Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 11/10/2025 has been entered.
Status of Claims
The amendments and arguments filed on 11/10/2025 are acknowledged and have been fully considered. Claims 1,3-4,8, and 12 have been amended. Claims 14-15 have been withdrawn. Claim 2 has been canceled. Applicants’ amendments are supported by the originally filed disclosure.
No new matter has been added.
Thus, claims 1, 3-13 and 16-20 will be examined on the merits herein.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 11/10/2025 is being considered by the examiner. The submission is in compliance with the provisions of 37 CFR 1.97.
Objections and Rejections Withdrawn
Any rejections not reiterated herein are considered withdrawn in favor of the grounds of rejection set forth below.
New Rejections
Applicants’ amendments have necessitated the following ground(s) of rejection:
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1, 3-13 and 16-20 are rejected under 35 U.S.C. 103 as being unpatentable over Dussaud et al (US 20180346653 A1) and INOUE et al (CN 113164346 A; also available as US 20220015997 A1).
Regarding instant claims 1, 3-8 and 12, Dussaud discloses aqueous compositions for hair treatment, comprising polyorganosiloxanes A) having di- and trihydroxy-substituted aromatic groups and at least one surfactant B) selected from cationic surfactants B1) and anionic surfactants B2) in a certain weight ratio of the surfactant B) to the polyorganosiloxane A), and said aqueous compositions having a certain pH (abstract). Dussaud teaches that the aqueous composition for hair treatment according to the invention comprises water, preferably in an amount of at least 1 weight-%, more preferably at least 5 weight-%, more preferably at least 10 weight-%, more preferably at least 15 weight-%, more preferably at least 20 weight-%, and preferably up to 95 weight-%, more preferably up to 90 weight-%, more preferably up to 85 weight-%, more preferably up to 80 weight-%, more preferably up to 75 weight-%, more preferably up to 70 weight-%, based on the total weight of the aqueous compositions ([0012]). Dussaud teaches that the term “organic diluents or solvents” refers to substances that may be used in particular to dilute/solvatize the at least one polyorganosiloxane A) according to the invention and the other optional other ingredients as mentioned before in addition to water in the aqueous compositions ([0191]). Suitable organic solvents are e.g., 2-methyl-1,3-propanediol, mono-, and dialcohols or the ethers and esters thereof, in particular mono-C1-C3-alkyl ether, ethanol ([0191]). Generally, the addition of certain amounts of short chained alcohols improves the homogeneity of the formulations and the penetration of the formulations into the hair ([0191]). Dussaud discloses that an “emollient” is a material that protects the skin against wetness or irritation, softens, smoothes, supples, coats, lubricates, moisturizes, protects and/or cleanses the skin ([0193]). Emollients include for example: a silicone compound, i.e. dimethicones, cyclomethicones, preferred D5 and D6 cyclosiloxanes, dimethicone copolyols or mixtures of cyclomethicones and dimethicone/vinyldimethicone cross polymer), polyols such as sorbitol, glycerin, propylene glycol, ethylene glycol, polyethylene glycol, caprylyl glycol, polypropylene glycol, 1,3-butane diol, hexylene glycol, isoprene glycol, xylitol, ethylhexyl palmitate, a triglyceride such as caprylic/capric triglyceride ([0193]). Dussaud teaches propylene glycol mono methyl! ether may be used in the composition with Example 16 (F18) ([0300]). See par. [0082] of the instant application, which establishes such compounds as a suitable compound Y. Dussaud teaches one or more tannins, specifically gallotannins, ellagitannins, complex tannins, condensed tannins, i.e., tannic acid ((i.e. at least one polyphenol X comprising at least two different phenol groups) and its other forms quercitannic acid and gallotannic acid may be used ([0207]; Examples). The most preferred tannin is tannic acid ([0212]). Dussaud discloses formulations may also comprise one or more additional auxiliaries, i.e., pH adjusting agents as described below, such acids, bases and buffers to adjust the pH value, thickeners, gelling agents ([0218]). Dussaud teaches the aqueous optionally comprise at least one or more additional additive, selected from: C) organic diluents or solvents (also referred to as non-aqueous diluent C)), D) proteins, preferably keratin, E) emollients or fatty substances, F) preservatives, G) skin protecting ingredients, H) conditioning agents, I) oxidizing agents, J) reducing agents, K) tannins, L) metal salts, M) further auxiliaries selected from pH adjusting agents, thickeners, lipids, amino acids, sugars, fragrances, sunscreen agents, vitamins, pearlescent agents, gelling agents ([0178]-[0189]). Dussaud discloses that the aqueous compositions according at 20° C. have a pH of less than 7, preferably less than 6, more preferably less than 5, and preferably more than 2 (claim 1, [0010]). Dussaud discloses sulfonic acid ([0035]). However, it is silent to gelling agent which is amphiphilic polymers containing a sulphonic group, in freeform or partially or totally neutralized form. INOUE et al remedies this deficiency. INOUE teaches the composition may further comprise (e) at least one hydrophilic acrylic polymer ([0014]). The hydrophilic acrylic polymer can function as a thickener ([0225]). INOUE discloses preferred embodiment of the present invention, the monomers bearing a sulfonic group are chosen from (meth)acrylamido(C1-C22)alkylsulfonic acids, for instance acrylamidomethanesulfonic acid, acrylamidoethanesulfonic acid, acrylamidopropanesulfonic acid, 2-acrylamido-2-methylpropanesulfonic acid, 2-methacrylamido-2-methylpropanesulfonic acid, 2-acrylamido-n-butanesulfonic acid, 2-acrylamido-2,4,4-trimethylpentanesulfonic acid, 2-methacrylamidododecylsulfonic acid and 2-acrylamido-2,6-dimethyl-3-heptanesulfonic acid, and also partially or totally neutralized forms thereof, and mixtures thereof ([0237]). More particularly, 2-acrylamido-2-methylpropanesulfonic acid (AMPS), and also partially or totally neutralized forms thereof, are used ([0238]). INOUE teaches Aristoflex AVC from Clariant (a hydrophobically-modified sulfonic acid copolymer per instant specification (page30, line [00135]) ([0247]). Dussaud discloses the preparations may be in particular in the form of a (aerosol) spray, (aerosol) foam, gel, gel spray, cream, lotion, liquid, serum or a wax, mousse, shampoo, such as pearl shampoo, anti-frizz shampoo etc. ([0247]).
Regarding instant claim 11, Dussaud discloses the aqueous composition for hair treatment according to the invention comprises water, preferably in an amount of at least 1 weight-%, more preferably at least 5 weight-%, more preferably at least 10 weight-%, more preferably at least 20 weight-%, and preferably up to 95 weight-% ([0012]). Example 16: Clear Hair Shampoo Composition discloses Tannic acid 1.5% in a composition. It teaches Tannic acid was Tannal from Ajinomoto; color enhancement additive ([0300]). Dussaud teaches in a preferred embodiment of the invention the hair treatment formulations optionally comprise the other auxiliary agents (i.e., tannin, gelling agents) which are commonly known for hair care compositions and are different from the aforementioned additives, in a concentration range from 0 to 25%, preferred 0 to 10%, more preferred 0 to 5%, even more preferred 0 to 2%, wherein each percentage is per weight based on the total weight of the aqueous composition. TABLE-US-00001 disclose preferred aqueous compositions according to the invention, comprise the components in the following amounts: diluents/solvents (water + alcohol) 0 to 95%, preferably 0.1 to 95 %, emollients/fatty substance (compound Y) 0 to 15%, tannins 0 to 15% preferably 0.1 to 15 % ([0221]).
Regarding instant claim 20, Dussaud teaches the hair treatment formulations comprising one or more additional auxiliaries such as lipids, amino acids, sugars, vitamins, antioxidants (see entire document, for instance [0178], [0218])
INOUE et al disclose a composition for treating keratin fibers, preferably hair, comprising: (a) at least one direct dye; (b) at least one oil; (c) at least one polyol; and (d) water (abstract). INOUE teaches a direct dye means a colored substance which does not require the use of an oxidizing agent in order to develop its color ([0033]). The direct dye may be a natural direct dye or a synthetic direct dye ([0034]). As natural direct dyes, mention may be made of tannins ([0036]).
INOUE teaches the hydrophilic acrylic polymer can function as a thickener ([0225]). The polymers used in accordance with the present invention are homopolymers that may be obtained from at least one ethylenically unsaturated monomer bearing a sulfonic group, which may be in free form or partially or totally neutralized form ([0231]).
Regarding instant claim 3, INOUE et al disclose the homopolymer of monomers bearing a sulfonic group may be crosslinked with one or more crosslinking agents ([0242]). A polymer of this type that may especially be mentioned is the crosslinked and neutralized 2-acrylamido-2-methylpropanesulfonic acid homopolymer sold by the company Clariant under the trade name Hostacerin AMPS (CTFA name: ammonium polyacryldimethyltauramide) or Simulgel 800 (CTFA name: ammonium polyacryloyldimethyl taurate) sold by the company Seppic ([0246]). INOUE et al teaches other hydrophilic acrylic polymers that may be used according to the present invention, mention may also be made of: homopolymers or copolymers of acrylic or methacrylic acids or salts thereof and esters thereof, such as the products sold under the names Carbopol 934, 940, 954, 981 and 980 by the company Noveon, Synthalen L® from the company 3V, sodium polymethacrylate sold under the name Darvan No. 7® by the company Vanderbilt, the products sold under the names Versicol F or Versicol K by the company Allied Colloid, Ultrahold 8 by the company Ciba Geigy and polyacrylic acids of Synthalen K type ([0258]). INOUE teaches Aristoflex AVC from Clariant (a hydrophobically-modified sulfonic acid copolymer per instant specification (page30, line [00135]) ([0247]). INOUE et al disclose the amount of the hydrophilic acrylic polymer in the composition according to the present invention may range from 0.01% to 10% by weight ([0262]).
INOUE et al disclose the composition according to the present invention may comprise at least one water-miscible solvent such as a lower monoalcohol containing from 1 to 5 carbon atoms, C3-C4 ketones or C3-C4 aldehydes ([0269]). The water-miscible solvent that can preferably be used is ethanol ([0269]).
Regarding instant claim 9, Dussaud et al disclose composition wherein the at least one polyphenol compound X is tannic acid, the at least one C2-C5 monoalcohol is ethanol, the at least one gelling agent, wherein the pH is less than 7 and wherein the composition is in the form of a gel composition. INOUE teaches the at least one gelling agent comprises at least one 2-acrylamido-2-methylpropane sulfonate acid group.
Thus, it would have been prima facie obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the composition as described by Dussaud et al with the composition of INOUE et al. One would be motivated to do so with a reasonable expectation of success of combining prior art elements according to known methods to yield predictable results to provide a gelling agent capable of providing thickening to a high-alcohol content solvent system.
Regarding instant claim 10 ,13, and 16-19, recites the composition of claim 1, wherein the composition is substantially free of coloring agents. The Examiner looks to the Applicants’ specification for substantially free in paragraph [0031] to read “present in amounts not greater than 0.1 % by weight.” INOUE et al teaches a direct dye means a colored substance which does not require the use of an oxidizing agent in order to develop its color ([0033]).
Thus, it would have been prima facie obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the composition as described by Dussaud et al with the composition of INOUE et al. One would be motivated to do so with a reasonable expectation of success of combining prior art elements according to known methods to yield predictable results to provide a colored substance which does not require the use of an oxidizing agent in order to develop its color.
Claims 1, 3-13 and 16-20 are rejected under 35 U.S.C. 103 as being unpatentable over Dussaud et al (US 20180346653 A1) and Dubief (US 20040009136 A1).
Regarding instant claims 1, 3-8 and 12, Dussaud discloses aqueous compositions for hair treatment, comprising polyorganosiloxanes A) having di- and trihydroxy-substituted aromatic groups and at least one surfactant B) selected from cationic surfactants B1) and anionic surfactants B2) in a certain weight ratio of the surfactant B) to the polyorganosiloxane A), and said aqueous compositions having a certain pH (abstract). Dussaud teaches that the aqueous composition for hair treatment according to the invention comprises water, preferably in an amount of at least 1 weight-%, more preferably at least 5 weight-%, more preferably at least 10 weight-%, more preferably at least 15 weight-%, more preferably at least 20 weight-%, and preferably up to 95 weight-%, more preferably up to 90 weight-%, more preferably up to 85 weight-%, more preferably up to 80 weight-%, more preferably up to 75 weight-%, more preferably up to 70 weight-%, based on the total weight of the aqueous compositions ([0012]). Dussaud teaches that the term “organic diluents or solvents” refers to substances that may be used in particular to dilute/solvatize the at least one polyorganosiloxane A) according to the invention and the other optional other ingredients as mentioned before in addition to water in the aqueous compositions ([0191]). Suitable organic solvents are e.g., 2-methyl-1,3-propanediol, mono-, and dialcohols or the ethers and esters thereof, in particular mono-C1-C3-alkyl ether, ethanol ([0191]). Generally, the addition of certain amounts of short chained alcohols improves the homogeneity of the formulations and the penetration of the formulations into the hair ([0191]). Dussaud discloses that an “emollient” is a material that protects the skin against wetness or irritation, softens, smoothes, supples, coats, lubricates, moisturizes, protects and/or cleanses the skin ([0193]). Emollients include for example: a silicone compound, i.e. dimethicones, cyclomethicones, preferred D5 and D6 cyclosiloxanes, dimethicone copolyols or mixtures of cyclomethicones and dimethicone/vinyldimethicone cross polymer), polyols such as sorbitol, glycerin, propylene glycol, ethylene glycol, polyethylene glycol, caprylyl glycol, polypropylene glycol, 1,3-butane diol, hexylene glycol, isoprene glycol, xylitol, ethylhexyl palmitate, a triglyceride such as caprylic/capric triglyceride ([0193]). Dussaud teaches propylene glycol mono methyl! ether may be used in the composition with Example 16 (F18) ([0300]). See par. [0082] of the instant application, which establishes such compounds as a suitable compound Y. Dussaud teaches one or more tannins, specifically gallotannins, ellagitannins, complex tannins, condensed tannins, i.e., tannic acid ((i.e. at least one polyphenol X comprising at least two different phenol groups) and its other forms quercitannic acid and gallotannic acid may be used ([0207]; Examples). The most preferred tannin is tannic acid ([0212]). Dussaud discloses formulations may also comprise one or more additional auxiliaries, i.e., pH adjusting agents as described below, such acids, bases and buffers to adjust the pH value, thickeners, gelling agents ([0218]). Dussaud teaches the aqueous optionally comprise at least one or more additional additive, selected from: C) organic diluents or solvents (also referred to as non-aqueous diluent C)), D) proteins, preferably keratin, E) emollients or fatty substances, F) preservatives, G) skin protecting ingredients, H) conditioning agents, I) oxidizing agents, J) reducing agents, K) tannins, L) metal salts, M) further auxiliaries selected from pH adjusting agents, thickeners, lipids, amino acids, sugars, fragrances, sunscreen agents, vitamins, pearlescent agents, gelling agents ([0178]-[0189]). Dussaud discloses that the aqueous compositions according at 20° C. have a pH of less than 7, preferably less than 6, more preferably less than 5, and preferably more than 2 (claim 1, [0010]). Dussaud discloses sulfonic acid ([0035]). However, it is silent to gelling agent which is amphiphilic polymers containing a sulphonic group, in freeform or partially or totally neutralized form. Dubief et al remedies this deficiency.
Dubief teaches the use of a water-soluble or water-dispersible linear block copolymer comprising at least one hydrophilic block and at least one hydrophobic block (i.e. amphiphilic) to thicken or gel aqueous hair compositions containing at least one polymer that is beneficial for the hair, and also to aqueous hair compositions thickened or gelled with such a block copolymer (see entire document, for instance, abstract). Dubief discloses 2-acrylamido-2-methylpropanesulphonic acid (AMPS) polymers the product sold under the name Hostacerin® AMPS by the company Clariant (see entire document, for instance, [0005], claim 8). Dubief teaches that the block copolymers used in accordance with the present invention for thickening or gelling hair compositions—by virtue of their amphiphilic nature resulting from the presence, in the molecule, of a hydrophilic portion and a hydrophobic portion—give the thickened compositions excellent homogeneity, which is stable over time and which is reflected by a more transparent and more attractive appearance of the compositions ([0009]). Dubief teaches polymers comprising groups derived from sulphonic acid ([0117]). Dubief disclose alkyl radicals contain from 2 to 12 carbon atoms ([0148]). Dubief teaches an aqueous medium consist solely of water or of a mixture of water and one or more cosmetically acceptable water-miscible solvents such as C 1-C4 lower alcohols, in particular ethanol ([0207]). Dussaud discloses the preparations may be in particular in the form of a (aerosol) spray, (aerosol) foam, gel, gel spray, cream, lotion, liquid, serum or a wax, mousse, shampoo, such as pearl shampoo, anti-frizz shampoo etc. ([0247]).
Regarding instant claim 11, Dussaud discloses the aqueous composition for hair treatment according to the invention comprises water, preferably in an amount of at least 1 weight-%, more preferably at least 5 weight-%, more preferably at least 10 weight-%, more preferably at least 20 weight-%, and preferably up to 95 weight-% ([0012]). Example 16: Clear Hair Shampoo Composition discloses Tannic acid 1.5% in a composition. It teaches Tannic acid was Tannal from Ajinomoto; color enhancement additive ([0300]). Dussaud teaches in a preferred embodiment of the invention the hair treatment formulations optionally comprise the other auxiliary agents (i.e., tannin, gelling agents) which are commonly known for hair care compositions and are different from the aforementioned additives, in a concentration range from 0 to 25%, preferred 0 to 10%, more preferred 0 to 5%, even more preferred 0 to 2%, wherein each percentage is per weight based on the total weight of the aqueous composition. TABLE-US-00001 disclose preferred aqueous compositions according to the invention, comprise the components in the following amounts: diluents/solvents (water + alcohol) 0 to 95%, preferably 0.1 to 95 %, emollients/fatty substance (compound Y) 0 to 15%, tannins 0 to 15% preferably 0.1 to 15 % ([0221]).
Regarding instant claim 20, Dussaud teaches the hair treatment formulations comprising one or more additional auxiliaries such as lipids, amino acids, sugars, vitamins, antioxidants (see entire document, for instance [0178], [0218])
Regarding instant claim 9, Dussaud et al disclose composition wherein the at least one polyphenol compound X is tannic acid, the at least one C2-C5 monoalcohol is ethanol, the at least one gelling agent, wherein the pH is less than 7 and wherein the composition is in the form of a gel composition. Dubief teaches the at least one gelling agent comprises at least one 2-acrylamido-2-methylpropane sulfonate acid group.
It would have been obvious to one of ordinary skill in the art to select the amphiphilic polymer of Dubief et al. for use in the compositions of Dussaud. 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. One of ordinary skill in the art would have predicted success as all of the compositions are useful as hair treatments, and one of ordinary skill would have been motivated to select the amphiphilic polymers in order to provide the benefits of excellent homogeneity, stability, transparency, and more attractive appearance of the compositions, as taught by Dubief et al.
Regarding instant claim 10 ,13, and 16-19, recites the composition of claim 1, wherein the composition is substantially free of coloring agents. The Examiner looks to the Applicants’ specification for substantially free in paragraph [0031] to read “present in amounts not greater than 0.1 % by weight.” Dussaud et al. teach that the composition may comprise coloring agents, but also exemplifies compositions which are substantially free of coloring agents (e.g. paragraph 0178; Examples 7-9, 16, 17, etc.).
Claims 1, 3-13 and 16-20 are rejected under 35 U.S.C. 103 as being unpatentable over Dussaud et al (US 20180346653 A1) and WHITE et al (US 20190328627 A1).
Regarding instant claims 1, 3-8 and 12, Dussaud discloses aqueous compositions for hair treatment, comprising polyorganosiloxanes A) having di- and trihydroxy-substituted aromatic groups and at least one surfactant B) selected from cationic surfactants B1) and anionic surfactants B2) in a certain weight ratio of the surfactant B) to the polyorganosiloxane A), and said aqueous compositions having a certain pH (abstract). Dussaud teaches that the aqueous composition for hair treatment according to the invention comprises water, preferably in an amount of at least 1 weight-%, more preferably at least 5 weight-%, more preferably at least 10 weight-%, more preferably at least 15 weight-%, more preferably at least 20 weight-%, and preferably up to 95 weight-%, more preferably up to 90 weight-%, more preferably up to 85 weight-%, more preferably up to 80 weight-%, more preferably up to 75 weight-%, more preferably up to 70 weight-%, based on the total weight of the aqueous compositions ([0012]). Dussaud teaches that the term “organic diluents or solvents” refers to substances that may be used in particular to dilute/solvatize the at least one polyorganosiloxane A) according to the invention and the other optional other ingredients as mentioned before in addition to water in the aqueous compositions ([0191]). Suitable organic solvents are e.g., 2-methyl-1,3-propanediol, mono-, and dialcohols or the ethers and esters thereof, in particular mono-C1-C3-alkyl ether, ethanol ([0191]). Generally, the addition of certain amounts of short chained alcohols improves the homogeneity of the formulations and the penetration of the formulations into the hair ([0191]). Dussaud discloses that an “emollient” is a material that protects the skin against wetness or irritation, softens, smoothes, supples, coats, lubricates, moisturizes, protects and/or cleanses the skin ([0193]). Emollients include for example: a silicone compound, i.e. dimethicones, cyclomethicones, preferred D5 and D6 cyclosiloxanes, dimethicone copolyols or mixtures of cyclomethicones and dimethicone/vinyldimethicone cross polymer), polyols such as sorbitol, glycerin, propylene glycol, ethylene glycol, polyethylene glycol, caprylyl glycol, polypropylene glycol, 1,3-butane diol, hexylene glycol, isoprene glycol, xylitol, ethylhexyl palmitate, a triglyceride such as caprylic/capric triglyceride ([0193]). Dussaud teaches propylene glycol mono methyl! ether may be used in the composition with Example 16 (F18) ([0300]). See par. [0082] of the instant application, which establishes such compounds as a suitable compound Y. Dussaud teaches one or more tannins, specifically gallotannins, ellagitannins, complex tannins, condensed tannins, i.e., tannic acid ((i.e. at least one polyphenol X comprising at least two different phenol groups) and its other forms quercitannic acid and gallotannic acid may be used ([0207]; Examples). The most preferred tannin is tannic acid ([0212]). Dussaud discloses formulations may also comprise one or more additional auxiliaries, i.e., pH adjusting agents as described below, such acids, bases and buffers to adjust the pH value, thickeners, gelling agents ([0218]). Dussaud teaches the aqueous optionally comprise at least one or more additional additive, selected from: C) organic diluents or solvents (also referred to as non-aqueous diluent C)), D) proteins, preferably keratin, E) emollients or fatty substances, F) preservatives, G) skin protecting ingredients, H) conditioning agents, I) oxidizing agents, J) reducing agents, K) tannins, L) metal salts, M) further auxiliaries selected from pH adjusting agents, thickeners, lipids, amino acids, sugars, fragrances, sunscreen agents, vitamins, pearlescent agents, gelling agents ([0178]-[0189]). Dussaud discloses that the aqueous compositions according at 20° C. have a pH of less than 7, preferably less than 6, more preferably less than 5, and preferably more than 2 (claim 1, [0010]). Dussaud discloses sulfonic acid ([0035]). However, it is silent to gelling agent which is amphiphilic polymers containing a sulphonic group, in freeform or partially or totally neutralized form.
WHITE remedies this deficiency.
WHITE discloses a gel composition comprising (1) at least one C2-C5 alcohol, (2) at least one silica aerogel, (3) at least one powder, (4) at least one amphiphilic polymer and/or (5) at least one cooling agent (see entire document, for instance, [0009]). WHITE teaches composition is free of, or substantially free of, coloring agents ([0009]). WHITE discloses the compositions may comprise at least one amphiphilic polymer ([0093]). Preferably, the amphiphilic polymer comprises at least one ethylenically unsaturated monomer containing a sulphonic group, in freeform or partially or totally neutralized form and comprising at least one hydrophobic portion ([0093]). The hydrophobic portion present in these polymers preferably from 6 to 18 carbon atoms ([0093]). WHITE teaches saturated or unsaturated C6-C18 linear alkyl radicals (for example, n-hexyl, n-octyl, n-decyl, n-hexadecyl, n-dodecyl or oleyl) ([0094]). WHITE discloses hydrophobically-modified sulfonic acid copolymers ([0099]).
Regarding instant claim 9, Dussaud et al disclose composition wherein the at least one polyphenol compound X is tannic acid, the at least one C2-C5 monoalcohol is ethanol, the at least one gelling agent, wherein the pH is less than 7 and wherein the composition is in the form of a gel composition. WHITE teaches the at least one gelling agent comprises at least one 2-acrylamido-2-methylpropane sulfonate acid group ([0097]).
Thus, it would have been prima facie obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the composition as described by Dussaud et al with the composition of WHITE et al. One would be motivated to do so with a reasonable expectation of success of combining prior art elements according to known methods to yield predictable results to provide a gelling agent capable of providing thickening to a high-alcohol content solvent system.
Regarding instant claim 11, Dussaud discloses the aqueous composition for hair treatment according to the invention comprises water, preferably in an amount of at least 1 weight-%, more preferably at least 5 weight-%, more preferably at least 10 weight-%, more preferably at least 20 weight-%, and preferably up to 95 weight-% ([0012]). Example 16: Clear Hair Shampoo Composition discloses Tannic acid 1.5% in a composition. It teaches Tannic acid was Tannal from Ajinomoto; color enhancement additive ([0300]). Dussaud teaches in a preferred embodiment of the invention the hair treatment formulations optionally comprise the other auxiliary agents (i.e., tannin, gelling agents) which are commonly known for hair care compositions and are different from the aforementioned additives, in a concentration range from 0 to 25%, preferred 0 to 10%, more preferred 0 to 5%, even more preferred 0 to 2%, wherein each percentage is per weight based on the total weight of the aqueous composition. TABLE-US-00001 disclose preferred aqueous compositions according to the invention, comprise the components in the following amounts: diluents/solvents (water + alcohol) 0 to 95%, preferably 0.1 to 95 %, emollients/fatty substance (compound Y) 0 to 15%, tannins 0 to 15% preferably 0.1 to 15 % ([0221]).
Regarding instant claim 20, Dussaud teaches the hair treatment formulations comprising one or more additional auxiliaries such as lipids, amino acids, sugars, vitamins, antioxidants (see entire document, for instance [0178], [0218])
Regarding instant claim 10 ,13, and 16-19, recites the composition of claim 1, wherein the composition is substantially free of coloring agents. The Examiner looks to the Applicants’ specification for substantially free in paragraph [0031] to read “present in amounts not greater than 0.1 % by weight.” WHITE teaches composition is free of, or substantially free of, coloring agents ([0009]).
Response to Arguments
Applicant's arguments filed 11/10/2025 have been fully considered but they are not persuasive in view of the modified grounds of rejection as necessitated by amendment.
Applicant argues that the ingredients recited by Dussaud et al. are optional and no suggestion or motivation could have existed to place all these ingredients in a single composition. This is not found persuasive. “The prior art’s mere disclosure of more than one alternative does not constitute a teaching away from any of these alternatives because such disclosure does not criticize, discredit, or otherwise discourage the solution claimed....” In re Fulton, 391 F.3d 1195, 1201, 73 USPQ2d 1141, 1146 (Fed. Cir. 2004) (MPEP 2145 D). The Examiner is not persuaded that the number of potential combinations is so great that the conclusion of obviousness is called into question. Merck & Co., Inc. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989) ("[D]isclos[ing] a multitude of effective combinations does not render any particular formulation less obvious. This is especially true because the claimed composition is used for the identical purpose taught by the prior art."). Dussaud positively recites the noted ingredients. It is unclear why one of ordinary skill in the art would not select them given the direct teachings of Dussaud.
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 § 2146 et seq. 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 filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual 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/apply/applying-online/eterminal-disclaimer.
Claims 1, 5-8, and 10 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-5, 9 and 13-14 of copending Application No. 17/731,733 in view of WHITE et al (US 20190328627 A1). Although the claims at issue are not identical, they are not patentably distinct from each other. This is a provisional nonstatutory double patenting rejection.
The copending claims are directed to a composition comprising (a) at least one polyphenol X comprising at least two different phenol groups; (b) at least one (poly)glycerolated and/or polyoxyalkylenated nonionic compound Y; (c) a solvent system comprising (i) water in an amount of at least about 10% by weight with respect to the total weight of the composition; and (ii) at least one C2-C5 monoalcohol in an amount effective to inhibit formation of a precipitate of compound X and compound Y in the composition prior to application, wherein the solvent system is devoid of oil. The copending claims disclose composition in the form of a gel. The polyphenol compound X is tannic acid. The copending claims disclose at least one (poly)glycerolated and/or polyoxyalkylenated nonionic compound Y has a molar mass greater than 200 g/mol. The composition is substantially free of coloring agents. The C2-C5 monoalcohol is ethanol as well as the pH is less than 7.
However, the copending claims do not explicitly teach component (d) at least one gelling agent which is an amphiphilic polymers containing a sulphonic group, in freeform or partially or totally neutralized form.
WHITE discloses a gel composition comprising (1) at least one C2-C5 alcohol, (2) at least one silica aerogel, (3) at least one powder, (4) at least one amphiphilic polymer and/or (5) at least one cooling agent (see entire document, for instance, [0009]). WHITE teaches composition is free of, or substantially free of, coloring agents ([0009]). WHITE discloses the compositions may comprise at least one amphiphilic polymer ([0093]). Preferably, the amphiphilic polymer comprises at least one ethylenically unsaturated monomer containing a sulphonic group, in freeform or partially or totally neutralized form and comprising at least one hydrophobic portion ([0093]). The hydrophobic portion present in these polymers preferably from 6 to 18 carbon atoms ([0093]). WHITE teaches saturated or unsaturated C6-C18 linear alkyl radicals (for example, n-hexyl, n-octyl, n-decyl, n-hexadecyl, n-dodecyl or oleyl) ([0094]). WHITE discloses hydrophobically-modified sulfonic acid copolymers ([0099]).
It would have been obvious to one of ordinary skill in the art at the time of filing to include the amphiphilic polymers containing a sulphonic group, in freeform or partially or totally neutralized form of WHITE et al. in the instant claimed hair composition. 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. One would be motivated to do so with a reasonable expectation of success of combining prior art elements according to known methods to yield predictable results to provide a gelling agent capable of providing thickening to a high-alcohol content solvent system. One would have been motivated with a reasonable expectation of success to select a known material for incorporation into a composition, based on its recognized suitability for its intended use (see MPEP §2144.07).
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1, 5-8 ,10 and 20 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1-7, 11-12 and 20 of copending Application No. 17/731,759 in view of WHITE et al (US 20190328627 A1). Although the claims at issue are not identical, they are not patentably distinct from each other. This is a provisional nonstatutory double patenting rejection.
The copending claims are directed to a composition comprising (1) at least one polyphenol X comprising at least two different phenol groups; (2) at least one nonionic compound Y which is a surfactant having a hydrophilic-lipophilic balance (HLB) greater than or equal to 7, has at least one carbon chain having at least 8 carbon atoms, and has at least one (poly)glycerolated chain and/or polyoxyalkylenated chain having groups for reacting with the phenol groups of the at least one polyphenol X; and (3) a solvent system comprising (i) water in an amount of at least about 10% by weight with respect to the total weight of the composition; and (ii) at least one C2-C5 monoalcohol in an amount effective to inhibit formation of a precipitate of compound X and compound Y in the composition prior to application and(4) optionally at least one cosmetic or dermatological active agent. The copending claims disclose composition in the form of a gel. The (poly)glycerolated and/or polyoxyalkylenated nonionic compound Y has a molar mass greater than 200 g/mol. The copending claims disclose the composition is substantially free of coloring agents. The polyphenol compound X is tannic acid. The C2-C5 monoalcohol is ethanol as well as the pH is less than 7. The composition is substantially free of coloring agents. The composition comprises at least one cosmetic or dermatological active agent.
However, the copending claims do not explicitly teach component (d) at least one gelling agent which is an amphiphilic polymers containing a sulphonic group, in freeform or partially or totally neutralized form.
WHITE discloses a gel composition comprising (1) at least one C2-C5 alcohol, (2) at least one silica aerogel, (3) at least one powder, (4) at least one amphiphilic polymer and/or (5) at least one cooling agent (see entire document, for instance, [0009]). WHITE teaches composition is free of, or substantially free of, coloring agents ([0009]). WHITE discloses the compositions may comprise at least one amphiphilic polymer ([0093]). Preferably, the amphiphilic polymer comprises at least one ethylenically unsaturated monomer containing a sulphonic group, in freeform or partially or totally neutralized form and comprising at least one hydrophobic portion ([0093]). The hydrophobic portion present in these polymers preferably from 6 to 18 carbon atoms ([0093]). WHITE teaches saturated or unsaturated C6-C18 linear alkyl radicals (for example, n-hexyl, n-octyl, n-decyl, n-hexadecyl, n-dodecyl or oleyl) ([0094]). WHITE discloses hydrophobically-modified sulfonic acid copolymers ([0099]).
It would have been obvious to one of ordinary skill in the art at the time of filing to include the amphiphilic polymers containing a sulphonic group, in freeform or partially or totally neutralized form of WHITE et al. in the instant claimed hair composition. 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. One would be motivated to do so with a reasonable expectation of success of combining prior art elements according to known methods to yield predictable results to provide a gelling agent capable of providing thickening to a high-alcohol content solvent system. One would have been motivated with a reasonable expectation of success to select a known material for incorporation into a composition, based on its recognized suitability for its intended use (see MPEP §2144.07).
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1, 5-8 and 10 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim claims 1-20 of copending Application No. 17/731,816 in view of WHITE et al (US 20190328627 A1). Although the claims at issue are not identical, they are not patentably distinct from each other. This is a provisional nonstatutory double patenting rejection.
The copending claims are directed to a composition comprising (a) at least one polyphenol X comprising at least two different phenol groups; (b) at least one (poly)glycerolated and/or polyoxyalkylenated nonionic compound Y; (c) a solvent system comprising (i) water in an amount of at least about 10% by weight with respect to the total weight of the composition; and (ii) at least one C2-C5 monoalcohol in an amount effective to inhibit formation of a precipitate of compound X and compound Y in the composition prior to application. The copending claims disclose composition in the form of a gel. The at least one (poly)glycerolated and/or polyoxyalkylenated nonionic compound Y has a molar mass greater than 200 g/mol. The copending claims disclose the polyphenol compound X is tannic acid. The at least one C2-C5 monoalcohol is ethanol as well as the pH is less than 7. The copending claims disclose the composition is substantially free of coloring agents. The copending claims disclose at least one gelling agent which is an amphiphilic polymer.
However, the copending claims do not explicitly teach component (d) at least one gelling agent which is an amphiphilic polymers containing a sulphonic group, in freeform or partially or totally neutralized form.
WHITE discloses a gel composition comprising (1) at least one C2-C5 alcohol, (2) at least one silica aerogel, (3) at least one powder, (4) at least one amphiphilic polymer and/or (5) at least one cooling agent (see entire document, for instance, [0009]). WHITE teaches composition is free of, or substantially free of, coloring agents ([0009]). WHITE discloses the compositions may comprise at least one amphiphilic polymer ([0093]). Preferably, the amphiphilic polymer comprises at least one ethylenically unsaturated monomer containing a sulphonic group, in freeform or partially or totally neutralized form and comprising at least one hydrophobic portion ([0093]). The hydrophobic portion present in these polymers preferably from 6 to 18 carbon atoms ([0093]). WHITE teaches saturated or unsaturated C6-C18 linear alkyl radicals (for example, n-hexyl, n-octyl, n-decyl, n-hexadecyl, n-dodecyl or oleyl) ([0094]). WHITE discloses hydrophobically-modified sulfonic acid copolymers ([0099]).
It would have been obvious to one of ordinary skill in the art at the time of filing to include the amphiphilic polymers containing a sulphonic group, in freeform or partially or totally neutralized form of WHITE et al. in the instant claimed hair composition. 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. One would be motivated to do so with a reasonable expectation of success of combining prior art elements according to known methods to yield predictable results to provide a gelling agent capable of providing thickening to a high-alcohol content solvent system. One would have been motivated with a reasonable expectation of success to select a known material for incorporation into a composition, based on its recognized suitability for its intended use (see MPEP §2144.07).
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1 and 7 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 17-19,25-26 and 32 of copending Application No. 17/731,802 in view of WHITE et al (US 20190328627 A1). Although the claims at issue are not identical, they are not patentably distinct from each other. This is a provisional nonstatutory double patenting rejection.
The copending claims are directed to a composition comprising: (a) a solvent system comprising (i) water in an amount of at least about 10% by weight with respect to the total weight of the composition; and (ii) at least one C2-C5 monoalcohol in a concentration by weight in the composition that is about 55% or less and wherein the at least one C2-C5 monoalcohol is present in an amount effective to inhibit formation of a precipitate of compound X and compound Y in the composition prior to application; (b) at least one polyphenol X comprising at least two different phenol groups (c) at least one polyoxyalkylenated nonionic compound Y . The copending claims disclose the polyphenol compound X is tannic acid. The at least one C2-C5 monoalcohol is ethanol.
However, the copending claims do not explicitly teach component (d) at least one gelling agent which is an amphiphilic polymers containing a sulphonic group, in freeform or partially or totally neutralized form.
WHITE discloses a gel composition comprising (1) at least one C2-C5 alcohol, (2) at least one silica aerogel, (3) at least one powder, (4) at least one amphiphilic polymer and/or (5) at least one cooling agent (see entire document, for instance, [0009]). WHITE teaches composition is free of, or substantially free of, coloring agents ([0009]). WHITE discloses the compositions may comprise at least one amphiphilic polymer ([0093]). Preferably, the amphiphilic polymer comprises at least one ethylenically unsaturated monomer containing a sulphonic group, in freeform or partially or totally neutralized form and comprising at least one hydrophobic portion ([0093]). The hydrophobic portion present in these polymers preferably from 6 to 18 carbon atoms ([0093]). WHITE teaches saturated or unsaturated C6-C18 linear alkyl radicals (for example, n-hexyl, n-octyl, n-decyl, n-hexadecyl, n-dodecyl or oleyl) ([0094]). WHITE discloses hydrophobically-modified sulfonic acid copolymers ([0099]).
It would have been obvious to one of ordinary skill in the art at the time of filing to include the amphiphilic polymers containing a sulphonic group, in freeform or partially or totally neutralized form of WHITE et al. in the instant claimed hair composition. 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. One would be motivated to do so with a reasonable expectation of success of combining prior art elements according to known methods to yield predictable results to provide a gelling agent capable of providing thickening to a high-alcohol content solvent system. One would have been motivated with a reasonable expectation of success to select a known material for incorporation into a composition, based on its recognized suitability for its intended use (see MPEP §2144.07).
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1, 5,7, and 20 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1-3, 8-10,13-15 and 21 of copending Application No. 17/731,809 in view of WHITE et al (US 20190328627 A1). Although the claims at issue are not identical, they are not patentably distinct from each other. This is a provisional nonstatutory double patenting rejection.
The copending claims are directed to a composition comprising: (a) a solvent system comprising (i) water in an amount of at least about 10% by weight with respect to the total weight of the composition; and (ii) at least one C2-C5 monoalcohol in a concentration by weight in the composition that is about 55% or less and wherein at least one C2-C5 monoalcohol is present in an amount effective to inhibit formation of a precipitate of compound X and compound Y in the composition prior to application; (b) at least one polyphenol X comprising at least two different phenol groups (c) at least one glycerolated nonionic compound Y. The copending claims disclose the at least one polyphenol compound X is tannic acid. The at least one C2-C5 monoalcohol is ethanol. The composition comprises at least one cosmetic or dermatological active agent.
However, the copending claims do not explicitly teach component (d) at least one gelling agent which is an amphiphilic polymers containing a sulphonic group, in freeform or partially or totally neutralized form.
WHITE discloses a gel composition comprising (1) at least one C2-C5 alcohol, (2) at least one silica aerogel, (3) at least one powder, (4) at least one amphiphilic polymer and/or (5) at least one cooling agent (see entire document, for instance, [0009]). WHITE teaches composition is free of, or substantially free of, coloring agents ([0009]). WHITE discloses the compositions may comprise at least one amphiphilic polymer ([0093]). Preferably, the amphiphilic polymer comprises at least one ethylenically unsaturated monomer containing a sulphonic group, in freeform or partially or totally neutralized form and comprising at least one hydrophobic portion ([0093]). The hydrophobic portion present in these polymers preferably from 6 to 18 carbon atoms ([0093]). WHITE teaches saturated or unsaturated C6-C18 linear alkyl radicals (for example, n-hexyl, n-octyl, n-decyl, n-hexadecyl, n-dodecyl or oleyl) ([0094]). WHITE discloses hydrophobically-modified sulfonic acid copolymers ([0099]).
It would have been obvious to one of ordinary skill in the art at the time of filing to include the amphiphilic polymers containing a sulphonic group, in freeform or partially or totally neutralized form of WHITE et al. in the instant claimed hair composition. 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. One would be motivated to do so with a reasonable expectation of success of combining prior art elements according to known methods to yield predictable results to provide a gelling agent capable of providing thickening to a high-alcohol content solvent system. One would have been motivated with a reasonable expectation of success to select a known material for incorporation into a composition, based on its recognized suitability for its intended use (see MPEP §2144.07).
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1, 3-8, 10-12, 16-17, and 20 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3-5, 8, 10 and 14 of copending Application No. 17/731,863 in view of WHITE et al (US 20190328627 A1). Although the claims at issue are not identical, they are not patentably distinct from each other. This is a provisional nonstatutory double patenting rejection.
The copending claims are directed to a composition comprising (1) at least one polyphenol X comprising at least two different phenol groups; (2) at least one (poly)glycerolated and/or polyoxyalkylenated nonionic compound Y; (3) a solvent system comprising at least one C2-C5 monoalcohol in an amount effective to inhibit formation of a precipitate of compound X and compound Y in the composition prior to application; and optionally (4) at least one agent selected from the group consisting of (i) at least one chelating agent; (ii) at least one gelling agent; (iii) at least one antioxidant selected from the group consisting of ascorbic acid compounds, sulfur-containing antioxidants, and mixtures thereof, (iv) at least one non-mineral filler, and (v) mixtures thereof. The at least one (poly)glycerolated and/or polyoxyalkylenated nonionic compound Y has a molar mass greater than 200 g/mol. The copending claims disclose the at least one polyphenol compound X is tannic acid. The C2-C5 monoalcohol is ethanol. The pH is less than 7. The composition comprises at least one cosmetic or dermatological active agent.
However, the copending claims do not explicitly teach component (d) at least one gelling agent which is an amphiphilic polymers containing a sulphonic group, in freeform or partially or totally neutralized form.
WHITE discloses a gel composition comprising (1) at least one C2-C5 alcohol, (2) at least one silica aerogel, (3) at least one powder, (4) at least one amphiphilic polymer and/or (5) at least one cooling agent (see entire document, for instance, [0009]). WHITE teaches composition is free of, or substantially free of, coloring agents ([0009]). WHITE discloses the compositions may comprise at least one amphiphilic polymer ([0093]). Preferably, the amphiphilic polymer comprises at least one ethylenically unsaturated monomer containing a sulphonic group, in freeform or partially or totally neutralized form and comprising at least one hydrophobic portion ([0093]). The hydrophobic portion present in these polymers preferably from 6 to 18 carbon atoms ([0093]). WHITE teaches saturated or unsaturated C6-C18 linear alkyl radicals (for example, n-hexyl, n-octyl, n-decyl, n-hexadecyl, n-dodecyl or oleyl) ([0094]). WHITE discloses hydrophobically-modified sulfonic acid copolymers ([0099]).
It would have been obvious to one of ordinary skill in the art at the time of filing to include the amphiphilic polymers containing a sulphonic group, in freeform or partially or totally neutralized form of WHITE et al. in the instant claimed hair composition. 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. One would be motivated to do so with a reasonable expectation of success of combining prior art elements according to known methods to yield predictable results to provide a gelling agent capable of providing thickening to a high-alcohol content solvent system. One would have been motivated with a reasonable expectation of success to select a known material for incorporation into a composition, based on its recognized suitability for its intended use (see MPEP §2144.07).
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1, 3-8, 10, 16-17, and 20 provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-2,5,8,13-15,32, and 34-35. of copending Application No. 18/256,765 in view of WHITE et al (US 20190328627 A1). Although the claims at issue are not identical, they are not patentably distinct from each other. This is a provisional nonstatutory double patenting rejection.
The copending claims are directed to a process for coating keratin materials, notably for care and/or makeup, more particularly for makeup, which consists in applying to said materials a coating agent formed in situ by hydrogen bonding interaction of at least one polyphenol X comprising at least two different phenol groups with at least one monoglycerolated and/or polyglycerolated polyoxyalkylenated nonionic compound Y with a molar mass greater than 200 g/mol. The polyphenol X is chosen from catechin tannins, notably chosen from gallotannins and ellagitannins. The polyphenol X is tannic acid. The compound(s) Y are chosen from fatty acid esters of polyglycerol, in particular polyglyceryl-10 caprate, polyglyceryl-10 laurate; polyethylene glycols such as PEG-180; PEG-40 hydrogenated castor oil; polysorbates, in particular polysorbate 80; polyoxyalkylenated ester waxes such as polyoxyethylenated (120 OE) jojoba wax; and mixtures thereof. The water is present in a concentration of greater than 30% by weight. The pH of composition (A) and/or of composition (B) is less than 8.0, more preferentially less than 7.0, more particularly ranging from 2 to 6. The hydrogen bonding-inhibiting agent is chosen from organic solvents that are capable of breaking hydrogen bonding, in particular chosen from monoalcohols including from 2 to 8 carbon atoms, and more particularly ethanol.
While the copending claims teach all of the instantly claimed elements, the teaching does not rise to the level of statutory double patenting.
However, the copending claims do not explicitly teach component (d) at least one gelling agent which is an amphiphilic polymers containing a sulphonic group, in freeform or partially or totally neutralized form.
WHITE discloses a gel composition comprising (1) at least one C2-C5 alcohol, (2) at least one silica aerogel, (3) at least one powder, (4) at least one amphiphilic polymer and/or (5) at least one cooling agent (see entire document, for instance, [0009]). WHITE teaches composition is free of, or substantially free of, coloring agents ([0009]). WHITE discloses the compositions may comprise at least one amphiphilic polymer ([0093]). Preferably, the amphiphilic polymer comprises at least one ethylenically unsaturated monomer containing a sulphonic group, in freeform or partially or totally neutralized form and comprising at least one hydrophobic portion ([0093]). The hydrophobic portion present in these polymers preferably from 6 to 18 carbon atoms ([0093]). WHITE teaches saturated or unsaturated C6-C18 linear alkyl radicals (for example, n-hexyl, n-octyl, n-decyl, n-hexadecyl, n-dodecyl or oleyl) ([0094]). WHITE discloses hydrophobically-modified sulfonic acid copolymers ([0099]).
It would have been obvious to one of ordinary skill in the art at the time of filing to include the amphiphilic polymers containing a sulphonic group, in freeform or partially or totally neutralized form of WHITE et al. in the instant claimed hair composition. 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. One would be motivated to do so with a reasonable expectation of success of combining prior art elements according to known methods to yield predictable results to provide a gelling agent capable of providing thickening to a high-alcohol content solvent system. One would have been motivated with a reasonable expectation of success to select a known material for incorporation into a composition, based on its recognized suitability for its intended use (see MPEP §2144.07).
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1, 3-8, 10, 16-17, and 20 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1,5,11,15-18,25 and 34-35 of copending Application No. 18/256,753 in view of WHITE et al (US 20190328627 A1). Although the claims at issue are not identical, they are not patentably distinct from each other. This is a provisional nonstatutory double patenting rejection.
The copending claims are directed to a process for making up keratin material, comprising successively applying to said material, independently of the order: a) a coat comprising at least one coating agent formed by hydrogen bonding interaction of at least one polyphenol X comprising at least two different phenol groups with at least one compound Y comprising at least two functional groups Gy, which may be identical or different, which are capable of forming at least two hydrogen bonds with said phenol groups of said polyphenol. The polyphenol X is tannic acid. The compound(s) Y are nonionic. A coat formed by applying onto the keratin material, i) simultaneously; or ii) in the form of an extemporaneous mixture at the time of use; or iii) successively, irrespective of the order: 1) at least one composition (A) comprising, in a physiologically acceptable medium, at least one polyphenol X as defined according to claim 1; and 2) at least one composition (B) comprising, in a physiologically acceptable medium, at least one compound Y .one aqueous phase (water). At least one monoalcohol including from 2 to 8 carbon atoms.
However, the copending claims do not explicitly teach component (d) at least one gelling agent which is an amphiphilic polymers containing a sulphonic group, in freeform or partially or totally neutralized form.
WHITE discloses a gel composition comprising (1) at least one C2-C5 alcohol, (2) at least one silica aerogel, (3) at least one powder, (4) at least one amphiphilic polymer and/or (5) at least one cooling agent (see entire document, for instance, [0009]). WHITE teaches composition is free of, or substantially free of, coloring agents ([0009]). WHITE discloses the compositions may comprise at least one amphiphilic polymer ([0093]). Preferably, the amphiphilic polymer comprises at least one ethylenically unsaturated monomer containing a sulphonic group, in freeform or partially or totally neutralized form and comprising at least one hydrophobic portion ([0093]). The hydrophobic portion present in these polymers preferably from 6 to 18 carbon atoms ([0093]). WHITE teaches saturated or unsaturated C6-C18 linear alkyl radicals (for example, n-hexyl, n-octyl, n-decyl, n-hexadecyl, n-dodecyl or oleyl) ([0094]). WHITE discloses hydrophobically-modified sulfonic acid copolymers ([0099]).
It would have been obvious to one of ordinary skill in the art at the time of filing to include the amphiphilic polymers containing a sulphonic group, in freeform or partially or totally neutralized form of WHITE et al. in the instant claimed hair composition. 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. One would be motivated to do so with a reasonable expectation of success of combining prior art elements according to known methods to yield predictable results to provide a gelling agent capable of providing thickening to a high-alcohol content solvent system. One would have been motivated with a reasonable expectation of success to select a known material for incorporation into a composition, based on its recognized suitability for its intended use (see MPEP §2144.07).
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1, 3-8, 10, 16-17, and 20 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1--11. of copending Application No. 19/338,274 in view of WHITE et al (US 20190328627 A1). Although the claims at issue are not identical, they are not patentably distinct from each other. This is a provisional nonstatutory double patenting rejection.
The copending claims are directed to a method of making up keratinous material comprising applying a color coat composition and a composition comprising (a) at least one polyphenol X comprising at least two different phenol groups; (b) at least one (poly)glycerolated and/or polyoxyalkylenated nonionic compound Y; (c) a solvent system comprising (i) water in an amount of at least about 10% by weight with respect to the total weight of the composition; and (ii) at least one C2-C5 monoalcohol in an amount effective to inhibit formation of a precipitate of compound X and compound Y in the composition prior to application; (d) at least one chelating agent; and (e) at least one ascorbic acid compound to the keratinous material. The composition is in the form of a gel composition. The at least one (poly)glycerolated and/or polyoxyalkylenated nonionic compound Y has a molar mass greater than 200 g/mo. The at least one polyphenol compound X is tannic acid. The at least one C2- C5 monoalcohol is ethanol. The at least one ascorbic acid compound is ascorbyl glucoside. The at least one ascorbic acid compound is ascorbic acid. The composition has a pH which is less than 7. The at least one polyphenol compound X is tannic acid, the at least one C2-C5 monoalcohol is ethanol, the at least one ascorbic acid compound is ascorbyl glucoside, wherein the composition has a pH which is less than 7 and wherein the composition is in the form of a gel composition. The composition is substantially free of coloring agents. The composition comprises at least one gelling agent which is an amphiphilic polymer.
However, the copending claims do not explicitly teach component (d) at least one gelling agent which is an amphiphilic polymers containing a sulphonic group, in freeform or partially or totally neutralized form.
WHITE discloses a gel composition comprising (1) at least one C2-C5 alcohol, (2) at least one silica aerogel, (3) at least one powder, (4) at least one amphiphilic polymer and/or (5) at least one cooling agent (see entire document, for instance, [0009]). WHITE teaches composition is free of, or substantially free of, coloring agents ([0009]). WHITE discloses the compositions may comprise at least one amphiphilic polymer ([0093]). Preferably, the amphiphilic polymer comprises at least one ethylenically unsaturated monomer containing a sulphonic group, in freeform or partially or totally neutralized form and comprising at least one hydrophobic portion ([0093]). The hydrophobic portion present in these polymers preferably from 6 to 18 carbon atoms ([0093]). WHITE teaches saturated or unsaturated C6-C18 linear alkyl radicals (for example, n-hexyl, n-octyl, n-decyl, n-hexadecyl, n-dodecyl or oleyl) ([0094]). WHITE discloses hydrophobically-modified sulfonic acid copolymers ([0099]).
It would have been obvious to one of ordinary skill in the art at the time of filing to include the amphiphilic polymers containing a sulphonic group, in freeform or partially or totally neutralized form of WHITE et al. in the instant claimed hair composition. 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. One would be motivated to do so with a reasonable expectation of success of combining prior art elements according to known methods to yield predictable results to provide a gelling agent capable of providing thickening to a high-alcohol content solvent system. One would have been motivated with a reasonable expectation of success to select a known material for incorporation into a composition, based on its recognized suitability for its intended use (see MPEP §2144.07).
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Response to Arguments
Applicant's arguments filed 11/10/2025 have been fully considered but they are not persuasive in view of the modified grounds of rejection as necessitated by amendment.
Conclusion
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/JANET JOSEPH/Patent Examiner, Art Unit 1611
/TREVOR LOVE/Primary Examiner, Art Unit 1611