DETAILED ACTION
Previous Rejections
Applicant’s arguments, filed December 19, 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 Rejections and/or objections not reiterated from previous office actions are hereby withdrawn.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 5, 9, and 16 - 18 are cancelled.
Claims 25 and 26 are newly added.
Claims 1 – 4, 6 – 8, 10 – 12, 14, 15, and 19 – 26 are examined here-in.
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 – 4, 6 – 8, 10 – 12, 14, 15, and 19 – 26 are rejected under 35 U.S.C. 103 as being unpatentable over Stricane (WO 2018/095813 A1, of record) in view of Schelges (US 2017/0165169 A1, of record).
Stricane teaches personal care compositions with a piroctone compound, an amphoteric surfactant, an ethoxylated alkyl sulfate surfactant, and a dimethyl diallyl ammonium chloride polymer (which is also known as polyquaternium 6, page 45 lines 25-27) (Table 3, pages 79, 80). Stricane teaches dimethyl diallyl ammonium chloride can be a homopolymer or copolymer, and also teaches polyquaternium 7 (page 45, lines 25-27, page 79 table 1). Stricane discloses that cationic polymers enhance deposition (page 44 lines 13 – 15).
Stricane teaches that a shampoo composition can contain total surfactant in the amount of 2 to 20 weight percent of the total composition (page 25, lines 20-22). With reference to alkyl ether sulfate surfactants specifically, Stricane teaches 6 to 15 weight percent of the total composition (page 26, lines 21-24). For amphoteric surfactants specifically, Stricane teaches 1 to 10 weight percent of the total composition (page 33 lines 26-27). Stricane teaches sodium laureth sulfate as an ethoxylated alkyl sulfate surfactant and cocamidopropyl betaine as an amphoteric surfactant in example 3 in the amounts of 15 and 4 weight percent of the total composition (table 3, pages 79, 80).
Stricane also teaches the inclusion of silicone compounds (page 34, lines 30-31), cationic polymers, solvents, conditioning agents, fragrances, dyes, pearlizing agents, opacifiers, and preservatives (page 23 line 22 – page 24 line 22).
Stricane does not teach the degree of ethoxylation for the ethoxylated alkyl sulfate surfactant.
Schelges teaches the missing elements of Stricane.
Schelges teaches a personal care composition containing anionic and amphoteric surfactants, piroctone olamine, and a cationic polymer (table 6, page 8).
Schelges teaches that a preferred anionic surfactant is an alkyl ether sulfate (i.e., ethoxylated alkyl sulfate) with 8 to 18 carbon atoms in the alkyl chain and 1 to 6 ethylene oxide units (paragraph 0034). Sodium laureth sulfate is an anionic surfactant, and given Schelges’ teachings of 1 to 6 ethylene oxide units, the sodium laureth sulfate in Schelges’ examples (paragraphs 0080-0088) has between 1 to 6 ethylene oxide units. This would be a degree of ethoxylation ranging from 1 to 6.
Claims 1 – 4, 6 – 8, 10 – 12, 14, 15, and 19 – 26 are rendered prima facie obvious over the combination of Stricane and Schelges as combining prior art elements to yield predictable results. A person of ordinary skill in the art would have been motivated to modify Stricane’s composition with Schelges’ teachings to include an anionic surfactant with a degree of ethoxylation from 1 to 6 because Schelges’ teaches anionic surfactants with 1 to 6 ethylene oxide units have preferable cleansing activity (paragraph 0034). Furthermore, Stricane teaches that the inclusion of a cationic polymer (such as polyquaternium 6) leads to enhanced deposition performance (page 44 lines 13 – 15). The combination of Stricane and Schelges’ teachings is prima facie obvious as combining prior art elements according to known methods to yield predictable results (MPEP 2143(I)(a)).
Stricane’s teaching of personal care compositions with a piroctone compound (such as piroctone olamine), an amphoteric surfactant, an ethoxylated alkyl sulfate surfactant, and a dimethyl diallyl ammonium chloride polymer (which is also known as polyquaternium 6, page 45 lines 25-27) (Table 3, pages 79, 80) in combination with Schelges’ teaching that anionic surfactant should have 1 to 6 ethylene oxide units, i.e. a degree of ethoxylation between 1 and 6 (paragraphs 0034, 0080 – 0088) reads on claims 1 and 26 of the instant application. As discussed above, Stricane teaches sodium laureth sulfate as an ethoxylated alkyl sulfate surfactant and cocamidopropyl betaine as an amphoteric surfactant in example 3 in the amounts of 15 and 4 weight percent of the total composition (table 3, pages 79, 80), which is a weight ratio of 3.75:1. A weight ratio of 3.75:1 ethoxylated alkyl sulfate surfactant to amphoteric surfactant overlaps on the claimed range of 2:1 to 4:1 as recited in claims 1 and 26 of the instant application. Furthermore, Stricane’s teaching of alkyl ether sulfate surfactants in the amount of 6 to 15 weight percent of the total composition (page 26, lines 21-24) and amphoteric surfactants in the amount of 1 to 10 weight percent of the total composition (page 33 lines 26-27) gives a range of 7 to 25 weight percent for total cleansing surfactants. Total cleansing surfactant in the amount of 7 to 25 weight percent overlaps on the claimed range of 5 to 15 weight percent as recited in instant claims 1 and 26. Schelges’ teaching for a degree of ethoxylation between 1 and 6 (paragraphs 0034, 0080 – 0088) overlaps on the instantly claimed average degree of ethoxylation of 3 or greater as recited in instant claim 1. Claimed ranges that overlap with teachings of the prior art are prima facie obvious according to MPEP 2144.05(I).
Stricane’s teaching for a weight ratio of 3.75:1 ethoxylated alkyl sulfate surfactant to amphoteric surfactant (as calculated from Stricane example 3, table 3 pages 79, 80) overlaps on the claimed range of 3:1 to 4:1 as recited in claim 2 of the instant application.
Stricane’s teaching for total cleansing surfactant in the amount of 7 to 25 weight percent (as calculated from Stricane’s alkyl ether sulfate surfactant in the amount of 6 to 15 weight percent page 26 lines 21-24 and amphoteric surfactant in the amount of 1 to 10 weight percent page 33 lines 26-27) overlaps on the claimed range of less than 11 weight percent as recited in instant claim 3 and the claimed range of less than 10 weight percent as recited by instant claim 15. Total cleansing surfactant in the amount of 7 to 25 weight percent also overlaps on the recited range of 6 to 12 weight percent as recited in instant claim 20.
Stricane’s teaching of cocamidopropyl betaine as an amphoteric surfactant (table 3, pages 79, 80) reads on claim 4 of the instant application.
Stricane’s teaching for sodium laureth sulfate as an ethoxylated alkyl sulfate surfactant (table 3, pages 79, 80) in combination with Schelges’ teaching for a degree of ethoxylation between 1 and 6 (paragraphs 0034, 0080 – 0088) reads on instant claim 6.
Stricane teaches piroctone olamine as the piroctone compound (Table 3, pages 79, 80), reading on claims 7 and 19 of the instant application.
Stricane’s teaching that silicone compounds can be included in the composition (page 34, lines 30-31) reads on instant claim 8.
Stricane’s teaching for an example composition with sodium laureth sulfate, piroctone olamine, and polyquaternium 6 as an anti-dandruff shampoo (table 3, page 82) reads on claims 10 of the instant application which recites the composition is a shampoo.
With reference to example 1, Stricane teaches a method for using the personal care composition as applying the composition to wet hair, using water to create a lather and spread the composition through the hair and onto the scalp, then rinsing the composition from the hair (page 84). This method of use reads on claims 11 and 12 of the instant application.
Since Stricane teaches an example composition that is specifically designated as an “anti-dandruff” shampoo (table 3 page 82), it would be obvious to a person of ordinary skill in the art to use the composition on hair or scalp having dandruff in order to mitigate dandruff. As such, the anti-dandruff shampoo taught by Stricane can be used to mitigate dandruff on the hair or scalp as required by claim 14 of the instant application.
Stricane’s teaching of personal care compositions with a piroctone compound, an amphoteric surfactant, an ethoxylated alkyl sulfate surfactant, and a dimethyl diallyl ammonium chloride polymer (which is also known as polyquaternium 6, page 45 lines 25-27) (Table 3, pages 79, 80) in combination with Schelges’ teaching that anionic surfactant should have 1 to 6 ethylene oxide units, i.e. a degree of ethoxylation between 1 and 6 (paragraphs 0034, 0080 – 0088) reads on claim 21 of the instant application. Although instant claim 21 has the transitional phrase “consisting of”, neither Stricane or Schelges require any compounds which are not listed in parts ii or iv or the claim as optionally included. For example, neither Stricane or Schelges teach that a pigment or dye must be included in the composition, with Stricane teaching dyes or pigments as possible “cosmetically acceptable components” that may be selected for the composition (page 23 line 18 – page 24 line 22). To emphasize the optional (not required) nature of dyes or pigments in Stricane’s composition, in Examples I – IX, Stricane teaches that the dye CI 14200 is present in only four of the nine examples ( pages 79 – 84). Similarly, Schelges teaches that dyes or pigments are “other components” known to the skilled artisan which “may be used in principle” but are not mandatory for the composition (paragraphs 0051 – 0063). Based on the teachings of Stricane and Schelges, a person of ordinary skill in the art would recognize that dyes or pigments are necessary for coloring a composition, and therefore would be reasonably expected not to include dyes or pigments if there is no desired for a colored composition. As such, a person of ordinary skill in the art would arrive at a composition that does not contain dyes or pigments, but can contain the optional ingredients (non-ionic surfactant, an additional cationic polymer, a suspending agent, conditioning agent, fragrance, pH adjusting agent, pearlescer, opacifier, viscosity modifier, preservative, natural hair nutrients, and mixtures thereof) recited in claim 21, through routine experimentation, which is prima facie obvious according to MPEP 2144.05(ii)(a). As noted above, a person of ordinary skill in the art would be motivated to make a composition that does not contain dyes or pigments so as not to make a colored composition. A person of ordinary skill in the art would be motivated to make a non-colored composition for various reasons, including i) to have a composition that has the fewest amount of ingredients, which is both appealing to the consumer and appealing to the producer to keep costs lower during production, or ii) to have a composition that is not colored and thus does not confer color to the hair, such as in the case of a shampoo or conditioner.
Stricane’s teaching for piroctone olamine as the piroctone compound (Table 3, pages 79, 80), reads on claim 22 of the instant application.
Schelges’ teaching for a degree of ethoxylation between 1 and 6 (paragraphs 0034, 0080 – 0088) overlaps on the instantly claimed average degree of ethoxylation of 2.5 or greater as recited in instant claims 23.
Stricane’s teaching of cocamidopropyl betaine as amphoteric surfactant (table 3, pages 79, 80) reads on claim 24 of the instant application.
As discussed above, Stricane teaches sodium laureth sulfate as an ethoxylated alkyl sulfate surfactant and cocamidopropyl betaine as an amphoteric surfactant in example 3 in the amounts of 15 and 4 weight percent of the total composition (table 3, pages 79, 80), which is a weight ratio of 3.75:1. A weight ratio of 3.75:1 ethoxylated alkyl sulfate surfactant to amphoteric surfactant overlaps on the claimed range of 2:1 to 4:1 as recited in claim 25. Claimed ranges that overlap teachings of the prior art are prima facie obvious according to MPEP 2144.05(i).
Examiner’s Reply to Attorney Arguments Dated December 19, 2025
Applicant argues that the use of the transitional phrase “consisting of” within claim 21 renders the claim non-obvious over the teachings of Stricane and Schelges (Remarks page 13). As an initial matter, Applicant’s amendment to claim 21, removing dyes and pigments as optional ingredients, necessitated the “new” grounds of rejection (citation to different section of Stricane). The Examiner disagrees with Applicant’s argument because, although instant claim 21 has the transitional phrase “consisting of”, neither Stricane or Schelges require any compounds which are not listed in parts ii or iv or the claim as optionally included. For example, neither Stricane or Schelges teach that a pigment or dye must be included in the composition, with Stricane teaching dyes or pigments as possible “cosmetically acceptable components” that may be selected for the composition (page 23 line 18 – page 24 line 22). To emphasize the optional (not required) nature of dyes or pigments in Stricane’s composition, in Examples I – IX, Stricane teaches that the dye CI 14200 is present in only four of the nine examples ( pages 79 – 84). Similarly, Schelges teaches that dyes or pigments are “other components” known to the skilled artisan which “may be used in principle” but are not mandatory for the composition (paragraphs 0051 – 0063). Based on the teachings of Stricane and Schelges, a person of ordinary skill in the art would recognize that dyes or pigments are necessary for coloring a composition, and therefore would be reasonably expected not to include dyes or pigments if there is no desired for a colored composition.
Applicant’s Declaration Dated December 19, 2025
The Examiner has fully reviewed and considered the Declaration submitted December 19, 2025, setting forth the diversity and variability of cationic polymers. The Examiner understands that Stricane teaches the genus of cationic polymers will have enhanced deposition properties, while the instant application alleges that the specific cationic polymer polyquaternium 6 leads to increased deposition. Said differently, the instant application is directed to cationic polymer polyquaternium 6 while the prior art is directed to the wider genus of cationic polymers.
However, the instant application does not appear to support the allegation that polyquaternium 6 results in significantly greater deposition than cationic polymer guar hydroxypropyltrimonium chloride.
Review of the combined Table (Remarks page 12) appears to show that the inclusion of cationic polymer polyquaternium 6 provides enhanced piroctone olamine deposition as compared to compositions which do not include polyquaternium 6 (as noted in the previous action). Specifically, a comparison of Examples E and 4 seems to suggest that the inclusion of polyquaternium 6 (Example 4) as opposed to no cationic polymer (Example E), results in increased deposition of piroctone olamine with Example 4 showing 16.1 ppm deposition and Example E showing 8.75 ppm deposition. Similarly, Example F does not include a cationic polymer, showing deposition of 8.61 ppm, whereas example 5 includes polyquaternium 6 and shows 16.5 ppm deposition. From these data, polyquaternium 6 appears to increase deposition relative to a condition that does not contain a cationic polymer.
Examples A – C include cationic polymer guar hydroxypropyltrimonium chloride rather than cationic polymer polyquaternium 6. Example C shows 11.98 ppm piroctone olamine was deposited. A comparison of Example C with Example 5 may illustrates somewhat greater deposition in Example 5 at 16.5 ppm. However, a direct comparison between these examples is not proper because Example 5 includes cationic polymer polyquaternium 6 in the amount of 0.35% whereas Example C includes cationic polymer guar hydroxypropyltrimonium chloride in the amount of 0.2%. As such, the increased deposition in Example 5 may simply be due to a greater amount of cationic polymer. Furthermore, although Examples C and 5 both have total surfactants in a ratio of 3:1, Example C has total surfactant in the amount of 5% whereas Example 5 has total surfactants in the amount of 12%. For this reason, the weight percent of total surfactant in these examples is also a confounding variable. In summary, a comparison of Example C with Example 5 does not support the alleged unexpected results that polyquaternium 6 unexpectedly and significantly increases deposition of piroctone olamine compared to other cationic polymers (with this example showing guar hydroxypropyltrimonium chloride).
In other words, the evidence shown does not support the argument that “high-level piroctone deposition is achieved only with the specific claimed combination of sodium lauryl ether sulfate and cocamidopropyl betaine in a particular weight ratio as well as polyquaternium 6” (Remarks page 12).
With regards to Applicant’s arguments that the weight ratios of ethoxylated alkyl sulfate to amphoteric surfactant of 2:1 and 3:1 are “sufficiently representative” of the full claimed range of 2:1 to 4:1 (claims 1 and 26) and 2:1 and 6:1 (claim 21) (Remarks pages 12 and 13), the Examiner notes that according to MPEP 716.02(d)(i), “a broader claimed range can be supported by evidence based on unexpected results from testing a narrower range if one of ordinary skill in the art would be able to determine a trend in the exemplified data which would allow the artisan to reasonably extend the probative value thereof”. Examples D, 3, 4, and 5 include polyquaternium 6 and weight ratios of ethoxylated alkyl sulfate to amphoteric surfactant of 8.6:1, 2:1, 2:1, and 3:1, respectively. Example D with a weight ratio of 8.6:1 has piroctone olamine deposition of 9.39 ppm, whereas Example 3 has a weight ratio of 2:1 and piroctone olamine deposition of 15.63 ppm. Therefore, the Examples with polyquaternium 6 and weight ratios of surfactant of 2:1 or 3:1 show greater deposition than the Example of polyquaternium 6 and a weight ratio of 8.6:1. As such, these data do not support a trend “which would allow the artisan to reasonably extend the probative value thereof” and the claimed ranges of 2:1 to 4:1 and 2:1 to 6:1 are not commensurate in scope with the claimed invention.
Furthermore, and purely arguendo, even if Applicant has in fact shown unexpected results and the weight ratios were commensurate in scope (of which the Examiner is not persuaded at this time), the Examiner notes that Applicant’s alleged showing also includes the weight percents of piroctone compound and cationic polymer polyquaternium 6. At present, Applicant shows piroctone compound in the amount of 0.5 wt% and polyquaternium 6 in the amounts of 0.2 and 0.35 wt. %, which does not appear to be “reasonably representative” of the claims in their current scope. See MPEP 716.02(d). It is unclear that a composition containing the relative amounts of piroctone compound and cationic polymer polyquaternium 6 would be reasonably representative of compositions containing piroctone compound in a range of 0.2 to 3 wt% (as recited in claims 1 and 26) or 0.01 to 5 wt.% (as recited in claim 21) and polyquaternium 6 in the amount of 0.1 to 1 wt. % (as recited in claims 1 and 26) or 0.05 to 2 wt% (as recited in claim 21), thereby falling within the broader scope of what is presently claimed.
Conclusion
Applicant's amendment necessitated the new grounds 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.
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