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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 23 January 2026 has been entered, and the arguments presented therein 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 Rejections and/or objections not reiterated from previous office actions are hereby withdrawn.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 Interpretation
Claim 1 recites the phrase “cationic associative polymer.” The instant specification defines the phrase “associative polymer” in the following manner, as of page 2, bottom two lines, relevant text reproduced below.
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In view of this definition, the skilled artisan would have expected all cationic polymers having the recited structure to have been cationic associative polymers. This is because cationic polymers would have been capable of reversibly associating with anions in water due to the formation of reversible ion-ion attractive interactions between ions of opposing charges. As such, the term “associative” is not understood to further limit the claim scope. All cationic polymers with the required structural features are understood to read on the claimed requirements regarding this issue.
Claim Objections
Claim 16 is objected to because of the following informalities: Claim 16 recites the term “attoms.” This appears to be a mis-spelling of “atoms.” Appropriate correction is required.
Substantial Duplicate Claims
Applicant is advised that should claim 15 be found allowable, claim 16 will be objected to under 37 CFR 1.75 as being a substantial duplicate thereof. When two claims in an application are duplicates or else are so close in content that they both cover the same thing, despite a slight difference in wording, it is proper after allowing one claim to object to the other as being a substantial duplicate of the allowed claim. See MPEP § 608.01(m).
Claim Rejections - 35 USC § 112(b) – Indefiniteness
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 15-16 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
Claims 15-16 recite that the associative cationic polymers are chosen from 10 to 22 carbon atoms. This is indefinite for at least the following reasons.
First, there does not appear to be antecedent basis for an associative cationic polymer in claim 1. In contrast, claim 1 recites a cationic associative polymer. As such, it is unclear if the “associative cationic polymer” of claims 15-16 further limits the required cationic associative polymer of claim 1.
Secondly, it is unclear how the phrase “is chosen from 10 to 22 carbon atoms” further limits the claim. This is because Claim 1, part (a) appears to recite that the cationic polymer comprises one group having at least 8 carbon atoms. It is unclear if the claim requirement reciting “is chosen from 10 to 22 carbon atoms” further limits the entire polymer or further limits the functional group recited as having 8 or more carbon atoms in claim 1.
For the purposes of examination under prior art, the examiner will examine claims 15-16 with the understanding that these claims further limit the requirement that the functional group which is recited in claim 1 as requiring at least 8 carbon atoms is required to have between 10 and 22 carbon atoms in claims 15-16. The examiner also understands the “associative cationic polymer” and the “cationic associative polymer” to refer to the same substance.
Claim Rejections - 35 USC § 103 – Obviousness
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.
Claim(s) 1-5, 7-12 and 15-16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Viravau et al. (US 2011/0158927 A1) in view of Jones et al. (International Journal of Cosmetic Science, Vol. 10, 1988, pages 219-229).
Viravau et al. (hereafter referred to as Viravau) is drawn to a cosmetic composition, as of Viravau, title and abstract. Viravau teaches the following example, as of pages 10-11, paragraph 0125, relevant text reproduced below with annotation by the examiner.
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As to claim 1, part (b), the lauryl ether carboxylic acid of Viravau would appear to read on this requirement and would appear to be within the scope of claim 4.
As to claim 1, part (c), the oxyethylenated and oxypropylenated cetyl alcohol of Viravau would appear to read on this claim requirement.
As to claim 1, part (d), the examiner understands the phrase “cocoyl betaine”, as of the above reproduced table from Viravau, to be cocoamidopropyl betaine. The examiner understands this to be an amphoteric/zwitterionic surfactant.
As to claim 1, part (e), the amine derivatized polydimethylsiloxane of the above-reproduced table is understood to read on the claimed requirements.
Viravau differs from the claimed invention because the cationic polymer in Viravau lacks a hydrocarbon chain comprising at least 8 carbon atoms.
Jones et al. (hereafter referred to as Jones) is drawn to quaternary cellulose derivatives in hair and skin products, as of Jones, page 219, title and abstract. Jones teaches a C12 fatty chain helps increase adsorption to keratin due to hydrophobic bonding, as of Jones, page 220, top paragraph. Jones teaches a Coconyl fatty quat derivative of hydroxyethyl cellulose (C10-C18) alkyl dimethyl quat on page 221. This compound appears to be useful as a conditioning agent, as of Jones, page 229, fourth paragraph.
It would have been prima facie obvious for one of ordinary skill in the art to have substituted the cationic polymer of Jones in place of the cationic polymers of Viravau to be used in the composition of Viravau. Viravau is drawn to cosmetic compositions for hair treatment comprising cationic polymers, which are cationically derivatized hydroxyethylcelluloses. Jones teaches that when cationically derivatized hydroxyethylcelluloses are derivatized with a long alkyl chain, the adsorption to keratin is increased and the compound acts as a conditioning agent. As such, the skilled artisan would have been motivated to have substituted the long alkyl chain quaternized hydroxyethylcellulose of Jones in place of the short alkyl chain quaternized hydroxyethylcellulose of Viravau for predictable achievement of hair treatment while having increased adsorption to keratin and increased conditioning activity with a reasonable expectation of success. The simple substitution of one known element (e.g. the long alkyl chain quaternized hydroxyalkyl cellulose of Jones) in place of another (the short alkyl chain quaternized hydroxyalkyl cellulose of Viravau) in order to achieve predictable results (e.g. hair treatment while providing increased association with the hair and increased conditioning activity) is prima facie obvious. See MPEP 2143, Exemplary Rationale B. In view of the increased adsorption to keratin, the examiner understands the polymer of Jones to be a cationic associative polymer.
As to claim 1, the claim requires a particular ratio of anionic surfactant (b) to cationic associated polymer (a). Viravau teaches the following
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This ratio is slightly less than the minimum ratio of 2, as required by the instant claims. However, the examiner notes that Viravau teaches a most preferred range of 0.15% to 0.5% of cationic polymer in paragraph 0121, and a preferred range of 3% to 20% of anionic surfactant. A ratio of 3% anionic surfactant to 0.5% cationic polymer is a 6:1 ratio of anionic surfactant to cationic polymer. As such, the range of ratios of anionic surfactant to cationic polymer in Viravau overlaps with the range of between 1 and 10 as recited by instant claim 1. While the prior art does not disclose the exact claimed values, but does overlap: in such instances even a slight overlap in range establishes a prima facie case of obviousness. See MPEP 2144.05(I).
As to claim 2, the polymer of Jones is understood to read on the requirement of this claim.
As to claim 3, the value of 0.6% quaternized cellulose multiplied by 95% (as per the above-reproduced table) is 0.57%, which is understood to meet the claimed requirements.
As to claim 4, the lauryl ether carboxylic acid of the above-reproduced table is understood to meet the claimed requirements.
As to claim 5, the above-reproduced table from Viravau teaches 1% multiplied by 0.9 (i.e. 0.9%) lauryl ether carboxylic acid; this is within the claimed range.
As to claim 7, Viravau teaches oxyethylenated cetyl alcohol, as of the above-reproduced table. This is understood to meet the claim requirement of an oxyalkylenated alcohol.
As to claim 8, Viravau teaches 0.5% oxyethylenated cetyl alcohol; this is within the claimed range.
As to claim 9, the cocoyl betaine of Viravau is understood to read on the additional limitation of this claim.
As to claim 10, Viravau teaches 30% of 17% of cocoyl betaine, as of the above reproduced table, which is equal to about 5.1%. (The value of 5.1% is obtained as 0.3 multiplied by 0.17 then converted to a percent). This is within the claimed range.
As to claim 11, the examiner understands the polydimethylsiloxane comprising aminoethyl groups of the above-reproduced table to read on the claimed requirement.
As to claim 12, Viravau teaches 1% of polydimethylsiloxane comprising aminoethyl groups in the above-reproduced table. This is within the claimed range.
As to claim 15, the polymer of Jones has alkyl groups of at least 10 carbons, which is sufficient to meet the claimed requirement.
As to claim 16, this claim has been rejected for essentially the same reason that claim 15 has been rejected.
Claim(s) 1-5, 7-12 and 15-16 is/are rejected under 35 U.S.C. 103 as being unpatentable over of Wang (US 2017/0027832 A1) in view of Jones et al. (International Journal of Cosmetic Science, Vol. 10, 1988, pages 219-229).
Wang is drawn to a cosmetic composition for use for hair, as of Wang, title and abstract.
As to claim 1, Wang teaches various cationic polymers known as “polyquaterniums” in paragraph 0361.
As to part (b) of claim 1, Wang teaches polyoxyalkylenated alkyl(amido)ether carboxylic acids and salts thereof in paragraph 0192 known by the trade name “Akypo.” See the relevant text reproduced below.
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These would have been expected to have been deprotonated and therefore anionic at neutral pH.
As to part (c) of claim 1, Wang teaches nonionic surfactants as of at least paragraphs 0363-0364.
As to part (d) of claim 1, Wang teaches an amphoteric surfactant in the abstract.
As to part (e) of claim 1, Wang teaches silicones in paragraph 0018.
Wang differs from the claimed invention because the cationic polymers in Wang do not comprise a hydrophobic group having at least 8 carbons.
Jones et al. (hereafter referred to as Jones) is drawn to quaternary cellulose derivatives in hair and skin products, as of Jones, page 219, title and abstract. Jones teaches a C12 fatty chain helps increase adsorption to keratin due to hydrophobic bonding, as of Jones, page 220, top paragraph. Jones teaches a Coconyl fatty quat derivative of hydroxyethyl cellulose (C10-C18) alkyl dimethyl quat on page 221. This compound appears to be useful as a conditioning agent, as of Jones, page 229, fourth paragraph.
It would have been prima facie obvious for one of ordinary skill in the art to have substituted the cationic polymer of Jones in place of the cationic polymers of Wang to be used in the composition of Wang. Wang is drawn to cosmetic compositions for hair treatment comprising cationic polymers, which are cationically derivatized hydroxyethylcelluloses. Jones teaches that when cationically derivatized hydroxyethylcelluloses are derivatized with a long alkyl chain, the adsorption to keratin is increased and the compound acts as a conditioning agent. As such, the skilled artisan would have been motivated to have substituted the long alkyl chain quaternized hydroxyethylcellulose of Jones in place of the short alkyl chain quaternized hydroxyethylcellulose of Wang for predictable achievement of hair treatment while having increased adsorption to keratin and increased conditioning activity with a reasonable expectation of success. The simple substitution of one known element (e.g. the long alkyl chain quaternized hydroxyalkyl cellulose of Jones) in place of another (the short alkyl chain quaternized hydroxyalkyl cellulose of Wang) in order to achieve predictable results (e.g. hair treatment while providing increased association with the hair and increased conditioning activity) is prima facie obvious. See MPEP 2143, Exemplary Rationale B. In view of the increased adsorption to keratin, the examiner understands the polymer of Jones to be a cationic associative polymer.
As to claim 1, Wang teaches an amount of cationic polymer of from about 1% to about 5% in paragraph 0362, and an amount of anionic surfactant of from about 0.1% to about 2% by weight, as of paragraph 0241. This would appear to be a maximum of anionic surfactant to cationic polymer of 2:1, and a minimum of anionic surfactant to cationic polymer of 1:50. This range would appear to overlap with the claimed range. While the prior art does not disclose the exact claimed values, but does overlap: in such instances even a slight overlap in range establishes a prima facie case of obviousness. See MPEP 2144.05(I).
As to claim 2, the cationic polymer of Jones has at least 10 carbon atoms, which is sufficient to meet the required at least 8 carbon atom chain.
As to claim 3, Wang teaches about 1% to about 5% of cationic surfactant in paragraph 0362. This is within the claimed range.
As to claim 4, Wang teaches the following, as of paragraphs 0192-0194, reproduced in part below.
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More information regarding the anionic surfactant is presented on page 12, starting with paragraph 0195. Regardless, this is understood to read on the additional requirements of claim 4.
As to claim 5, Wang teaches anionic surfactant in an amount from about 0.1% to about 2% by weight, as of paragraph 0241.
As to claim 7, Wang teaches the following in regard to nonionic surfactants, as of paragraphs 0363-0364, reproduced in part below.
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This is understood to meet the requirement of claim 7. Also see the remainder of paragraph 0364 as well as paragraphs 0365-0369 on page 20.
As to claim 8, Wang teaches about 1% to about 5% nonionic surfactant by weight, as of paragraph 0369. This overlaps with the required range. While the prior art does not disclose the exact claimed values, but does overlap: in such instances even a slight overlap in range establishes a prima facie case of obviousness. See MPEP 2144.05(I).
As to claim 9, Wang teaches the following, as of paragraphs 0245-0247, relevant text reproduced below.
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Also see Wang, page 13, right column and page 14, left column.
As to claim 10, Wang teaches amphoteric surfactant in an amount of about 1% to about 5% by weight in paragraph 0262. This overlaps with the claimed range. While the prior art does not disclose the exact claimed values, but does overlap: in such instances even a slight overlap in range establishes a prima facie case of obviousness. See MPEP 2144.05(I).
As to claim 11, Wang teaches the following in regard to silicones, as of page 8, relevant text reproduced below.
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The polydimethylsiloxanes of Wang read on the required polydialkylsiloxanes of claim 11. See also Wang, page 8 right column, page 9, left column up to about paragraph 0143.
As to claim 12, Wang teaches that a fatty substance may be present in an amount of about 40% to about 60% by weight, as of Wang, paragraph 0155. Also, as best understood by the examiner, the silicone in Wang is identified as a fatty substance, as of Wang, paragraph 0100. However, the fatty substance of Wang may include other components besides silicones, such as mineral oil, as of at least paragraph 0100 of Wang. As such, the skilled artisan would have been motivated to have optimized the amount of silicone oil in Wang to have been in the claimed range. This is especially the case where the total amount of fatty substance is in the 40-60% range taught by Wang; however, the silicone is only part of the total fatty substance. Generally, differences in concentration of a component between the claimed invention and prior art will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration is critical. See MPEP 2144.05(II)(A). In this case, no evidence of criticality of the silicone concentration has been presented. Additionally, where 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. See MPEP 2144.05(II)(A). In this case, the general conditions of a composition comprising cationic polymers, alkyl(amido)Ether carboxylic anionic surfactants, nonionic surfactants, amphoteric/zwitterionic surfactants, and silicones has been taught by the prior art. As such, it would not have been inventive for the skilled artisan to have discovered the optimum or workable ranges of silicone concentration via routine experimentation.
As to claim 15, the cationic polymer of Jones has at least 10 carbon atoms, which is sufficient to meet the requirement of this claim.
Claim(s) 1-5, 7-12 and 15-16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Minou et al. (WO 2017/207685 A1).
Minou et al. (hereafter referred to as Minou) is drawn to a cosmetic composition, as of Minou, title and abstract. Minou teaches the following example A1, as of pages 33-34, relevant table reproduced below with annotation by the examiner explaining which feature of the prior art reads on which feature recited by claim 1.
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As to claim 1, part (a), the polyquaternium-67 of Minou is understood to read on the required cationic associative polymer.
As to claim 1, part (b), the laureth-5 carboxylic acid of Minou is understood to read on this requirement.
As to claim 1, part (c), Minou teaches multiple non-ionic surfactants in the above examples including PEG-55 propylene glycol oleate.
As to claim 1, part (d), the cocoamidopropyl betaine of Minou is understood to read on this requirement.
As to claim 1, part (e), the PEG-40/PPG-8 dimethicone of Minou is understood to read on this requirement.
As to claim 1, Minou is not anticipatory with respect to claim 1 because Example 1, shown on pages 33-34 of Minou, teaches the following ratio of carboxylic anionic surfactant to cationic associative polymer:
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This value of 27 is higher than the maximum value of 10 recited by instant claim 1; as such for this reason, Minou does not anticipate instant claim 1.
Nevertheless, elsewhere in the reference, Minou teaches carboxylic anionic surfactant in a weight of 1% to 15%, as of Minou, paragraphs bridging pages 7-8. Minou also teaches cationic polymer in a weight of 0.06% to 0.2%, as of Minou, page 30, lines 20-30. This would appear to be a minimum ratio of carboxylic anionic surfactant to cationic polymer of
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This range of 5 to 250 of carboxylic anionic surfactant to cationic polymer overlaps with the claimed range of less than or equal to 10. While the prior art does not disclose the exact claimed values, but does overlap: in such instances even a slight overlap in range establishes a prima facie case of obviousness. See MPEP 2144.05(I).
As to claim 2, the polyquaternium-67 of Minou is understood to read on this requirement. The examiner notes that this is the same cationic polymer as disclosed on table 2 on page 39 of the instant specification. As such, the skilled artisan would have expected the polyquaternium-67 of Minou to have been a quaternized (poly)hydroxyethylcellulose modified with groups including at least one fatty chain even if this feature was not explicitly disclosed by Minou. Something which is old (e.g. polyquaternium-67, as of Minou) does not become patentable upon the discovery of a new property (e.g. that it is a quaternized (poly)hydroxyethylcellulose modified with at least one fatty chain), and this feature need not have been recognized at the time of filing. See MPEP 2112(I & II). Also see MPEP 2112.01(I & II).
As to claim 3, Minou teaches 0.1% polyquaternium-67, which is within the claimed range.
As to claim 4, the laureth-5 carboxylic acid of Minou is understood to read on this requirement.
As to claim 5, Minou teaches laureth-5 carboxylic acid, present in an amount of 2.7%. This is within the required range of 0.1% to 20%.
As to claim 7, Minou’s teachings of PEG-60 hydrogenated castor oil, PEG-55 propylene glycol oleate, and PPG-5 ceteth-20 are understood to read on the additional requirements of claim 7.
As to claim 8, Minou teaches that PEG-60 hydrogenated castor oil is present at 0.5%, PEG-55 propylene glycol oleate at 0.24%, and PPG-5- ceteth-20 is present at 0.5%. All of these are within the claim scope.
As to claim 9, Minou teaches cocoamidopropyl betaine; this is within the scope of claim 9.
As to claim 10, Minou teaches 4.56% of cocoamindopropyl betaine; this is within the scope of 0.1% to 10%.
As to claim 11, Minou teaches PEG-40/PPG-8 dimethicone; this is understood to be an organo-modified silicone.
As to claim 12, Minou teaches 0.15% PEG-40/PPG-8 dimethicone; this appears to be within the claim scope.
As to claim 15, the polyquaternium-67 of Minou is understood to read on the additional requirements of this claim for the same reason that it reads on the additional requirements of claim 2.
As to claim 16, this claim has been rejected for essentially the same reason that claim 15 is rejected.
Response to Declaration Under 37 C.F.R. 1.132
A declaration under 37 C.F.R. 1.132 was newly filed with applicant’s response on 23 January 2025. In this declaration, declarant compares an inventive example which is within the claim scope against two comparative examples. A description of the formulations tested was set forth as of Table 1 of the declaration and is reproduced below.
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As such, formulation A1 has a weight ratio of anionic surfactant to cationic associative polymer lower than what is claimed, and formulation A2 has a weight ratio higher than what is claimed. Formulation B is an inventive example.
Declarant then tested formulations A1, A2, and B for various properties. Declarant’s findings indicated that formulation B had excellent or good results for all properties tested. In contrast, formulations A1 and A2 had various defective properties. Formulation A1, which has a low ratio of anionic surfactant to cationic associative polymer, has a poor ease of being rinsed, as well as defective suppleness, lightness, hair individualization, coating quantity deposited, and cleanliness. Formulation A2, which has a high ratio of anionic surfactant to cationic associative polymer, has poor properties regarding rinsing, foamability, and detangling. See Tables 2 and 3 of the declaration.
In order to overcome a prima facie case of obviousness based upon unexpected results, the claimed invention must be compared with the closest subject matter that actually exists in the prior art. See MPEP 716.02(e). In this case, the closest subject matter that actually exists in the prior art would appear to be example A1 in the composition of Minou that is relied upon on page 18 of the prior office action mailed on 20 August 2025. However, this example has an anionic surfactant to cationic associative polymer ratio of 27. This is significantly higher than that in comparative example A2 in the declaration, which has an anionic surfactant to cationic associative polymer ratio of 11.6. As such, the comparative example appears to be closer to the claimed invention as compared with the composition of the prior art, and declarant has successfully compared the claimed invention with the closest subject matter to actually exist in the prior art. The compositions of Viravau and Wang are not as close to the claimed invention as the composition of Minou because the cationic polymers in the compositions of Viravau and Wang do not include the required long chain alkyl group of 8 or more carbon atoms. Also, the composition of Jones fails to include the required surfactants and is therefore not as close to the claimed invention as the composition of Minou.
In order to overcome a prima facie case of obviousness based upon unexpected results, the data presented must show improved results that would not have been expected by the skilled artisan. Tables 2 and 3 of the declaration shows that the inventive formulation B has improved results over the tested comparative examples A1 and A2 in the properties of ease of rinsing, suppleness, lightness, hair individualization, coating quantity deposited, cleanliness, foamability, and detangling. These improved properties would not have been expected by the skilled artisan. As such, declarant has successfully shown that the claimed invention has unexpectedly improved properties as compared with comparative examples.
With that being said, unexpected results must be commensurate in scope with the claimed invention. See MPEP 716.02(d). In this case, the unexpected results presented do not appear to be commensurate in scope with the claimed invention. The examiner presents the following rationale in support of this position.
First, the compositions used by declarant appear to all have laureth-4 at a specific amount. Laureth-4 is a well-known non-ionic surfactant and has a HLB (i.e. hydrophile-lipophile balance) value of about 9.5. See e.g. Ebinger et al. (US 2011/0200664 A1), paragraph 0109. The skilled artisan would have understood that different non-ionic surfactants with different HLB values would have had significantly different properties. See ICI Americas Inc. (“The HLB SYSTEM a time-saving guide to emulsifier selection” ICI Americas Inc. Wilmington, Delaware, Revised March 1980) for an overview of the HLB system and for an explanation of how different surfactants with different HLB values have different properties. One difference between low-HLB surfactants and high-HLB surfactants is that low HLB surfactants are useful for water in oil emulsions, whereas high HLB surfactants are useful for oil in water emulsions.
Additionally, different non-ionic surfactants would have been expected to have had different properties. In support of this position, the examiner cites Lawrence et al. (Journal of Pharmacy and Pharmacology, Vol. 49, 1997, pages 594-600). Lawrence et al. (hereafter referred to as Lawrence) is drawn to testing a series of non-ionic surfactants, as of Lawrence, page 594, title and abstract. Lawrence has discovered substantially different properties for different surfactants, as set forth by a series of tables in Lawrence including Table 4 on page 597, which is reproduced below.
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The above-reproduced table would appear to show that different surfactants have different properties, and these properties can differ in view of variations in the alkyl chain length.
In contrast, the instant claims recite that the non-ionic surfactant is optional. There would have been no reasonable expectation that the data obtained by declarant would have applied to a composition with a different amount of non-ionic surfactant or to a composition with a non-ionic surfactant of a significantly different chemical structure and HLB value, let alone a composition completely lacking non-ionic surfactant.
Additionally, the compositions in the declaration all comprise cocoamidopropyl betaine in a specific amount, wherein cocoamidopropyl betaine is a zwitterionic surfactant. In contrast, the instant claims generally require a zwitterionic surfactant, but do not recite a specific chemical identity of the surfactant nor do the instant claims recite a specific amount of the surfactant. It is the examiner’s position that different zwitterionic surfactants have different properties. In support of this, the examiner cites Herrmann (Journal of Colloid and Interface Sciences, Vol. 22, 1966, pages 352-359). Herrmann is drawn to the study of zwitterionic surfactants, as of Herrmann, page 352, title and abstract, and teaches the following, as of page 356, relevant table reproduced below.
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The above-reproduced table appears to teach that different zwitterionic surfactants have properties that can differ significantly. There would have been no expectation that the beneficial results obtained by applicant regarding cocoamidopropyl betaine would have been applicable to the full scope of zwitterionic surfactants, let alone at the full scope of concentrations.
Additionally, declarant’s desirable results appear to have been obtained only in the case wherein the anionic surfactant is laureth-5-carboxylic acid. This is not commensurate with the full scope of anionic surfactants, as recited by the instant claims. This is because different anionic surfactants have different properties. As evidence of this, the examiner cites Schott (Journal of Pharmaceutical Sciences, Vol. 62, No. 2, February 1973, pages 341-343. Schott measured different properties in a homologous series of anionic surfactants as of page 343, Table 1, top of page, relevant figure reproduced below.
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The above-reproduced table appears to show that different anionic surfactants have significantly different properties. As such, the desirable findings obtained by applicant with respect to laureth-5-carboxylic acid and its ratio with the recited cationic surfactant would not have been expected to have been applicable to the full scope of anionic surfactants.
The examiner clarifies that the newly cited references of Ebinger, ICI Americas, Lawrence, Herrmann and Schott are not part of the statement of rejection and were cited by the examiner solely to address the issue of whether declarant’s results are commensurate with the full scope of the claimed invention.
As such, for at least these reasons, the beneficial results obtained by declarant do not appear to be commensurate with the full scope of the instant claims.
Response to Arguments
Applicant has presented arguments in applicant’s response on 23 January 2026 (hereafter referred to as applicant’s response). These arguments will be addressed below.
In applicant’s response on pages 5-6 as well as on much of page 8, applicant summarizes the findings in the declaration. These findings have been addressed above in the section entitled “Response to Declaration Under 37 C.F.R. 1.132.” As such, applicant’s arguments related to the declaration are not persuasive for essentially the same reasons as discussed in the section above entitled “Response to Declaration Under 37 C.F.R. 1.132.”
Regarding the Viravau reference, applicant makes the following arguments, as of page 7 of applicant’s response, relevant text reproduced below.
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Regarding the first bullet point, the deficiency discussed here has been remedied by secondary reference Jones. As such, this argument appears to relate only to Viravau by itself and not to the combination of references. Such an argument is not persuasive. One cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See MPEP 2145(IV).
Regarding the second bullet point, this argument appears to be based entirely around the example cited by the examiner on page 6 of the prior office action mailed on 20 August 2025. However, teachings elsewhere in the Viravau reference teach a numerical ranges of cationic polymer and anionic surfactant that overlap with the claimed amounts, as of Viravau, paragraph 0121, reproduced below.
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As such, applicant’s argument in the second bullet point is not persuasive because it relies only upon the cited example rather than the broad disclosure of Viravau. Patents are relevant for all they contain, not only the examples and preferred embodiments. See MPEP 2123(I).
Regarding the Jones reference, applicant makes the following argument, as of the paragraph bridging pages 7-8 of applicant’s response, reproduced below.
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The examiner has relied upon the broad disclosure of Viravau to teach the weight ratio rather than having relied upon Jones to teach the weight ratio. As such, applicant’s arguments appear to address Jones by itself rather than the combination of Viravau in view of Jones. One cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See MPEP 2145(IV).
Applicant then makes the following argument on the first full paragraph of page 9 of applicant’s response.
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This is not persuasive. The fact that Jones has enumerated a single benefit, let alone some benefits, of using the taught cationic polymer is sufficient to establish a prima facie case of obviousness. A prima facie case of obviousness requires some teaching, suggestion, or motivation in the prior art that would have led one of ordinary skill to modify the prior art reference or to combine prior art reference teachings to arrive at the claimed invention. See MPEP 2143, Exemplary Rationale G. Applicant’s argument above appears to be an admission that at least one teaching, suggestion, or motivation to use the polymer of Jones has been provided by Jones.
Regarding the Wang reference, applicant makes the following arguments regarding the alleged deficiencies of Wang, as of applicant’s response, page 9, relevant text reproduced below.
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These arguments appear to be unpersuasive for essentially the same reason that the arguments regarding Viravau are unpersuasive. Regarding the first bullet point, this appears to address Wang by itself, rather than the combination of references. One cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See MPEP 2145(IV). Regarding the second bullet point, this argument is unpersuasive because it appears to relate only to an example rather than the broad disclosure of Wang. This argument is continued as of page 10, third to last paragraph, relevant text reproduced below.
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This argument is not persuasive because the broad disclosure of Wang does teach all of the species required by the instant claims, even if they are not present in the same example. Patents are relevant as prior art for all they contain and are not limited to their examples. See MPEP 2123.
Regarding the Minou reference, applicant makes the following argument on page 11 of applicant’s response, reproduced below.
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The examiner agrees that the example in Minou that is closest to the claimed invention does teach a ratio of anionic surfactant to cationic polymer of 27, which is outside the claim scope. Nevertheless, elsewhere in the reference, Minou teaches different ranges of the amounts of anionic surfactant and cationic polymer, as of Minou, paragraph bridging pages 7-8 as well as page 30, lines 20-30. This was previously explained as of page 19 of the prior office action mailed on 20 August 2025. As such, applicant’s arguments are not persuasive as they address only the example of Minou that is closest to the claimed invention rather than the broad disclosure of Minou. Such arguments are not persuasive; see MPEP 2123.
Conclusion
No claim is allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ISAAC SHOMER whose telephone number is (571)270-7671. The examiner can normally be reached 7:30 AM to 5:00 PM Monday Through Friday.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sahana Kaup can be reached at (571)272-6897. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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ISAAC . SHOMER
Primary Examiner
Art Unit 1612
/ISAAC SHOMER/ Primary Examiner, Art Unit 1612