DETAILED ACTION
Continued Examination
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 06/29/2026 has been entered.
Previous Rejections
Applicants' arguments, filed 06/22/2026, 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 Rejections and/or objections not reiterated from previous office actions are hereby withdrawn.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 Objections
Claim 16 is objected to because of the following informality:
Claim 16 should read “The hair cleansing formulation of claim 15, comprising the chelating agent.” 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 and 11-15 are rejected under 35 U.S.C. 103 as being as being obvious over Peffly et al. (US 2005/0158266 A1) in view of Sau (US 2010/0247472 A1) and as evidenced by Chen et al. (US 9,351,910 B2).
Regarding claims 1 and 11, Peffly discloses hair shampoo compositions comprising at least one detersive surfactant, a silicone oil, a cationic deposition polymer, and an aqueous carrier [0017] [abstract]. The detersive surfactant is present in an amount of 2-35% by weight of the composition [0028]-[0029]. Dimethiconol is disclosed as a silicone oil [0056]-[0057] and the silicone oils are present in the composition in an amount of 0.01-10% by weight of the composition [0063]. The cationic deposition polymer is disclosed to aid in deposition of the silicone oil component onto hair and is present in an amount of 0.01-3% by weight of the composition [0068]. The aqueous carrier is present in an amount of 20-99% by weight of the composition [0081].
Peffly does not disclose the deposition aid polymer is a tertiary amine functionalized dextran polymer, comprising a branched chain dextran polymer functionalized with tertiary amine groups; wherein the branched chain dextran polymer comprises 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; wherein the deposition aid polymer deposits at least 10 mol% of the dermatologically acceptable silicone from the hair cleansing formulation onto mammalian hair.
Sau discloses cationic deposition polymers to be used in hair shampoo formulations with silicone [abstract] [0039]-[0040] [0078]-[0079] and teaches that the polymers, such as dextran [0049] [claim 6], functionalized with amino groups, such as tertiary amines (e.g., diethylaminoethyl) [0039]-[0040] [0055] are polymers which provide conditioning to hair when incorporated in shampoo formulations, are substantially removable from the substrate surface when subsequently washed with a cleansing agent, and provide significant enhancement in silicone deposition - a functionality that is highly desirable by shampoo manufacturers to deliver superior conditioning [0021] [0038]-[0039] [0078]-[0079].
Since Peffly generally teaches a shampoo composition for the hair with silicone and a deposition polymer it would have been prima facie obvious to one of ordinary skill in the art to use dextran functionalized with tertiary amine groups, as the deposition polymer of Peffly, because Sau teaches that polymers, such as dextran, functionalized with amino groups, such as tertiary amines (e.g., diethylaminoethyl), are polymers to be used in compositions for the hair to enhance silicone deposition. The ordinarily skilled artisan would have been motivated to use a tertiary amine functionalized dextran polymer because Sau teaches that the polymers of the disclosure provide conditioning to hair when incorporated in shampoo formulations, are substantially removable from the substrate surface when subsequently washed with a cleansing agent, and provide significant enhancement in silicone deposition - a functionality that is highly desirable by shampoo manufacturers to deliver superior conditioning [0021] [0038]-[0039] [0078]-[0079].
While Sau does not explicitly disclose the claimed dextran branching, as evidenced by Chen, dextran is an α-D-1,6-glucose-linked glucan with side chains 1-3 linked to the backbone units of the dextran biopolymer and the degree of branching is approximately 5% (Col 4, lines 11-15), meaning that around 95% of the glucose structural units are connected by α-D-1,6 linkages and around 5% of the glucose structural units are connected by α-1,3 linkages. Therefore, it would be reasonably expected that “dextran” as generally taught by Sau would have the claimed linkages.
In regards to the amounts of the components as recited in claims 1 and 11, Peffly discloses the detersive surfactant is present in an amount of 2-35% by weight of the composition [0028]-[0029], the silicone oil (such as dimethiconol) is present in an amount of 0.01-10% by weight of the composition [0063], the cationic deposition polymer is present in an amount of 0.01-3% by weight of the composition [0068], and the aqueous carrier is present in an amount of 20-99% by weight of the composition [0081]. It would have been prima facie obvious to use the tertiary amine functionalized dextran polymer, as taught by Sau, as the deposition polymer of Peffly, as previously discussed (i.e., would be included in an amount of 0.01-3% by weight). In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. See MPEP 2144.05 A.
Further regarding claim 11, the claim recites “consisting of” language. The combined teachings of Peffly and Sau read on the claim because the required components of Peffly at are at least one detersive surfactant (claimed “cleansing surfactant”), a silicone oil, such as dimethiconol, a cationic deposition polymer (claimed “deposition aid polymer”) and an aqueous carrier (claimed “dermatologically acceptable vehicle”) [abstract] [0017] [0056]-[0057]. The amounts of the components disclosed by Peffly overlap with those claimed and it would have been prima facie obvious to include dextran functionalized with tertiary amine groups (taught by Sau) as the cationic deposition polymer in the disclosure of Peffly, as previously discussed. Therefore, there is nothing required by the prior art that is not within the scope of the instant claim 11.
Regarding the claim 1 and 11 limitation of “wherein the deposition aid polymer deposits at least 10 mol % of the dermatologically acceptable silicone from the hair cleansing formulation onto mammalian hair”, while this property is not explicitly disclosed, a chemical composition and its properties are inseparable. MPEP 2112.01 II. It would have been prima facie obvious to include dextran functionalized with tertiary amine groups (e.g., diethylaminoethyl [0055]), as taught by Sau, as the cationic deposition polymer in the disclosure of Peffly, as previously discussed, which is the polymer shown in the instant application (pg. 14-16) to have the claimed deposition. Furthermore, this property would be reasonably expected because Sau teaches that the polymers of the disclosure provide significant enhancement in silicone deposition [0078]-[0079].
Claims 2-3 and 12-13 are rendered prima facie obvious because Peffly discloses the composition is a conditioning shampoo [abstract] [0012].
Regarding claims 4 and 14, while Peffly does not disclose the tertiary amine functionalized dextran polymer with the claimed Kjeldahl nitrogen content, it would have been prima facie obvious to include dextran functionalized with tertiary amine groups (such as diethylaminoethyl) as taught by Sau, as previously discussed and achieving the claimed Kjeldahl nitrogen content corrected for volatiles and ash would have been a matter of routine experimentation. The Kjeldahl nitrogen content correlates to the molar degree of substitution (the average number of moles of the amino group per mole of polymeric unit). The ordinarily skilled artisan would have been motivated to modify the molar degree of substitution to optimize the silicone deposition following the teachings of Sau. Sau discloses (Table 1) that the diethylaminoethyl (DEAE) molar substitution affects the silicone deposition on hair (Examples 12-B vs. 12-C). Therefore, the molar degree of substitution (and corresponding Kjeldahl nitrogen content) is recognized to be results effective (changes silicone deposition). 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 experimentation. See MPEP 2144.05(II)(A). In this case, it would not have been inventive for the skilled artisan to have discovered the optimum DEAE molar substitution (and corresponding Kjeldahl nitrogen content corrected for volatiles and ash) via routine experimentation for the optimal silicone deposition.
Claims 5 and 15 are rendered prima facie obvious because Peffly discloses sodium laureth sulfate (synonym for sodium lauryl ether sulfate), cocamidopropyl betaine, and cocamide monoethanolamine as surfactants [0091] [0037] [0041] [0050]. It is prima facie obvious to combine prior art elements according to known methods, to yield predictable results. In the instant case, all the claimed elements (e.g., sodium laureth sulfate, cocamidopropyl betaine, and cocamide monoethanolamine) were known in the prior art (e.g., Peffly) and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination yielding nothing more than predictable results (e.g., a surfactant mixture for a hair shampoo composition) to one of ordinary skill in the art. MPEP 2143.A.
Claims 6-9 and 16-17 are rejected under 35 U.S.C. 103 as being as being obvious over Peffly et al. (US 2005/0158266 A1) in view of Sau (US 2010/0247472 A1) and as evidenced by Chen et al. (US 9,351,910 B2) and further in view of Chang et al. (US 2018/0311136 A1).
The 35 U.S.C. 103 rejection over Peffly and Sau and as evidenced by Chen was previously discussed.
Regarding claims 6 and 16, the combined teachings of the prior art do not disclose a chelating agent, such as tetrasodium EDTA.
Chang discloses a hair shampoo composition [abstract] [0001] with chelating agents, such as tetrasodium EDTA [0191] [0222], which are taught as benefit agents [0165] that have chelating properties [0187]-[0191].
Since the combined teachings of the prior art generally teach a hair shampoo composition, it would have been prima facie obvious to one of ordinary skill in the art to include a chelating agent, such as tetrasodium EDTA, within the combined teachings of the prior art, because Chang teaches tetrasodium EDTA in hair shampoo compositions. An ordinarily skilled artisan would have been motivated to use a chelating agent, such as tetrasodium EDTA, because Chang teaches that chelating agents are benefit agents that have chelating properties [0165] [0187]-[0191].
Claim 7 is rendered prima facie obvious because Peffly discloses the compositions include thickeners [0083]-[0084].
Regarding claim 8, while the combined teachings of Peffly and Sau do not disclose the compositions include tetrasodium EDTA, it would have been prima facie obvious to include tetrasodium EDTA, as taught by Chang, within the teachings of the prior art, as previously discussed. The combined teachings of Peffly and Sau also do not disclose the composition includes the thickener, PEG - 150 pentaerythrityl tetrastearate.
Chang discloses the thickener PEG - 150 pentaerythrityl tetrastearate [0137] and teaches that thickeners are used to increase the viscosity of the composition and to provide a good viscosity for dispensing and spreading [0001] [0129].
Since the combined teachings of the prior art generally teach a hair shampoo composition, it would have been prima facie obvious to one of ordinary skill in the art to include PEG - 150 pentaerythrityl tetrastearate, as taught by Chang, within the combined teachings of the prior art, because Chang teaches PEG - 150 pentaerythrityl tetrastearate as a thickener to be used in a hair shampoo composition. The ordinarily skilled artisan would have been motivated to include PEG - 150 pentaerythrityl tetrastearate as a thickener to thicken the composition and to provide a good viscosity for dispensing and spreading [0001] [0129].
Furthermore, 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. In the instant case, since Peffly generally taught thickeners are used in the hair shampoo compositions, it is prima facie obvious to select PEG - 150 pentaerythrityl tetrastearate for incorporation into a hair shampoo composition based on its recognized suitability for the intended use as a thickener in a hair shampoo composition, as taught by Chang.
Claim 9 is rendered prima facie obvious because Peffly discloses the compositions may further include a preservative as an additional ingredient conventionally incorporated into shampoo formulations [0088].
Regarding claim 17, the combined teachings of Peffly and Sau do not disclose the composition includes the rheology modifier PEG - 150 pentaerythrityl tetrastearate. However, it would have been prima facie obvious to include the rheology modifier, PEG - 150 pentaerythrityl tetrastearate, as taught by Chang, within the teachings of the prior art, as previously discussed.
Claims 18-20 are rejected under 35 U.S.C. 103 as being as being obvious over Peffly et al. (US 2005/0158266 A1) in view of Sau (US 2010/0247472 A1) and as evidenced by Chen et al. (US 9,351,910 B2) and in view of Chang et al. (US 2018/0311136 A1) and further in view of Long (US 2007/0141019 A1).
The 35 U.S.C. 103 rejection over Peffly and Sau and as evidenced by Chen and further in view of Chang was previously discussed.
Regarding claim 18, the combined teachings of the prior art do not disclose the antioxidant butylated hydroxytoluene.
Long teaches compositions for the hair [abstract] [0045] with antioxidants, such as butylated hydroxytoluene [0033]. Long teaches that antioxidants terminate free-radical induced reactions, thus reducing or preventing oxidative damage [0025].
Since the combined teachings of the prior art generally teach compositions for the hair, it would have been prima facie obvious to one of ordinary skill in the art to include butylated hydroxytoluene, as taught by Long, within the combined teachings of the prior art, because Long teaches antioxidants, such as butylated hydroxytoluene, are used in compositions for the hair. The ordinarily skilled artisan would have been motivated to include an antioxidant, such as butylated hydroxytoluene, because Long teaches that antioxidants terminate free-radical induced reactions, thus reducing or preventing oxidative damage [0025].
Regarding claim 19, Peffly discloses the compositions may further include a preservative [0088].
Peffly does not disclose the preservative is selected from the group consisting of benzoic acid, sorbic acid, phenoxyethanol, methylisothiazolinone, and mixtures thereof.
Long teaches that the compositions include preservatives, such as phenoxyethanol [0041]. Long teaches that preservatives, such as phenoxyethanol, prevent or retard microbial growth and thus protect the composition from spoilage [0041].
Since the combined teachings of the prior art generally teach compositions for hair, it would have been prima facie obvious to one of ordinary skill in the art to include phenoxyethanol, as taught by Long, within the combined teachings of the prior art, because Long teaches a preservative, such as phenoxyethanol, in compositions for hair. The ordinarily skilled artisan would have been motivated to include phenoxyethanol because Long teaches that preservatives, such as phenoxyethanol, prevent or retard microbial growth and thus protect the composition from spoilage [0041].
Furthermore, 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. In the instant case, since Peffly generally taught preservatives, it is prima facie obvious to select phenoxyethanol for incorporation into compositions for the hair based on its recognized suitability for the intended use as a preservative in a composition for the hair, as taught by Long.
Regarding claim 20, Peffly does not disclose the compositions include a humectant, such as glycerin.
Chang discloses that agents, such as glycerin, are included in the compositions as a scalp health agent to provide scalp benefits [0155].
Since Peffly generally taught compositions for the hair, it would have been prima facie obvious to one of ordinary skill in the art to include a humectant, such as glycerin, within the combined teachings of the prior art, because Chang teaches that glycerin is included in compositions for the hair as a scalp health agent to provide scalp benefits [0155].
Response to Arguments
Applicant’s arguments filed 06/22/2026 have been fully considered but are not persuasive.
Applicant argues that Peffly is focused on the stability of its formulations and does not disclose the actual deposition achieved. Applicant argues that nothing in Peffly nor the secondary references would have led a skilled worker to a composition which provides at least 10 mol % deposition of the silicone as recited in amended claims 1 and 11.
The Examiner disagrees because while neither Peffly nor Sau recite the actual deposition achieved, the combined teachings of Peffly and Sau would deposit at least 10 mol % of the silicone onto hair because it would have been prima facie obvious to include dextran functionalized with tertiary amine groups (e.g., diethylaminoethyl [0055]), as taught by Sau, as the cationic deposition polymer in the disclosure of Peffly, as previously discussed, which is the polymer shown in the instant application (pg. 14-16) to have the claimed deposition. Furthermore, this property would be reasonably expected because Sau teaches that the polymers of the disclosure provide significant enhancement in silicone deposition [0078]-[0079].
Analysis of Alleged Unexpected Results
Applicant argues that as demonstrated in the present application, use of the recited amine functionalized dextran polymers provides much better deposition of silicone than do cationic celluloses or cationic guars as those mentioned in Peffly. The Examiner is directed to Comparative Examples CF1 and C3.
The Examiner has fully reviewed and considered the unexpected results alleged by the applicant.
Table 1 of the instant specification describes Examples F1 and F2 with 0.3 wt.% of tertiary amine functionalized dextran polymers, 1 wt.% of dimethiconol, a surfactant mixture, water, and additional additives. Comparative Examples CF1-CF3 differ in that instead of tertiary amine functionalized dextran polymers, they include 0.3 wt.% of polyquaternium-10 (CF1), 0.3 wt.% of unmodified branched chain dextran (CF2), or 0.3 wt.% guar hydroxypropyltrimonium chloride (CF3).
The results in Table 3 demonstrate that Si deposition is improved with F1 and F2 (18.0 and 16.1 mol %, respectively), compared to comparative examples CF1 (0.7 mol %), CF2 (0.7 mol %), and CF3 (4.1 mol %).
However, these results are not unexpected over the prior art. Sau teaches that incorporation of synthetic polymers functionalized with amino groups provided significant enhancement in silicone deposition [0079]. In Table 1 of Sau, results are shown where DEAE modified Guar (12-B, 12-C, and 12-D) is compared to commercially available guar hydroxypropyl trimonium chloride. The DEAE modified guar showed significant improvement in silicone deposition compared to the guar hydroxypropyltrimonium chloride or when no polymer was used. Therefore, the results shown by the applicant in the instant specification (demonstrating that the DEAE modified polymer provides enhanced silicone deposition compared to commercially available quaternary ammonium polymers or an unmodified polymer) is not unexpected over the prior arts teachings. The Examiner notes that no results are shown demonstrating the specific benefit of tertiary amine functionalized dextran over other tertiary amine functionalized polymers (i.e., guar).
Terminal Disclaimer
The terminal disclaimer filed on 04/25/2025 disclaiming the terminal portion of any patent granted on this application which would extend beyond the expiration date of 17/798,213 and 18/261,703 has been reviewed and is accepted. The terminal disclaimer has been recorded. The respective double patenting rejections were withdrawn.
Conclusion
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/ASHLEE E WERTZ/Examiner, Art Unit 1612
