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 .
Applicants' arguments in the Request for Continued Examination, filed December 9, 2025, 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 Rejections and/or objections not reiterated from previous office actions are hereby withdrawn.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.
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
In regards to the Finality of the previous office action, the arguments are moot due to the filing of the Request for Continued Examination.
Claims
Claim Rejections - 35 USC § 103 – Obviousness
(Revised Maintained Rejection)
1) Claims 67, 73-74, 77 and 87 are rejected under 35 U.S.C. 103 as being unpatentable over Johnson (US 2015/0150782) in view of Dussaud et al. (US 2018/0345048).
Johnson discloses hair care compositions including osage orange. Amino acids may be used and include lysine (paragraph 0201). Amino acids comprise from 0.05% to about 1 wt%. The compositions are used to protect the hair form free radical damage (paragraphs 0008 and 0016). Conditioning agents may also be used and include hydrolyzed proteins in an amount ranging from 0.1 wt.% to about 3 wt. % (paragraph 0081). The compositions may also comprise conditioning agents and includes hydrolyzed proteins. The conditioning agents comprise 0.001 wt.% to 20 wt.% of the composition (paragraph 0081). The pH is most preferably between about 4.5 and about 7.5. The pH is adjusted by pH modifiers and comprise 0.01 to about 5 wt.% of the compositions (paragraphs 0110 - 0111). Proteins may be used and comprise form about 0.05 wt.% to about 1 wt.% (paragraph 0113). In regard to the compositions being hair protecting composition, the compositions comprise the compounds and amounts of the instant claims and therefore would be suitable as a hair protecting composition.
Johnson differs from the instant claims insofar as it does not disclose monosodium phosphate.
Dussaud et al. disclose compositions for strengthening hair fiber. The compositions may be used before thermal hair shaping (paragraph 0046). The compositions include leave-in treatments (paragraph 0143). Preferred bases for adjusting the pH of the compositions are in particular sodium carbonate, sodium bicarbonate, sodium phosphate, sodium borate, and mixtures thereof (paragraph 0048). Hair fiber strengthening agents include salts of glycerophosphates and glucoheptonate salts (paragraphs 0037 and 0031). Amounts of the hair strengthening agents used include 6.5% (Table 2).
Generally, it is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use. See MPEP 2144.07. It would have been obvious to one of ordinary skill in the art prior to filing the instant application to have used sodium phosphate in the compositions of Johnson motivated by the desire to use a suitable pH adjusting agent for hair care compositions.
Alternatively, it would have been obvious to one of ordinary skill in the art prior to filing the instant application to have added amino acids to the composition of Dussaud et al. because they are suitable for use in leave in hair care compositions.
In regards to protecting hair against heat, when the sodium is used in the compositions of Johnson, the combination would yield the property of protecting the hair from heat because the hair strengthening agents help protect when the compositions are applied before styling the hair (paragraph 0046-0047).
In regards to the pH modifiers, in the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists. MPEP 2144.05 A. The range of Johnson et al., 0.01 to 5 wt%, overlaps the range of the instant claims, 0.05 to 10%. It would have been obvious to one of ordinary skill in the art prior to filing the instant application to have used sodium phosphate in an amount ranging from 0.5 to 5% motivated by the desire to achieve the desired pH of 7.5 or less.
In regards to the ratio, when the amount of sodium phosphate ranges from 0.01 to 5% and the hydrolyzed protein is 0.1 to 3%, the ratio of the Johnson et al. in view of Dussaud et al. would overlap that of the instant claims. Therefore the ratio range is obvious.
Response to Arguments
The Examiner submits sodium phosphate may be used as a buffer in leave-in hair care compositions. Therefore it would have been obvious to have used sodium phosphate in the composition of Johnson et al. In regards to the amount of sodium phosphate, Johnson discloses pH adjusters comprise 0.01 to about 5 wt.% of the compositions. Therefore the amount of sodium phosphate used in Johnson would overlap that of the instant claims, which would lead to an overlap in the ratio of sodium phosphate to amino acids. The motivation to use sodium phosphate is because it is a suitable buffer.
In regards to the alleged unexpected results, it would appear that any leave in with sodium phosphate present would lead to the results. Therefore, one would reasonably conclude that adding sodium phosphate as the buffer of Johnson would lead to the results disclosed by the instant claims.
(New Rejection)
2) Claims 67, 73-74, 77 and 87 are rejected under 35 U.S.C. 103 as being unpatentable over Nguyen et al. (US 2007/0280896) in view of Johnson (US 2015/0150782).
Nguyen et al. disclose a composition for relaxing or straightening hair. The compositions may be formulated into leave-on compositions. The use of at least one weak non-hydroxide base aids in straightening/relaxing hair which is safe for the user’s skin (paragraph 0014). The compositions comprise weak inorganic bases including sodium phosphate. The weak bases comprise 0.1% to 10% by weight of the total composition (paragraphs 0019-0022). Hair was treated with 0.1%, 0.5%, 1%, 2%, 4%, 8% solutions of a base including sodium phosphate. The solution is applied to the hair and then flat ironed (paragraph 0046). The pKa of the bases ranges from about 2 to about 13.
Nguyen et al. differ from the instant claims insofar as they do not disclose amino acids or the pH.
Johnson discloses hair care compositions including osage orange. Amino acids may be used and include lysine (paragraph 0201). Amino acids comprise from 0.05% to about 1 wt%. The compositions are used to protect the hair form free radical damage (paragraphs 0008 and 0016). Conditioning agents may also be used and include hydrolyzed proteins in an amount ranging from 0.1 wt.% to about 3 wt. % (paragraph 0081). The compositions may also comprise conditioning agents and includes hydrolyzed proteins. The conditioning agents comprise 0.001 wt.% to 20 wt.% of the composition (paragraph 0081). The pH is most preferably between about 4.5 and about 7.5. The pH is adjusted by pH modifiers and comprise 0.01 to about 5 wt.% of the compositions (paragraphs 0110 - 0111). Proteins may be used and comprise form about 0.05 wt.% to about 1 wt.% (paragraph 0113). In regard to the compositions being hair protecting composition, the compositions comprise the compounds and amounts of the instant claims and therefore would be suitable as a hair protecting composition.
Generally, it is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use. See MPEP 2144.07. It would have been obvious to one of ordinary skill in the art prior to filing the instant application to have added amino acids to the composition of Nguyen et al. because they are suitable for use in leave in hair care compositions.
It would have been obvious to one of ordinary skill in the art prior to filing the instant application to have made the composition of Nguyen et al. a pH ranging from 4.5-7.5 because it is a suitable range for hair care products and the pKa of sodium phosphate would lead to a composition falling within the pH range.
In regard to the compositions being hair protecting composition, the composition of Nguyen et al. is applied before flat ironing the hair and comprise sodium phosphate. The disclosed compositions of the combined references comprise the compounds and amounts of the instant claims and therefore, would be suitable as a hair protecting composition.
In regards to the pH modifiers, in the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists. MPEP 2144.05 A. The range of Johnson et al., 0.01 to 5 wt%, overlaps the range of the instant claims, 0.05 to 10%. It would have been obvious to one of ordinary skill in the art prior to filing the instant application to have used sodium phosphate in an amount ranging from 0.5 to 5% motivated by the desire to achieve the desired pH of 7.5 or less.
In regards to the ratio, when the amount of sodium phosphate ranges from 0.01 to 5% and the amino acid is 0.5 to 1%, the ratio of the Nguyen et al. in view of Johnson et al. would overlap that of the instant claims. Therefore the ratio range is obvious.
Conclusion
Claims 67, 73-74, 77 and 87 are rejected.
Claims 78-85 are withdrawn.
No claims allowed.
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/LEZAH ROBERTS/Primary Examiner, Art Unit 1612