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 .
Response to Amendment
The Amendment filed on January 5th, 2026 has been entered. Claims 7, 9, 11-13, and 21-26 are pending in the application. Claims 2, 8, 10, 16, and 19-20 have been cancelled.
The rejection of claims 7, 9-12, and 21-24 under U.S.C 103 as obvious over El Feng (WO 2022046520 A1) is maintained.
The rejection of claim 13 under U.S.C 103 as obvious over El Feng (WO 2022046520 A1) and Waldmann-Laue (WO 2013092080 A1) is maintained.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
Claims 7, 9-12, and 21-24 are rejected under 35 U.S.C. 103 as being unpatentable over Feng (WO 2022046520 A1).
With regard to claims 7, 9-12, and 24, Feng discloses a composition for cleaning keratin materials such as hair (see Abstract). Feng further discloses one or more preservatives, including benzoic acid (see [00116]) at a concentration of 0.01-5wt% (see [00117]). Feng further teaches auxiliary components, such as fragrances (see [00118]) at up to 15wt% (see [00119]) and at least one first amphoteric surfactant and at least one second amphoteric surfactant (see [0029]). Feng further discloses, in examples 1A-1D, additives in an amount of from 1.63wt% to 2.30wt% (see Table 1). Feng further discloses alkyl amphoacetates at 0.1-15wt% (see [0034]) as a first amphoteric surfactant (see [0029]) and betaines (see [0035]) at 0.1-15wt% (see [0038]) as a second amphoteric surfactant (see [0029]). The instant specifications disclose betaines and amphoacetates as suitable cationic compatible surfactants. Further, Feng discloses the total amount of amphoteric surfactants as 0.1-30wt% (see [0040]). Feng further discloses the composition comprises at least one non-ionic surfactant (see [0043]), such as PEG-7 glyceryl cocoate (see [0052]), at 0.1-10wt% (see [0054]).
With respect to the ratio of fragrance to solubilizer of about 1:1 to about 3:1, Feng teaches non-ionic surfactants in the range of about 0.01 to about 10wt% as disclosed in 0052 and 0054 and fragrance in the range of from at least 15wt% as disclosed in 00118-00119. While Feng fails to specify the precise ratios of fragrance to solubilizer, the teachings of Feng nevertheless encompass the claimed ratio. Optimization or even simply varying of the relative amounts within the prior art’s general conditions amounts to 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) MPEP 2144.05.
With regard to claim 21 and claim 22, Feng discloses all of the limitations of claim 7.
Further, Feng discloses a mean bubble count of greater than 1000/mm2 (see [00160]).
With regard to claim 23, Feng discloses all of the limitations of claim 7. With respect to the ratio of fragrance to solubilizer of about 1.5:1 to about 2.7:1, Feng teaches non-ionic surfactants in the range of about 0.01 to about 10wt% as disclosed in 0052 and 0054 and fragrance in the range of from up to 15wt% as disclosed in 00118-00119. While Feng fails to specify the precise ratios of fragrance to solubilizer, the teachings of Feng nevertheless encompass the claimed ratio. Optimization or even simply varying of the relative amounts within the prior art’s general conditions amounts to 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) MPEP 2144.05.
With regard to claim 25, Feng discloses all of the limitations of claim 7. Feng further discloses the composition as having a viscosity of less than 80 seconds when measured using a Ford cup 8 (see [00121]). Feng further discloses Compositions 1A-1C as having viscosities of 10 seconds, 10 seconds, and 36 seconds, corresponding to 3700 cPs, 5100 cPs, and 16,500 cPs, respectively (see [00155]). “Less than 80 seconds when measured using a Ford cup 8” encompasses “less than 18 cPs”.
With regard to claim 26, Feng discloses all of the limitations of claim 7.
With respect to the ratio of fragrance to hydrophobic solubilizer as 2.5:1, Feng teaches non-ionic surfactants in the range of about 0.01 to about 10wt% as disclosed in 0052 and 0054 and fragrance in the range of from up to 15wt% as disclosed in 00118-00119. While Feng fails to specify the precise ratios of fragrance to solubilizer, the teachings of Feng nevertheless encompass the claimed ratio. Optimization or even simply varying of the relative amounts within the prior art’s general conditions amounts to 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) MPEP 2144.05.
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over Feng (WO 2022046520 A1), as applied to claim 7, and further in view of Waldmann-Laue (WO 2013092080 A1).
With regard to claim 13, Feng discloses all of the limitations of claim 7.
However, Feng fails to disclose an antibacterial active agent.
Waldmann-Laue discloses a composition for the cleansing and care of skin and hair, an analogous art (see Abstract). Waldmann-Laue further discloses the composition comprising antimicrobial substances, which are used to generally reduce the activities of microorganisms, particularly those microorganisms responsible for the formation of acne and body odor, including chlorhexidine gluconate and benzethonium chloride (see [0114]).
It would have been obvious to one of ordinary skill in the art to utilize the antimicrobial agents of Waldmann-Laue, including chlorhexidine gluconate and benzethonium chloride, in the composition for cleaning keratin materials such as hair of Feng, for the purpose of reducing the activities of microorganisms, particularly those microorganisms responsible for the formation of acne and body odor, as disclosed by Waldmann-Laue.
Response to Arguments
Applicant's arguments filed January 5th, 2026 have been fully considered but they are not persuasive.
Applicant argues that amended claim 7 discloses a concentrated foaming cleaning composition comprising a fragrance present in an amount of from about 0.6 to about 2.4 weight percent, based on the total weight of the concentrated foaming cleaning composition. Further, Applicant argues that this range is critical to prevent the undesirable increase in size of the micelles in the composition. Applicant further argues that while Feng discloses up to 15wt% of additives, Feng does not disclose a concentrated foaming cleaning composition comprising a fragrance present in an amount of from about 0.6 to about 2.4 weight percent, based on the total weight of the concentrated foaming cleaning composition.
As stated above, Feng discloses, in examples 1A-1D, additives in an amount of from 1.63wt% to 2.30wt% (see Table 1). Based on the aforementioned examples, one of ordinary skill in the art, before the effective filing date, would have found it obvious to utilize from about 0.6 to about 2.4 weight percent of a fragrance. Further, Applicant is directed toward MPEP 716.02(d)(II): “To establish unexpected results over a claimed range, applicants should compare a sufficient number of tests both inside and outside the claimed range to show the criticality of the claimed range. In re Hill, 284 F.2d 955, 128 USPQ 197 (CCPA 1960).” Applicant must demonstrate through further testing that the claimed range of the fragrance concentration is critical.
Conclusion
THIS ACTION IS MADE FINAL. 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BRITTANY SHARON HARRIS whose telephone number is (571)270-1390. The examiner can normally be reached 7:30-5:00.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Angela Brown-Pettigrew can be reached at (571) 272-2817. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/B.S.H./Examiner, Art Unit 1761
/ANGELA C BROWN-PETTIGREW/Supervisory Patent Examiner, Art Unit 1761