DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Formal Matters
Receipt of Applicant’s response, dated 11/25/2025, is acknowledged.
Claims 1-20 are pending.
Claims 1-2, 4-7, 9, 11, 14-15, 18, and 20 are amended.
Claim 17 remains withdrawn from consideration as being drawn to a nonelected invention.
Claim 19 remains withdrawn from consideration as being drawn to a nonelected species,
Claims 1-16, 18, and 20 are under consideration in the instant Office action to the extent of the elected species, i.e., the species of pretreatment agent (V) is the combination of sodium laureth sulfate and cocoamidopropyl betaine, the at least one amino-functionalized silicone polymer (F-1) is 3-[(2-Aminoethyl)amino]-2-methylpropyl Me, Di-Me-Siloxane, and the at least one pigment (F-2) is Unipure Red LC3071, i.e., organic pigment CI 15850.
OBJECTIONS/REJECTIONS WITHDRAWN
Specification
The objections to the abstract and to the specification set forth in the Office action dated 07/25/2025 are hereby withdrawn in light of Applicant’s amendments to the abstract and to the specification.
Claim Objections
The claim objections, with the exceptions of those maintained (See OBJECTIONS MAINTAINED – Claim Objections below), set forth in the Office action dated 07/25/2025 are hereby withdrawn in light of Applicant’s amendments to the claims or in light of Applicant’s remarks dated 11/25/2025 (claim 13).
Claim Rejections - 35 USC § 103
The obviousness rejection of claims 1-16, 18, and 20 over Goutsis et al in view of Trigg et al, Wright et al, and Bowker set forth in the Office action dated 07/25/2025 is hereby withdrawn in light of Applicant’s amendments to the claims and in favor of the new grounds of rejection set forth below as necessitated by Applicant’s amendments to the claims.
OBJECTIONS MAINTAINED
Claim Objections
Claims 2-4 remain objected to because of the following:
In the third to last line of claim 2, “stands for” should be amended to “is” in order to improve the consistency and readability of the claims;
In the last line of claim 3, “represents” should be amended to “is” in order to improve the consistency and readability of the claims; and
In the last line of claim 4, “surfactant(s)” should be amended to “surfactant” in order to improve the consistency and readability of the claims.
Appropriate correction is required.
NEW GROUNDS 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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-16, 18, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Goutsis et al (US 2018/0289604 A1, published 10/11/2018, cited in Notice of References Cited dated 07/25/2025) in view of Trigg et al (US 2008/0189876 A1, published 08/14/2008, cited in Notice of References Cited dated 07/25/2025), Wright et al (WO 2012/054243 A2, published 04/26/2012, cited in Notice of References Cited dated 07/25/2025), and Bowker (WO 2018/234530 A1, published 12/27/2018, cited in Notice of References Cited dated 07/25/2025).
Goutsis et al teach a method for coloring of keratinous fibers, particularly human hair, including the following steps in the specified sequence: A) treatment of the fibers with a hydrous pre-treatment agent (V) and then B) treatment of the fibers with a hydrous coloring agent (F) (e.g., Abstract).
The method comprises the following steps in the specified sequence: A1) application of a pre-treatment agent (V) on the fibers, A2) allowing the pre-treatment agent (V) to take effect for a period of from about 30 seconds to about 45 minutes, A3) rinsing out of the pre-treatment agent (V), B1) application of a coloring agent (F) on the fibers, B2) allowing the coloring agent (F) to take effect for a period of from about 30 seconds to about 45 minutes, B3) rinsing out of the coloring agent (F), wherein a period of preferably from about 10 seconds to about 24 hours elapses between steps A3) and B1) (e.g., [0026]-[0031]). The rinsing out of the pre-treatment agent (V) in step A3) and the rinsing out of the coloring agent (F) in step B3) can be carried out with water (e.g., [0033]). The pre-treatment (V) is applied in order to adjust an acidic pH value appropriate to the keratinous fibers, which enables intense coloring of the hair fibers in the subsequent application of the coloring agent (F).
The pre-treatment agent (V) is hydrous (e.g., [0088]). The pre-treatment agent (V) may comprise a surface-active substance including anionic, zwitterionic, amphoteric and nonionic surfactants and emulsifiers (e.g., [0203]). The pre-treatment agent (V) may comprise at least one anionic surfactant, wherein preferred anionic surfactants include alkyl ether sulfates, from about 0.1 to about 45 wt. % relative to the pre-treatment agent (V) (e.g., [0204]). The pre-treatment agent (V) may comprise at least one zwitterionic surfactant, wherein preferred a zwitterionic surfactant is cocamidopropyl betaine, wherein the nonionic, zwitterionic or amphoteric surfactants can be used from about 0.1 to about 45 wt. % relative to the pre-treatment agent (V) (e.g., [0205]). It is preferred, i.e. but not required, that the pre-treatment agent (V) additionally contains at least one film-forming nonionic and/or solidifying nonionic polymer (e.g., [0100]-[0101]).
The coloring agent (F) contains water and at least one partially-oxidizing acidic dye (e.g., [0138]). The at least one partially-oxidizing acidic dye may be acidic dyes, and particularly preferred partially-oxidizing acidic dyes include D&C Red 21, D&C Red 27, and D&C Red 33 (e.g., [0140]-[0142]). The acid dye and/or dyes can be preferably contained in the coloring agent (F) in a total amount of from about 0.01 to about 5.5 wt. % relative to the coloring agent (F) (e.g., [0146]).
The coloring agent (F) may contain additional active ingredients including polysiloxanes with organofunctional groups such as substituted or unsubstituted amines (amodimethicones), wherein the additional active ingredients are preferably used from about 0.0001 to about 25 wt. % relative to the coloring agent (F) (e.g., [0215]-[0216]).
Goutsis et al do not teach sodium laureth sulfate as a suitable alkyl ether sulfate, 3-[(2-Aminoethyl)amino]-2-methylpropyl Me, Di-Me-Siloxane as a suitable amodimethicone, or D&C Red No.7 lake (i.e., Unipure Red LC3071, organic pigment CI 15850) as a suitable acidic dye.
These deficiencies are made up for in the teachings of Trigg et al, Wright et al, and Bowker.
Trigg et al teach a hair color revitalizing shampoo composition, that comprises hair dye, containing an anionic, nonionic, or amphoteric surfactant, or mixtures thereof, that conventionally are used in hair shampoo compositions (e.g., Abstract, [0038]). Trigg et al exemplify sodium lauryl sulfate, sodium lauryl ether sulfate (i.e., sodium laureth sulfate), cocamidopropyl betaine, and mixtures thereof as examples of surfactants to be used (e.g., [0040]), specifically exemplifying the combination of sodium laureth sulfate and cocoamidopropyl betaine (e.g., [0053], Hair Color Revitalizers A-C).
Wright et al teach hair care compositions, wherein the addition of certain silicones to a hair composition imparts a hair conditioning effect, including amino functional silicones, e.g., DC 2-8566 (amodimethicone; Dow Corning) (e.g., [0071], [0078], [0267]). DC 2-8566 (amodimethicone; Dow Corning) is a commercial product of 3-[(2-Aminoethyl)amino]-2-methylpropyl Me, Di-Me-Siloxane (i.e., the elected species of the at least one amino-functionalized silicone polymer (F-1) of the instant claims) as evidenced by Par. [0079] of the instant specification.
Bowker teaches a chromic composition suitable for use as a hair colour-change composition for application to the hair comprising a dye, wherein any dye suitable for use in hair or cosmetic products may be employed including Unipure red LC3071 (CI 15850, Aluminum Hydroxide) (e.g., Page 13 Lines 16, 24-36, Page 14 Lines 26-28).
It would have been prima facie obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to use sodium laureth sulfate as the alkyl ether sulfate in the aforementioned method of Goutsis et al for the coloring of keratinous fibers and to use specifically the combination of sodium laureth sulfate and cocamidopropyl betaine as an anionic and zwitterionic surfactant system in the aforementioned method of Goutsis et al for the coloring of keratinous fibers. It would have also been prima facie obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to use DC 2-8566 (amodimethicone; Dow Corning) (i.e., 3-[(2-Aminoethyl)amino]-2-methylpropyl Me, Di-Me-Siloxane, supra) as the amodimethicone and to use Unipure red LC3071 (CI 15850, Aluminum Hydroxide) as the acidic dye in the aforementioned method of Goutsis et al for the coloring of keratinous fibers.
One of ordinary skill in the art would have been motivated to do so in order to provide a method for the coloring of keratinous fibers 1) with an effective and compatible surfactant system in the step of pretreating of the hair (i.e., inclusion of sodium laureth sulfate and cocamidopropyl betaine based on the teachings of Trigg et al), 2) with a hair conditioning effect (i.e., inclusion of DC 2-8566 (amodimethicone; Dow Corning) (i.e., 3-[(2-Aminoethyl)amino]-2-methylpropyl Me, Di-Me-Siloxane, supra) based on the teachings of Wright et al), and 3) with a suitable dye for coloring the keratinous fibers deep red (i.e., inclusion of Unipure red LC3071 (CI 15850, Aluminum Hydroxide) based on the teachings of Bowker). The selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination in Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945).
There would have been a reasonable expectation of success because all of Goutsis et al, Trigg et al, Wright et al, and Bowker teach compositions for the hair, which implies compatibility of the combination of sodium laureth sulfate and cocamidopropyl betaine as surfactants, DC 2-8566 (amodimethicone; Dow Corning) (i.e., 3-[(2-Aminoethyl)amino]-2-methylpropyl Me, Di-Me-Siloxane, supra) as amodimethicone, and Unipure red LC3071 (CI 15850, Aluminum Hydroxide) as acidic dye the with the pre-treatment agent (V) and the coloring agent (F) in the method of Goutsis et al and because the method of Goutsis et al is taught as compatible with alkyl ether sulfates, cocamidopropyl betaine, amodimethicones, and D&C Red-type acidic dyes.
The modified method for the coloring of keratinous fibers of Goutsis et al in view of Trigg et al, Wright et al, and Bowker renders obvious the process for dyeing keratinous material of instant claims 1-16, 18, and 20.
Regarding the weight range requirements of instant claims 4, 7, 11, 14, 18, and 20, a prima facie case of obviousness typically exists when the ranges of a claimed composition overlap the ranges disclosed in the prior art (In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003)). In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists (In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990)). See MPEP 2144.05.
The pre-treatment agent (V) in the modified method for the coloring of keratinous fibers of Goutsis et al in view of Trigg et al, Wright et al, and Bowker is not required to additionally contain at least one film-forming nonionic and/or solidifying nonionic polymer (See teachings of Goutsis et al above) which meets the limitation of instant claim 1 that the pretreatment agent (V) is free of polymers.
Response to Applicant’s Arguments
Applicant’s arguments filed on 11/25/2025 have been considered.
Applicant argues that based on the amendments to claim 1, the obviousness rejection set forth in the Office action dated 07/25/2025 has been overcome on the basis that Goutsis et al do not contemplate a pretreatment agent (V) free of polymers and any rejection that relies on modifying Goutsis et al to omit polymers from pretreatment agent (V) would improperly render Goutsis et al unsatisfactory for its intended purpose. Applicant points to Par. [0100]-[0101] of Goutsis et al as the teaching regarding Goutsis et al not contemplating a pretreatment agent (V) free of polymers and points to U.S. Patent No. 10632055 alleging that Goutsis et al expressly require a copolymer of polyvinylpyrrolidone/vinyl acetate in the disclosed pretreatment agent. Applicant argues that the absence of polymer in the pretreatment agent (V) of the present invention provides a distinct advantage that is not contemplated in Goutsis et al or any of the prior art relied upon by the Examiner. Applicant argues that there is no explanation in the art for why superior color intensity and uniformity is achieved when hair is treated in accordance with the method of claim 1 using the recited components, and in particular referring to the tables in Par. [0202] and [0207] of the instant specification, hair treated with conditioner (C) exhibits superior color intensity and superior uniformity, respectively, when treated with pretreatment agent (V1) and (V2) and dyeing agent (F) as compared to when no pretreatment agent is used.
The arguments regarding Goutsis et al not contemplating a pretreatment agent (V) free of polymers have been fully considered by the Examiner but are not found persuasive because, as can be seen in the new grounds of rejection under 35 USC 103 above, although Goutsis et al teach that it is preferred that the pre-treatment agent (V) additionally contains at least one film-forming nonionic and/or solidifying nonionic polymer, it is not required that the pre-treatment agent (V) contain at least one film-forming nonionic and/or solidifying nonionic polymer, and therefore the modified method for the coloring of keratinous fibers of Goutsis et al in view of Trigg et al, Wright et al, and Bowker not additionally containing at least one film-forming nonionic and/or solidifying nonionic polymer in the pre-treatment agent (V) meets the newly added limitation of amended claim 1. Although Goutsis et al teach that the use of a nonionic, film-forming and/or solidifying nonionic polymer in the pre-treatment agent suppresses skin coloring (See Par. [0100]), Goutsis et al teach that the problem of skin coloring is in fact solved by the sequential method used for dying the hair, wherein the hair is treated with a pre-treatment agent before use of acid dyes, wherein the pre-treatment agent has an acidic pH value thereby also reducing the pH value in the keratinous fibers and whereby generating the optimal pH range for the coloring (See Par. [0014]). Further, while suppressing skin coloring may be desirable when coloring hair, Applicant has not pointed to anything showing that the absence of the nonionic, film-forming and/or solidifying nonionic polymer would render Goutis et al unsatisfactory for coloring hair as alleged. Applicant is reminded that a reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art, including nonpreferred embodiments (Merck & Co. v. Biocraft Labs., Inc. 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir. 1989), cert. denied, 493 U.S. 975 (1989)). The argument regarding U.S. Patent No. 10632055 is acknowledged, however, each patent is presumed valid independently of the validity of other claims and the Examiner is precluded from commenting on the prosecution history of U.S. Patent No. 10632055. The argument regarding the prior art not recognizing advantages of the presently claimed method, i.e. superior color intensity and uniformity, has been fully considered by the Examiner but is not found persuasive because mere recognition of latent properties in the prior art does not render nonobvious an otherwise known invention (In re Wiseman, 596 F.2d 1019, 201 USPQ 658 (CCPA 1979)). "The fact that appellant has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious." (Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985)).
Conclusion
No claims are allowable.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/K.E.O./Examiner, Art Unit 1619
/DAVID J BLANCHARD/Supervisory Patent Examiner, Art Unit 1619