DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
This office action is in response to the reply filed 12/30/2025.
Priority
Applicant’s claim for the benefit of a prior-filed application under 35 U.S.C. 119(e) or under 35 U.S.C. 120, 121, 365(c), or 386(c) is acknowledged. Applicant has not complied with one or more conditions for receiving the benefit of an earlier filing date under 35 U.S.C. 119(e) as follows:
The later-filed application must be an application for a patent for an invention which is also disclosed in the prior application (the parent or original nonprovisional application or provisional application). The disclosure of the invention in the parent application and in the later-filed application must be sufficient to comply with the requirements of 35 U.S.C. 112(a) or the first paragraph of pre-AIA 35 U.S.C. 112, except for the best mode requirement. See Transco Products, Inc. v. Performance Contracting, Inc., 38 F.3d 551, 32 USPQ2d 1077 (Fed. Cir. 1994)
The disclosure of the prior-filed application, Application No. 63/174875, fails to provide adequate support or enablement in the manner provided by 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph for one or more claims of this application. Provisional Application’875 does not provide support for the use of the claimed biomimetic signal peptide and the red clover extract. All examined claims will receive an effective filing date of 4/14/2022.
Response to Arguments
All of Applicant’s arguments filed 12/30/2025 have been fully considered. In view of the claims as newly amended all rejections presented in the office action mailed withdrawn and Applicant’s arguments against their rejections are moot.
New Claim Rejections - 35 USC § 112(a)
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1, 5, 25 and 31-41 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 1 recites the range of 1.4 to about 3.2% of red clover extract. There is insufficient support in the originally filed disclosure for the use the end points 1.4 and 3.2. While the specification discloses using amounts of about 3% and about 1%, the specific end points were never suggested.
Claim 1 recites the range of 5.2 to about 6.8% of red algae extract. There is insufficient support in the originally filed disclosure for the use the end points as claimed. While the specification discloses using amounts of about 5% and about 7%, the specific end points were never suggested.
Claim 1 recites an amounts of 0.5% of sodium hyaluronate. There is insufficient support in the originally filed disclosure for the use 0.5% as claimed. While the specification discloses using amounts of about 1% and about 0.1%, the specific end point of 0.5 was never suggested.
Claims 1 and 35 recites pH in an amounts of about 4.5-5.5. While the specification discloses “about 3.6”, the specification only discuss using amounts of below 5.5 and above 4.5; and those between 4.5 and 5.5, thus the specification fails to provide support for the use of “about” with respect 4.5 to 5.5.
Claim 1 recites the range of 0.5 to about 1.5% of a probiotic. There is insufficient support in the originally filed disclosure for the use the end points as claimed. While the specification discloses using amounts of about .1%, 1% and 2%, the specific end points were never suggested.
Claim 1(b) recites an amounts of 0.5% of a peptide. There is insufficient support in the originally filed disclosure for the use 0.5% as claimed. While the specification discloses using amounts of about 1% and about 0.1%, the specific end point of 0.5 was never suggested.
Claim 1 recites an amounts of 0.7% of a keratin protein composition. There is insufficient support in the originally filed disclosure for the use 0.5% as claimed. While the specification discloses using amounts of about 1% and about 0.1%, the specific end point of 0.7 was never suggested.
Claim 1 recites an amounts of 3.5% of a keratin protein composition. There is insufficient support in the originally filed disclosure for the use 3.5% as claimed. While the specification discloses using amounts of about 3% and about 4%, the specific end point of 3.5 was never suggested.
Claim 1 recites the range of 5.2 to about 6.8% of larix wood extract. There is insufficient support in the originally filed disclosure for the use the end points as claimed. While the specification discloses using amounts of about 5% and about 7%, the specific end points were never suggested.
Claims 5, 25 and 31-41 are rejected in view of their dependency on claim 1 as they do not resolve the deficiencies of claim 1 identified above and thus are deficient for the same reasons.
Claim 31 recites “at least 27%” the originally filed disclosure provides support for 27.8% which does not provide support for “at least 27%” which embraces all amounts higher than 27.
Claim 33 recites “at least 8%” the originally filed disclosure provides support for 8.7% which does not provide support for “at least 8%” which embraces all amounts higher than 8.
This is a new matter rejection. If Applicant believes the examiner is incorrect, Applicant is request to please indicate exactly where in the specification support is provided.
New Claim Rejections - 35 USC § 112(b)
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1, 5, 25 and 31-41 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 recites twice “probiotic selected from Saccharomyces lysate extract,” the use of “selected from” render the claim indefinite as it implies a selection from two or more alternatives, however only 1 option is provided in the claim.
Claims 5, 25 and 31-41 are rejected in view of their dependency on claim 1 as they do not resolve the deficiencies of claim 1 identified above and thus are rejected for the same reasons.
Claim 5 recites “the at least one” peptide, however, claim 1 comprises a peptide in each of the shampoo, conditioner and density treatment composition, thus it’s unclear what peptide is being referred to in claim 1. Is it referring the peptide in the shampoo, conditioner or the density treatment composition or is it referring to all of them. Claim 25 contains this same deficiency.
Claim 36 recites the limitation "the abundance of cutibacterium…". There is insufficient antecedent basis for this limitation in the claim.
Claim 37 recites the limitation "the abundance of Lawsonella…". There is insufficient antecedent basis for this limitation in the claim.
Conclusion
No claims are allowable.
The instant claims are found to be free of prior art as there is no suggestion or motivation in the prior art to create a multi-composition kit with each composition including the same keratin protein composition and biomimetic signal peptide, but comprising distinct auxiliary ingredients.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Jennifer A Berrios whose telephone number is (571)270-7679. The examiner can normally be reached Monday-Thursday from 9am-4pm and Friday 9am-3:30pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Brian Kwon can be reached on (571) 272-0581. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JENNIFER A BERRIOS/Primary Examiner, Art Unit 1613