DETAILED ACTION
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 November 17, 2025 has been entered.
Previous Rejections
Applicant’s arguments, filed November 17, 2025, have been fully considered. Rejections and/or objections not reiterated from previous office actions are hereby withdrawn. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application.
Claim Status
Claims 3 – 9 and 12 – 18 are withdrawn.
Claim 21 is newly added.
Claims 1, 2 10, 11, and 19 – 21 are examined here-in.
Claim Objections
Claim 21 is objected to because of the following informalities:
Claim 21 depends on claim 1. In claim 1 “waste foodstuffs” is plural, in claim 21 “waste foodstuff is” is singular. A possible correction is to change “waste foodstuff is” in claim 21 to “waste foodstuffs are”.
Appropriate correction is required.
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 non-obviousness.
Claims 1, 2, 10, 11, and 19 - 21 are rejected under 35 U.S.C. 103 as being unpatentable over Recanati (WO 2009/078017 A2) in view of Yang (Yang, S. et. Al. “Melanoidins from Chinese distilled spent grain: content, preliminary structure, antioxidant, and ACE-inhibitory activities in vitro” Foods, 2019, 8, 516, pages 1 – 15).
Recanati teaches hair coloring compositions comprising melanoidins (abstract).
Recanati teaches melanoidins are brown colored compounds often found in cooked foods (page 3 lines 29 – 32, page 20 lines 4 - 10).
Recanati teaches melanoidin as hair coloring agents (page 20 lines 9 – 10). Recanati teaches melanoidins can have different shades, which can lead to different colors for hair-coloring compositions (page 23 lines 30 – 34).
Recanati teaches the hair coloring composition may be in powder or liquid form (page 13 line 11).
Recanati does not teach the specific molecular weight of melanoidins.
Yang teaches a missing element of Recanati.
Yang teaches distilled spent grain contains melanoidins and suggests use of distilled spent grain by-product as a source for melanoidins (abstract). Yang teaches that melanoidins from brewers’ spent grain and distilled spent grain with molecular weights greater than 10 kDa have high phenolic content, protein content, and antioxidant activity (page 2 lines 17 – 19).
Yang shows that higher molecular weight melanoidins have increased absorbance compared to lower molecular weight melanoidins, suggesting that higher molecular weight melanoidins have more chromophores (page 10 section 3.5.3, Figure 6).
It would have been prima facie obvious to a person of ordinary skill in the art before the effective filing date of the instant application to combine the teachings of Recanati and Yang to make a cosmetic composition with high molecular weight melanoidins. A person of ordinary skill in the art would have been motivated to include high molecular weight melanoidins in a cosmetic composition for hair-dyeing because Yang teaches that higher molecular weight melanoidins have more chromophores than lower molecular weight melanoidins (Yang page 10 section 3.5.3, Figure 6). The combination of Recanati and Yang’s teachings to make a cosmetic composition with high molecular weight melanoidins is prima facie obvious according to MPEP 2143(I)(a) as combining prior art elements according to known methods to yield predictable results.
The combination of Recanati’s teaching to include melanoidins in hair coloring compositions with Yang’s teaching that higher molecular weight melanoidins have increased absorbance compared to lower molecular weight melanoidins (page 10 section 3.5.3, Figure 6) reads on instant claim 1. A person of ordinary skill in the art would be motivated to use high molecular weight melanoidins in a hair coloring composition as taught by Recanati because Yang teaches that higher molecular weight melanoidins have more chromophores (page 10 section 3.5.3, Figure 6). Furthermore, Recanati and Yang each teach melanoidins are present in foodstuffs (Recanati page 3 lines 29 – 32, page 20 lines 4 – 10, Yang abstract) and Yang specifically suggests the use of distilled spent grain by-product as a source for melanoidins (abstract), reading on the limitation “from waste foodstuffs” as recited in claim 1.
As noted above, a person of ordinary skill in the art would be motivated to use high molecular weight melanoidins in a hair coloring composition as taught by Recanati because Yang teaches that higher molecular weight melanoidins have more chromophores (page 10 section 3.5.3, Figure 6). Therefore, Yang’s teaching for high molecular weight melanoidins, including those of 30 – 50 kDa, 50 – 100 kDa, and greater than 100 kDa (Figure 6) overlaps on the instantly claimed range of 10 kDa to 300 kDa as recited in claim 1. Claimed ranges that overlap teachings of the prior art are prima facie obvious according to MPEP 2144.05(i).
Recanati and Yang do not teach that caffeine accompanies melanoidins or that caffeine should be added to the hair-dyeing composition, reading on instant claim 1’s recitation “substantially free of caffeine”.
Recanati’s teaching that the hair coloring composition may be in powder or liquid form (page 13 line 11) reads on instant claim 2.
Recanati’s teaching that melanoidins can have different shades which can lead to different colors for hair-coloring compositions (page 23 lines 30 – 34) in combination with Yang’s teachings that melanoidins with higher molecular weight have greater absorbance (Figure 6), specifically that melanoidins greater than 100 kDa have greater absorbance than those with 50 – 100 kDa or 30 – 50 kDa, would lead a person of ordinary skill in the art to the understanding that melanoidins greater than 100 kDa would lead to a darker hair coloring composition and melanoidins with lower molecular weights of 50 – 100 kDa or 30 – 50 kDa would lead to a lighter hair coloring composition. Said differently, Recanati teaches that the color of a hair-coloring composition can be modulated by choosing which melanoidins to include, and Yang teaches melanoidin absorbance is correlated with molecular weight (Figure 6), therefore, a person of ordinary skill in the art would recognize that melanoidins greater than 100 kDa would result in a darker hair-coloring composition than one with melanoidins of 50 – 100 kDa or 30 – 50 kDa. A hair-coloring composition with melanoidins of 50 – 100 kDa or 30 – 50 kDa reads on the instantly claimed ranges of 10 – 100 kDa, 10 – 30 kDa or 50 – 100 kDa, and 30 – 50 kDa as recited in claims 10, 11, and 20.
Claim 19’s limitation of a process for obtaining at least one melanoidin fraction from a foodstuff is a product-by-process limitation. Product-by-process claims are not limited to the manipulations of the recited steps, only the structure implied by the steps. Even though product-by-process claims are written as being defined by the process, the determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production.
If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process. In the instant case, Recanati’s hair-dyeing composition containing melanoidins (in view of Yang’s teachings for higher molecular weight melanoidins) reads on the claimed cosmetic composition. As such, the patentability of the instant composition does not depend on its method of production, and the Applicant’s limitation in claim 19 regarding the process obtaining melanoidins by a process for obtaining at least one melanoidin fraction from a foodstuff is not patentable, in view of the current record, given the teachings of the combination of Recanati and Yang (MPEP 2113).
Yang’s teaching to use of distilled spent grain by-product or brewer’s spent grain as a source for melanoidins (abstract, page 2 lines 17 – 19) reads on instant claim 21.
Examiner’s Reply to Attorney Arguments Dated November 17, 2025
Applicant’s arguments with respect to the 35 U.S.C. 103 rejection over Lavecchia and Bekedam have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
All claims are rejected. No claims are allowed.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Toriana N. Vigil whose telephone number is (571)270-7549. The examiner can normally be reached Monday - Friday 9:00 a.m. - 5:00 p.m. EST.
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/TORIANA N. VIGIL/Examiner, Art Unit 1612
/SAHANA S KAUP/Supervisory Primary Examiner, Art Unit 1612