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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 08 January 2026 has been entered.
Claim Status
Applicant’s claim amendments and arguments in the response filed 08 January 2026 are acknowledged.
Claims 1, 5, 7-9 & 12-24 are pending.
Claims 1, 9 & 12 are amended.
Claims 2-4, 6, 10 & 11 are cancelled.
Claims 15-24 are withdrawn.
Claims 1, 5, 7-9 & 12-14 are under consideration.
Rejections and/or objections not reiterated from previous office actions are hereby withdrawn.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 and constitute the complete set presently being applied to the instant application.
Examination is to the extent of the following species:
Personal or animal care- personal care, rinse out;
Polymer-cationic polymer;
At least one compound (vi) present or absent- Absent.
New Objections/ Rejections
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 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.
Claims 1, 5 & 7-9 are rejected under 35 U.S.C. 103 as being unpatentable over Ibsen (WO 88/06893; Published: 09/22/1988; previously cited) in view of Humar (WO 2004/071403; Published: 08/26/2004), Pharmtech (Published: 01/02/2011; previously cited) and Ashland (Published: 2014; previously cited).
Claim Interpretation: The Examiner notes that the term, “dry” has not been defined by the specification and Example 2 teaches a “dry shampoo gel” comprising 96.24% water. Paragraph [0002] of the specification teaches when a dry shampoo is sprayed onto the hair or skin, the carrier evaporates. As such, a “dry powder composition” is broadly interpreted as compositions comprising a carrier that can evaporate (e.g. water).
With regard to claim 7, the recitation “ the composition can be used in personal care and animal care” is a statement of intended use.
With regard to claims 1, 5, 7 & 9, Ibsen in Example 2 teaches a coating mixture comprising 4.5 g HPMC 50 AB (nonionic polymer; 1.4% of the coating mixture), 1.5 g PEG 6000 (i.e. polyol; 47% of the coating mixture), 2.0 g propylene glycol (i.e. 0.64% of the coating mixture), 6.0% Polyplasdone XL (i.e. crosslinked polyvinyl pyrrolidone (PVP); 1.9% of the coating mixture) and 300 g water (95% of the coating mixture; pg. 21, ll. 1-17). With regard to claim 9, the crosslinked PVP and water are in a 1:50 ratio, falling within the recited range. Ibsen in Example 2 teaches the mixture is a dispersion (pg. 21, ll. 1-17). Ibsen teaches there is concern in the prior art with product stability and that their inventive composition has increased storage stability as compared to premanufactured suspensions (pg. 4). Ibsen contemplates their invention’s use with active substances that “are in fact unstable in the presence of an aqueous carrier or become unstable within a relatively short period of time” (pg. 4). With regard to their swelling agent, Ibsen teaches “the gelling or swelling agent may advantageously be one which is stable for a sufficient period of time in a certain pH-range” (pg. 7, ll. 1-7). Ibsen teaches “[t]he purpose of the present invention is to provide an oral composition which overcomes the drawbacks of conventional oral formulations of active substances by combining particles containing an active substance with a gelling or swelling agent which is hydrated in the presence of an aqueous carrier to form a viscous medium surrounding the particles” (pg. 2, ll. 20-30). Ibsen teaches the gelling or swelling agent is a vital component of the invention and may be polyvinylpyrrolidone (pg. 5, ll. 35-end; pg. 7, ll. 35-30).
Ibsen does not teach the crosslinked PVP has an average particle size from 15 to 25 µm or that the composition comprises butylene glycol.
In the same field of invention of coating compositions, Humar teaches the polyethylene glycols and 2,3 butylene glycol are plasticizers used in the coating compositions (pg. 19; Humar’s claim 14).
In the same field of invention of pharmaceuticals, Pharmtech teaches excipient quality is a crucial factor in drug development, manufacturing and drug stability (pg. 1). Pharmtech teaches there is a problem in the field with crospovidone producing peroxides during its production and storage and the United States FDA has issued an advisory (pg. 1 & 2). Pharmtech teaches that to solve this problem ISP produces ultrapure grades of crospovidone including the crosslinked PVP, Polyplasdone Ultra-10 which has a particle size of 20-30 μm (pg. 2). The ultrapure grades of crosslinked PVP have limited peroxide formation and are beneficial for active ingredients that need the performance advantage of crospovidone, but susceptible to peroxides, which could affect drug stability and possible degradation of the drug substance (pg. 2).
Ashland teaches in stability experiments of clopidogrel bisulfate tablets, Polyplasdone Ultra-10 crospovidone demonstrated less impurities than Polyplasdone Ultra crospovidone at 1 and 3 months of storage at 40 °C (Table 5-pg. 4).
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.
Here, at least rationale (B) may be employed in which employed in which it would have been prima facie obvious to the ordinary skilled artisan before the effective filing date to have modified Ibsen’s coating composition by substituting Ibsen’s Polyplasdone XL with Polyplasdone Ultra-10 (crosslinked PVP having a particle size of 20-30 µm) because Ibsen teaches a goal of their formulation is to overcome the problem of active agent stability and Polyplasdone Ultra-10 (crosslinked PVP having a particle size of 20-30 µm) is known to have less peroxide formation than pharmaceutical grades of crospovidone, such as Polyplasdone XL, generates less impurities than other ultrapure sizes, and is beneficial for active ingredients that need the performance advantage of crospovidone but susceptible to peroxides, which could affect drug stability and possible degradation of the drug substance as suggested by the combined teachings for Pharmtech and Ashland. The ordinary skilled artisan would have been motivated to do so, with an expectation of success, in order to improve the stability active drug particles.
Here, at least rationale (B), may be employed in which it would have been prima facie obvious to the ordinary skilled artisan before the effective filing date to have substituted Ibsen’s propylene glycol with butylene glycol to obtain the predictable result of plasticizing reagents because both propylene glycol and butylene glycol are plasticizing agents used in pharmaceutical coatings as taught by Humar.
With regard to claims 1 & 9, the combined teachings of Ibsen, Humar, Pharmtech and Ashland suggest dry compositions comprising a crosslinked PVP polymer (in a size range which overlaps with recited size range) and water in a ratio that falls within the recited range. As such the crosslinked polymer suggested by the combined teachings of Ibsen, Humar, Pharmtech and Ashland necessarily swells in an amount from 2 to 10 vol.% because "[p]roducts of identical chemical composition cannot have mutually exclusive properties." A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). Nonetheless, the US Patent Office is not equipped with analytical instruments to test prior art compositions for the infinite number of ways that a subsequent Applicant may present previously unmeasured characteristics. When PTO shows a sound basis for believing that the products of the Applicant and the prior art are the same, the Applicant has the burden of showing that they are not. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). The basis for this finding is Ibsen’s teaching that polyvinylpyrrolidone is used as a swelling agent in their invention and Pharmtech’s teachings that Polyplasdone Ultra-10 is crosslinked PVP with a size range which overlaps with the claimed range (Pharmtech- pg. 1 & 2).
With regard to the recited average particle size of the crosslinked PVP, amount of crosslinked PVP present in the composition, and the ratio of crosslinked PVP to water, the combined teachings of Ibsen, Humar, Pharmtech and Ashland suggest these parameters with values that fall within or overlap with the claimed ranges. 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 1, 5, 7-9 & 12-14 are rejected under 35 U.S.C. 103 as being unpatentable over Shih (US 5,139,770; Published: 09/18/1992; previously cited), Evans (DE 60222684; Published: 06/19/2008; previously cited), Rollat (CN 102046138; Published: 2011-05-04; previously cited), Mustafa (US 2019/0008751; Published: 01/10/2019), Wong (https://labmuffin.com/what-are-propylene-and-butylene-glycol-and-are-they-safe/; Published: 05/20/2018) and Science-y Hair Blog (https://science-yhairblog.blogspot.com/2015/02/glycerin-and-humidity.html; Published: 02/22/2015).
Claim Interpretation: The Examiner notes that the term, “dry” has not been defined by the specification and Example 2 teaches a “dry shampoo gel” comprising 96.24% water. Paragraph [0002] of the specification teaches when a dry shampoo is sprayed onto the hair or skin, the carrier evaporates. As such, a “dry powder composition” is broadly interpreted as compositions comprising a carrier that can evaporate (e.g. water).
With regard to claim 7, the recitation “ the composition can be used in personal care and animal care” is a statement of intended use and does not further limit the composition.
The analysis is the same for claim 8, as it pertains to “ leave-on volumizing, rinse-out hair conditioning or hair styling composition”.
With regard to claim 13, the recitation of “wherein the compositions is used in a hair shampoo composition to provide improved cleaning, combing…and less residual impact when compared to a formulation containing crosslinked PVP with an average particle size of 4-11 µm” is a statement of intended use that does not further limit the composition in terms of reagents and their amounts.
*Please note that in the process of searching for the elected embodiment for claim 12, the examiner found art (Shih) which reads on the broader recitation of the claims with regard to a conditioning hair spray embodiment (i.e. the optional hydrocarbon is present) and in an effort to expedite prosecution, this art has been applied. The Shih reference also encompasses the elected embodiment in which (vi) is absent.
** All references refer to the English language translation.
In a first embodiment, with regard to claims 1, 7 & 8, Shih teaches a cationic mousse/hand and body lotion that is present as a mixture before being added to A-46 propellent (col. 8, ll. 50-65). With regard to claims 1, 5, 7, 8 & 9, Shih’s cationic mousse hand/body lotion embodiment comprises 0.5 % of the crosslinked PVP polymer of Example 1, 2.0% polyquaternium-11 (i.e. cationic polymer), cetyl and stearyl alcohols in a combined amount of 3.0% , 3.0 % glycerin, and 75.5% water (col. 8, ll. 50-65). With regard to claim 9, the ratio of crospovidone to water is 1:75.5.
In a second embodiment, with regard to claim 12 (i), Shih in Example 14 teaches an embodiment of their invention which may be a conditioning hair spray comprising 2.0 parts by weight cross linked PVP (i.e. 1.9% of the composition; col. 6 & 7). With regard to claim 12 (ii), Shih in the Example 14 conditioning hair spray teaches inclusion of 75.51 parts by weight ethanol (i.e. 74.2%; col. 6). With regard to claim 12 (iii) 12 (iv) & 14, Shih in the Example 14 conditioning hair spray teaches the composition comprises 0% water and 0% glycols and polyols (col. 6 & 7). With regard to claim 12 (v), Shih in the Example 14 conditioning hair spray teaches the composition comprises 4 parts by weight of the quaternary ammonium compound, ethyl ester of PVM/MA (i.e. 3.9%; col. 6 & 7). With regard to claim 12 (vi) & 14, Shih in the Example 14 conditioning hair spray teaches the composition comprises 20 parts by weight propellant (19.6%; compressed gas; col. 7). Based upon Shih’s teachings with a cationic mousse/hand and body lotion, propellants are added to the formula mixture, as such the ordinary skilled artisan would envisage mixing the constituents of the Example 14 conditioning hair spray before adding propellant [i.e. “the optional (vi) at least one compound selected from hydrocarbons…” is not present per the species election); col. 8].
In a third embodiment with regard to claims 1, 5 & 7-9, Shih teaches an aftershave balm (i.e. a paste) comprising 1.0% of the crosslinked PVP polymer of Example 1, 3.0% propylene glycol, and 73% water (col. 8 & 9). With regard to claim 9, the crospovidone and water are in a ratio of 1:73. Shih teaches the strongly swellable, moderately crosslinked polyvinylpyrrolidone polymers of their invention thicken formulations, have excellent hair conditioning and thickening properties when incorporated into a shampoo and have high compatibility with components of hair and skin treating formulations (col. 1, ll. 30-45). Shih teaches the crosslinked polyvinylpyrrolidone polymers of their invention are fine white powders (col. 1, ll. 50-60).
Shih does not teach the particle size of the crosslinked PVP polymers of their invention or inclusion of butylene glycol.
In the related field of hair treatments, Evans teaches silica is a thickener (title; pg. 10).
In the related field of hair and skin treatments, Rollat teaches silica used in hair treatments sprayed on the hair has a size of 20 microns [0354]. Rollat also teaches inclusion of compounds used in the treatment of scalp or skin [0116].
In the related field of hair treatments which are an aerosol dry shampoo mousses, Mustafa teaches glycerin, propylene glycol, and butylene glycol are plasticizers (title; abstract; [0051]).
Wong teaches in cosmetics propylene glycol has “been on all these watchlists” and is “a bit more irritating than butylene glycol” (pg. 2 & 7). Wong teaches the EWG “rates propylene glycol at 3 on their ‘danger scale’ and butylene glycol at a 1” (pg. 7).
Science-y Hair Blog teaches “when people complain about humectants, they are having most trouble with simple humectants like: glycerin, propylene glycol, sorbitol” (pg. 1). Science-y Hair Blog teaches “glycerin can be a problem ingredient for some people in some weather” (pg. 2).
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.
At least rationale (G) 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 fine powdered crosslinked PVP taught by Shin by adjusting its average size to be 20 micron as suggested by the combined teachings of Evans and Rollat because Shin teaches their crosslinked PVP functions as a thickener and is of “fine” size, and other thickeners used in hair and skin treatments such as silica were used in a similar size of 20 microns in compositions applied to the hair and skin as suggested by Evans and Rollat. It is obvious to modify similar compositions in the same way. The ordinary skilled artisan would have been motivated to do so, with an expectation of success, in order to the thicken Shih’s personal care compositions by using their thickener in a particle size range that is used in the art for other thickeners applied to the skin/scalp and hair as suggested by the combined teachings of Evans and Rollat.
At least rationale (B) may be employed in which it would have been prima facie obvious to the ordinary skilled artisan before the effective filing date to have substituted Shih’s glycerin or propylene glycol with butylene glycol as suggested by the combined teachings of Mustafa, Wong, and Science-y Hair Blog because glycerin, propylene glycol and butylene glycol are plasticizers used in aerosol compositions as taught by Mustafa but butylene glycol is less irritating and less dangerous than propylene glycol and glycerin is recognized as a “problem ingredient” as suggested by the combined teachings of Wong and Science-y Hair Blog. The ordinary skilled artisan would have been motivated to do so, with an expectation of success, in order to plasticize ingredients with a less problematic and less toxic ingredient which is butylene glycol.
With regard to claims 1, 9 & 12, the combined teachings of Shih, Evans, Rollat, Mustafa, Wong and Science-y Hair Blog suggest dry compositions comprising a crosslinked PVP polymer in the recited size range with the claimed amounts of water. As such the crosslinked polymer suggested by the combined teachings of Shih, Evans, Rollat, Mustafa, Wong and Science-y Hair Blog necessarily swells in an amount from 2 to 10 vol.% because "[p]roducts of identical chemical composition can not have mutually exclusive properties." A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). Nonetheless, the US Patent Office is not equipped with analytical instruments to test prior art compositions for the infinite number of ways that a subsequent Applicant may present previously unmeasured characteristics. When PTO shows a sound basis for believing that the products of the Applicant and the prior art are the same, the Applicant has the burden of showing that they are not. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). The basis for this finding is due to Shih’s teaching that as the crosslinking density of the polymer increases, the gel volume decreases and viscosity increases and then decreases passing through a maximum. In other words, Shih knew how to decrease the volume of their gels by increasing the crosslinking (col. 6, ll. 5-15).
With regard claim 13, since the composition suggested by the combined teachings of Shih, Evans, Rollat, Mustafa, Wong and Science-y Hair Blog comprises ethanol; the quaternized/cationic polymer, ethyl ester of PVM/MA copolymer, and crosslinked PVP with a 20 µm size, the composition necessarily provides improved cleaning, combining, shine, manageability and less residual impact than a composition containing crosslinked PVP with an average particle size of 4-11 µm because "[p]roducts of identical chemical composition can not have mutually exclusive properties." A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).
With regard to the recited average particle size of the crosslinked PVP, amount of crosslinked PVP present in the composition, the ratio of crosslinked PVP to water, the amount of at least one alcohol, the amount of water, the amount of at least one glycol, and the amount of at least one “cationic…polymer” , the combined teachings of Shih, Evans, Rollat, Mustafa, Wong and Science-y Hair Blog suggest these parameters with values that fall within or overlap with the claimed ranges. 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).
Response to Arguments
In traversing the rejections of claims 1, 5, and 7-10 under 35 USC 103(a) over Ibsen in view of Pharmtech and Ashland; and claims 1, 5, 7-10 and 12-14 under 35 USC 103(a) over Shih, Evans and Rollat, Applicant argues the Markush Group has been amended to consist of butylene glycol, caprylyl glycol and their combinations (reply, pg. 6).
Applicant’s arguments have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
In traversing the rejections of claims 1, 5, and 7-10 under 35 USC 103(a) over Ibsen in view of Pharmtech and Ashland; and claims 1, 5, 7-10 and 12-14 under 35 USC 103(a) over Shih, Evans and Rollat, Applicant argues that none of the prior art recognizes the limitation that the crosslinked PVP swells to an amount ranging from 2 to 10 vol %.
This is not persuasive. As it pertains to the rejection under 35 USC 103(a) over Ibsen in view of Humar, Pharmtech and Ashland, the cited references teach use of Polyplasdone Ultra-10 (crosslinked PVP having a particle size of 20-30 µm). Applicant’s recited PVP has a size from 15 to 25 µm, and Polyplasdone Ultra-10 overlaps with this size. Applicant’s PVP is crosslinked and Polyplasdone Ultra-10 is crosslinked. As such, the Polyplasdone Ultra-10 necessarily swells to an amount ranging from 2 to 10 vol % because "Products of identical chemical composition can not have mutually exclusive properties." A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).
The US Patent Office is not equipped with analytical instruments to test prior art compositions for the infinite number of ways that a subsequent Applicant may present previously unmeasured characteristics. When PTO shows a sound basis for believing that the products of the Applicant and the prior art are the same, the Applicant has the burden of showing that they are not. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). In the instant case, Applicant may wish to consider whether a showing that Polyplasdone Ultra-10 does not swell to an amount ranging from 2 to 10 vol % would be sufficient to overcome the rejection.
With regard to the rejection of claims 1, 5, 7-9 & 12-14 under 35 U.S.C. 103 over Shih, Evans, Rollat, Mustafa, Wong and Science-y Hair Blog, the crosslinked polymer suggested by the combined teachings of Shih, Evans, Rollat, Mustafa, Wong and Science-y Hair Blog necessarily swells in an amount from 2 to 10 vol.% because "[p]roducts of identical chemical composition can not have mutually exclusive properties." A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). Nonetheless, the US Patent Office is not equipped with analytical instruments to test prior art compositions for the infinite number of ways that a subsequent Applicant may present previously unmeasured characteristics. When PTO shows a sound basis for believing that the products of the Applicant and the prior art are the same, the Applicant has the burden of showing that they are not. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). The basis for this finding is due to Shih’s teaching that as the crosslinking density of the polymer increases, the gel volume decreases and viscosity increases and then decreases passing through a maximum. In other words, Shih knew how to decrease the volume of their gels by increasing the crosslinking (col. 6, ll. 5-15). Further, Shih teaches there crosslinked PVP is of “fine” size and acts as a thickener. Silica, an art recognized related thickener, is used in haircare cosmetics in a size of 20 µm as suggested by the combined teachings of Evans and Rollat.
Conclusion
No claims are allowed.
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/LORI K MATTISON/ Examiner, Art Unit 1619
/NICOLE P BABSON/ Primary Examiner, Art Unit 1619