DETAILED ACTION
Previous Rejections
Applicants' arguments, filed 01/30/2026, 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 Rejections and/or objections not reiterated from previous office actions are hereby withdrawn.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 Rejections - 35 USC § 103 (Maintained)
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 1-3 and 11-13 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 a shampoo composition 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] which is 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]. Peffly teaches suitable cationic polymers are protonated tertiary amines [0069]. The aqueous carrier is present in an amount of 20-99% by weight of the composition [0081].
Peffly does not disclose the cationic deposition polymer is a branched chain dextran polymer 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.
Sau teaches that polymers, such as dextran [0049] [claim 6], functionalized with amino groups, such as tertiary amines/diethylaminoethyl (DEAE) [0039] [0055] [0116]-[0117], are cationic deposition polymers which enhance deposition of silicones onto hair [0018] [0048] [0166] and provide conditioning to hair [0021].
Since Peffly generally teaches a composition for the hair with a cationic deposition polymer, such as those with protonated tertiary amines, it would have been prima facie obvious to a person of ordinary skill in the art to include dextran functionalized with tertiary amine groups, within the composition of Peffly, because Sau teaches that polymers, such as dextran [0049] [claim 6], functionalized with amino groups, such as tertiary amines/diethylaminoethyl, are cationic deposition polymers for hair. The ordinarily skilled artisan would have been motivated to use a tertiary amine functionalized dextran polymer because Sau teaches that they enhance deposition of silicones onto hair [0018] [0048] [0166] and provide conditioning to hair [0021].
Furthermore, generally, it is prima facie obvious to substitute equivalents known for the same purpose. See MPEP 2144.06.II. In the instant case, since Peffly generally taught cationic deposition polymers, it is prima facie obvious to select dextran functionalized with tertiary amine groups for incorporation into compositions for the hair based on its known use as a cationic deposition polymer, as taught by Sau.
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.
In regards to the amounts of the components as recited in claims 1 and 11, 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.
Claims 2-3 and 12-13 are rendered prima facie obvious because Peffly discloses the composition is a conditioning shampoo [0012].
Response to Arguments
Applicant’s arguments filed 01/30/2026 have been fully considered but are not persuasive.
Applicant argues at pg. 3 that given Sau’s preference for aminated guar and aminated cellulose, a person having ordinary skill in the art would not have been motivated by the teachings of Sau to substitute an aminated dextran as defined in the instant claims for the aminated cellulose or aminated guar taught by Peffly. Applicant further argues that there is no indication in the teachings of record that any of the polymers in the expansive list of deposition aid polymers hypothesized in Sau (other than the aminated cellulose and aminated guar polymers similarly recited in Peffly) would provide equivalent performance to the cationic cellulose and cationic guar polymers specifically taught in Peffly.
The Examiner disagrees. Patents are relevant as prior art for all that they contain and nonpreferred or alternative embodiments constitute prior art. See MPEP 2123. Therefore, although Sau has many teachings (i.e., polymers functionalized with amino groups), the large number of teachings does not detract from teaching the claimed component (i.e. tertiary amine functionalized dextran polymer). Furthermore, since Peffly generally taught cationic deposition polymers, it is prima facie obvious to select dextran functionalized with tertiary amine groups for incorporation into a composition for the hair based on its known use as a cationic deposition polymer in a composition for the hair, as taught by Sau. See MPEP 2144.06.II. The ordinarily skilled artisan would reasonably expect dextran functionalized with tertiary amine groups to have performance as a cationic deposition polymer as taught by Sau [0048]-[0049].
Claims 4-5 and 14-15 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) and further as evidenced by Pharmacosmos (DEAE-Dextran).
The 35 U.S.C. 103 rejection over Peffly in view of Sau and evidenced by Chen was previously discussed.
Regarding claims 4 and 14, although Sau taught dextran functionalized with amino groups, such as diethylaminoethyl (DEAE), Sau does not disclose the Kjeldahl nitrogen content of DEAE-dextran.
As evidenced by Pharmacosmos, the Kjeldahl nitrogen content of DEAE-dextran is 3.2 wt.% (pg. 3, top).
A prima facie case of obviousness exists because of overlap, as discussed above.
The ordinarily skilled artisan would correct for ash and volatiles when determining the Kjeldahl nitrogen content, in order to quantify the amount of nitrogen contained in organic form.
Claims 5 and 15 are rendered prima facie obvious because Peffly discloses sodium laureth sulfate (synonym of sodium lauryl ether sulfate), cocamidopropyl betaine, and cocamide monoethanolamine [0091] [0037] [0050].
Response to Arguments
Applicant’s arguments filed 01/30/2026 have been fully considered but are not persuasive.
Applicant argues at pg. 3 that the combination of references fails to establish a prima facie case of obviousness over claims 4-5 and 14-15 for the reasons presented for claims 1 and 11.
The Examiner disagrees because the combination of references does establish a prima facie case of obviousness for claims 1 and 11, as discussed above.
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 Pharmacosmos (DEAE-Dextran) 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 and Pharmacosmos was previously discussed.
The combined teachings of the prior art do not disclose a chelating agent as recited in claims 6 or 16, such as tetrasodium ethylene diamine tetraacetic acid.
Chang discloses a hair care composition [0005] to be used as a shampoo [0020] with chelating agents, such as tetrasodium EDTA [0191] [0222], which are taught as beneficial agents [0165] that have chelating properties [0187]-[0191].
Since Peffly generally teaches a hair composition to be used as a shampoo, it would have been prima facie obvious to a person having ordinary skill in the art to include tetrasodium EDTA, as taught by Chang, within the composition of Peffly, because Chang teaches that chelating agents, such as EDTA are beneficial agents that have chelating properties [0165] [0187]-[0191].
Claim 7 is rendered prima facie obvious because Peffly discloses the composition includes thickeners [0083]-[0084].
Regarding claim 8, it would have been prima facie obvious to include tetrasodium ethylenediaminetetraacetic acid, within the teachings of Peffly, as previously discussed. Peffly does not disclose the composition includes the thickener, PEG - 150 pentaerythrityl tetrastearate.
Chang discloses the thickener PEG - 150 pentaerythrityl tetrastearate [0137] where thickeners are used to increase the viscosity of the composition [0129] to provide a good viscosity for dispensing and spreading as well as a lather amount benefit [0001].
Since Peffly generally teaches a hair composition to be used as a shampoo, it would have been prima facie obvious to a person having ordinary skill in the art to include PEG - 150 pentaerythrityl tetrastearate, as taught by Chang, within the composition of Peffly, because Chang teaches that thickeners such as PEG - 150 pentaerythrityl tetrastearate are used to increase the viscosity of the composition. The ordinarily skilled artisan would have been motivated to include PEG - 150 pentaerythrityl tetrastearate to provide a good viscosity for dispensing and spreading as well as a lather amount benefit [0001].
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, it is prima facie obvious to select PEG - 150 pentaerythrityl tetrastearate for incorporation into compositions for the hair based on its recognized suitability for the intended use as a thickener, as taught by Chang.
Claim 9 is rendered prima facie obvious because Peffly discloses the composition includes a preservative [0088].
Regarding claim 17, it would have been prima facie obvious to include the rheology modifier, PEG - 150 pentaerythrityl tetrastearate, as taught by Chang, within the teachings of Peffly, as previously discussed.
Response to Arguments
Applicant’s arguments filed 01/30/2026 have been fully considered but are not persuasive.
Applicant argues at pg. 3-4 that the combination of references fails to establish a prima facie case of obviousness over claims 6-9 and 16-17 for the reasons presented for claims 1 and 11.
The Examiner disagrees because the combination of references does establish a prima facie case of obviousness for claims 1 and 11, as discussed above.
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 Pharmacosmos (DEAE-Dextran) and further in view of Chang et al. (US 2018/0311136 A1) and Long (US 2007/0141019 A1).
The 35 U.S.C. 103 rejection over Peffly and Sau and as evidenced by Chen and Pharmacosmos and further in view of Chang was previously discussed.
Regarding claim 18, Peffly does not disclose the composition includes an antioxidant, such as butylated hydroxytoluene.
Long teaches a shampoo composition for hair [abstract] [0045] with butylated hydroxytoluene [0033]. Long teaches that butylated hydroxytoluene is an antioxidant that terminates free-radical induced reactions, thus reducing or preventing oxidative damage [0025].
Since Peffly generally teaches a hair composition to be used as a shampoo, it would have been prima facie obvious to a person having ordinary skill in the art to include butylated hydroxytoluene, as taught by Long, within the composition of Peffly, because Long teaches butylated hydroxytoluene in a composition for hair. The ordinarily skilled artisan would have been motivated to include butylated hydroxytoluene because Long teaches that butylated hydroxytoluene is an antioxidant that terminates free-radical induced reactions, thus reducing or preventing oxidative damage [0025].
Regarding claim 19, Peffly discloses that the composition includes preservatives [0088].
Peffly does not disclose the preservative is selected from the group consisting of benzoic acid, sorbic acid, phenoxyethanol, or methylisothiazolinone.
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 Peffly generally teaches a hair composition to be used as a shampoo, it would have been prima facie obvious to a person having ordinary skill in the art to include phenoxyethanol, as taught by Long, within the composition of Peffly, because Long teaches phenoxyethanol in a composition 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, as taught by Long.
Regarding claim 20, Peffly does not disclose the composition includes a humectant, such as glycerin.
Chang discloses that humectants, such as glycerin, are included in the composition as a scalp health agent to provide scalp benefits [0155].
Since Peffly generally teaches a hair composition, it would have been prima facie obvious to a person having ordinary skill in the art to include a humectant, such as glycerin, within the composition of Peffly, because Chang teaches that glycerin is included in the hair composition as a scalp health agent to provide scalp benefits [0155].
Response to Arguments
Applicant’s arguments filed 01/30/2026 have been fully considered but are not persuasive.
Applicant argues at pg. 4 that the combination of references fails to establish a prima facie case of obviousness over claims 18-20 for the reasons presented for claims 1 and 11.
The Examiner disagrees because the combination of references does establish a prima facie case of obviousness for claims 1 and 11, as discussed above.
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
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.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Ashlee E Wertz whose telephone number is (571)270-7663. The examiner can normally be reached Monday - Friday, 8 AM - 5 PM.
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/ASHLEE E WERTZ/Examiner, Art Unit 1612
/SAHANA S KAUP/Supervisory Primary Examiner, Art Unit 1612
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