Note: The Office action mailed 04/02/2026 is rescinded and replaced by the present Office action, which includes a correction (surfactant wt% range limitations of claims 16 and 18) in the below rejection under 35 USC 103.
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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 12/01/2025 has been entered.
Formal Matters
Receipt of Applicant’s response, dated 12/01/2025, is acknowledged.
Claims 1-5, 8, and 10-22 are pending.
Claims 6-7 and 9 are canceled.
Claims 1, 4-5, and 8 are amended.
Claims 12-22 are new.
Claims 1-5, 8, and 10-22 are under consideration in the instant Office action and are being examined to the extent of the elected species, i.e., the dermatologically acceptable hair care cleansing surfactant is the mixture of cocamidopropyl betaine, sodium lauryl ether sulfate and cocamide monoethanolamine; the dermatologically acceptable silicone is dimethiconol; the dextran polymer is a branched chain dextran polymer comprising a plurality of glucose structural units wherein 90 to 98 mol% of the glucose structural units are connected by α-D-1,6 linkages and 2 to 10 mol% of the glucose structural units are connected by α-1,3 linkages; the dextran crosslinking agent is:
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, which corresponds to formula I of instant claim 1 wherein each R1 is a methyl group, each R2 is a -CH2- group, Y is a -CH2CH2-O-CH2CH2- group, and each X is a -Cl; and the preservative is the mixture of phenoxyethanol and methylisothiazolinone.
OBJECTIONS/REJECTIONS WITHDRAWN
Claim Objections
The objections to claims 1 and 8 set forth in the Office action dated 09/03/2025 are hereby withdrawn in light of Applicant’s amendments to the claims.
Claim Rejections - 35 USC § 103
The obviousness rejection of claims 1-5 and 10-11 over Umezawa et al, Stepan, Perkins, and Deavenport et al and of claims 6-8 over Umezawa et al, Stepan, Perkins, Deavenport et al, Advanced Dermatology, and Johnson et al and of claim 9 over Umezawa et al, Stepan, Perkins, Deavenport et al, and Dow are 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.
NEW GROUNDS OF OBJECTION/REJECTION
Claim Objections
Claims 14 and 22 are objected to because in line 3 of claim 14 and in line 3 of claim 22, “isothiazolinone” should be amended to “isothiazolinones” in order to improve claim readability (i.e., As evidenced by Par. [0031] of the instant specification, ‘isothiazolinone’ is meant to represent the class of compounds e.g. methylchloroisothiazolinone, methylisothiazolinone).
Appropriate correction is required.
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 1-5, 8, and 10-22 are rejected under 35 U.S.C. 103 as being unpatentable over Umezawa et al (JP 2000159642, published 06/13/2000, cited in IDS dated 07/18/2022, English translation cited in Notice of References Cited dated 02/27/2025) in view of Perkins (The Truth About Dimethiconol in Curl Products, published 04/07/2016, cited in Notice of References Cited dated 04/18/2025), Deavenport et al (US 2015/0210627 A1, published 07/30/2015, cited in Notice of References Cited dated 02/27/2025), Stepan (Stepanol MEV Product Bulletin, published March 2013, cited in Notice of References Cited dated 04/18/2025), Johnson et al (Int. J. Toxicol., 2018, 37, 5S-9S, published 09/20/2018, cited in Notice of References Cited dated 04/18/2025), Dow (Neolone PE Preservative Product Safety Assessment, published December 2011, cited in Notice of References Cited dated 04/18/2025), and Advanced Dermatology (Tetrasodium EDTA in Cosmetics Ingredients, published 01/06/2016, cited in Notice of References Cited dated 04/18/2025) as evidenced by Olsson Scandinavia (SLS and SLES – What’s the difference?, cited in Notice of References Cited dated 04/18/2025) and Millipore Sigma (Dextran, cited in Notice of References Cited dated 04/18/2025).
Umezawa et al teach a cleaning/shampooing composition for hair (See entire document, e.g., Title, [0007], [0021]) comprising:
at least one silicone derivative, wherein the silicone derivative(s) used in the composition is not particularly limited (e.g., [0007]-[0008]);
a surfactant used to emulsify the silicone derivative(s), wherein the surfactant used in the composition is not limited (e.g., [0010]); and
at least one cationic polymer compound having alpha-1,6'glucoside bonds represented by formula (1), where at least one of R is of formula (2) (e.g., [0007], [0012]-[0014]), and a specific example of such a cationic polymer compound is cationic dextran or a derivative thereof (e.g., [0018]).
Formula (1) and Formula (2) from Umezawa et al Page 2:
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Umezawa et al teach application of the cleaning/shampooing composition to hair (e.g., [0026]-[0027]). Umezawa et al teach that the cationic polymer has a conditioning effect to the hair (e.g., [0006]) and that the cationic polymer and silicone derivative have a synergistic effect and the silicone derivative can be stably emulsified and dispersed (e.g., [0005]-[0007]). Umezawa et al teach the combined amount of silicone derivative and surfactant to be used as preferably 0.001 to 10 wt%, relative to the weight of the composition, because when a lesser amount is used there is a case where a compounded effect is not obtained, and when a greater amount is used a stable emulsion dispersion cannot be obtained or stickiness may occur (e.g., [0010]-[0011]). Umezawa et al teach the amount of cationic polymer to be used as preferably 0.05 to 5 wt% and especially 0.1 to 2 wt%, based on the whole hair detergent composition because when a lesser amount is used the effect of the emulsion dispersion system with respect to stabilization may be insufficient, and when a greater amount is used a sticky feeling may be accompanied (e.g., [0020]).
Umezawa et al teach that various other components may be added to improve shampooing performance of the composition including a surfactant, a thickener, a solvent, a preservative, and a colorant (e.g., [0021]). Exemplified compositions of Umezawa et al. all comprise water (e.g., [0030]).
Although Umezawa et al teach that the silicone derivative(s) for use in the composition is not particularly limited, Umezawa et al do not specifically teach dimethiconol as a suitable silicone derivative.
Although Umezawa et al teach the compound of formula (2) as the moiety serving to link the cationic polymer, Umezawa et al do not teach the following compound (i.e., the elected species of formula (I) of the instant claims) as a suitable alternative to formula (2) of Umezawa et al:
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.
Although Umezawa et al teach that a surfactant may be added to the cleaning/shampooing composition, Umezawa et al do not teach examples of suitable surfactants and therefore do not specifically teach the combination of cocamidopropyl betaine, sodium lauryl ether sulfate and cocamide monoethanolamine as a suitable surfactant.
Although Umezawa et al teach that a thickener may be added to the cleaning/shampooing composition, Umezawa et al do not teach examples of suitable thickeners and therefore do not specifically teach PEG-150 pentaerythrityl tetrastearate as a suitable thickener.
Although Umezawa et al teach that a preservative may be added to the cleaning/shampooing composition, Umezawa et al do not teach examples of suitable preservatives and therefore do not specifically teach the mixture of phenoxyethanol and methylisothiazolinone as a suitable preservative.
Umezawa et al do not teach the composition comprising tetrasodium ethylenediaminetetraacetic acid as a chelating agent.
These deficiencies are made up for in the teachings of Perkins, Deavenport et al, Stepan, Johnson et al, Dow, and Advanced Dermatology.
Perkins teaches that dimethiconol is commonly used in products including shampoos and conditioners (See entire document, e.g., Common uses). Perkins teaches that dimethiconol and dimethicone are similar, however, dimethiconol has a less greasy feel and is great in reducing the effects of weather elements that cause hair frizz (e.g., Pros). Perkins teaches that a product with dimethiconol is to be used when extra shine, softness, and smoothness is desired (e.g., The Takeaway). Perkins teaches that because dimethiconol is water-insoluble it should be used in shampoos or cleansers formulated with sulfates to help with its removal (e.g., Cons).
Deavenport et al teach the following compound as a dye fixative agent:
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wherein the dye fixative agent is an agent that introduces a positive charge in order to increase dye uptake (See entire document, e.g., Abstract, [0005]-[0010], [0016]).
Stepan teaches Stepanol® MEV as an aqueous blend of sodium laureth sulfate, cocamidopropyl betaine, and cocamide monoethanolamine as a concentrated surfactant blend used in products such as shampoos that exhibits good foam and viscosity characteristics as well as ease of handling and simple mixing and dilution attributes (See entire document, e.g., Page 1 Product Description).
Johnson et al review the safety of PEG-150 pentaerythrityl tetrastearate, which functions as a viscosity-increasing agent-aqueous in cosmetic products including rinse-off products including those applied to the hair (See entire document, e.g., Abstract, Use). Johnson et al teach that PEG-150 pentaerythrityl tetrastearate is safe for use in cosmetic products including rinse-off products including those applied to the hair in concentrations of 0.0005-5% with 5% being the maximum use concentration (e.g., Use, Table 2, Discussion, Conclusion).
Dow teaches NeoloneTM PE, a mixture of methylisothiazolinone and phenoxyethanol, as a preservative used in hair care products such as shampoos, that prevents or retards the growth of bacteria, yeasts, and molds (See entire document, e.g., Page 2 Product Description and Product Uses).
Advanced Dermatology teaches tetrasodium ethylenediaminetetraacetic acid as a water-soluble chemical used for chelation in cosmetics that forms complexes with iron, calcium, and magnesium to prevent the metals from absorbing into the skin (See entire document, e.g., What is Tetrasodium EDTA?, Overview). Tetrasodium ethylenediaminetetraacetic acid is FDA-approved and is found in personal care products including shampoos and conditioners (e.g., Overview).
It would have been prima facie obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, based on the teachings of Umezawa et al, Perkins, Deavenport et al, Stepan, Johnson et al, Dow, and Advanced Dermatology, to prepare a cleaning/shampooing composition that simultaneously colors the hair comprising at least one cationic polymer compound having alpha-1,6'glucoside bonds represented by the aforementioned formula (1) where at least one of R is of the aforementioned formula (2) being cationic dextran or a derivative thereof with the dye fixative agent of Deavenport et al as the compound of formula (2) present from preferably 0.05 to 5 wt% and especially 0.1 to 2 wt% based on the weight of the composition, at least one silicone derivative being dimethiconol, a surfactant being Stepanol® MEV (i.e., a mixture of sodium laureth sulfate, cocamidopropyl betaine, and cocamide monoethanolamine), wherein dimethiconol and Stepanol® MEV are present from preferably 0.001 to 10 wt% based on the weight of the composition, a thickener being PEG-150 pentaerythrityl tetrastearate present from 0.0005 to 5%, a preservative being NeoloneTM PE (i.e., a mixture of methylisothiazolinone and phenoxyethanol), a chelating agent being tetrasodium ethylenediaminetetraacetic acid, a colorant, and water and to apply the cleaning/shampooing and coloring composition to mammalian hair. 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 (Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945)). An express suggestion to substitute one equivalent component or process for another is not necessary to render such substitution obvious (In re Fout, 675 F.2d 297, 213 USPQ 532 (CCPA 1982)). The strongest rationale for combining references is a recognition, expressly or impliedly in the prior art or drawn from a convincing line of reasoning based on established scientific principles or legal precedent, that some advantage or expected beneficial result would have been produced by their combination (In re Sernaker, 702 F.2d 989, 994-95 (Fed. Cir. 1983)).
One of ordinary skill in the art would have been motivated to use dimethiconol as the at least one silicone derivative because Perkins teaches that dimethiconol is a commonly used ingredient in products including shampoos and conditioners that bring positive characteristics including extra shine, softness, smoothness, and anti-frizz while not being overly greasy like dimethicone. There would have been a reasonable expectation of success because 1) the cleaning/shampooing composition of Umezawa et al is taught as compatible with silicone derivatives and 2) the cleaning/shampooing composition of Umezawa et al comprises a sulfate compound, for which Perkins teaches should be used together with dimethiconol in order to help with the removal of dimethiconol.
One of ordinary skill in the art would have been motivated to include at least one silicone derivative being dimethiconol and a surfactant being Stepanol® MEV from preferably 0.001 to 10 wt% based on the weight of the composition because Umezawa et al teach when a lesser amount is used there is a case where a compounded effect is not obtained, and when a greater amount is used a stable emulsion dispersion cannot be obtained or stickiness may occur.
One of ordinary skill in the art would have been motivated to include the at least one cationic polymer compound from preferably 0.05 to 5 wt% and especially 0.1 to 2 wt% based on the weight of the composition because Umezawa et al teach when a lesser amount is used the effect of the emulsion dispersion system with respect to stabilization may be insufficient, and when a greater amount is used a sticky feeling may be accompanied.
One of ordinary skill in the art would have been motivated to substitute the compound of formula (2) in the cleaning/shampooing composition of Umezawa et al comprising a colorant with the dye fixative agent of Deavenport et al in order to provide a singular composition that both cleans/shampoos the hair and colors the hair. There would have been a reasonable expectation of success because Deavenport et al teaches that the aforementioned compound increases dye uptake and the cleaning/shampooing composition of Umezawa et al is taught as compatible with both 1) a quaternary nitrogen-containing compound in the cationic polymer, for which the compound of Deavenport et al is, and 2) a colorant, for which the compound of Deavenport et al is taught as beneficial for use with.
One of ordinary skill in the art would have been motivated to use Stepanol® MEV as the surfactant because Stepan teaches that Stepanol® MEV is a commonly used ingredient in products such as shampoos that bring positive characteristics to said products including good foam and viscosity. There would have been a reasonable expectation of success because the cleaning/shampooing composition of Umezawa et al is taught as compatible with a surfactant.
One of ordinary skill in the art would have been motivated to use PEG-150 pentaerythrityl tetrastearate as thickener in order to adjust the viscosity of the composition to desired viscosity and to do so in a concentration of from 0.0005 to 5% because Johnson et al teach this range as being safe for use in rinse-off products with 5% being the maximum use concentration. There would have been a reasonable expectation of success because Johnson et al teach PEG-150 pentaerythrityl tetrastearate as safe-to-use ingredients commonly used in cosmetics including shampoos and the cleaning/shampooing composition of Umezawa et al is taught as compatible with a thickener.
One of ordinary skill in the art would have been motivated to use NeoloneTM PE as preservative because Dow teaches that this commercially available mixture is an effective preservative that prevents or retards the growth of bacteria, yeasts, and molds, which would increase the shelf life of the composition and decrease the risk of spoilage. There would have been a reasonable expectation of success because the cleaning/shampooing composition of Umezawa et al is taught as compatible with a preservative.
One of ordinary skill in the art would have been motivated to add tetrasodium ethylenediaminetetraacetic acid as chelating agent in order to prevent metals from absorbing into the skin. There would have been a reasonable expectation of success because Advanced Dermatology teach of tetrasodium ethylenediaminetetraacetic acid as safe-to-use ingredients commonly used in cosmetics including shampoos and the cleaning/shampooing composition of Umezawa et al is taught as compatible with other components that improve shampooing performance.
Sodium laureth sulfate is synonymous with sodium lauryl ether sulfate of the instant claims as evidenced by Olsson Scandinavia (See Page 2).
The modified cleaning/shampooing and coloring composition of Umezawa et al in view of Perkins, Deavenport et al, Stepan, Johnson et al, Dow, and Advanced Dermatology comprising water meets the limitation of the dermatologically acceptable vehicle of the instant claims as evidenced by Par. [0016] of the instant specification.
The modified cleaning/shampooing and coloring composition of Umezawa et al in view of Perkins, Deavenport et al, Stepan, Johnson et al, Dow, and Advanced Dermatology comprising cationic dextran or a derivative thereof as the at least one cationic polymer compound meets the limitation of the branched chain dextran polymer of the instant claims because dextran is a polymer composed of approximately 95% alpha-D-1,6 linkages and the remaining alpha-1,3 linkages account for the branching of dextran, with average branch length being less than three glucose units and/or existence of branches of greater than 50 glucose units as evidenced by Millipore Sigma (See Structure Par. 1 on Page 1). More specifically, approximately 95% alpha-D-1,6 linkages falls within the range of 90 to 98 mol% of the glucose structural units being connected by α-D-1,6 linkages and approximately 5% α-1,3-linkages falls within the range of 2 to 10 mol% of the glucose structural units being connected by alpha-1,3-linkages required by the instant claims.
The modified cleaning/shampooing and coloring composition of Umezawa et al in view of Perkins, Deavenport et al, Stepan, Johnson et al, Dow, and Advanced Dermatology comprising the dye fixative agent of Deavenport et al as the compound of formula (2) serving as the moiety serving to link the cationic polymer compound meets the limitation of the elected species of dextran crosslinking agent of formula (I) of the instant claims, wherein each R1 is a methyl group, each R2 is a -CH2- group, Y is a -CH2CH2-O-CH2CH2- group, and each X is a -Cl (See synthesis of dextran crosslinking agent in Par. [0036] of the instant specification and synthesis of dye fixative agent in Par. [0016] of Deavenport et al).
Because the cationic polymer compound in the modified cleaning/shampooing and coloring composition of Umezawa et al in view of Perkins, Deavenport et al, Stepan, Johnson et al, Dow, and Advanced Dermatology is the same as the deposition aid polymer of the instant claims, the cationic polymer compound in the modified cleaning/shampooing and coloring composition of Umezawa et al in view of Perkins, Deavenport et al, Stepan, Johnson et al, Dow, and Advanced Dermatology necessarily has a Kjeldahl nitrogen content corrected for ash and volatiles, TKN, of 0.5 to 5.0 wt% and of 1 to 3.5 wt% and necessarily enhances deposition of the dimethiconol from the composition onto mammalian hair. Because the modified cleaning/shampooing and coloring composition of Umezawa et al in view of Perkins, Deavenport et al, Stepan, Johnson et al, Dow, and Advanced Dermatology is the same as the hair cleanser of the instant claims, applying the modified cleaning/shampooing and coloring composition of Umezawa et al in view of Perkins, Deavenport et al, Stepan, Johnson et al, Dow, and Advanced Dermatology to the hair would necessarily both cleanse the hair and simultaneously deposit silicone on to the hair. A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present (In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).
Regarding the wt% ranges required by the instant claims, 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)).
Thus, the modified cleaning/shampooing and coloring composition of Umezawa et al in view of Perkins, Deavenport et al, Stepan, Johnson et al, Dow, and Advanced Dermatology and its application to mammalian hair renders obvious the hair cleanser and method of cleansing mammalian hair of instant claims 1-5, 8, and 10-22.
Response to Applicant’s Arguments
Applicant’s arguments filed on 12/01/2025 have been considered.
Applicant argues that the rejection of claims 1-5 and 10-11 under 35 USC 103 set forth in the Office action dated 09/03/2025 should be withdrawn because 1) the applied art fails to disclose or teach hair cleansers having the specifically recited deposition aid polymer, 2) one of ordinary skill would not have a reasonable rationale for modifying the cationic polymers of Umezawa, 3) one of ordinary skill in the art would not have relied upon Deavenport for modifying the teachings of Umezawa as the two references are non-analogous art, and 4) unexpected results exist. Regarding 1), Applicant argues that Umezawa is directed to hair cleansing compositions that employ a linear cationic compound having the specific structure of Formula (1), that it is the linear cationic polymer according to the specific structure of Formula (1) that exhibits a synergist effect producing a very stable emulsified dispersion that enables the invention of Umezawa to be completed, and that the linear cationic polymers of Umezawa are not branched chain dextran polymers as recited in instant claim 1 and the general teaching of Millipore Sigma doesn’t serve as proper evidence and doesn’t permit the term “linear cationic polymers” to include branched cationic polymers. Regarding 2), Applicant argues that Umezawa provides numerous statements associating the benefits achieved by its invention with the linear cationic polymer compounds according to Formula (1), and in view of such, one or ordinary skill would not modify the linear cationic polymer compounds of Umezawa to be branched nor replace the R-group of Formula (1) with the dye fixative agent of Deavenport, and these significant modifications/alterations to the structure of the cationic polymer compounds with the motivation of providing a singular composition that both cleans/shampoos the hair and colors the hair alter the functionality of Umezawa’s linear cationic polymer compounds to include promoting coloring of such hair. Applicant argues that the resulting modified cationic polymers of Umezawa in view of Deavenport would not cross-link themselves nor is there evidence of record to suggest that procedures for producing a hair cleanser according to Umezawa would result in the claimed deposition aid polymer, and to the contrary, there is evidence that forming the claimed deposition aid polymer would not inherently occur according to the produces for producing a hair cleanser, i.e., Example S2 from the present specification, for which Applicant argues that the steps disclosed in Example S2 which separately mix the dextran and the dextran crosslinking agent prepared according to Examples S1 with relatively large amounts of sodium hydroxide and then relatively large amounts of glacial acetic acid would not occur or be effectively replication during typical process for producing hair cleanser compositions. Regarding 3), Applicant argues that Umezawa is directed to hair cleansing compositions for human hair and Deavenport is directed to cotton fiber textiles, and because cotton fibers have a different charge, are very porous compared to human hair, and can be bleached and heated using chemicals that would be hazardous and/or unsuitable for human hair and scalps, one of ordinary skill in the art would have recognized that Deavenport is not in the field of endeavor or reasonably pertinent to addressing the problems faced by the inventor relying on Umezawa. Regarding 4), Applicant argues unexpected results and points to Par. [0038]-[0041] of the present specification wherein three comparative hair cleansers comprising polyquaternium-10, unmodified branched chain dextran, and guar hydroxypropyltrimonium chloride, respectively, are compared to a non-limiting hair cleanser of the present invention comprising the claimed deposition aid polymer, wherein the hair cleanser of the present invention achieved silicone deposition that was greater than the comparative hair cleansers by 2,214% and 378%. Applicant argues that the benefits of the instantly claimed hair cleansers enable a reduction in the amount of silicone oil while maintaining high levels of silicone deposition, thereby enabling hair cleanser to be formulated with both significantly enhanced silicone oil deposition and improved foaming characteristics, which is an unexpected achievement.
Argument 1) has been fully considered by the Examiner but is not found persuasive because the Examiner disagrees with Applicant’s argument that the cationic polymer compound of Umezawa et al does not meet the limitation of the deposition aid polymer of the instant claims. As can be seen in the new grounds of rejection under 35 USC 103 above, the modified cleaning/shampooing and coloring composition of Umezawa et al in view of Perkins, Deavenport et al, Stepan, Johnson et al, Dow, and Advanced Dermatology comprising cationic dextran or a derivative thereof as the at least one cationic polymer compound meets the limitation of the branched chain dextran polymer of the instant claims because dextran is a polymer composed of approximately 95% alpha-D-1,6 linkages and the remaining alpha-1,3 linkages account for the branching of dextran, with average branch length being less than three glucose units and/or existence of branches of greater than 50 glucose units as evidenced by Millipore Sigma (See Structure Par. 1 on Page 1). More specifically, approximately 95% alpha-D-1,6 linkages falls within the range of 90 to 98 mol% of the glucose structural units being connected by α-D-1,6 linkages and approximately 5% α-1,3-linkages falls within the range of 2 to 10 mol% of the glucose structural units being connected by alpha-1,3-linkages required by the instant claims. Further, Umezawa et al teach as a specific example of their cationic polymer compound as being cationic dextran or a derivative thereof (See new grounds of rejection under 35 USC 103 above and Par. [0018] of Umezawa et al. Arguments 2) and 3) 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, it would have been prima facie obvious to look to the teaching of Deavenport et al from the teaching of Umezawa et al and use the dye fixative agent of Deavenport et al in the cleaning/shampooing composition of Umezawa et al comprising a colorant in order to provide a singular composition that both cleans/shampoos the hair and colors the hair, i.e., motivation would have existed to modify the teaching of Umezawa et al with the dye fixative agent of Deavenport et al. The Examiner disagrees that the functionality of the composition of Umezawa et al is changed by this modification because the cleaning/shampooing composition of Umezawa et al is taught as comprising a colorant, and therefore a substitution regarding improving coloring of the hair is relevant and within the scope of the teaching of Umezawa et al. The art needs to provide “a motivation” and not the same motivation as Applicant or necessarily recognize the same problem/solution as Applicant. "In determining whether the subject matter of a patent claim is obvious, neither the particular motivation nor the avowed purpose of the patentee controls." KSR Int'l Co. v. Teleflex lnc., 550 U.S. 398,419 (2007). Instead, "any need or problem known in the field of endeavor at the time of invention and addressed by the patent can provide a reason for combining the elements in the manner claimed." Id. at 420. The argument regarding there not being evidence to suggest that the resulting modified cationic polymers of Umezawa in view of Deavenport would cross-link themselves is not found persuasive because it is not a requirement that the art provide this and rather it would be prima facie obvious to try the substitution for the aforementioned reasons above. Argument 4) has been fully considered by the Examiner but is not found persuasive because “F1” which is argued as the hair cleanser of the present invention is not commensurate with the hair cleansers of any of independent claims 1, 14, and 18, e.g., As can be seen in Table 1 on Page 16 of the instant specification, F1 requires 0.2 wt% of tetrasodium EDTA whereas the hair cleansers of claims 1, 14, and 18 require ‘a chelating agent’, F1 requires 2.0 wt% of a 50 wt% aq. soln. of dimethiconol and TEA-dodecylbenzenesulfonate whereas the hair cleansers of claims 1, 14, and 18 do not require TEA-dodecylbenzenesulfonate. Further, wt% requirements of the components of the hair cleansers of claims 1, 14, and 18 are limited to the deposition aid polymer and the thickener (instant claim 1), the mixture of surfactants, the deposition aid polymer, and the thickener (instant claim 14), and the surfactant, the deposition aid polymer, and the thickener (instant claim 18). Whether the unexpected results are the result of unexpectedly improved results or a property not taught by the prior art, the "objective evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support." In other words, the showing of unexpected results must be reviewed to see if the results occur over the entire claimed range. In re Clemens, 622 F.2d 1029, 1036, 206 USPQ 289, 296 (CCPA 1980).
Applicant argues that claims 4, 13, 17, and 19 directed to the deposition aid polymer having a Kjeldahl nitrogen content corrected for ash and volatiles, TKN, of 0.5 to 5 wt% or 1 to 3.5 wt% cannot be rejected relying on a theory of inherency because the dextran polymer of Umezawa does not have an identical structure to the claimed deposition aid polymer. Applicant argues that the rejection set forth in the Office action dated 09/03/2025 selectively picks out each of the recited elements from amongst the art, combines the recited elements according to the claims, and then concludes that the claimed property is inherent in this combination, said another way, the rejection recreates what is claimed and then find the claimed property inherent in the recreation, which is not allowed.
The above arguments have been fully considered by the Examiner but are not found persuasive because, as is discussed above, the cationic polymer compound in the modified cleaning/shampooing and coloring composition of Umezawa et al in view of Perkins, Deavenport et al, Stepan, Johnson et al, Dow, and Advanced Dermatology is the same as the deposition aid polymer of the instant claims, and therefore identical structure does exist. But see, Persion Pharms. LLC v. Alvogen Malta Operations LTD., 945 F.3d 1184, 1191, 2019 USPQ2d 494084 (Fed. Cir. 2019), where the court stated that a proper finding of inherency does not require that all limitations are taught in a single reference, and that inherency may meet a missing claim limitation when the limitation is "the natural result of the combination of prior art elements." (emphasis in original). The court found that pharmacokinetic limitations of the asserted claims were inherently met by combining prior art references because the limitations were necessarily present in the prior art combination. Id. See also Hospira, Inc. v. Fresenius Kabi USA, LLC, 946 F.3d 1322, 1329-32, 2020 USPQ2d 6227 (Fed. Cir. 2020). Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established (In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977)). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not" (In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990)).
Conclusion
No claims are allowable.
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/K.E.O./Examiner, Art Unit 1619
/DAVID J BLANCHARD/Supervisory Patent Examiner, Art Unit 1619