DETAILED ACTION
Claims 1-8, 10, 12-22 are currently pending. Claims 1-8, 10, 12-13, 15-22 are still under examination.
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 .
Withdrawn Rejections
The prior rejection of claims 9, 11 and 15 under 112 (b) and (d) is withdrawn in light of Applicant canceling claims 9, 11 and modifying claim 15 to correctly refer back to nonionic direct dye.
The prior rejection of claim(s) 1-13 and 15-20 under 35 U.S.C. 103 as being unpatentable over US 2014/0298595, US 2002/0189031 and Henne as evidenced by BASF and PubChem is withdrawn in light of Applicant’s amendment to nonionic direct dye and free of cationic dye wherein the ‘595 publication requires a cationic dye present.
The double patenting rejection over US 9,125,832 is withdrawn as a result of the instant claims requiring the agent be free of cationic dye, wherein the ‘832 patent contains a cationic dye.
Examiner’s Note
Applicant's amendments and arguments filed 02/13/2026 are acknowledged and have been fully considered. The Examiner has re-weighed all the evidence of record. Rejections and/or objections not reiterated from previous office actions are hereby withdrawn.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. In the Applicant’s response, filed 02/13/2026, it is noted that claims 1 and 15 have been amended and claims 21-22 have been newly added. No new matter or claims have been added.
New Rejections:
The following rejections are newly applied based on Applicant’s claim amendments.
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.
Claim(s) 1-8, 10, 12-13 and 15-22 is/are rejected under 35 U.S.C. 103 as being unpatentable over Henne (Henne Color Crème Colorante, IDS 06/15/2022) in view of US 2014/0298595 (previously applied) and US 2002/0189031 (previously applied) as evidenced by BASF (previously applied) and PubChem (previously applied).
Regarding claims 1, 3, 8, 18-19, the limitation of a cosmetic agent for simultaneous semi-permanent dyeing and care of the hair is met by the Henne teaching coloring cream that tints and disappears after 4-5 weeks (title), thus is capable of the intended use of simultaneous semi-permanent dying and care of hair.
The limitation of a nonionic direct dye, an alkylamidoalkyl betaine, a linear alcohol, a water-soluble magnesium and water is met by Henne teaching HC Red no 3 (nonionic direct dye per instant specification [0037]), Cocamidopropyl Betaine, PEG-15 cocopolyamine, cetearyl alcohol, magnesium chloride and aqua. The composition contains no alkyl glycosides, no oxidation dye precursors and no oxidizing agents and is free of cationic dye (Page 1).
Henne does not specifically teach a nonionic ethoxylate surfactant and free of cationic surfactant (claim 1).
Henne does not specifically teach the amounts of alkylamidoalkyl betaine, linear 1-alkanol, water soluble magnesium salt, water or total surfactant content.
Henne does not specifically teach a pH (claim 2).
Regarding claims 1 and 9, the limitation of a cosmetic agent for the simultaneous semi-permanent dyeing and care of hair is met by the ‘595 publication teaching agents for coloring keratin fibers wherein the hair colors have increased shine and intense color results [0002] wherein care of the fibers is taught as desired ([0074]-[0076]).
Regarding the limitation of an alkylamidoalkyl betaine in a total amount of 0.05 to about 3% is met by the ‘595 publication teaching cocamidopropyl betaine at 4% (Formulation Example 2) wherein the zwitterionic surfactants are taught to be betaines, specifically cocamidopropyl betaine and may be present from 0.05-3 wt% ([0064]-[0077]).
Regarding the limitation of a nonionic ethoxylate surfactant in a total amount of from about 0.2 to about 1.5 wt% is met by the ‘595 publication teaching Emulgade 1,000 NI at 3% (Formulation Example 2) wherein non-ionic include Ceteareth20 and may be present at 0.01 to 15 wt% ([0099]-[0101]). BASF teaches Emulgade 1000 NI is a mixture of Cetearyl Alcohol and Ceteareth 20 (page 1), wherein Ceteareth 20 is the elected nonionic ethoxylate surfactant.
Regarding the limitation of a linear alcohol having from about 8 to about 15 caron atoms in a total amount of about 5 to about 15% by weight is met by the ‘595 publication teaching Emulgade 1,000 NI at 3% (Formulation Example 2) wherein non-ionic include Ceteareth20 and may be present at 0.01 to 15 wt% ([0099]-[0101]). BASF teaches Emulgade 1000 NI is a mixture of Cetearyl Alcohol and Ceteareth 20 (page 1) and PubChem evidenced Cetearyl Alcohol contains cetyl and stearyl alcohol reading on the 8 to 24 carbon alkanol structure (page 1-3).
Regarding the limitation of about 74 to about 86% by weight water is met by the ‘595 publication teaching the aqueous carrier being at least 50% water [0027] wherein example 2 contains 75% water (Formulation Example 2).
Regarding the limitation of wherein no alkyl glycosides, no oxidation dye precursors and no oxidizing agents are present in the agent is met by the ‘595 publication teaches examples containing no such ingredients (Formulation Example 2) wherein oxidation dye precursors and oxidizing agents are taught to be optional and not required [0118].
Regarding the limitation of wherein the total surfactant content of the agent is about 0.5 to about 6 wt% is met by the ‘595 publication teaching zwitterionic surfactant being present from 0.001 to 15 wt% [0077] as the required surfactant, wherein additional surfactants or emulsifiers are depending on field of application wherein anionic, cationic, nonionic and amphoteric surfactants may be present at as low as 0.1 wt% (Formulation Example 2, [0097]-[0102]). Thus teaching the amount of surfactant is an optimizable parameter.
The limitation of wherein the agent is free of cationic is met by the ‘595 publication teaching the ready to use coloring agents and my further comprise surface active substance being referred to as surfactants or emulsifiers, depending on the field of application. They are preferably selected form anionic, cationic, non-ionic and amphoteric surfactants and emulsifiers [0097]. Thus the cationic and anionic surfactants are not required, wherein non-ionic and amphoteric surfactants may be selected, and thus the composition would be free of anionic and cationic surfactants.
Regarding claims 2, 5, 7 and 17, the limitation of wherein the agent has a pH in the range from, about 4 to about 5.5, about 2 to about 7, measured at 22 degrees C is met by the ‘595 publication teaching the pH can be between 3 and 11, preferably between 5 and 8 measured at 22 degrees C [0110].
Regarding claims 3-4 and 16, the limitation of wherein the alkylamidoalkyl betaine is of formula (I) present at about 0.1 to 1.5 wt% is met by the ‘595 publication teaching cocamidopropyl betaine at 4% (Formulation Example 2) wherein the zwitterionic surfactants are taught to be betaines, specifically cocamidopropyl betaine and may be present from 0.05-3 wt% ([0064]-[0077]).
Regarding claims 6, the limitation of wherein the agent is free of cationic surfactant and free of anionic surfactant is met by the ‘595 publication teaching the ready to use coloring agents and my further comprise surface active substance being referred to as surfactants or emulsifiers, depending on the field of application. They are preferably selected form anionic, cationic, non-ionic and amphoteric surfactants and emulsifiers [0097]. Thus the cationic and anionic surfactants are not required, wherein non-ionic and amphoteric surfactants may be selected, and thus the composition would be free of anionic and cationic surfactants.
Regarding clam 12, the limitation of wherein the agent comprises a polydimethylsiloxane with the INCI dimethicone is met by the ‘595 publication teaching the composition may contain further additives such as dimethicones [0112].
Regarding claims 13 and 20, the limitation of the agent comprises a vegetable oil selected form the group which includes apricot kernel oil is met by the ‘595 publication teaching additional additives include vegetable oil ([0112]-[0113]) and specific examples including apricot kernel oil present at 0.1 (Example 1).
Regarding claim 15, the limitation of wherein the direct dye is present in the agent in an amount of from about 0.001 to about 7% by weight is met by the ‘595 publication teaching substantive dyes present at 0.001-2 wt% [0078].
The ‘031 publication teaches physiologically compatible salts of inorganic or organic acids for improving the absorption behavior of anionic, direct dyes (abstract). The object of the present invention is the use of one or more physiologically compatible salts for improving the absorption behavior of anionic, direct dyes on keratin fibers such as human hair [0006]. Salts are taught to be chlorides specifically magnesium chloride and sodium chloride [0007]. The salts may be individually as well as mixtures of several salts [0008]. The total salt is taught to be about 0.01 to 10% by weight [0009]. Direct dyes are taught to be used in an amount of 0.1 to 5% [0017].
It would have been prima facie obvious to one of ordinary skill in the art before the filing date of the claimed invention to use known concentrations of alkylamidoalkyl betaine, linear 1-alkanol, water soluble magnesium salt, water and total surfactant content and pH range as taught by the ‘595 publication in the composition taught by Henne as Henne and the ‘595 publication are both directed to hair dye compositions which comprise alkylamidoalkyl betaine, linear 1-alkanol, water soluble magnesium salt, water or total surfactant content. It would be obvious to one of ordinary skill in the art before the filing date of the claimed invention to use known concentrations of each ingredient in a hair dye composition and optimize to obtain the desired hair dye compositions. It would have been prima facie obvious to one of ordinary skill in the art before the filing date of the claimed invention to use known amounts of sodium and magnesium in the compositions of Henne as Henne teaches the inclusion of both sodium chloride and magnesium chloride and the ‘031 publication teaches known amounts of magnesium chloride and sodium chloride to be used in compositions with direct dyes to be applied to human hair. It would be obvious to use known amounts of sodium and magnesium chloride in hair compositions for the hair compositions of Henne and optimize to obtain the desired hair compositions as the total salt is taught to be present in a range. As MPEP 2144.05 recites “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 optimization”.
It would have been prima facie obvious to one of ordinary skill in the art before the filing date of the claimed invention to use the surfactant taught by the ‘595 publication, specifically Emulgade, for the surfactants taught by Henne (PEG-15 Cocopolyamine and Quaternium-52) because the ‘595 publication exemplifies hair compositions containing Emulgade and additionally teaches the hair dye compositions must include a zwitterionic surfactant such as a betaine [0073] wherein additional surfactants may include cationic, anionic, nonionic or amphoteric surfactants, and thus are used interchangeable. It would have been prima facie obvious to one of ordinary skill in the art before the filing date of the claimed invention to use Emulgade in place of the cationic surfactants taught by Henne as the ‘595 publication exemplifies the use of Emulgade and teaches the interchangeability in surfactants, thus providing a reasonable expectation of success. Generally, it is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use (see MPEP § 2144.07).
It would have been prima facie obvious to one of ordinary skill in the art before the filing date of the claimed invention to include dimethicone and specific oil as taught by the ‘595 publication in the compositions of Henne as the ‘595 publication dimethicone to be a known auxiliary substance to add to hair dye compositions [0112]. It would have been prima facie obvious to one of ordinary skill in the art before the filing date of the claimed invention to use known auxiliary agents taught by the ‘595 publication in the composition of Henne as both Henne and the ‘595 publication are hair dye compositions which include direct dyes, betaines, surfactants, alkanols, oil and water. Generally, it is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use (see MPEP § 2144.07).
Response to Arguments:
Applicant’s arguments have been fully considered and are not deemed to be persuasive.
Applicant argues the rejections are overcome based on the amendments to claim 1 on the basis that cationic dye is fundamental component of the ‘595 publication and can no longer be relied upon as any obviousness rejection as it would be an improper modification. Applicant argues the ‘595 publication requires an anthraquinone dye.
In response, Applicant is referred to the new rejections above wherein Henne teaches the compositions which comprises a nonionic direct dye and does not contain a cationic dye. The ‘595 publication is relied upon for known concentrations and specific ingredients known to be used in hair dye formulations and does not constitute an improper modification as Henne teaches compositions which do not comprise cationic dyes.
Applicant submits claims 21 and 22 are independently patentable over the cited art.
In response, Henne teaches compositions which include magnesium chloride (page 1). The ‘031 publication teaches physiologically compatible salts of inorganic or organic acids for improving the absorption behavior of anionic, direct dyes (abstract). The object of the present invention is the use of one or more physiologically compatible salts for improving the absorption behavior of anionic, direct dyes on keratin fibers such as human hair [0006]. Salts are taught to be chlorides specifically magnesium chloride and sodium chloride [0007]. The salts may be individually as well as mixtures of several salts [0008]. The total salt is taught to be about 0.01 to 10% by weight [0009]. Direct dyes are taught to be used in an amount of 0.1 to 5% [0017]. It would be obvious to use known amounts of sodium and magnesium chloride in hair compositions for the hair compositions of Henne and optimize to obtain the desired hair compositions as the total salt is taught to be present in a range. As MPEP 2144.05 recites “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 optimization”.
Applicant argues agents comprising nonionic direct dyes and excluding cationic dyes provide desirable results.
In response, Examples in the instant specific use HC Red 3, wherein Henne uses the dye HC Red 3, and thus is not unexpected. It appears Applicant is comprising results of MgCl being present or not, however Henne contains MgCl. Thus the results are not unexpected as Henne comprise both the dye and MgCl used in the examples in the instant specification.
Conclusion
No claims are allowed.
THIS ACTION IS MADE FINAL. 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.
Examiner Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LYNDSEY MARIE BECKHARDT whose telephone number is (571)270-7676. The examiner can normally be reached Monday-Thursday 9am to 4pm and Friday 9am to 2pm.
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/LYNDSEY M BECKHARDT/ Examiner, Art Unit 1613
/BRIAN-YONG S KWON/ Supervisory Patent Examiner, Art Unit 1613