make the amount of ammonium hydroxide about 3% to about 15% as taught by Larkin and would make the amount of monoethanolamine about 3% to about 15% as taught by Larkin in light of Larkin’s teachings that these were effective alkanizing amounts of ammonium hydroxide and monoethanolamine in a hair bleaching composition.
With respect to the increased lightening of the keratin-containing fibers called for in claim 1, the prior art references are silent with respect to the exact lightening properties. However, the prior art references teach all of the claimed components in the same amounts as those claimed (at the overlaps of the ranges) and the prior art teaches using these same components in the same method. Specifically, the prior art teaches 2% sodium metasilicate, 9% arginine carbonate, about 2 to about 15% ammonium hydroxide, about 2 to about 15% monoethanolamine in one solution and 3% hydrogen peroxide in another solution so that they can be stable until they are combined and applied to the scalp for bleaching.
Paragraph [0079] of the instant specification indicates that the combination of sodium metasilicate, ammonium hydroxide and ethanolamine when combined with 3% hydrogen peroxide consistently demonstrates keratin lightening. The combination of 2% sodium metasilicate, 9% arginine carbonate, ammonium hydroxide, ethanolamine being combined with 3% hydrogen peroxide is exactly what the prior art teaches. Since Applicants assert that the combination of sodium metasilicate, ammonium hydroxide and ethanolamine when combined with 3% hydrogen peroxide consistently demonstrates increased lightening, than the prior art teaches the same thing (same components in the same components being used in the same way) that Applicants assert consistently demonstrates increased lightening. Consequently, the prior art must have increased lightening too.
The rejection of claims 8, 24 and 25 under 35 U.S.C. 103 as being unpatentable over Knohl et al. US 3,997,659 (12/9/2020) as applied to claims 1-2, 4-7, 9-21, 23, 26 and 63 in view of Larkin et al. US 6872228 (3/29/2005) and further in view of Lim et al. US 2005/0005370 (1/13/2005) is maintained.
The teachings of Knohl in view of Larkin are described supra. Knohl teaches that peroxide containing hair bleaches are used in the basic pH range and pH adjustors such as the alkali metal hydroxides, ethanolamine and the like can be used to adjust the pH. (See col. 4, lines 46-50). Knohl in view of Larkin does not teach ammonium carbonate. This deficiency is made up for with the teachings of Lim et al.
Lim et al. (Lim) teaches compositions for the oxidative dying of keratin fibers. (See Abstract). Lim teaches that pH modifiers can include ammonium hydroxides and ammonium carbonates and that ammonium carbonate is even a preferred pH modifier. (See [0088]). Lim thus teaches ammonium carbonate as called for in instant claims 8, 24 and 25.
One of ordinary skill in the art at the earliest effective filing date making the composition of Knohl in view of Larkin of 2% sodium metasilicate, 9% arginine carbonate, about 2 to about 15% ammonium hydroxide and about 2 to about 15% ethanolamine in one solution and 3% hydrogen peroxide in another solution would have added ammonium carbonate in light of Lim’s teaching that it is a preferred pH modifier for oxidative keratin dyes. There is a reasonable expectation of success in light of Knohl’s teaching that pH modifiers are useful in its invention.
Allowable Subject Matter
Claims 60, 61 and 62 contain allowable subject matter. The prior art does not teach or suggest a system in which the ammonium hydroxide is present in an amount of about 2.2 wt%, the monoethanolamine is present in an amount of about 2 wt% and the metasilicate is present in an amount of from about 1 to about 2 wt%.
Claims 60, 61 and 62 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Response to Arguments
The comments and arguments dated April 21, 2026 have been reviewed and carefully considered.
Applicants assert that the inventors have found that the combination of a metasilicate, ammonium hydroxide and monoethanolamine allows for the preparation of an effective system useful for dying and/or lightening keratin-containing fibers in which the levels of unpleasant ammonia odor causing components are reduced.
Applicants assert that synergy is shown in the Examples which compares the preferred lightening composition to the individual components, specifically in Table 7, in which the combination is shown in comparison to each component. Applicants argue that as shown graphically in Figure 1, the addition of sodium metasilicate to ammonium hydroxide and MEA consistently showed synergistic lift over the same component when used alone. Specifically, it shows that this synergistic effect exceeds the lift effect of ammonium hydroxide, which is known to be the most effective alkalizing and lifting agent. Applicants assert that independent claims 1 and 15 recite specific ranges for the weight percent of metasilicate, monoethanolamine and ammonium hydroxide used in the composition that are commensurate with the experimental testing described in the application.
Applicants assert that Knohl in view of Lenzi-Barga provides no technical teaching that suggests Applicants’ unexpected results: that the addition of sodium metasilicate to ammonium hydroxide and MEA would results in a synergistic lift over the same components when used alone.
Applicants point to the higher ∆E values and point out that there is an error in Table 7 of the response of October 24, 2025 in which the ∆E of the 1% Sodium Metasilicate was listed as 31.5 when it should be 3.15 and reassert that there is synergy in the ∆E values.
Applicants’ arguments have been carefully reviewed and are not found to be persuasive. Applicants’ assertion of unexpected results is not persuasive because, respectfully, synergy still has not been shown for the ∆ E values because there is no data for each component by itself in the same amounts as in the combination. Only 2% sodium metasilicate has been measured alone. There is no measurement of MEA 2% alone and the only MEA measurement alone is the amount of 11%. There is also no measurement of ammonium hydroxide at 2.2% alone either. There is only a measurement of ammonium hydroxide at 2.5% alone, but this is not ammonium hydroxide at 2.2%.
In order to establish synergy, Applicants must show that the effect of the combination is greater than the sum of the individual components. Specifically, where the combined action of two or more agents is greater than the sum of the action of one of the agents used alone, “synergy” according to the legally accepted definition exists. In re Kollman, 201 USPQ 193 (CCPA 1979). A proper comparison cannot be made to establish synergy because the same amounts have not been measured alone for each component.
Again, respectfully, even assuming for the purposes of argument that a proper comparison could be made with the data that is provided (which does not have the same amounts measured alone for each component) the evidence presented still does not show synergism on the L values. The data in Table 7 shows that the combined action of all of the agents is not greater than the sum of the action of one of the agents used alone. For example, L values for 2% Na2SiO3 is 27.98, MEA 11% is 23.03 and NH4OH 2.5% is 25.33. The sum of these values is approximately 76% but the L values for the combinations of Na2SiO3 is 27.98, MEA 11% is 23.03 and NH4OH is only 37.13 and 33.44. This is far from a showing that the effect of the combination is greater than the sum of the action of one of the agents used alone.
Conclusion
No claims are allowed.
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.
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/SARAH CHICKOS/
Examiner, Art Unit 1619
/DAVID J BLANCHARD/Supervisory Patent Examiner, Art Unit 1619
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