DETAILED ACTION
Claims 1-13 are currently pending and under examination.
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 .
Withdrawn Rejections
The prior rejection of claims 1-13 under 112(b) is withdrawn in light of Applicant’s amendments to the claims to clarify “the application” claim language.
Examiner’s Note
Applicant's amendments and arguments filed 10/21/2025 are acknowledged and have been fully considered. The Examiner has re-weighed all the evidence of record. Rejections and/or objections not reiterated from previous office actions are hereby withdrawn.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. In the Applicant’s response, filed 10/21/2025, it is noted that claims 1, 8-10 and 12 have been amended and no new matter or claims have been added.
Modified Rejections:
The following rejections are modified based on Applicant’s claim amendments.
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.
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.
Claim(s) 1 and 3-13 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 2016/0317399 (previously applied) as evidenced by SES (previously applied).
Regarding claim 1, the limitation of a process for dying keratin fibers successively applying to said fiber: i) a composition (A) containing one or more peroxygenated salts, ii) a substrate including a surface coated with at least one layer containing one or more oxidation dyes, given that the process does not comprise a step of applying to said keratin fibers a composition comprising hydrogen peroxide when the substrate is applied to said keratin fibers is met by the ‘399 publication teaching dying keratin fibers such as human hair comprising using a substrate comprising on its surface one or more oxidation dyes and ii) an aqueous composition comprising one or more oxidizing agents (abstract). The oxidation bases are chosen 2,4-diamino-1-(beta-hydroxyethyloxy)benzene ([0095], Example 2, [0215]). The oxidizing agents are selected from a group which includes persulfates [0133], and thus do not require the use of hydrogen peroxide. The oxidation dyeing process consists of applying an aqueous composition containing one or more oxidizing agent to the keratin fibers and then applying to said fibers a substate comprising on its surface one or more oxidation dyes [0148].
Regarding the limitation of “wherein a composition (B) free of hydrogen peroxide is applied to the keratin fibers before or once the keratin fibers have been placed in contact with the substrate; said composition (B) comprising one or more organic solvents and one or more surfactants” is met by the ‘399 publication teaching the dye composition on the surface of the substrate may include additional agents including organic solvents such as glycerol ([0122]-[0125]) and triethanolamine ([0109], [0117]) where SES evidenced triethanolamine is a surfactant (title, page 2, first paragraph). It would have been obvious to one of ordinary skill in the art that application of the glycerol and triethanolamine before or once the keratin fibers have been placed is obvious over the application of the organic solvent at the same time as the substrate is placed, as changing in the sequence of adding ingredients is obvious. MPEP 2144.049 IV (C).
Regarding claims 3 and 10, the limitation of ii) application of the substrate is performed less than 3 hours after the conclusion of the leave on time of composition (A) is met by the ‘399 publication teaching substrate pretreated with one or more oxidation dyes may be applied to the keratin fibers for a time ranging from 5 to 60 minutes [0158] and oxidizing composition may be applied to the keratin fibers from a time ranging from 5 to 60 minutes [0159]. The oxidation dyeing process consists in applying an aqueous composition containing one or more oxidizing agent to the keratin fibers and the applying to said fibers a substate comprising on its surface one or more oxidation dyes [0148].
Regarding claim 4, the limitation of peroxygated salts are chosen from persulfates is met by the ‘399 publication teaching persulfates [0133].
Regarding claims 5-7, the limitation of oxidation dyes are chosen form couplers, wherein the couplers are taught to include meta-phenylenediamines specifically 2,4-diamino-1-(beta-hydroxyethyloxy)benzene is met by the ‘399 publication teaching 1-beta-hydroxy-ethyloxy-2,4-diaminobenzene [0215].
Regarding claims 8-9, the limitation of a step of heating the keratin fibers, from 60 to 250 degrees C is met by the ‘399 publication teaching raising the temperature which may be up to 60 degrees [0160].
Regarding claims 11-12, the limitation of substrate is an element in sheet form, made of plastic is met by the ‘399 publication teaching sheet form that is a plastic material ([0052]-[0053]).
Regarding claim 13, the limitation of element in sheet form includes an adhesive layer on which is deposited the layer containing at least said oxidation dye is met by the ‘399 publication teaching the element in sheet form may optionally be covered with a deposit of an adhesive composition that makes it possible to improve the adhesion of the oxidation dyes [0066].
Regarding claim 14, the limitation of also comprises the use of composition b after using the substrate is met by the ‘399 publication teaching the use of an after-treatment shampoo [0161].
It must be remembered that “[w]hen a patent simply arranges old elements with each performing the same function it had been known to perform and yields no more than one would expect from such an arrangement, the combination is obvious”. KSR v. Teleflex, 127 S,Ct. 1727, 1740 (2007)(quoting Sakraida v. A.G. Pro, 425 U.S. 273, 282 (1976)). “[W]hen the question is whether a patent claiming the combination of elements of prior art is obvious”, the relevant question is “whether the improvement is more than the predictable use of prior art elements according to their established functions.” (Id.). Addressing the issue of obviousness, the Supreme Court noted that the analysis under 35 USC 103 “need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.” KSR v. Teleflex, 127 S.Ct. 1727, 1741 (2007). The Court emphasized that “[a] person of ordinary skill is… a person of ordinary creativity, not an automaton.” Id. at 1742.
Consistent with this reasoning, it would have been obvious to have selected various combinations of disclosed ingredients (for example application of component i) before ii) wherein the process does not use hydrogen peroxide) from within the prior art disclosure of the ‘399 publication, to arrive at the instantly claimed process for dying keratin fibers “yielding no more than one would have expected from such an arrangement”.
Claim(s) 2 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 2016/0317399 as evidenced by SES as applied to claims 1 and 3-13 above, and further in view of US 5,575,989 (previously applied).
As mentioned in the above 103(a) rejection, all the limitations of claims 1 and 3-13 are taught by the ‘399 publication.
The combination of references does not specifically teach a rinsing step between (i) the application of composition (A) and (ii) the application of the substrate (claim 2).
The ‘989 patent teaches powder bleaching composition for bleaching hair wherein the method comprises hydrogen peroxide (abstract). Ammonium persulfate, potassium persulfate and mixture thereof are used in the bleaching powder (column 2, lines 50-65). After the water activated bleach composition is applied the solution is allowed to stand at least one minute. Heat can be applied. The applied water activated composition is taught as removed by rinsing (column 4, lines 15-30).
It would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to use the bleaching steps as taught by the ‘989 patent for the dying process as taught by the ‘399 publication because the ‘399 publication teaches the application of the oxidizing composition followed by the substrate to already bleached hair [0212], thus rendering it obvious to use a bleaching method prior art use of the dying method taught by the ‘399 publication. It would be obvious to one of ordinary skill in the art before the filing date of the claimed invention to use a known bleaching method using persulfate compounds followed by rinsing prior to the dying process taught by the ‘399 publication as the ‘399 publication teaches already bleached hair.
Claim(s) 1-13 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 2016/0317399 (previously applied) in view of US 5,785,962 (previously applied) and US 5,575,989 (previously applied).
Regarding claim 1, the limitation of a process for dying keratin fibers successively applying to said fiber: i) a composition (A) containing one or more peroxygenated salts, ii) a substrate including a surface coated with at least one layer containing one or more oxidation dyes, given that the process does not use any hydrogen peroxide during the application of the substrate to the fibers is met by the ‘399 publication teaching dying keratin fibers such as human hair comprising using a substrate comprising on its surface one or more oxidation dyes and ii) an aqueous composition comprising one or more oxidizing agents (abstract). The oxidation bases are chosen 2,4-diamino-1-(beta-hydroxyethyloxy)benzene ([0095], Example 2, [0215]). The oxidizing agents are selected from a group which includes persulfates [0133], and thus do not require the use of hydrogen peroxide. The oxidation dyeing process consists of applying an aqueous composition containing one or more oxidizing agent to the keratin fibers and then applying to said fibers a substate comprising on its surface one or more oxidation dyes [0148]. The hair is taught as bleached before addition of the oxidizing aqueous composition and plastic sheet prepared ([0212]-[0214]). The limitation of also comprises the use of composition b after using the substrate is met by the ‘399 publication teaching the use of an after-treatment shampoo [0161]. The use of shampoo after treatment meets the limitation of B being applied once the keratin fibers have been placed in contact with the substrate, as the shampooing occurs after application of the substrate has been applied and removed. The instant claims do not require contact with B at the same time as the substrate is applied.
Regarding claims 3 and 10, the limitation of ii) application of the substrate is performed less than 3 hours after the conclusion of the leave on time of composition (A) is met by the ‘399 publication teaching substrate pretreated with one or more oxidation dyes may be applied to the keratin fibers for a time ranging from 5 to 60 minutes [0158] and oxidizing composition may be applied to the keratin fibers from a time ranging from 5 to 60 minutes [0159]. The oxidation dyeing process consists in applying an aqueous composition containing one or more oxidizing agent to the keratin fibers and the applying to said fibers a substate comprising on its surface one or more oxidation dyes [0148].
Regarding claim 4, the limitation of peroxygated salts are chosen from persulfates is met by the ‘399 publication teaching persulfates [0133].
Regarding claims 5-7, the limitation of oxidation dyes are chosen form couplers, wherein the couplers are taught to include meta-phenylenediamines specifically 2,4-diamino-1-(beta-hydroxyethyloxy)benzene is met by the ‘399 publication teaching 1-beta-hydroxy-ethyloxy-2,4-diaminobenzene [0215].
Regarding claims 8-9, the limitation of a step of heating the keratin fibers, from 60 to 250 degrees C is met by the ‘399 publication teaching raising the temperature which may be up to 60 degrees [0160].
Regarding claims 11-12, the limitation of substrate is an element in sheet form, made of plastic is met by the ‘399 publication teaching sheet form that is a plastic material ([0052]-[0053]).
Regarding claim 13, the limitation of element in sheet form includes an adhesive layer on which is deposited the layer containing at least said oxidation dye is met by the ‘399 publication teaching the element in sheet form may optionally be covered with a deposit of an adhesive composition that makes it possible to improve the adhesion of the oxidation dyes [0066].
The ‘399 publication does not specifically recite wherein a composition (B) free of hydrogen peroxide is applied to the keratin fibers before or once the keratin fibers have been placed in contact with the substrate, said composition (B) comprising one or more organic solvent and one or more surfactant (claim 1).
The ‘399 publication does not specifically teach a rinsing step between (i) the application of composition (A) and (ii) the application of the substrate (claim 2).
The ‘962 patent teaches a shampoo comprising providing the hair with improved properties such as combability, volume and luster, containing at least one surfactant (abstract). The shampoo is taught to include glycerol (column 1, lines 35-45, Example 1), thus teaching an organic solvent.
The ‘989 patent teaches powder bleaching composition for bleaching hair wherein the method comprises hydrogen peroxide (abstract). Ammonium persulfate, potassium persulfate and mixture thereof are used in the bleaching powder (column 2, lines 50-65). After the water activated bleach composition is applied the solution is allowed to stand at least one minute. Heat can be applied. The applied water activated composition is taught as removed by rinsing or shampoo (column 4, lines 15-30).
It must be remembered that “[w]hen a patent simply arranges old elements with each performing the same function it had been known to perform and yields no more than one would expect from such an arrangement, the combination is obvious”. KSR v. Teleflex, 127 S,Ct. 1727, 1740 (2007)(quoting Sakraida v. A.G. Pro, 425 U.S. 273, 282 (1976)). “[W]hen the question is whether a patent claiming the combination of elements of prior art is obvious”, the relevant question is “whether the improvement is more than the predictable use of prior art elements according to their established functions.” (Id.). Addressing the issue of obviousness, the Supreme Court noted that the analysis under 35 USC 103 “need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.” KSR v. Teleflex, 127 S.Ct. 1727, 1741 (2007). The Court emphasized that “[a] person of ordinary skill is… a person of ordinary creativity, not an automaton.” Id. at 1742.
Consistent with this reasoning, it would have been obvious to have selected various combinations of disclosed ingredients (for example application of component i) before ii) wherein the process does not use hydrogen peroxide) from within the prior art disclosure of the ‘399 publication, to arrive at the instantly claimed process for dying keratin fibers “yielding no more than one would have expected from such an arrangement”.
It would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to use the shampoo taught by the ‘962 in the process taught by the ‘399 publication because the ‘399 publication teaches the keratin fibers are washed a shampoo after application to the oxidizing aqueous composition and substrate as an after treatment and the ‘962 patent teaches a shampoo. One of ordinary skill in the art before the filing date of the claimed invention would have a reasonable expectation of success as the ‘962 patent teaches a specific shampoo composition and the ‘399 publication teaches the use of a shampoo. One of ordinary skill in the art before the filing date of the claimed invention would be motivated to use the shampoo of the ‘962 patent as it teaches providing volume and luster to hair and the ’399 publication teaches application to hair.
It would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to use the bleaching steps as taught by the ‘989 patent for the dying process as taught by the ‘399 publication because the ‘399 publication teaches the application of the oxidizing composition followed by the substrate to already bleached hair [0212], thus rendering it obvious to use a bleaching method prior art use of the dying method taught by the ‘399 publication. It would be obvious to one of ordinary skill in the art before the filing date of the claimed invention to use a known bleaching method using persulfate compounds followed by rinsing and shampooing prior to the dying process taught by the ‘399 publication as the ‘399 publication teaches already bleached hair.
The combination of references teaches a bleaching process, shampooing using an organic solvent and surfactant followed by application of the use of an aqueous oxidizing agent and oxidation dye on the substrate. Thus the initial bleaching reads on (i), the shampooing process reads on application (B) followed by the use of a substrate reading on (ii).
Additionally, as noted above the use of an the oxidation dyeing process consists in applying an aqueous composition containing one or more oxidizing agent to the keratin fibers and the applying to said fibers a substate comprising on its surface one or more oxidation dyes [0148] followed by shampooing [0213], wherein the shampoo comprises glycerol and a surfactant additionally reads on the instant claim as composition (B) is not required to be applied at the same time as the substrate is in contact with the hair but reads on application of the substrate to the hair before use of composition (B).
Response to Arguments:
Applicant’s arguments have been fully considered and are not deemed to be persuasive.
103:
The ‘399 publication (Samain) as evidenced by SES
Applicant argues the ‘399 publication does not describe a composition comprising at least one organic solvent such as glycerol and at least one surfactant such as triethanolamine that would be used at the same time as the substrate is placed on the keratin fibers, triethanol amine is not a surfactant and the ‘399 publication is silent in regards to the mandatory absence of hydrogen peroxide during substrate application and a separately applied composition. The process is not a mere reordering of the ‘399 publication but a surprising elimination of harsh hydrogen peroxide form an important stage of hair treatment process. The ‘399 publication teaches pretreated with dye to cover part of the its surface with oxidation dyes. The dye composition is used to coat the surface of the substrate then the substrate is used on the keratin fivers. The organic solvents are used to solubilize the oxidation dyes present in the dye composition but are not used on the keratin fibers. Applicant argues claim 1 eliminates hydrogen peroxide from an important stage of hair treatment and introduces an entirely new hydrogen peroxide free treatment.
In response, regarding the limitation of “wherein a composition (B) free of hydrogen peroxide is applied to the keratin fibers before or once the keratin fibers have been placed in contact with the substrate; said composition (B) comprising one or more organic solvents and one or more surfactants” is met by the ‘399 publication teaching the dye composition on the surface of the substrate may include additional agents including organic solvents such as glycerol ([0122]-[0125]) and triethanolamine ([0109], [0117]) where SES evidenced triethanolamine is a surfactant (title, page 2, first paragraph). It would have been obvious to one of ordinary skill in the art that application of the glycerol and triethanolamine before or once the keratin fibers have been placed is obvious over the application of the organic solvent at the same time as the substrate is placed, as changing in the sequence of adding ingredients is obvious. MPEP 2144.049 IV (C). Regarding the limitation of wherein the step of applying to the substrate does not contain hydrogen peroxide, the ‘399 publication teaches oxidative dyes to be used wherein alkaline earth metal persulfates and alternatives that do not include hydrogen peroxide are taught [0133], thus the ‘399 publication teaches application of the substrate comprising a dye composition which does not include hydrogen peroxide.
Applicant argues the ‘399 publication never motivates the skilled person to formulate a distinct composition form the dye composition comprising one or more organic solvents in order to be used between the step of applying compositions A and the step of applying the substrate. The ‘399 publication also does not teach that the organic solvents present in the dye composition happen to be in contact with the treated keratin fibers, instead they are used to enhance formation of the dye composition which is ten used to coat the surface of the substrate. After this treatment oxidative dyes stick to the surface of the substrate but never mention that the organic solvent will stick to the surface of the substrate nor that will they be used at the same time as the substrate is placed on the keratin fibers.
In response, the ‘399 publication teaches the dye composition may comprise one or more organic solvents [0124] and triethanolamine ([0109], [0117]) wherein the dye composition is taught as applied to the substrate ([0127]-[0130]) and the pretreated substrate is taught as placed in contact with the keratin fibers leading to treatment of the hair [0141], thus teaching application of the composition on the substrate containing the dye, solvent and triethanol amine to the keratin fibers.
Applicant argues the ‘399 publication does not teach a discrete second liquid deposition on the hair independently of the substrate. The ‘399 publication never teaches any deposition of solvent/surfactant in liquid form and therefore there is not sept whose order could be rearranged.
In response, the ‘399 publication teaching the dye composition on the surface of the substrate may include additional agents including organic solvents such as glycerol ([0122]-[0125]) and triethanolamine ([0109], [0117]) where SES evidenced triethanolamine is a surfactant (title, page 2, first paragraph). It would have been obvious to one of ordinary skill in the art that application of the glycerol and triethanolamine before or once the keratin fibers have been placed is obvious over the application of the organic solvent at the same time as the substrate is placed, as changing in the sequence of adding ingredients is obvious. MPEP 2144.049 IV (C).
Applicant argues triethanol amine is not surfactant. SES characterizes TEA as a surfactant only in the broadest regulatory sense. Practitioners in hair care chemistry regard TEA as a pH adjuster/alkaline agent not as a surface-active cleaning ingredient. Applicant argues in the ‘399 publication triethanol amine is present for its function as an alkaline agent, to open hair scales so that the dyes can penetrate them. It is not cited for its surfactant function.
In response, the instant specification does not provide a definition for surfactant, therefore the teaching of SES of TEA being a surfactant in the regulatory sense would meet the instant claim limitations. The instant claims are product claims, thus the inclusion of triethanol amine, which is evidenced to be a surfactant by SES, would meet the instant claim limitations, even if used for a different purpose in the ‘399 publication.
Applicant argues the modification of moving a solvent/surfactant from an immobilized coating to a free liquid changes its role (wetting the fiber, solubilizing the dye, improving color uniformity) and is not merely a rearrangement as is alleged but a surprising functional redesign.
In response, it appears Applicant is arguing unexpected results however has presented not data. Applicant’s arguments cannot take the place of factual evidence wherein factual evidence is required. It is further noted that the instant claims require the application of a solvent and surfactant, however to not have any limitations regarding the amount to be applied. Applicant is providing arguments regarding results of wetting, solubilizing, etc., wherein the instant claims broadly require the application, no amounts or specific solvents and surfactants are required.
Applicant argues the ‘989 patent does not cure the deficiencies of the ‘399 publication.
In response, Applicant’s arguments regarding the ‘399 publication are addressed above wherein first presented.
The ‘399 publication, the ‘962 patent (Hinz) and the ‘989 patent (Caskey):
Applicant argues the ‘399 publication refers to after-treatment shampoo can be used once the process of the ‘399 publication has been implemented on the hair. These paragraphs are silent to (b) being used between the step of applying a composition A comprising one or more preoxygenated salts and the step of applying the claimed substrate. Applicant argues the Office states the surfactants form an after-shampoo which is only applied after the process is completed and some organic solvents form a dye composition which is used as a pretreat the substrate and whose purpose is to solubilize the dye to be applied to keratin fibers.
In response, the instant claims allow for B being applied after the fibers have been placed in contact with the substrate, thus allowing for use after the process is complete. The substrate (A) is not required to be in contact with the keratin at the same time as that of (B). The limitation of also comprises the use of composition b after using the substrate is met by the ‘399 publication teaching the use of an after-treatment shampoo [0161]. The use of shampoo after treatment meets the limitation of B being applied once the keratin fibers have been placed in contact with the substrate, as the shampooing occurs after application of the substrate has been applied and removed. The instant claims do not require contact with B at the same time as the substrate is applied.
Additionally, It would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to use the bleaching steps as taught by the ‘989 patent for the dying process as taught by the ‘399 publication because the ‘399 publication teaches the application of the oxidizing composition followed by the substrate to already bleached hair [0212], thus rendering it obvious to use a bleaching method prior art use of the dying method taught by the ‘399 publication. It would be obvious to one of ordinary skill in the art before the filing date of the claimed invention to use a known bleaching method using persulfate compounds followed by rinsing and shampooing prior to the dying process taught by the ‘399 publication as the ‘399 publication teaches already bleached hair.
The combination of references teaches a bleaching process, shampooing using an organic solvent and surfactant followed by application of the use of an aqueous oxidizing agent and oxidation dye on the substrate. Thus the initial bleaching reads on (i), the shampooing process reads on application (B) followed by the use of a substrate reading on (ii).
Applicant argues impermissible hindsight. Applicant argues (b) is not arbitrarily applied as it is applied to promote the contact between the substrate and composition A to improve the power of the dyes of the keratin fibers.
As for the assertion that the rejection is based on hindsight, as noted in MPEP 2145, any obviousness rejection is in a sense necessarily a reconstruction based on hindsight reasoning and is not improper if it takes into account only knowledge within the level of ordinary skill in the art at the time the claimed invention was made. Applicants have provided no evidence that the rejection is not based on knowledge available to those of ordinary skill in the art. Additionally, it is noted that the instant claims allow for application of (B) before or once the keratin fiber shave been placed in contact with the substrate, this allowed for application before and removal or application after the substrate has been removed. The instant claims do not require the (B) to be present when the substrate is in contact with the keratin. Thus, Applicant is arguing limitations not present in the instant claims.
Applicant argues the ‘962 patent never gives motivation to the skilled person to use a composition comprising one or more organic solvents and one or more anionic surfactants between the step of applying the claimed composition (A) and the step of applying the claimed substrate. Composition B is not applied to clean the keratin fibers after the application of the substrate but in between two claimed steps which is where lies the unique feature of the present invention. This sticky feature could not have been anticipated by the skilled person.
In response, Applicant is arguing the effects to sticking feature, which is not claimed. In response, Applicant’s arguments regarding the ‘399 publication are addressed above as first presented. Additionally, the ‘962 patent teaches a shampoo comprising providing the hair with improved properties containing a surfactant and glycerol (abstract, column 1, lines 35-45, Example 1). It would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to use the shampoo taught by the ‘962 in the process taught by the ‘399 publication because the ‘399 publication teaches the keratin fibers are washed a shampoo after application to the oxidizing aqueous composition and substrate as an after treatment and the ‘962 patent teaches a shampoo. One of ordinary skill in the art before the filing date of the claimed invention would have a reasonable expectation of success as the ‘962 patent teaches a specific shampoo composition and the ‘399 publication teaches the use of a shampoo. One of ordinary skill in the art before the filing date of the claimed invention would be motivated to use the shampoo of the ‘962 patent as it teaches providing volume and luster to hair and the ’399 publication teaches application to hair. The combination of references teaches a bleaching process, shampooing using an organic solvent and surfactant followed by application of the use of an aqueous oxidizing agent and oxidation dye on the substrate. Thus the initial bleaching reads on (i), the shampooing process reads on application (B) followed by the use of a substrate reading on (ii).
Applicant argues the ‘962 patent concerns post wash shampoos and nowhere suggests using it shampoo before or during a coloring step. Importing the ‘932 patent tin to the ‘399 publication would require moving the shampoo form its taught position after coloring to a different position in the sequence and stripping the shampoo of its required acids.
In response, composition (B) uses comprising language thus allowing for additional ingredient, thus said acids do not need removal. It would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to use the shampoo taught by the ‘962 in the process taught by the ‘399 publication because the ‘399 publication teaches the keratin fibers are washed a shampoo after application to the oxidizing aqueous composition and substrate as an after treatment and the ‘962 patent teaches a shampoo. One of ordinary skill in the art before the filing date of the claimed invention would have a reasonable expectation of success as the ‘962 patent teaches a specific shampoo composition and the ‘399 publication teaches the use of a shampoo. The combination of references teaches a bleaching process, shampooing using an organic solvent and surfactant followed by application of the use of an aqueous oxidizing agent and oxidation dye on the substrate. Thus the initial bleaching reads on (i), the shampooing process reads on application (B) followed by the use of a substrate reading on (ii).
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.
Examiner Contact Information
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/LYNDSEY M BECKHARDT/Examiner, Art Unit 1613
/ANDREW S ROSENTHAL/Primary Examiner, Art Unit 1613