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 . Claims included in the prosecution are claims 1, 4-6 and 8-15.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 07/09/2026 has been entered.
Applicants' arguments, filed 06/10/2026, 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 Rejections and/or objections not reiterated from previous office actions are hereby withdrawn.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
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.
Claims 1, 4-6 and 8-15 are rejected under 35 U.S.C. 103 as being unpatentable over Phillips et al. (US 2003/0147830, Aug. 7, 2003) (hereinafter Phillips) in view of Thomas et al. (US 5,616,548, Apr. 1, 1997) (hereinafter Thomas) and Yasuda et al. (JP H0820518 A, Jan. 23, 1996) (hereinafter Yasuda).
Phillips discloses a topical skin and/or hair composition containing protein (Title), specifically a topical personal care composition containing at least one protein that is a hydrolyzed or partially-hydrolyzed protein (¶ [0012]). The source of the hydrolyzed and/or partially hydrolyzed protein is not limited and include potato proteins, pea proteins, and cottonseed proteins (¶ [0041]). Preferably, the protein or proteins are present in concentrations ranging from about 0.0001% to about 40% by weight (¶ [0036]). Mixtures of more than one protein may be used (¶ [0046]). The composition may comprise from about 50% to about 90% or from about 45% to about 85% water (¶ [0061]). The composition may contain a safe and effective amount of a dermatologically acceptable carrier (¶ {0055]). The dermatologically acceptable carrier may contain thickening agents, structuring agents, and mixtures thereof (¶ [0067]). Suitable structuring agents include stearyl alcohol and cetyl alcohol (¶ [0082]). The composition can be formulated as shampoos, hair conditioners, and hair tonics (¶ [0063]).
Phillips differs from the instant claims insofar as not disclosing the molecular weights of the partially hydrolyzed potato proteins and of the partially hydrolyzed pea or cottonseed proteins.
However, Thomas discloses wherein partially hydrolyzed protein may have a relatively broad spectrum of molecular weights in the range from about 500 to about 70,000, preferably from about 500 to about 10,000 for hand care effects (col. 16, lines 4-8).
Accordingly, it would have been prima facie obvious to one of ordinary skill in the art to have incorporated partially hydrolyzed potato proteins and partially hydrolyzed pea or cottonseed proteins each with a molecular weight in the range from about 500 to about 10,000 into the composition of Phillips motivated by the desire to use partially hydrolyzed proteins that provide good hand care effects as taught by Thomas.
The combined teachings of Phillips and Thomas do not teach wherein the composition comprises aspartic acid and leucine.
However, Yasuda discloses blending a protein hydrolysate and an amino acid to supplement hair with proteins and amino acids which are easily lost during hair dyeing treatment and to maintain the moistness and smoothness of hair after dyeing treatment (seventh paragraph). One or more amino acid may be used and includes aspartic acid and leucine. The amino acid is 0.001 to 20% by weight (sixth paragraph).
Accordingly, it would have been prima facie obvious to one of ordinary skill in the art to have incorporated 0.001 to 20% aspartic acid and leucine into the composition of Phillips since the composition comprises hydrolyzed protein and the combination of hydrolyzed protein with amino acids maintains the moistness and smoothness of hair as taught by Yasuda.
In regards to instant claim 1 reciting wherein the weight ratio of the first component : the second component is in a range of 0.6:1 to 1.4:1, Phillips discloses wherein the proteins are present in concentrations ranging from about 0.0001% to about 40% by weight. Accordingly, the claimed ratio would have been obvious from one selecting an amount of each protein from the range disclosed by Phillips and arriving at a ratio of both proteins that overlaps with the claimed ratio. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists. MPEP 2144.05 A. In regards to instant claim 6 reciting wherein the first component and/or the second component is a chemically unmodified hydrolyzed protein, Philips discloses in paragraph [0040] wherein the proteins may be chemically modified. Thus, since the proteins may be chemically modified, it would have been obvious to one of ordinary skill in the art that the proteins are not required to be chemically modified and may be chemically unmodified.
In regards to instant claim 12 reciting wherein the hair care ingredient is an emulsifying agent, as discussed above, Phillips discloses wherein the composition comprises stearyl alcohol or cetyl alcohol. As noted in the instant specification on page 11, lines 14-15, stearyl alcohol and cetyl alcohol are emulsifiers for hair care formulations. As such, the stearyl alcohol and cetyl alcohol of Phillips are emulsifying agents for hair care.
In regards to instant claim 14 reciting wherein the method comprises cleaning or conditioning of the hair, as discussed above, Phillips discloses wherein the composition may be formulated as a shampoo or hair conditioner. As such, it would have been obvious to one of ordinary skill in the art to clean and/or condition hair with the composition of Phillips.
In regards to instant claim 15 reciting wherein the application of the composition to the hair strengths the hair, since the composition of Phillips comprises substantially the same active ingredient as claimed (i.e., partially hydrolyzed potato protein and partially hydrolyzed pea or cottonseed protein), the composition of Phillips necessarily strengthens hair. Additionally, as noted page 15, lines 19-20 of the instant specification, hydrolyzed proteins strengthen hair. Thus, since the composition of Phillips comprises hydrolyzed protein, the composition of Phillips strengthens hair when applied.
Response to Arguments
Applicant argues that a specific combination of partially hydrolyzed potato-derived protein and (ii) partially hydrolyzed non-potato vegetable-derived protein was observed to unexpectedly provide significant advantages when the combination is employed in personal care formulations in contrast to a hydrolyzed vegetable protein (Comparative Product 1) and an enzyme hydrolyzed keratin (Comparative Product 2) relative to a control (untreated bleached hair).
The Examiner does not find Applicant's argument to be persuasive. The showing does not show a combination of partially hydrolyzed potato-derived protein and (ii) partially hydrolyzed non-potato vegetable-derived protein. Applicant’s showing shows the combination of a hydrolyzed potato protein and hydrolyzed pea or cottonseed protein. One of ordinary skill in the art would not reasonably expect that partially hydrolyzed proteins will have the same effect as hydrolyzed proteins since they are chemically and structurally different. Additionally, even if they have the same effect, Applicant’s argument is still unpersuasive. Applicant's showing does not show wherein the results are synergistic and not additive. The total amount of protein in the comparative product and in the exemplary samples is unknown. Also, Applicant has compared with hydrolyzed vegetable protein and has not compared with hydrolyzed potato protein. Thus, it cannot be determined whether the results are from a combination of proteins instead of just hydrolyzed potato protein. As such, it cannot be determined that the claimed combination is unexpected and Applicant’s argument is unpersuasive.
Conclusion
Claims 1, 4-6 and 8-15 are rejected.
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to TRACY LIU whose telephone number is (571)270-5115. The examiner can normally be reached Mon-Fri 9 am - 5 pm.
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/TRACY LIU/Primary Examiner, Art Unit 1614
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