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
Claims 1, 3-7, 9-17 and 21-25 are pending.
Election/Restrictions
Applicant’s election without traverse of the invention of Group I, claims 1-14, drawn to a method of dyeing keratinous material, and the species of:
combination of (3-Aminopropyl)triethoxysilane and methyltriethoxysilane, and
coating B, of at least one highly refractive metal oxide having a refractive index of at least about 1.9,
in the reply filed on 12/2/25 is acknowledged.
Claims 15-17 are withdrawn as being drawn to a nonelected invention.
Claims 3, 6, and 7 are withdrawn as not being directed to the elected species of agent (a).
Claims 12, 14, and 21 are withdrawn as not being directed to the elected species of substrate platelet based pigment coating
Claims 1, 4, 5, 9-11, 13 and 22-25 are under consideration to the extent that the method comprises the elected species.
Information Disclosure Statement
Acknowledgement is made of Applicant’s information disclosure statements (IDS) submitted on 2/4/22, 11/8/23, and 9/13/24. The submissions are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement has been considered by the examiner.
Priority
Receipt is acknowledged of papers submitted under 35 U.S.C. 119(a)-(d), which papers have been placed of record in the file.
Specification
The abstract of the disclosure is objected to because it contains three paragraphs. The abstract should be in narrative form and generally limited to a single paragraph within the range of 50 to 150 words in length. See MPEP § 608.01(b) for guidelines for the preparation of patent abstracts.
A corrected abstract of the disclosure is required and must be presented on a separate sheet, apart from any other text. See MPEP § 608.01(b).
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 1, 4, 5, 9-11, 13 and 22-25 are rejected under 35 U.S.C. 103 as being unpatentable over Brun et al. (US 2010/0083446; cited in IDS) in view of Kergosien et al. (US 9,962,327; 2018) and Schmid et al. (US 2020/0032067; priority 2010).
Brun et al. teach compositions and methods for dyeing keratin fibers comprising applying a composition to keratin fibers (e.g. paragraph 0039; Claim 14; Examples). Brun et al. teach the composition comprises:
an agent (a) comprising at least one organic silicon compound (e.g. abstract; Claim 1), which may include 3-aminopropyltriethoxysilane (e.g. paragraph 0063; Examples);
an agent (b1) comprising at least one colorant compound comprising a pigment (e.g. abstract; paragraphs 0275-0295; Claim 1), and
(b2) at least one film-forming polymer (e.g. Claim 1).
Brun et al. teach that, when applied to wet hair or in an aqueous composition, the at least one organosilicon compound can become hydrolysed and then condensed to form a hybrid prepolymer that promotes the adhesion of the at least one organosilane compound to the hair (e.g. paragraph 0027), but do not teach the inclusion of the elected species of methyltriethoxysilane. This is made up for by the teachings of Kergosien et al. Brun et al. also teach that the pigments may be metallic and effect pigments (e.g. paragraph 0294), but they do not teach that the colorant compound comprises at least one substrate platelet-based pigment comprising a vacuum metallized pigment. This is made up for by the teachings of Schmid et al.
Kergosien et al. teach cosmetic compositions of sol/gel type for making up and/or caring for keratin materials characterized in that it comprises the product resulting from the hydrolysis and condensation reaction of 3-aminopropyltriethoxysilane and methyltriethoxysilane (e.g. Claim 1, Examples). Kergosien et al. teach that the compositions exhibit both good reactivity and properties of stability before application thereof to keratin materials, and are capable of forming films or coatings which are long-lasting (e.g. column 1, lines 37-43).
Schmid et al. teach coated metal pigments, the production thereof, and the use thereof (e.g. abstract). Schmid et al. teach that the particles show an improved sparkle effect; in particular an attractive high sparkle intensity (e.g. abstract, Figs 1-8). Schmid et al. teach that the coated metal pigments are substrate platelet-based pigment comprising a vacuum metallized pigment (e.g. abstract, paragraphs 0093, 0113-0117, 0123). Schmid et al. teach that the pigments may be used in hair compositions, including hair color (e.g. paragraphs 0160 and 0177).
Regarding Claims 1, 4, 5, 9, and 10, it would have been obvious to one of ordinary skill in the art at the time of filing to include both 3-aminopropyltriethoxysilane and methyltriethoxysilane as taught by Kergosien et al. for use as the at least one organic silicon compound in the method of Brun et al. One of ordinary skill in the art would have predicted success as Brun et al. teach that mixtures of organic silicon compounds can be used and one would have been motivated because Kergosien et al. teach that the combination of 3-aminopropyltriethoxysilane and methyltriethoxysilane exhibits both good reactivity and properties of stability before application thereof to keratin materials, and are capable of forming films or coatings which are long-lasting (e.g. column 1, lines 37-43). It would have been obvious to one of ordinary skill in the art to combine the elements as claimed by known methods with no change in their respective functions, and the combination yielding nothing more than predictable results. It further would have been obvious to one of ordinary skill in the art at the time of filing to select the pigments of Schmid et al. for use in the compositions of Brun et al. in order to obtain the benefits of improved sparkle intensity. It would have been obvious to one of ordinary skill in the art to combine the elements as claimed by known methods with no change in their respective functions, and the combination yielding nothing more than predictable results.
Regarding Claim 11, Schmid et al. teach that the substrate platelet-based pigment comprises aluminum (e.g. paragraphs 0029, 0123; Claim 1).
Regarding Claim 13, Schmid et al. teach that the substrate platelet-based pigment comprises a coating of at least one highly refractive metal oxide having a refractive index of greater than 1.65, which overlaps with the claimed range of “at least about 1.9” (e.g. paragraphs 0104, 0113-0117). 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) (MPEP 2144.05.I).
Regarding Claims 22, Schmid et al. teach that the coating has a thickness of 10-1000 nm, which overlaps with the claimed range of “at least about 50 nm” (e.g. paragraphs 0117, 0118). 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) (MPEP 2144.05.I).
Regarding Claim 23, Schmid et al. teach that the outermost coating has the high refractive index and does not contain an organic compound (e.g. paragraphs 0116 and 0123).
Regarding Claims 24 and 25, Brun et al. teach that the composition comprises 0.1-40 wt% of the at least one organosilicone compound and 0.5-40 wt% of pigment, which overlap the claimed ranges (e.g. paragraph 0103). Brun et al. and Kergosien et al. are silent as to the breakdown between formulas (I) and (IV), however, it would have been obvious to one of ordinary skill in the art at the time of the instant invention to vary the concentration of 3-aminopropyltriethoxysilane and methyltriethoxysilane through routine experimentation in order to optimize the resulting product. It is obvious to optimize within prior art conditions or through routine experimentation.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP §§ 706.02(l)(1) - 706.02(l)(3) for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp.
Claims 1, 4, 5, 9-11, 13 and 22-25 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-14 and 16-20 of U.S. Patent No. 11,504,319 in view of Schmid et al. (US 2020/0032067; priority 2010).
Although the claims at issue are not identical, they are not patentably distinct from each other because both the instant and patented claims recite a method for dyeing keratinous material, comprising the following steps: - applying an agent (a) to the keratinous material, the agent (a) comprising at least one organic silicon compound and- applying an agent (b) to the keratinous material, wherein the agent (b) comprises: (bl) a colorant compound comprising a substrate platelet-based pigment comprising a vacuum metallized pigment, and (b2) a film-forming polymer. Patented claims 2, 7, and 9 claims compounds of Formulas (I), (IV) and the combination thereof. It would have been obvious to one of ordinary skill in the art at the time of filing to select the mixture of Formulas (I) and (IV) because their combination is recited in the dependent claims of ‘319.
Claim 1 is met by claims 2, 7, and 9.
Claim 4 is met by patented claim 2.
Claim 5 is met by patented claim 4.
Claim 9 is met by patented claim 8.
Claim 10 is met by patented claim 10.
Claim 11 is met by patented claim 11.
Claim 13 is met by patented claim 13.
Regarding Claims 22 and 23, the claims of patent ‘319 are silent. However, Schmid et al. teach coated metal pigments, the production thereof, and the use thereof (e.g. abstract). Schmid et al. teach that the particles show an improved sparkle effect; in particular an attractive high sparkle intensity (e.g. abstract, Figs 1-8). Schmid et al. teach that the coated metal pigments are substrate platelet-based pigment comprising a vacuum metallized pigment (e.g. abstract, paragraphs 0093, 0113-0117, 0123). Schmid et al. teach that the pigments may be used in hair compositions, including hair color (e.g. paragraphs 0160 and 0177). Schmid et al. teach that the coating has a thickness of 10-1000 nm, which overlaps with the claimed range of “at least about 50 nm” (e.g. paragraphs 0117, 0118). Schmid et al. teach that the outermost coating has the high refractive index and does not contain an organic compound (e.g. paragraphs 0116 and 0123). It would have been obvious to one of ordinary skill in the art at the time of filing to select the pigments of Schmid et al. for use in the compositions of ‘319 in order to obtain the benefits of improved sparkle intensity. It would have been obvious to one of ordinary skill in the art to combine the elements as claimed by known methods with no change in their respective functions, and the combination yielding nothing more than predictable results.
Regarding Claims 24 and 25 the claims of patent ‘319 are silent. However, it would have been obvious to one of ordinary skill in the art at the time of the instant invention to vary the concentration of 3-aminopropyltriethoxysilane, methyltriethoxysilane, and pigment through routine experimentation in order to optimize the resulting product. It is obvious to optimize within prior art conditions or through routine experimentation. Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[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).
Claims 1, 4, 5, 9-11, 13 and 22-25 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-16 of U.S. Patent No. 11,826,586 in view of Schmid et al. (US 2020/0032067; priority 2010).
Although the claims at issue are not identical, they are not patentably distinct from each other because both the instant and patented claims recite a method for dyeing keratinous material, comprising the following steps: - applying an agent (a) to the keratinous material, the agent (a) comprising at least one organic silicon compound and- applying an agent (b) to the keratinous material, wherein the agent (b) comprises a colorant compound comprising a substrate platelet-based pigment comprising a vacuum metallized pigment. Patented claim 14 recites a film-forming polymer. Patented claims 2 and 4 claims compounds of Formulas (I), (IV) and the combination thereof. It would have been obvious to one of ordinary skill in the art at the time of filing to select the mixture of Formulas (I) and (IV) because their combination is recited in the dependent claims of ‘586.
Claim 1 is met by claims 2, 4, and 14.
Claim 4 is met by patented claim 2.
Claim 5 is met by patented claim 3.
Claim 9 is met by patented claim 5.
Claim 10 is met by patented claim 6.
Claim 11 is met by patented claims 7 and 8.
Regarding Claims 13, 22 and 23, the claims of patent ‘586 are silent. However, Schmid et al. teach coated metal pigments, the production thereof, and the use thereof (e.g. abstract). Schmid et al. teach that the particles show an improved sparkle effect; in particular an attractive high sparkle intensity (e.g. abstract, Figs 1-8). Schmid et al. teach that the coated metal pigments are substrate platelet-based pigment comprising a vacuum metallized pigment (e.g. abstract, paragraphs 0093, 0113-0117, 0123). Schmid et al. teach that the pigments may be used in hair compositions, including hair color (e.g. paragraphs 0160 and 0177). Schmid et al. teach that the substrate platelet-based pigment comprises a coating of at least one highly refractive metal oxide having a refractive index of greater than 1.65, which overlaps with the claimed range of “at least about 1.9” (e.g. paragraphs 0104, 0113-0117). Schmid et al. teach that the coating has a thickness of 10-1000 nm, which overlaps with the claimed range of “at least about 50 nm” (e.g. paragraphs 0117, 0118). Schmid et al. teach that the outermost coating has the high refractive index and does not contain an organic compound (e.g. paragraphs 0116 and 0123). It would have been obvious to one of ordinary skill in the art at the time of filing to select the pigments of Schmid et al. for use in the compositions of ‘586 in order to obtain the benefits of improved sparkle intensity. It would have been obvious to one of ordinary skill in the art to combine the elements as claimed by known methods with no change in their respective functions, and the combination yielding nothing more than predictable results.
Regarding Claims 24 and 25 the claims of patent ‘586 are silent. However, it would have been obvious to one of ordinary skill in the art at the time of the instant invention to vary the concentration of 3-aminopropyltriethoxysilane, methyltriethoxysilane, and pigment through routine experimentation in order to optimize the resulting product. It is obvious to optimize within prior art conditions or through routine experimentation. Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[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).
Claims 1, 4, 5, 9-11, 13 and 22-25 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-10 and 13-18 of U.S. Patent No. 11,890,366 in view of Schmid et al. (US 2020/0032067; priority 2010).
Although the claims at issue are not identical, they are not patentably distinct from each other because both the instant and patented claims recite a method for dyeing keratinous material, comprising the following steps: - applying an agent (a) to the keratinous material, the agent (a) comprising at least one organic silicon compound and- applying an agent (b) to the keratinous material, wherein the agent (b) comprises a colorant compound comprising a substrate platelet-based pigment comprising a vacuum metallized pigment. Patented claim 9 recites a film-forming polymer. Patented claims 2 and 4 claims compounds of Formulas (I), (IV) and the combination thereof. It would have been obvious to one of ordinary skill in the art at the time of filing to select the mixture of Formulas (I) and (IV) because their combination is recited in the dependent claims of ‘366.
Claim 1 is met by claims 2, 4, and 9.
Claim 4 is met by patented claim 2.
Claim 5 is met by patented claim 3.
Claim 9 is met by patented claim 5.
Claims 10 and 11 are met by patented claims 6 and 7.
Regarding Claims 13, 22 and 23, the claims of patent ‘366 are silent. However, Schmid et al. teach coated metal pigments, the production thereof, and the use thereof (e.g. abstract). Schmid et al. teach that the particles show an improved sparkle effect; in particular an attractive high sparkle intensity (e.g. abstract, Figs 1-8). Schmid et al. teach that the coated metal pigments are substrate platelet-based pigment comprising a vacuum metallized pigment (e.g. abstract, paragraphs 0093, 0113-0117, 0123). Schmid et al. teach that the pigments may be used in hair compositions, including hair color (e.g. paragraphs 0160 and 0177). Schmid et al. teach that the substrate platelet-based pigment comprises a coating of at least one highly refractive metal oxide having a refractive index of greater than 1.65, which overlaps with the claimed range of “at least about 1.9” (e.g. paragraphs 0104, 0113-0117). Schmid et al. teach that the coating has a thickness of 10-1000 nm, which overlaps with the claimed range of “at least about 50 nm” (e.g. paragraphs 0117, 0118). Schmid et al. teach that the outermost coating has the high refractive index and does not contain an organic compound (e.g. paragraphs 0116 and 0123). It would have been obvious to one of ordinary skill in the art at the time of filing to select the pigments of Schmid et al. for use in the compositions of ‘366 in order to obtain the benefits of improved sparkle intensity. It would have been obvious to one of ordinary skill in the art to combine the elements as claimed by known methods with no change in their respective functions, and the combination yielding nothing more than predictable results.
Regarding Claims 24 and 25 the claims of patent ‘366 are silent. However, it would have been obvious to one of ordinary skill in the art at the time of the instant invention to vary the concentration of 3-aminopropyltriethoxysilane, methyltriethoxysilane, and pigment through routine experimentation in order to optimize the resulting product. It is obvious to optimize within prior art conditions or through routine experimentation. Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[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).
Claims 1, 4, 5, 9-11, 13 and 22-25 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-11 of U.S. Patent No. 11,896,701 in view of Schmid et al. (US 2020/0032067; priority 2010).
Although the claims at issue are not identical, they are not patentably distinct from each other because both the instant and patented claims recite a method for dyeing keratinous material, comprising the following steps: - applying an agent (a) to the keratinous material, the agent (a) comprising at least one organic silicon compound and- applying an agent (b) to the keratinous material, wherein the agent (b) comprises a colorant compound comprising a substrate platelet-based pigment comprising a vacuum metallized pigment. Patented claim 9 recites a film-forming polymer. Patented claims 2 and 4 claims compounds of Formulas (I), (IV) and the combination thereof. It would have been obvious to one of ordinary skill in the art at the time of filing to select the mixture of Formulas (I) and (IV) because their combination is recited in the dependent claims of ‘701.
Claim 1 is met by claims 2, 4, and 9.
Claim 4 is met by patented claim 2.
Claim 5 is met by patented claim 3.
Claim 9 is met by patented claim 5.
Claims 10 and 11 are met by patented claims 6 and 7.
Regarding Claims 13, 22 and 23, the claims of patent ‘701 are silent. However, Schmid et al. teach coated metal pigments, the production thereof, and the use thereof (e.g. abstract). Schmid et al. teach that the particles show an improved sparkle effect; in particular an attractive high sparkle intensity (e.g. abstract, Figs 1-8). Schmid et al. teach that the coated metal pigments are substrate platelet-based pigment comprising a vacuum metallized pigment (e.g. abstract, paragraphs 0093, 0113-0117, 0123). Schmid et al. teach that the pigments may be used in hair compositions, including hair color (e.g. paragraphs 0160 and 0177). Schmid et al. teach that the substrate platelet-based pigment comprises a coating of at least one highly refractive metal oxide having a refractive index of greater than 1.65, which overlaps with the claimed range of “at least about 1.9” (e.g. paragraphs 0104, 0113-0117). Schmid et al. teach that the coating has a thickness of 10-1000 nm, which overlaps with the claimed range of “at least about 50 nm” (e.g. paragraphs 0117, 0118). Schmid et al. teach that the outermost coating has the high refractive index and does not contain an organic compound (e.g. paragraphs 0116 and 0123). It would have been obvious to one of ordinary skill in the art at the time of filing to select the pigments of Schmid et al. for use in the compositions of ‘701 in order to obtain the benefits of improved sparkle intensity. It would have been obvious to one of ordinary skill in the art to combine the elements as claimed by known methods with no change in their respective functions, and the combination yielding nothing more than predictable results.
Regarding Claims 24 and 25 the claims of patent ‘701 are silent. However, it would have been obvious to one of ordinary skill in the art at the time of the instant invention to vary the concentration of 3-aminopropyltriethoxysilane, methyltriethoxysilane, and pigment through routine experimentation in order to optimize the resulting product. It is obvious to optimize within prior art conditions or through routine experimentation. Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[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).
Claims 1, 4, 5, 9-11, 13 and 22-25 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-14 and 16-20 of U.S. Patent No. 11,992,546 in view of Schmid et al. (US 2020/0032067; priority 2010).
Although the claims at issue are not identical, they are not patentably distinct from each other because both the instant and patented claims recite a method for dyeing keratinous material, comprising the following steps: - applying an agent (a) to the keratinous material, the agent (a) comprising at least one organic silicon compound and- applying an agent (b) to the keratinous material, wherein the agent (b) comprises a colorant compound comprising a substrate platelet-based pigment comprising a vacuum metallized pigment. Patented claim 18 recites a film-forming polymer. Patented claims 2 and 7 claim compounds of Formulas (I), (IV) and the combination thereof. It would have been obvious to one of ordinary skill in the art at the time of filing to select the mixture of Formulas (I) and (IV) because their combination is recited in the dependent claims of ‘546.
Claim 1 is met by claims 2, 7, and 18.
Claim 4 is met by patented claim 2.
Claim 5 is met by patented claim 4.
Claim 9 is met by patented claim 8.
Claims 10 and 11 are met by patented claims 10 and 11.
Claim 13 is met by patented claim 13.
Regarding Claims 22 and 23, the claims of patent ‘546 are silent. However, Schmid et al. teach coated metal pigments, the production thereof, and the use thereof (e.g. abstract). Schmid et al. teach that the particles show an improved sparkle effect; in particular an attractive high sparkle intensity (e.g. abstract, Figs 1-8). Schmid et al. teach that the coated metal pigments are substrate platelet-based pigment comprising a vacuum metallized pigment (e.g. abstract, paragraphs 0093, 0113-0117, 0123). Schmid et al. teach that the pigments may be used in hair compositions, including hair color (e.g. paragraphs 0160 and 0177). Schmid et al. teach that the substrate platelet-based pigment comprises a coating of at least one highly refractive metal oxide having a refractive index of greater than 1.65, which overlaps with the claimed range of “at least about 1.9” (e.g. paragraphs 0104, 0113-0117). Schmid et al. teach that the coating has a thickness of 10-1000 nm, which overlaps with the claimed range of “at least about 50 nm” (e.g. paragraphs 0117, 0118). Schmid et al. teach that the outermost coating has the high refractive index and does not contain an organic compound (e.g. paragraphs 0116 and 0123). It would have been obvious to one of ordinary skill in the art at the time of filing to select the pigments of Schmid et al. for use in the compositions of ‘546 in order to obtain the benefits of improved sparkle intensity. It would have been obvious to one of ordinary skill in the art to combine the elements as claimed by known methods with no change in their respective functions, and the combination yielding nothing more than predictable results.
Regarding Claims 24 and 25 the claims of patent ‘546 are silent. However, it would have been obvious to one of ordinary skill in the art at the time of the instant invention to vary the concentration of 3-aminopropyltriethoxysilane, methyltriethoxysilane, and pigment through routine experimentation in order to optimize the resulting product. It is obvious to optimize within prior art conditions or through routine experimentation. Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[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).
Claims 1, 4, 5, 9-11, 13 and 22-25 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-14 and 16-18 of U.S. Patent No. 12,201,712 in view of Schmid et al. (US 2020/0032067; priority 2010).
Although the claims at issue are not identical, they are not patentably distinct from each other because both the instant and patented claims recite a method for dyeing keratinous material, comprising the following steps: - applying an agent (a) to the keratinous material, the agent (a) comprising at least one organic silicon compound and- applying an agent (b) to the keratinous material, wherein the agent (b) comprises a colorant compound comprising a substrate platelet-based pigment comprising a vacuum metallized pigment. Patented claim 9 recites a film-forming polymer. Patented claims 2 and 6 claim compounds of Formulas (I), (IV) and the combination thereof. It would have been obvious to one of ordinary skill in the art at the time of filing to select the mixture of Formulas (I) and (IV) because their combination is recited in the dependent claims of ‘712.
Claim 1 is met by claims 2, 6, and 9.
Claim 4 is met by patented claim 2.
Claim 5 is met by patented claim 4.
Claim 9 is met by patented claim 7.
Claims 10 and 11 are met by patented claim 13.
Regarding Claims 13, 22 and 23, the claims of patent ‘712 are silent. However, Schmid et al. teach coated metal pigments, the production thereof, and the use thereof (e.g. abstract). Schmid et al. teach that the particles show an improved sparkle effect; in particular an attractive high sparkle intensity (e.g. abstract, Figs 1-8). Schmid et al. teach that the coated metal pigments are substrate platelet-based pigment comprising a vacuum metallized pigment (e.g. abstract, paragraphs 0093, 0113-0117, 0123). Schmid et al. teach that the pigments may be used in hair compositions, including hair color (e.g. paragraphs 0160 and 0177). Schmid et al. teach that the substrate platelet-based pigment comprises a coating of at least one highly refractive metal oxide having a refractive index of greater than 1.65, which overlaps with the claimed range of “at least about 1.9” (e.g. paragraphs 0104, 0113-0117). Schmid et al. teach that the coating has a thickness of 10-1000 nm, which overlaps with the claimed range of “at least about 50 nm” (e.g. paragraphs 0117, 0118). Schmid et al. teach that the outermost coating has the high refractive index and does not contain an organic compound (e.g. paragraphs 0116 and 0123). It would have been obvious to one of ordinary skill in the art at the time of filing to select the pigments of Schmid et al. for use in the compositions of ‘712 in order to obtain the benefits of improved sparkle intensity. It would have been obvious to one of ordinary skill in the art to combine the elements as claimed by known methods with no change in their respective functions, and the combination yielding nothing more than predictable results.
Regarding Claims 24 and 25 the claims of patent ‘712 are silent. However, it would have been obvious to one of ordinary skill in the art at the time of the instant invention to vary the concentration of 3-aminopropyltriethoxysilane, methyltriethoxysilane, and pigment through routine experimentation in order to optimize the resulting product. It is obvious to optimize within prior art conditions or through routine experimentation. Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[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).
Conclusion
No claim is allowed.
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/NICOLE P BABSON/ Primary Examiner, Art Unit 1619