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 .
Withdrawn Objections/Rejections
The rejection of claim 34 under 35 USC § 112(d) is withdrawn in view of the claim amendments.
Claim Status
Applicants' amendments and arguments filed 10/31/2025 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Rejections and/or objections not reiterated from previous office actions are hereby withdrawn.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.
Claims 1-22 are cancelled.
Claims 23-35 are pending and under current examination.
Rejections Maintained, Slightly Modified to Address Amended Claims
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 23-24 and 27-35 are rejected under 35 U.S.C. 103 as being unpatentable over Nicou et al. (WO 2022/129383 A1, published June 23, 2022; of record), hereafter “Nicou” in view of Goget et al. (FR 2968208 A1, published June 8, 2012; of record), hereafter “Goget”.
Regarding instant claim 23(a), Nicou teaches a composition for dyeing keratin fibers, preferably the hair, comprising at least one oxidation dye base chosen from para-phenylenediamine derivatives (abstract, claim 1). Preferred oxidation bases include 2-methoxymethyl-para-phenylenediamine (pg. 4, lines 14-18, claim 2), which is exemplified in the inventive dyeing composition A1 in Table 1.
Regarding instant claim 23(b), the compositions of Nicou preferably comprise one or more oxidation couplers (pg. 9, lines 12-13, claim 4).
Regarding instant claim 23(c), the compositions of Nicou preferably comprises one or more mineral, organic, or hybrid alkaline agent(s) (pg. 35, lines 6-7). The alkaline agent(s) are preferably chosen from alkanolamines (pg. 36, lines 14-18, claim 13). When the composition comprises at least one alkaline agent, the total content of the alkaline agent(s) preferably ranges from 0.1 % to 40% by weight (pg. 36, lines 19-20), overlapping the range of the instant claim. Per MPEP 2144.05 I, “In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990)”.
Regarding instant claim 23(d), the composition of Nicou comprises at least one fatty substance, chosen from liquid fatty substances, solid fatty substances, and mixtures thereof (claim 9). Liquid fatty substances are preferentially chosen from liquid fatty alcohols (claim 10) and solid fatty substances are preferentially chosen from solid fatty alcohols (claim 11). The term “fatty alcohol” is intended to mean a long-chain aliphatic alcohol comprising from 6 to 40 carbon atoms, preferably from 8 to 30 carbon atoms, and comprising at least one hydroxyl group OH (pg. 18, lines 16-18). When the composition comprises one or more fatty substances, the total content of the fatty substance(s) preferably ranges from 5% to 80% by weight (pg. 23, lines 5-7), overlapping the range of the instant claim.
Regarding instant claim 23(e), the composition of Nicou comprises at least one surfactant, the surfactant(s) preferably being chosen from anionic surfactants, non-ionic surfactants, and mixtures thereof (claim 12). When the composition comprises one or more surfactant(s), the total content of surfactant(s) in the composition preferably ranges from 0.01 % to 35% by weight (pg. 31, lines 26-27); when the composition comprises one or more non-ionic surfactant(s), the total content of non-ionic surfactant(s) in the composition preferably ranges from 0.01 % to 35% by weight (pg. 31, lines 30-31).
Regarding instant claim 23(f), the compositions of Nicou may also comprise at least one organic solvent, including water-soluble solvents such as ethanol (pg. 36, lines 24-31). The organic solvent(s) may be present in a total amount ranging from 0.01 % to 30% by weight (pg. 37, lines 1-2), overlapping the range of the instant claim.
Regarding instant claim 23(g), the composition of Nicou is preferably an aqueous composition which preferably comprises water in an amount of greater than or equal to 15% by weight, relative to the total weight of the composition (pg. 37, lines 4-8). The inventive dyeing composition A1 in Table 1 comprises qs water at 32.45 wt.%
Regarding instant claim 23(h), the inventive dyeing composition A1 in Table 1 comprises 0.71 wt.% sodium metabisulfite.
The teachings of Nicou lead to a composition where the combination of surfactants, one or more water-soluble organic solvents, and water constitute at least 80 wt.%. For one example, if the content of surfactants is 35 wt.%, the content of organic solvent(s) is 30 wt.%, and the content of water is greater than 15 wt.%, this requirement is satisfied.
Regarding the limitation that the composition has a pH of about 7 to about 8.5, Nicou teaches that the pH of the composition, when it is aqueous, is preferably between 8 and 11 (pg. 38, lines 1-2), overlapping the range of the instant claim. Per MPEP 2144.05 I, “In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990)”.
Regarding the limitation that the composition comprises less than 5 wt.% of oils, the instant specification states that “fatty alcohols are not included in the definition of fatty compounds or oils” (pg. 27, lines 26-30). The inventive dyeing composition A1 in Table 1 of Nicou therefore exemplifies a composition less than 5 wt.% of oils.
Regarding instant claim 24, the composition of Nicou may also comprise one or more additional oxidation bases, including heterocyclic bases and their addition salts (pg. 5, lines 6-10), which can be pyrazole derivatives (pg. 6, lines 10-11). Preferably 2,3-diamino-6, 7-dihydro-1 H ,5H-pyrazolo[1,2-a]pyrazol-1-one and/or a corresponding salt, the solvates and solvates of their salts are used (pg. 8, lines 15-16); salts are chosen from addition salts with an acid such as methanesulfonates (pg. 8, lines 21-26). The methanesulfonate salt of 2,3-diamino-6, 7-dihydro-1 H ,5H-pyrazolo[1,2-a]pyrazol-1-one taught by Nicou results in the 2,3-diaminodihydro-pyrazolo pyrazolone dimethosulfonate of the instant claim.
Regarding instant claim 27, Nicou teaches the ratio between the total content of the oxidation dye base(s) and the total content of oxidation coupler(s) ranges from 0.1 to 10, preferably from 0.5 to 5 (claim 6), overlapping the range of the instant claim.
Regarding instant claim 28, the alkanolamine(s) of Nicou is (are) chosen from monoethanolamine (MEA), diethanolamine, triethanolamine, monoisopropanolamine, diisopropanolamine, N,N-dimethylethanolamine, 2-amino-2-methyl-1-propanol, triisopropanolamine, 2-amino-2-methyl-1,3-propanediol, 3-amino-1,2-propanediol, 3-dimethylamino-1,2-propanediol, tris(hydroxymethyl)aminomethane and mixtures thereof (pg. 35, lines 24-28; claim 13).
Regarding instant claim 29, as noted above, the alkanolamine(s) of Nicou is (are) chosen from the group including monoethanolamine (MEA) (pg. 35, lines 24-28; claim 13).
Regarding instant claim 30, Nicou teaches that the composition comprises at least one alkaline agent, preferentially chosen from ammonia and alkanolamines, better still alkanolamines (claim 13), indicating it is preferred that the composition be free from ammonia. The inventive dyeing composition A1 in Table 1 exemplifies a composition that is free of ammonia and ammonium ions.
Regarding instant claim 31, the solid fatty alcohols of Nicou are preferentially chosen from cetyl alcohol, stearyl alcohol, behenyl alcohol, myristyl alcohol, arachidyl alcohol, and mixtures thereof, such as cetylstearyl alcohol or cetearyl alcohol (pg. 19, lines 1-4). The liquid fatty alcohols of Nicou include oleyl alcohol (pg. 13, lines 19-24).
Regarding instant claim 32, examples of the organic solvents of Nicou include linear or branched C2 to C4 alkanols, such as ethanol and isopropanol and polyols and polyol ethers, for instance 2- butoxyethanol, glycerol, propylene glycol, dipropylene glycol, propylene glycol monomethyl ether, diethylene glycol monomethyl ether and monoethyl ether (pg. 36, lines 26-31).
Regarding instant claim 33, Nicou teaches that in a particular embodiment, the composition is free from oxidation couplers chosen from resorcinol, 2-methylresorcinol, 4-chlororesorcinol, their addition salts, their solvates, and the solvates of their salts (pg. 10, lines 15-17).
While Nicou teaches a total content of surfactants in the composition preferably ranging from 0.01 % to 35% by weight (pg. 31, lines 26-27) which are preferably chosen from anionic surfactants, non-ionic surfactants, and mixtures thereof (claim 12), and a total content of non-ionic surfactant(s) in the composition preferably ranging from 0.01 % to 35% by weight (pg. 31, lines 30-31), Nicou does not teach the plurality of surfactants of instant claims 23(e) regarding a particular weight percent of one or more anionic surfactants.
Goget teaches a coloring composition comprising at least one oxidation dye precursor (abstract) which is a composition for dyeing human keratinous fibers, in particular the hair (pg. 2, paragraph 1). The compositions contain a total amount of ionic or nonionic surfactants greater than 8% and even more preferably greater than 10% (claim 12). Example composition A of Goget comprises 4.5 wt.% laureth-5 carboxylic acid (an anionic surfactant) and 24.05 wt.% of a combination of the nonionic surfactants PEG-4 rapeseed amide, deceth-3, poloxamer 338, and glyceryl lauryl ether. This is consistent with the surfactant mixture in the hair coloring base compositions of the instant invention (specification Example 1).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the instant invention to modify the composition of Nicou with the surfactant combination of Goget. One of ordinary skill in the art would have been motivated to do so with a reasonable expectation of success as Goget teaches that it is customary to use particular surfactant systems in oxidative dye compositions to maintain the stability and viscosity in order to maintain the coloring composition on the hair during the penetration of dyes into the keratinous fiber, and further teaches that the proportions of these surfactants are often important (pg. 2, paragraph 4). There is a reasonable expectation of success as the compositions of Nicou comprise oxidation dye precursors for the dyeing of keratin fibers, preferably the hair (abstract), and Nicou further teaches surfactants in the composition preferably ranging from 0.01 % to 35% by weight (pg. 31, lines 26-27) which are preferably chosen from anionic surfactants, non-ionic surfactants, and mixtures thereof (claim 12).
The limitations of instant claims 34 and 35 that the hair coloring base composition of claims 23 and 33, respectively, form a ready-to-use hair coloring composition having a pH from about 6 to about 8 upon mixing with a particular developer composition in a 1:1 weight ratio does not structurally limit the claimed compositions. Given that Nicou in view of Goget teaches and renders obvious the hair coloring base composition of claims 23 and 33, the property of forming a ready-to-use hair coloring composition having a pH from about 6 to about 8 upon mixing with the claimed developer composition in a 1:1 ratio must necessarily follow. Furthermore, it is noted that the recitation “upon mixing with a developer compositing consisting of” in claims 34 and 35 is the intended use of the claimed base composition and does not require the claimed hair coloring base composition to be mixed with a developer composition.
New Rejections, Necessitated by Claim Amendments
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 25-26 are rejected under 35 U.S.C. 103 as being unpatentable over Nicou et al. (WO 2022/129383 A1, published June 23, 2022; of record), hereafter “Nicou” in view of Goget et al. (FR 2968208 A1, published June 8, 2012; of record), hereafter “Goget”.
Claim 25 depends from claim 23. The teachings of the modified Nicou in regards to instant claim 23 are set forth above.
Regarding instant claim 25(a), Nicou teaches a composition for dyeing keratin fibers, preferably the hair, comprising at least one oxidation dye base chosen from para-phenylenediamine derivatives (abstract, claim 1). Preferred oxidation bases include 2-methoxymethyl-para-phenylenediamine (pg. 4, lines 14-18, claim 2), which is exemplified in the inventive dyeing composition A1 in Table 1.
Regarding instant claim 25(b), the compositions of Nicou preferably comprise one or more oxidation couplers (pg. 9, lines 12-13, claim 4).
Regarding instant claim 25(c), the compositions of Nicou may comprise one or more mineral, organic, or hybrid alkaline agent(s) (pg. 35, lines 4-5). The alkaline agent(s) are preferably chosen from alkanolamines (pg. 36, lines 14-18, claim 13). When the composition comprises at least one alkaline agent, the total content of the alkaline agent(s) preferably ranges from 0.1 % to 40% by weight (pg. 36, lines 19-20), overlapping the range of the instant claim. Per MPEP 2144.05 I, “In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990)”.
Regarding instant claim 25(d), the composition of Nicou comprises at least one fatty substance, chosen from liquid fatty substances, solid fatty substances, and mixtures thereof (claim 9). Liquid fatty substances are preferentially chosen from those including liquid fatty alcohols (claim 10) and solid fatty substances are preferentially chosen from those including solid fatty alcohols (claim 11). The term “fatty alcohol” is intended to mean a long-chain aliphatic alcohol comprising from 6 to 40 carbon atoms, preferably from 8 to 30 carbon atoms, and comprising at least one hydroxyl group OH (pg. 18, lines 16-18).
Regarding instant claim 25(e), the composition of Nicou comprises at least one surfactant, the surfactant(s) preferably being chosen from anionic surfactants, non-ionic surfactants, and mixtures thereof (claim 12). When the composition comprises one or more surfactant(s), the total content of surfactant(s) in the composition preferably ranges from 0.01 % to 35% by weight (pg. 31, lines 26-27); when the composition comprises one or more non-ionic surfactant(s), the total content of non-ionic surfactant(s) in the composition preferably ranges from 0.01 % to 35% by weight (pg. 31, lines 30-31).
Regarding instant claim 25(f), the compositions of Nicou may also comprise at least one organic solvent, including water-soluble solvents such as ethanol (pg. 36, lines 24-31). The organic solvent(s) may be present in a total amount ranging from 0.01 % to 30% by weight (pg. 37, lines 1-2), overlapping the range of the instant claim.
Regarding instant claim 25(g), the composition of Nicou is preferably an aqueous composition which preferably comprises water in an amount of greater than or equal to 15% by weight, relative to the total weight of the composition (pg. 37, lines 4-8). The inventive dyeing composition A1 in Table 1 comprises qs water to 32.45 wt.%.
Regarding instant claim 25(h), the inventive dyeing composition A1 in Table 1 comprises 0.71 wt.% sodium metabisulfite.
Regarding instant claim 25(i), the hair coloring base of the instant claim consists of, optionally, about 0.001 to about 5 wt.% of one or more miscellaneous ingredients. The dyeing compositions of Nicou require N-N-dicarboxymethylglutamic acid, one of its salts, and mixtures thereof (claim 1) ranging from 0.001% to 15% by weight of the composition (claim 8), even better still from 0.075% to 2% by weight (pg. 11, lines 12-16); the N-N-dicarboxymethylglutamic acid, salts, and mixtures thereof is considered a miscellaneous ingredient consistent with the instant claim.
The teachings of Nicou lead to a composition where the combination of surfactants, one or more water-soluble organic solvents, and water constitute at least 80 wt.%. For one example, if the content of surfactants is 35 wt.%, the content of organic solvent(s) is 30 wt.%, and the content of water is greater than 15 wt.%, this requirement is satisfied.
Regarding the limitation that the composition comprises less than 5 wt.% of oils, the instant specification states that “fatty alcohols are not included in the definition of fatty compounds or oils” (pg. 27, lines 26-30). The inventive dyeing composition A1 in Table 1 of Nicou therefore exemplifies a composition comprising less than 5 wt.% of oils.
While Nicou teaches a total content of surfactants in the composition preferably ranging from 0.01 % to 35% by weight (pg. 31, lines 26-27) which are preferably chosen from anionic surfactants, non-ionic surfactants, and mixtures thereof (claim 12), and a total content of non-ionic surfactant(s) in the composition preferably ranging from 0.01 % to 35% by weight (pg. 31, lines 30-31), Nicou does not teach the plurality of surfactants of instant claim 25(e) regarding a particular weight percent of one or more anionic surfactants. Nicou teaches the presences of one or more fatty substances, which include fatty alcohols consistent with the instant claims; while Nicou teaches the total content of the fatty substance(s) preferably ranges from 5% to 80% by weight (pg. 23, lines 5-7), Nicou does not limit the content of any individual fatty substance, and does not explicitly teach fatty alcohol present from about 0.5 to about 3 wt.%, as required by instant claim 25(d).
Goget teaches a coloring composition comprising at least one oxidation dye precursor (abstract) which is a composition for dyeing human keratinous fibers, in particular the hair (pg. 2, paragraph 1). The compositions contain a total amount of ionic or nonionic surfactants greater than 8% and even more preferably greater than 10% (claim 12). Example composition A of Goget comprises 4.5 wt.% laureth-5 carboxylic acid (an anionic surfactant) and 24.05 wt.% of a combination of the nonionic surfactants PEG-4 rapeseed amide, deceth-3, poloxamer 338, and glyceryl lauryl ether. This is consistent with the surfactant mixture in the hair coloring base compositions of the instant invention (specification Example 1). Example A of Goget further comprises the fatty alcohol oleic (oleyl) alcohol at 1.1 wt.%.
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the instant invention to modify the composition of Nicou with the surfactant combination of Goget. One of ordinary skill in the art would have been motivated to do so with a reasonable expectation of success as Goget teaches that it is customary to use particular surfactant systems in oxidative dye compositions to maintain the stability and viscosity in order to maintain the coloring composition on the hair during the penetration of dyes into the keratinous fiber, and further teaches that the proportions of these surfactants are often important (pg. 2, paragraph 4). There is a reasonable expectation of success as the compositions of Nicou comprise oxidation dye precursors for the dyeing of keratin fibers, preferably the hair (abstract), and Nicou further teaches surfactants in the composition preferably ranging from 0.01 % to 35% by weight (pg. 31, lines 26-27) which are preferably chosen from anionic surfactants, non-ionic surfactants, and mixtures thereof (claim 12).
It would further have been prima facie obvious to one of ordinary skill in the art to adjust the content of fatty alcohol in the composition of Nicou, as suggested by Goget. One of ordinary skill in the art would have been motivated to do so to use an amount of fatty alcohol known in the art to achieve an oxidative dye composition with a desirable viscosity that maintains the coloring composition on the hair, as suggested by Goget (pg. 2, paragraph 4), particularly as Nicou suggests the inclusion of fatty substances affects the viscosity of hair dyeing compositions (pg. 15, lines 17-20; pg. 18, lines 1-2) and their content could thus be routinely optimized to achieve a desired viscosity. Per MPEP 2144.05 II. A, “Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here 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." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955)”.
The limitation of instant claim 26 that the hair coloring base composition of claim 25 forms a ready-to-use hair coloring composition having a pH from about 6 to about 8 upon mixing with a particular developer composition in a 1:1 weight ratio does not structurally limit the claimed composition. Given that Nicou in view of Goget teaches and renders obvious the hair coloring base composition of claim 25, the property of forming a ready-to-use hair coloring composition having a pH from about 6 to about 8 upon mixing with the claimed developer composition in a 1:1 ratio must necessarily follow. Furthermore, it is noted that the recitation “upon mixing with a developer compositing consisting of” in claim 26 is the intended use of the claimed base composition and does not require the claimed hair coloring base composition to be mixed with a developer composition.
37 CFR 1.132 Declarations
The Examiner acknowledges receipt of the Declaration under 37 CFR 1.132 by Valérie Nicou filed on 10/31/2025 and the Declaration under 37 CFR 1.132 by Taylor Hart filed on 10/31/2025.
The Declaration by Nicou states that the pH of Composition A1 (Table 1) of Nicou et al. (WO 2022/129383 A1) is 10.6 and when mixed with the developer 20 V (see table on pg. 2 of the Declaration), the pH is 9.8.
The Declaration under 37 CFR 1.132 filed 10/31/2025 by Nicou is insufficient to overcome the rejections presented above because:
The teachings of the Nicou reference are not limited to the working examples, and, per MPEP 2123 I, “A reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art, including nonpreferred embodiments. Merck & Co. v. Biocraft Labs., Inc. 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir. 1989), cert. denied, 493 U.S. 975 (1989)”. While the exemplified composition of Nicou has a pH higher than that instantly claimed, Nicou teaches that the pH of the composition, when it is aqueous, is preferably between 8 and 11 (pg. 38, lines 1-2), overlapping the range of the instant claims. This reasonably suggests to one of ordinary skill in the art that a pH between 8 and 11 is suitable for the compositions of Nicou, and renders the range prima facie obvious. Per MPEP 2144.05 I, “In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990)”. The Examiner further notes that the above rejection is not based on modifying Composition A1 of Nicou; this composition is merely referred to illustrate certain exemplified aspects of the teachings of Nicou as a whole.
The Declaration by Hart states that conventional wisdom in the field holds that oxidative hair dye compositions must be typically at a final pH of about 9 to about 10 and a person of ordinary skill in the art would not have anticipated that lowering the final pH of a ready-to-use coloring composition into the range of 6 to 8 could provide effective coloration results. The Declaration refers to Example 3 which sets forth mixtures of hair coloring base compositions E, F, and G with the developer of Example 2 to prepare ready-to-use hair coloring compositions (see Table on pg. 4)which were applied to grey hair swatches (results shown on pg. 5). Ready-to-use coloring compositions having pH values of 6.3 and 7.5 provided better color retention compared to the composition having a pH of 9.2 By formulating base compositions with a pH of about 7 to about 8.5, then mixing these bases with a conventional hydrogen peroxide developer, ready-to-use compositions with pHs lower than typical oxidative systems were achieved. The properties of the claimed base compositions manifest themselves in the final compositions and contrary to expectation, the ready-to-use compositions provided more effective coloration of facial hair and are less irritating to facial hair (see paragraphs 9-12).
The Declaration under 37 CFR 1.132 filed 10/31/2025 by Hart is insufficient to overcome the rejections presented above because:
The Examiner respectfully maintains that the claims are directed to a hair coloring base composition and not a ready-to-use composition, while the evidence of unexpected results is directed to the ready-to-use composition. The Examiner further maintains that the recitation of “upon mixing with a developer composition…” is an intended use of the claimed hair coloring base composition; claim 25, from which claim 26 depends, claim 23, from which claim 34 depends, and claim 33, from which claim 35 depends, fully and intrinsically set forth all of the structural limitations of the claimed hair coloring base compositions. These structural limitations are rendered obvious by the teachings of the prior art, as set forth above.
As noted in paragraph 10 of the Hart Declaration, the properties of hair coloring base compositions with a pH of about 7 to about 8.5 manifest themselves in the final compositions. This pH range is rendered obvious by the prior art, as set forth above, as Nicou teaches a pH range overlapping the range of the instant claims. Thus, the property of forming a ready-to-use hair coloring composition having a pH from about 6 to about 8 upon mixing with the claimed developer composition in a 1:1 ratio will manifest itself upon said mixing.
Upon consideration of the facts taught by the prior art and the information submitted in the Declarations, the balance of evidence indicates that the prior art renders obvious the instantly claimed inventions.
Response to Arguments
Applicant’s arguments filed 10/31/2025 have been fully considered, but they are not persuasive.
Regarding the claim rejection under 35 USC § 103, Applicant refers to the Nicou and Hart Declarations to argue that the prior art does not necessarily describe a hair coloring base composition providing a pH of about 6 to about 8 upon mixing with the claimed developer composition; particularly, the Nicou Declaration demonstrates that the pH of Composition A1 is 10.6 and when mixed with the developer composition, the pH is 9.8. Applicant argues that the mere possibility that the art might be modified to obtain a composition having the claimed pH is not adequate. Applicant argues that conclusion that the data of record is not applicable to the claimed hair coloring base compositions because the hair coloring base composition is mixed with a developer during use is misguided, citing various case law.
The Nicou and Hart declarations are addressed above. In summary, the Examiner notes that while Nicou exemplifies a composition with a higher pH than that instantly claimed, the claimed pH range is rendered obvious by the broader disclosure in Nicou that the pH preferably ranges from 8 to 11, overlapping the claimed range. The Hart Declaration (paragraph 10) states that the properties of a hair coloring base compositions with a pH of about 7 to about 8.5 “manifest themselves in the final compositions”. As the structural components of the claimed hair coloring base compositions, including the claimed pH range, are rendered obvious by the teachings of the modified Nicou, the properties of the compositions will “manifest themselves” upon mixing with a developer (see also MPEP 2112.01 which teaches that a chemical composition and its properties are inseparable).
The Examiner further maintains that the recitation of “upon mixing with a developer composition…” is an intended future use of the claimed hair coloring base composition that does not provide any further structural limitations to the claimed base compositions. Claim 25, from which claim 26 depends, claim 23, from which claim 34 depends, and claim 33, from which claim 35 depends, fully and intrinsically set forth all of the structural limitations of the claimed hair coloring base compositions. In regards to the data supporting the alleged unexpected results, Applicant is arguing results regarding a structurally different composition from what is claimed (base + developer) and not the base composition as claimed. The evidence of record does not support that the base composition as claimed has achieved results that are unexpected over the teachings of the prior art.
In view of the forgoing, and as set forth in the above rejections, the Examiner maintains that the instant claims are prima facie obvious over the teachings of the modified Nicou.
Conclusion
Applicant's amendment necessitated the new ground(s) 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JUDITH M KAMM whose telephone number is (703)756-4575. The examiner can normally be reached M-F 8:00 am-4:30 pm EST.
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/BETHANY P BARHAM/Supervisory Patent Examiner, Art Unit 1611
/J.M.K./Examiner, Art Unit 1611