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 .
Election/Restrictions
Applicant's election with traverse of Group I (claims 1-6, 8-10 & 14-17) in the reply filed on 13 October 2025 is acknowledged. The traversal is on the ground(s) that the Examiner has not provided reasons as to why the claims lack unity and a technical relationship between the groups is present (reply, pg. 3-4). This is not found persuasive because the claims lack unity for the reasons cited in the restriction response mailed 13 August 2025. In brief, the claims lack a special technical feature because the combined teachings of Goddiinger, Krzysik, and Liu suggest the recited reagents in the recited amounts and ratios for inclusion in a foaming discharge device.
The requirement is still deemed proper and is therefore made FINAL.
Claim 13 is withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim. Applicant timely traversed the restriction requirement in the reply filed on 13 October 2025.
Applicant's election with traverse of:
A) One or more components selected from the group consisting of D-1 and D-2- components (D-1) and (D-2);
B) One or more surfactants; a mixture of nonionic and amphoteric surfactants; and
C) One or more cationic polymers- polyquaternium- 10 in the reply filed on 13 October 2025 is acknowledged. The traversal is on the ground(s) that that the examiner has not provided reasons or examples to support the conclusion that the species are patentably distinct (reply, pg. 2). This is not found persuasive because the reasons are cited in the restriction response mailed 13 August 2025. In brief, claims lack a special technical feature because the combined teachings of Goddiinger, Krzysik, and Liu suggest the recited reagents in the recited amounts and ratios for inclusion in a foaming discharge device.
No claims are withdrawn as a result of this species election. Applicant timely traversed the election requirement in the reply filed on 13 October 2025.
Claim Status
Applicant’s claim amendments in the response filed 10 June 2022 are acknowledged.
Claims 1-6, 8-10 & 13-17 are pending.
Claims 7 & 11-12 are cancelled.
Claims 14-17 are new.
Claims 1 -6, 8-10 & 13 are amended.
Claim 13 is withdrawn.
Claims 1-6, 8-10 & 14-17 are under consideration.
Priority
Receipt is acknowledged of papers submitted under 35 U.S.C. 119(a)-(d), which papers have been placed of record in the file.
Information Disclosure Statement
The information disclosure statement(s) (IDS) submitted on 10 June 2022 and 12 January 2024 have been fully considered by the examiner. A signed and initialed copy of each IDS is included with the instant Office Action.
Objections/Rejections
Specification
The abstract of the disclosure is objected to because it is a two paragraphs. MPEP 608.01(b) I. C. states “[t]he abstract should be… limited to a single paragraph”
A corrected abstract of the disclosure is required and must be presented on a separate sheet, apart from any other text. See MPEP § 608.01(b).
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 1-6, 8-10, & 14-17 are rejected under 35 U.S.C. 103 as being unpatentable over Takeuchi (JP 2018177652; Published: 11/15/2018; IDS-6/10/2022 ) in view of Sato (US 2015/0093348; Published: 2015-04-02), Kubo (CN 111201009; Published:2020-05-26) and Kao (https://www.kaochemicals-eu.com/products/ppg-3-caprylyl-ether; Published: 04/16/2016).
*All references refer to the Examiner Supplied English translation.
** The claim 14 recitation of “the hair cleansing composition is used as a supplementary pack” is a statement of intended use which does not further limit the composition in terms of reagents of structure.
With regard to claims 1, 14 & 15, Takeuchi teaches a non-gas type foam discharge container for dispensing a liquid cleaning agent (pg. 10). With regard to claims 1 & 9, Takeuchi in Table 1 Example 4 teaches a hair cleansing agent comprising 10% of the anionic surfactants ammonium laureth sulfate and sodium laureth sulfate (pg. 10). With regard to claims 4 & 10, Takeuchi in Table 1 Example 4 teaches inclusion of the nonionic surfactant, laureth-16, and the amphoteric surfactant, lauryl hydroxysultaine. With regard to claims 1, 3, 4, & 9, Takeuchi in Table 1 Example 4 teaches the total amount of surfactant is 14.45% as such the ratio of the content of the anionic surfactant to the content of component (A) ((anionic surfactant)/(A)) is 0.69 (Math: 10/14.45 =0.69). With regard to claims 1, 5, 6 & 16, Takeuchi in Table 1 Example 4 teaches inclusion of polyquaternium-10 (i.e. cationic polymer) in an amount of 0.1%. With regard to claim 1, Takeuchi in Table 1 Example 4 teaches inclusion of the polyoxypropylene polyglyceryl ether, PPG-9 diglyceryl ether, in an amount of 0.5%. With regard to claim 2, more broadly, Takeuchi teaches inclusion of polypropylene glycol as their component D to impart good lathering, good lather quality and smoothness to hair upon rinsing (Takeuchi’s claims, pg. 9 & 13). It would have been prima facie to the ordinary skilled artisan before the effective filing date to have modified Takeuchi Table 1 Example 4 hair cleanser by adding polypropylene glycol as taught by Takeuchi. The ordinary skilled artisan would have been motivated to do so, with an expectation of success, in order to impart good lathering, good lather quality and smoothness to hair as taught by Takeuchi.
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(courtesy of Google translate). With regard to claim 1 (D-1), Takeuchi teaches inclusion of moisturizing agents (pg. 10). With regard to claims 1 & 8, Takeuchi teaches inclusion of an oil agent in order to obtain a desired effect including improvement of the finish of hair after drying (pg. 10). With regard to claims 1 & 8, Takeuchi teaches fatty acids such as lauric acid and silicones are suitable oil agents (pg. 10). With regard to claims 1 & 8, Takeuchi teaches inclusion of shea butter and sunflower oil as components used in general hair cleansing (pg. 10).
Takeuchi does not teach inclusion of a dialkyl ether and its amount, or inclusion of a compound of general formula 5/D-1.
With regard to claims 1 & 8, in the same field of invention of foams for cleansing hair, Sato teaches a foaming hair cleanser (title; [0011]). With regard to claims 1 & 8, Sato teaches inclusion of dicapryl ether as a suitable non-silicone fat for use in the invention (R4 and R5 are both C8; [0054]). Sato teaches inclusion sunflower oil and shea butter as a suitable non-silicone fat for use in the invention [0051]. With regard to claim 1, Sato teaches the fat component comprises “preferably from about 0.05 to about 0.7%, most preferably about 0.4%” [0056].
With regard to claim 1 (D-1), in the same field of invention, Kubo teaches a hair cleaning composition which is discharged from the container as foam (title; pg. 18). Kubo teaches inclusion of PPG-3 octyl ether as component F (pg. 14).
With regard to claim 1 (D-1), Kao teaches PPG-3 caprylyl ether (i.e. PPG-3 octyl ether) is an impressive ingredient that has excellent emollient properties that ensures hair is left feeling soft and supple (pg. 1). With regard to claim (D-1), Kao teaches PPG-3 caprylyl ether is a solvent which aiding in the effective delivery of other ingredients and has the ability to reduce the greasy feel of formulations without comprising hydration making it a coveted component (pg. 1).
The Supreme Court in KSR International Co. v. Teleflex Inc., 550 U.S. 398, 127 S. Ct. 1727, 82 USPQ2d 1385, 1395-97 (2007) identified a number of rationales to support a conclusion of obviousness which are consistent with the proper “functional approach” to the determination of obviousness as laid down in Graham. The key to supporting any rejection under 35 U.S.C. 103 is the clear articulation of the reason(s) why the claimed invention would have been obvious. The Supreme Court in KSR noted that the analysis supporting a rejection under 35 U.S.C. 103 should be made explicit.
Exemplary rationales that may support a conclusion of obviousness include:
(A) Combining prior art elements according to known methods to yield predictable results;
(B) Simple substitution of one known element for another to obtain predictable results;
(C) Use of known technique to improve similar devices (methods, or products) in the same way;
(D) Applying a known technique to a known device (method, or product) ready for improvement to yield predictable results;
(E) “Obvious to try” – choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success;
(F) Known work in one field of endeavor may prompt variations of it for use in either the same field or a different one based on design incentives or other market forces if the variations are predictable to one of ordinary skill in the art;
(G) 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.
Note that the list of rationales provided is not intended to be an all-inclusive list. Other rationales to support a conclusion of obviousness may be relied upon by Office personnel.
Here, at least rationale (G) may be employed in which it would have been prima facie obvious to the ordinary skilled artisan before the effective filing date to have modified Takeuchi’s Table 1 Example 4 composition by adding about 0.4% dicapryl ether as an oil agent [yielding component (C) to the content of component (B) of 4; Math: 0.4/.1 = 4] as suggested by the combined teachings of Takeuchi and Sato because Takeuchi and Sato are directed to similar compositions (hair cleansing foams) and it is obvious to modify similar compositions in the same way. The ordinary skilled artisan would have been motivated to do so, with an expectation of success, in order to lubricate hair with oil bodies in and improve the finish of hair after drying as suggested by the combined teachings of Takeuchi and Sato.
Here at least rationale (G) may be employed in which it would have been prima facie obvious to the ordinary skilled artisan before the effective filing date to have Takeuchi’s Table 1 Example 4 composition by adding PPG-3 octyl ether to the composition as suggested by the combined teachings of Kubo and Kao because Takeuchi and Kubo are directed to similar compositions (hair cleansing foams) and it is obvious to modify similar compositions in the same way. The ordinary skilled artisan would have been motivated to do so, with an expectation of success, in order to aiding in the effective delivery of other cleanser ingredients while still leaving the hair soft and supple through use of “an impressive ingredient” which is PPG-3 caprylyl ether as taught by Kao.
With regard to the recited amounts of component (C)/dicapryl ether, anionic surfactant, component (B)/polyquaternium-10; recited mass ratio of component (C) to component (B); and the recited content of anionic surfactant to component (A), the combined teachings of Takeuchi, Sato, Kubo and Kao suggest these parameters with values which fall within or overlap with the claimed ranges. 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)
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LORI K MATTISON whose telephone number is (571)270-5866. The examiner can normally be reached 9-7 (M-F).
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, David J Blanchard can be reached at 5712720827. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/LORI K MATTISON/ Examiner, Art Unit 1619
/NICOLE P BABSON/ Primary Examiner, Art Unit 1619