DETAILED ACTION
Notice of Pre-AIA or AIA Status
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either 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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 07/13/2026 has been entered.
Claim Status
Applicant’s amendment of 07/13/2026 is acknowledged. Claims 1-2 are amended, and claims 5, 14, and 18 are cancelled. Claims 1-4, 6-13, and 15-17 are currently pending and are examined on the merits herein.
Priority
The instant application claims domestic benefit to U.S. Application No. 63/227,106 filed on 07/29/2021 as reflected in the filing receipt dated on 08/09/2022.
Information Disclosure Statement
The information disclosure statements (IDS) submitted on 07/31/2026 and 08/17/2026 are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statements have been considered by the Examiner.
Previous Rejections/Objections
Applicant’s arguments filed 07/13/2026 have been fully considered. Rejections and/or objections not reiterated from the previous Office Action are hereby withdrawn. The following rejections and/or objections are either reiterated or newly applied as necessitated by Applicant’s amendment to the claims. They constitute the complete set of rejections and/or objections presently being applied to the instant application. Applicant’s arguments insofar as they pertain to the present grounds of rejections and/or objections are addressed herein.
Specification
The use of the term “carbomer”, which is a trade name or a mark used in commerce, has been noted in this application [instant spec., pg. 3, line 15 and pg. 4, line 18]. The term should be accompanied by the generic terminology; furthermore the term should be capitalized wherever it appears or, where appropriate, include a proper symbol indicating use in commerce such as ™, SM , or ® following the term.
Although the use of trade names and marks used in commerce (i.e., trademarks, service marks, certification marks, and collective marks) are permissible in patent applications, the proprietary nature of the marks should be respected and every effort made to prevent their use in any manner which might adversely affect their validity as commercial marks.
Claim Objections
Claims 1-4, 6-13, and 15-17 are objected to because of the following informalities:
Claim 1 recites the limitation “EDGS”. The acronym is not defined in the claims. When an acronym is used in a claim set, it should be defined the first time it appears in the claims. For the purposes of examination, the term “EDGS” is interpreted to mean ethylene glycol distearate, as is consistent with the chemicals disclosed in Applicant’s instant disclosure [instant spec., pg. 14, line 29].
Claims 2-4, 6-13, and 15-17 each recite the term “Claim”, which is inappropriately capitalized and should be “claim”.
Claim 6 recites the limitation “wherein the glyceryl caprate, glyceryl caprylate, or a mixture thereof are free”. Since each alternative is recited in singular form, the claim should be amended to read “wherein the glyceryl caprate, glyceryl caprylate, or a mixture thereof is free”.
Appropriate correction is required.
Claim Rejections - 35 USC § 112(b)
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-4, 6-13, and 15-17 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 recites the limitation “a) a structured surfactant phase consisting of about 7 wt.% to about 15 wt.%, by weight of the personal care composition, sodium cocoyl alaninate surfactant and a mixture of glyceryl caprate and glyceryl caprylate”. It is unclear if the concentration is intended to limit only the amount of sodium cocoyl alaninate surfactant or if it applies to the combination of sodium cocoyl alaninate surfactant and mixture of glyceryl caprate and glyceryl caprylate. Thus, the metes and bounds of the claim are indefinite. For examination purposes and consistent with Applicant’s instant specification, which supports that the composition comprises from about 7 wt.% to about 15 wt.% of an amino acid surfactant [pg. 5, lines 25-30], the Examiner is interpreting the claim to mean the recited concentration is intended to limit only the amount of sodium cocoyl alaninate surfactant. Claims 2-4, 6-13, and 15-17 are rejected by virtue of their dependency on claim 1 as they fail to resolve the ambiguity in question.
Claim 1 recites the limitation “d) about 0.1 wt.% to about 1.0 wt.% of a cationic polymer comprising guar hydroxypropyltrimonium chloride”. It is unclear whether the term “wt.%” indicates total composition weight or component weight, etc. Therefore, the metes and bounds of the claim are indefinite. For the purpose of the prior art rejections below, the claim is interpreted to mean % by weight of the total composition. Claims 2-4, 6-13, and 15-17 are rejected by virtue of their dependency on claim 1 as they fail to resolve the ambiguity in question.
Claim 1 contains the trademark/trade name “carbomers”. Where a trademark or trade name is used in a claim as a limitation to identify or describe a particular material or product, the claim does not comply with the requirements of 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph. See Ex parte Simpson, 218 USPQ 1020 (Bd. App. 1982). The claim scope is uncertain since the trademark or trade name cannot be used properly to identify any particular material or product. A trademark or trade name is used to identify a source of goods, and not the goods themselves. Thus, a trademark or trade name does not identify or describe the goods associated with the trademark or trade name. In the present case, the trademark/trade name is used to identify/describe a type of polyacrylic acid and, accordingly, the identification/description is indefinite. Claims 2-4, 6-13, and 15-17 are rejected by virtue of their dependency on claim 1 as they fail to resolve the ambiguity in question.
Claim 1 recites the alternative limitation “wherein the composition comprises unilamellar, multilamellar, and/or oligovesicles”, which encompasses embodiments wherein the composition only comprises oligovesicles. Since component a) of the composition requires a plurality of unilamellar and/or multilamellar vesicles, it is unclear how the alternative limitation wherein the composition comprises oligovesicles in the absence of unilamellar and/or multilamellar vesicles can be met. Therefore, the scope of the claim is indefinite. For examination purposes, the Examiner is interpreting the claim to mean that the composition must include at least one of unilamellar or multilamellar vesicles, and the presence of oligovesicles is optional. Claims 2-4, 6-13, and 15-17 are rejected by virtue of their dependency on claim 1 as they fail to resolve the ambiguity in question.
Claim 1 recites the limitation “wherein the composition is free of carbomers, EGDS and thixotropic thickeners”. However, claim 1 requires a cationic polymer comprising guar hydroxypropyltrimonium chloride, which is known to have viscosity building and thixotropic properties as evidenced by Schoenberg [Happi, pg. 2, “Personal Care Use”; published: 07/01/2016; PTO-892 of instant action]. Because it is unclear how the composition can require a polymer comprising guar hydroxypropyltrimonium chloride and also be free of thixotropic thickeners, the scope of the claim is indefinite. For examination purposes, the Examiner is interpreting the claim to mean that the composition is free of thixotropic thickeners other than the cationic polymer comprising guar hydroxypropyltrimonium chloride. Claims 2-4, 6-13, and 15-17 are rejected by virtue of their dependency on claim 1 as they fail to resolve the ambiguity in question.
Claim Interpretation
Regarding claim 7, since parent claim 1 limits the structured surfactant phase to “consisting of” only sodium cocoyl alaninate and a mixture of glyceryl caprate and glyceryl caprylate, the Examiner is interpreting claim 7 to mean that the zwitterionic surfactant is not part of the structured surfactant phase.
Regarding claims 10-12, since claim 10 recites “further comprising”, the Examiner is interpreting the claim to mean that the cationic deposition polymer must be different from, and in addition to, the cationic polymer of claim 1 which comprises guar hydroxypropyltrimonium chloride, a known guar-derived cationic deposition polymer as evidenced by Fevola [Cosmetics & Toiletries, vol. 127, pg. 16, l. col.; published: 01/2021].
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 1-4, 6, 9, 13, and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Hawkins et al. (US20140348759A1; published: 11/27/2014; PTO-892 of instant action) in view of Ananthapadmanabhan (Tenside Surf. Det., vol 56, pg. 378-386; published: 09/10/2019; PTO-892 of instant action), Fevola (Cosmetics & Toiletries, vol. 127, pg. 16-21; published: 01/2021); PTO-892 of instant action), and Brown et al. (US20200188243A1; published: 06/18/2020; PTO-892 of 10/21/2024) as evidenced by Deckner (ULTRUS Prospector Knowledge Center, pg. 1-6; published: 02/07/2020; PTO-892 of instant action).
Hawkins, throughout the reference, teaches a structured surfactant system comprising water and a mixture of at least one surfactant having a hydrophilic lipophilic balance (HLB) of less than 10, and at least one surfactant having an HLB value of 10 or greater [abstract; claims].
Regarding claim 1: Hawkins teaches that the transparent and phase stable system forms multilamellar vesicles having good suspending power [abstract; claims; 0020-0022]. Hawkins emphasizes that it is the particular blend of surfactants that forms this structure when subsequently dispersed in water, indicating that the structured surfactant phase itself does not actually comprise water but is formed when dispersed in water [0020; 0025; 0034; 0040; 0049].
Hawkins further teaches an exemplary composition comprising: 4.86% w/w glyceryl caprylate/caprate; 1.62% w/w ammonium lauryl sulfate; 70.0% w/w sucrose; 4.53% w/w soybean oil; 0.4% w/w shea butter; 0.4% w/w perfume; 0.014% w/w citric acid; 0.083% w/w trisodium citrate; and water, which reads on the instantly claimed liquid carrier [0062; Table H; Formula B]. Glyceryl caprylate/caprate and ammonium lauryl sulphate form the structured surfactant system [0062]. The composition has a pH of a pH of 5.7, which lies within and thus reads on the instantly claimed range. The composition is free of carbomers, EGDS, and thixotropic thickeners and, thus, meets the instant limitation.
However, Hawkins does not expressly teach that the composition further comprises about 7 wt.% to about 15 wt.%, by weight of the composition, of sodium cocoyl alaninate in the structured surfactant phase, or about 0.1 wt.% to about 1.0 wt.% of a cationic polymer comprising guar hydroxypropyltrimonium chloride. Hawkins is also silent as to the composition’s yield stress.
Ananthapadmanabhan teaches that negative consumer perception of sulfates has become a major challenge for the personal care industry, and consumer demand for greener, sustainable, and skin friendly chemicals is driving use of amino-acid based surfactants, which are generally milder than their corresponding alkyl sulfates and carboxylates [abstract; pg. 378, r. col.]. Ananthapadmanabhan further teaches that sodium cocoyl alaninate, sodium cocomethyl taurate, and sodium cocoyl sarcosinate are very mild and do not cause any damage to the skin’s stratum corneum layer compared to more damaging lauryl sulfate- and carboxylate-based surfactants [pg. 384, l. col. and Fig. 6]. Thus, they are suitable alternatives for sulfate-free and low pH cleansing systems [pg. 385, l. col.].
Fevola teaches that the cationic polymer guar hydroxypropyltrimonium chloride is a critical deposition aid in rinse-off products for delivery of active ingredients and hydrophobic conditioning agents to the skin and hair [pg. 16, l. col.]. It is particularly effective in thickening foam bubble lamella and viscosifying fluid in the lamella to provide stable foams with superior sensory profiles, and it is used at concentrations ranging from 0.10 – 1.0% w/w depending on the desired level of conditioning and/or viscosity [pg. 19, r. col.].
Brown teaches a shampoo composition comprising from about 5 wt.% to about 35 wt.% surfactant and from about 0.05 wt.% to about 3 wt.% of a cationic deposition polymer, wherein the yield stress is from about 0.1 Pa to about 10 Pa in order to suspend microcapsules in the composition [claim 1; 0024]. Guar hydroxypropyltrimonium chloride is one of three preferred cationic deposition polymers [0067].
Regarding the structured surfactant phase of claim 1: It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to replace the ammonium lauryl sulfate surfactant of Hawkins with a milder and less damaging surfactant, such as the sodium cocoyl alaninate of Ananthapadmanabhan, to provide an improved formulation that meets consumer demands for sustainable and skin-friendly alternatives to sulfate-based surfactants. The resulting structured surfactant phase consists of sodium cocoyl alaninate and glyceryl caprylate/caprate and, thus, meets the claim limitation. It also meets the limitation wherein the composition is free of sulfated surfactants. There is a reasonable expectation in maintaining the desired multilamellar vesicle structure because multiple amino acid surfactants, including structurally related acyl sarcosinates, are recognized by Hawkins as suitable anionic surfactants having an HLB of 10 or greater [0030]. Since sodium cocoyl alaninate has the same structure necessary for vesicle assembly (e.g., hydrophilic head and hydrophobic tail), one of ordinary skill in the art would reasonably expect it to behave similarly to the other anionic surfactants of Hawkins when blended with glyceryl caprylate/caprate. Applying a known technique to a known product ready for improvement to yield predictable results is a rationale supporting obviousness. See MPEP § 2143 and KSR International Co. V. Teleflex Inc., 550 U.S. 398, 82 USPQ2d 1385, 1395-97 (2007).
Regarding the amount of sodium cocoyl alaninate recited in claim 1: Hawkins teaches that the preferred total concentration of surfactants by weight is from about 7% to about 20% [0028], which substantially overlaps and thus renders obvious the instantly claimed range. It would have been prima facie obvious to manipulate the relative concentrations of surfactants within the prior art range in order to achieve a surfactant mixture having a HLB in the range of about 11 to about 13, as directed by Hawkins [0033]. Note: MPEP 2144.05. "[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).
Regarding the cationic polymer of claim 1: It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the composition taught by the combination of Hawkins and Ananthapadmanabhan by further including the guar hydroxypropyltrimonium chloride of Fevola in a concentration of 0.10 – 1.0 wt.%, which lies within and thus reads on the instantly claimed range, to achieve a desired viscosity while improving the formulation’s sensory profile and delivery of ingredients to the skin. There is a reasonable expectation of success because Hawkins teaches that additional thickeners, such as hydroxy propyl guar gum, may be added to achieve a desired viscosity [0042].
Regarding the yield stress of claim 1: While the combination of Hawkins, Ananthapadmanabhan, and Fevola is silent as to the yield stress of the composition, Hawkins further teaches that the disclosed structured surfactant technology has a good yield value, or ability to suspend solid, liquid, or gas particles throughout the composition [0037]. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to manipulate the yield stress of the composition within the range of 0.01 Pa to 10 Pa, which substantially overlaps and thus renders obvious the instantly claimed range, because Brown teaches that this yield stress affords sufficient suspension of particles in personal care compositions comprising surfactants and a cationic deposition polymer in similar amounts in order to maintain a consumer desirable appearance [Brown, abstract; claim 1]. Thus, a yield stress within this range is reasonably achievable by the same ingredients and aligns with the goal of Hawkins to produce a transparent and phase stable composition with good suspending power.
To the extent that pH is affected by the above modifications, Hawkins expressly teaches that the personal care formulation containing the structured surfactant should have a pH of between about 5.0 to about 7.0 [0043], which closely overlaps and thus renders obvious the instantly claimed pH range of about 4.5 to about 6. It would have been prima facie obvious to maintain a pH within the prior art range by using known techniques for controlling pH, such as the use of pH adjusting agents like citric acid as directed by Hawkins [0043].
The composition taught by the combination of Hawkins, Ananthapadmanabhan, Fevola, and Brown is free of carbomers, EGDS, and thixotropic thickeners other than guar hydroxypropyltrimonium chloride and, thus, meets the claim limitation.
Regarding claim 2: Hawkins explicitly teaches that its compositions meet a formulation need to suspend widely used ingredients such as the anti-dandruff agents, zinc pyrithione and selenium disulphide (same as selenium sulfide), in aqueous shampoos and body washes [0002; 0038]. Thus, it would have been prima facie obvious to further include one of these anti-dandruff agents in order to reduce skin flaking and irritation with a reasonable expectation of success.
Regarding claim 3: As discussed above in relation to instant claim 1, it would have been prima facie obvious to maintain a pH within the prior art range of about 5.0 to about 7.0, which overlaps and thus renders obvious the instantly claimed range, by using known techniques for controlling pH, such as the use of pH adjusting agents like citric acid as directed by Hawkins, because the prior art teaches that compositions within this pH range are most suitable for the structured surfactant system [0043].
Regarding claim 4: As discussed above in relation to instant claim 1, it would have been prima facie obvious to manipulate the yield stress of the composition within the range of 0.01 Pa to 10 Pa, which substantially overlaps and thus renders obvious the instantly claimed range, because Brown teaches that this yield stress affords sufficient suspension of particles in personal care compositions comprising surfactants and a cationic deposition polymer in similar amounts in order to maintain a consumer desirable appearance.
Regarding claim 6: There is no indication in Hawkins that the chemical component glyceryl caprylate/caprate exists with additional components. Therefore, the glyceryl caprylate/caprate meets the claim.
Regarding claim 9: Because the composition taught by the combination of Hawkins, Ananthapadmanabhan, Fevola, and Brown comprises the same ingredients in the same concentrations as instantly claimed, without further structural limitations, an ordinarily skilled artisan would reasonably expect that the prior art composition has the same stability, e.g., no visible signs of any creaming, precipitation, tunneling, separation, or sedimentation at 5°C and 40°C, as instantly claimed. In further support, Hawkins expressly teaches that exemplary Formulation B has a smooth and homogenous consistency and is phase stable with no separation after storing for 1 month at room temperature, 45°C, and 0°C [0062-0063], and thickeners including guar hydroxypropyltrimonium chloride are known to serve as stability enhancers for structured surfactant systems comprising multilamellar vesicles as evidenced by Deckner [pg. 1, second para.; pg. 3, “Stability enhancers…”].
In the event Applicant demonstrates that the instantly claimed stability is not a property that would naturally flow from the prior art combination, the limitation is still prima facie obvious in view of the prior art teachings. Fevola further teaches that fully solubilized formulations with guar hydroxypropyltrimonium chloride are obtainable by pairing the correct grade of polymer with a surfactant system containing a high level of anionic surfactant [pg. 20]. Thus, it would have been prima facie obvious to manipulate concentration of anionic surfactant within the surfactant system to ensure that the formulation remains phase stable with no visible separation across the temperature range spanning from 0°C to 45°C as clearly desired by Hawkins.
Regarding claim 13: The composition taught by the combination of Hawkins, Ananthapadmanabhan, Fevola, and Brown does not comprise an inorganic salt and, thus, reads on the instantly claimed range of less than about 3 wt.%.
Regarding claim 15: The composition taught by the combination of Hawkins, Ananthapadmanabhan, Fevola, and Brown does not comprise silicones and thus meets the claim.
Claims 1-4, 6-7, 9, 13, and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Hawkins et al. (US20140348759A1; published: 11/27/2014; PTO-892 of instant action) in view of Ananthapadmanabhan (Tenside Surf. Det., vol 56, pg. 378-386; published: 09/10/2019; PTO-892 of instant action), Fevola (Cosmetics & Toiletries, vol. 127, pg. 16-21; published: 01/2021); PTO-892 of instant action), and Brown et al. (US20200188243A1; published: 06/18/2020; PTO-892 of 10/21/2024), as applied to claims 1-4, 6, 9, 13, and 15 above, and further in view of Wieczorek et al. (ZESZYTY NAUKOWE 2011, pg. 148-158; published: 04/12/2012; PTO-892 of instant action) and as evidenced by Deckner (ULTRUS Prospector Knowledge Center, pg. 1-6; published: 02/07/2020; PTO-892 of instant action).
The combination of Hawkins, Ananthapadmanabhan, Fevola, and Brown as evidenced by Deckner teaches the invention(s) of claims 1-4, 6, 9, 13, and 15 as discussed in detail above and further incorporated herein.
The prior art combination does not expressly teach that the composition further comprises from about 0.01 wt.% to about 5 wt.% of a zwitterionic surfactant as recited in instant claim 7.
Wieczorek teaches that zwitterionic surfactants, such as cocobetaine, are widely used in personal care products due to their low potential for irritation to skin and their ability to boost and stabilize foam and improve viscosity [pg. 148, abstract]. In concentrations ranging from 0.125% – 1%, cocobetaine provides high foam volumes and foam stability in aqueous solutions compared to salt solutions, indicating reduced surface tension even at low concentrations [pg. 155-156, Fig. 7 and Tables 1 & 2, “Conclusions”].
Regarding claim 7: It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the composition taught by the combination of Hawkins, Ananthapadmanabhan, Fevola, and Brown by further including a zwitterionic surfactant, such as the cocobetaine of Wieczorek, in the range of 0.125 wt.% to 1 wt.%, which lies within and thus renders obvious the instantly claimed range, because this amount is known to effectively boost and stabilize foam in aqueous personal care products without high levels of salt (i.e., electrolyte), which is recognized as a need in the field of personal care formulation by Hawkins [0014-0016]. There is a reasonable expectation of success because Hawkins permits the use of optional, additional surfactants to aid in the cleaning ability of the composition and does not require that they are in the structured surfactant phase [0041].
Claims 1-4, 6, 8-9, 13, and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Hawkins et al. (US20140348759A1; published: 11/27/2014; PTO-892 of instant action) in view of Ananthapadmanabhan (Tenside Surf. Det., vol 56, pg. 378-386; published: 09/10/2019; PTO-892 of instant action), Fevola (Cosmetics & Toiletries, vol. 127, pg. 16-21; published: 01/2021); PTO-892 of instant action), and Brown et al. (US20200188243A1; published: 06/18/2020; PTO-892 of 10/21/2024), as applied to claims 1-4, 6, 9, 13, and 15 above, and further in view of Naturally Thinking (webpage, <https://naturallythinking.com/lauric-acid>; archived: 08/11/2020; PTO-892 of 09/03/2025) and as evidenced by Deckner (ULTRUS Prospector Knowledge Center, pg. 1-6; published: 02/07/2020; PTO-892 of instant action).
The combination of Hawkins, Ananthapadmanabhan, Fevola, and Brown as evidenced by Deckner teaches the invention(s) of claims 1-4, 6, 9, 13, and 15 as discussed in detail above and further incorporated herein.
The prior art combination does not expressly teach that the composition further comprises from about 0.1 wt% to about 2.5 wt% lauric acid as recited in instant claim 8.
Naturally Thinking teaches that lauric acid is an antibacterial and anti-inflammatory used in cleansing products, such as shower gel, shampoo, and face wash, for skin repairing, anti-acne, detergent, and cleansing properties [pg. 2, title; pg. 3, “Products to Use in”]. Preferably, it is used at a concentration of 1% to solubilize oils [pg. 3, “How to use”].
Regarding claim 8: It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the composition taught by the combination of Hawkins, Ananthapadmanabhan, Fevola, and Brown by further including the lauric acid taught by Naturally Thinking. One of ordinary skill in the art would have been motivated to add lauric acid in an amount of 1 wt.%, which lies within and thus renders obvious the instantly claimed range, with a reasonable expectation of success because Naturally Thinking teaches that this amount is known to be effective at solubilizing oils in personal cleansing compositions while imparting skin anti-inflammatory and antibacterial properties. 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.
Claims 1-4, 6, 9, 10-12, 13, and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Hawkins et al. (US20140348759A1; published: 11/27/2014; PTO-892 of instant action) in view of Ananthapadmanabhan (Tenside Surf. Det., vol 56, pg. 378-386; published: 09/10/2019; PTO-892 of instant action), Fevola (Cosmetics & Toiletries, vol. 127, pg. 16-21; published: 01/2021); PTO-892 of instant action), and Brown et al. (US20200188243A1; published: 06/18/2020; PTO-892 of 10/21/2024), as applied to claims 1-4, 6, 9, 13, and 15 above, and further in view of Narasimhan et al. (Cosmetics & Toiletries, vol. 133, pg. 14-24; published: 04/2018; PTO-892 of instant action) and as evidenced by Deckner (ULTRUS Prospector Knowledge Center, pg. 1-6; published: 02/07/2020; PTO-892 of instant action).
The combination of Hawkins, Ananthapadmanabhan, Fevola, and Brown as evidenced by Deckner teaches the invention(s) of claims 1-4, 6, 9, 13, and 15 as discussed in detail above and further incorporated herein.
The prior art combination does not expressly teach that the composition further comprises an additional cationic deposition polymer as recited in instant claims 10-12.
Narasimhan teaches that polyquaternium-10 (PQ-10) is a hydroxyethyl cellulose-derived cationic polymer used in shampoo and body wash formulations that aids in the deposition of other ingredients [pg. 14, r. col.]. Narasimhan further teaches that when properly formulated, PQ-10 can offer conditioning for hair and skin, enhanced delivery of actives, and visually clear surfactant-based formulations and may also impart viscosity [pg. 21, r. col.].
Regarding claims 10-11: It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the composition taught by the combination of Hawkins, Ananthapadmanabhan, Fevola, and Brown by further including the polyquaternium-10 of Narasimhan to impart a variety of benefits to the formulation, such as enhanced skin conditioning and delivery of actives.
Regarding claim 12: Narasimhan further teaches that the cationic charge density of personal care grade polyquaternium-10 generally ranges from 0.7 – 1.25 meq/g, which lies within and thus reads on the instantly claimed range, and usually exhibits molecular weight values ranging from 4.0 x 105 g/mol to 9.0 x 105 g/mol, which overlaps and thus renders obvious the instantly claimed range [pg. 18, r. col.]. It would have been prima facie obvious to use a polyquaternium-10 having these properties since the prior art teaches it is what is routinely available for personal care applications. Further, it would have been obvious to manipulate the charge density and/or molecular weight of the polyquaternium-10 within the prior art ranges in order to achieve a formulation with desired clarity, viscosity, and/or deposition because Narasimhan teaches that charge density and molecular weight of the cationic polymer affect these properties within surfactant-based systems [pg. 19, l. col.].
There is a reasonable expectation of success because Hawkins expressly teaches that its compositions may include skin conditioning agents to further improve skin conditioning performance [0041], and Narasimhan teaches it is possible to achieve visually clear surfactant-based formulations when using the polymer, which aligns with the formulation stability desired by Hawkins.
Claims 1-4, 6, 9, 13, and 15-16 are rejected under 35 U.S.C. 103 as being unpatentable over Hawkins et al. (US20140348759A1; published: 11/27/2014; PTO-892 of instant action) in view of Ananthapadmanabhan (Tenside Surf. Det., vol 56, pg. 378-386; published: 09/10/2019; PTO-892 of instant action), Fevola (Cosmetics & Toiletries, vol. 127, pg. 16-21; published: 01/2021); PTO-892 of instant action), and Brown et al. (US20200188243A1; published: 06/18/2020; PTO-892 of 10/21/2024), as applied to claims 1-4, 6, 9, 13, and 15 above, and further in view of Kadamkode et al. (WO2020169372A1; published: 08/27/2020; PTO-892 of instant action) and as evidenced by Deckner (ULTRUS Prospector Knowledge Center, pg. 1-6; published: 02/07/2020; PTO-892 of instant action).
The combination of Hawkins, Ananthapadmanabhan, Fevola, and Brown as evidenced by Deckner teaches the invention(s) of claims 1-4, 6, 9, 13, and 15 as discussed in detail above and further incorporated herein.
The prior art combination does not expressly teach that the composition further comprises about 0.10 to about 0.45 wt.%, by weight of the personal care composition, of sodium benzoate as recited in instant claim 16.
Kadamkode teaches a cost-effective preservative system comprising a combination of sodium benzoate and benzhydroxamic acid in a weight ratio of 1:8 to 1:2, which provides synergistic preservative activity in inhibiting microbial growth when used at concentrations of 0.01 wt.% to 5 wt.%, particularly in personal care compositions [abstract; claims; pg. 1, lines 5-32]. The preferred amount of sodium benzoate thus ranges from about 0.001 wt.% to about 1.7 wt.% by weight of the composition.
Regarding claim 16: It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the composition taught by the combination of Hawkins, Ananthapadmanabhan, Fevola, and Brown by further including the preservation system of Kadamkode in an amount of 0.01 wt.% to 5 wt.%, which comprises sodium benzoate in an amount which overlaps and thus renders obvious the instantly claimed range, because this amount is known in the art to provide enhanced preservation acitivty to personal care compositions and is also cost-effective. Note: MPEP 2144.05. "[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).
Claims 1-4, 6, 9, 13, 15, and 17 are rejected under 35 U.S.C. 103 as being unpatentable over Hawkins et al. (US20140348759A1; published: 11/27/2014; PTO-892 of instant action) in view of Ananthapadmanabhan (Tenside Surf. Det., vol 56, pg. 378-386; published: 09/10/2019; PTO-892 of instant action), Fevola (Cosmetics & Toiletries, vol. 127, pg. 16-21; published: 01/2021); PTO-892 of instant action), and Brown et al. (US20200188243A1; published: 06/18/2020; PTO-892 of 10/21/2024), as applied to claims 1-4, 6, 9, 13, and 15 above, and further in view of Cosmetic Ingredient Review (Final Report, pg. 1-37; published: 03/27/2012; PTO-892 of instant action) and as evidenced by Deckner (ULTRUS Prospector Knowledge Center, pg. 1-6; published: 02/07/2020; PTO-892 of instant action).
The combination of Hawkins, Ananthapadmanabhan, Fevola, and Brown as evidenced by Deckner teaches the invention(s) of claims 1-4, 6, 9, 13, and 15 as discussed in detail above and further incorporated herein.
Hawkins further teaches that the role of citric acid in the composition is to control the pH of the composition [0043]. While the composition taught by the prior art combination does comprise 0.014% w/w citric acid, the reference combination does not expressly teach that the composition comprises about 0.5 to about 2 wt.% citric acid as recited in instant claim 17.
Cosmetic Ingredient Review teaches that citric acid is typically used in rinse-off cosmetic products at concentrations between 0.000002% – 10% [pg. 20, Table 6a].
Regarding claim 17: It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the composition taught by the combination of Hawkins, Ananthapadmanabhan, Fevola, and Brown by adjusting the concentration of citric acid within the range of 0.000002 wt.% – 10 wt.% as taught by Cosmetic Ingredient Review, which overlaps and thus renders obvious the instantly claimed range, to maintain a pH within the range of about 5 to about 7 as specified by Hawkins. Note: MPEP 2144.05. "[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).
Response to Arguments
Applicant’s arguments submitted on 07/13/2026 with respect to rejections under 35 U.S.C. 103 have been fully considered in so far as they apply to the new or modified rejections of the instant Office action, but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-4, 6, 9-13, and 15 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-21 of U.S. Patent No. 11,607,373 B2 in view of Hawkins et al. (US20140348759A1; published: 11/27/2014; PTO-892 of instant action) in view of Ananthapadmanabhan (Tenside Surf. Det., vol 56, pg. 378-386; published: 09/10/2019; PTO-892 of instant action), and Brown et al. (US20200188243A1; published: 06/18/2020; PTO-892 of 10/21/2024) as evidenced by Fevola (Cosmetics & Toiletries, vol. 127, pg. 16-21; published: 01/2021); PTO-892 of instant action).
The reference claims recite a clear cleansing composition comprising: 3 – 35 wt.% of an anionic surfactant; 0.01 – 2 wt.% cationic polymer; 0 – 1.0 wt.% inorganic alts; and an aqueous carrier; wherein the composition is substantially free of sulfate-based surfactant, has a % T value of greater than 80, does not form a coacervate prior to use, and has a viscosity of 100 cP to 15,000 cP [see ref. claims 1 and 17]. In reference claim 1, the composition also comprises 5.8 – 15 wt.% of an amphoteric surfactant. Reference claims 2 and 18 recite that the anionic surfactant is selected from sodium, ammonium, or potassium salts of alaninates. Reference claims 3-5 recite that the cationic polymer, which is selected from hydroxypropyltrimonium guar, polyquaternium-10, polyquaternium-6, and combinations thereof, has a weight average molecular weight of 300,000 – 3,000,000 g/mol. Reference claim 20 recites that the ationic polymer has a charge density of 0.5 meq/g – 1.7 meq/g.
Since the cationic polymer can include combinations of the guar and cellulosic polymers, the cationic polymers of instant claims 1 and 10-12 are rendered obvious. Further, it would have been obvious to one of ordinary skill in the art to use hydroxypropyltrimonium guar in an amount of 0.01 – 2 wt.%, which overlaps and thus renders obvious the instantly claimed range, as recited in the reference claims. It would have also been obvious to use the chloride salt form because it is the most widely used form, as evidenced by Fevola [pg. 1, l. col.]. The reference claims do not recite that the composition comprises carbomers, EGDS, or thixotropic thickeners other than the hydroxypropyltrimonium guar and thus meets the claim limitation. The amount of inorganic salt in the reference claims reads on the range recited in instant claim 13. The reference claims do not require that the composition comprises silicones and thus meets instant claim 15.
The reference claims differ from the instant claims in that the reference claims do not expressly recite that the anionic surfactant is included in a structured surfactant phase consisting of sodium cocoyl alaninate and a mixture of glyceryl caprylate and glyceryl caprate and comprising a plurality of unilamellar and/or multilamellar vesicles, that the composition comprises a triglyceride oil comprising shea butter, or the pH or yield stress recited in instant claim 1. Further, the reference claims do not expressly recite the features of instant claims 2-4, 6, or 9.
These deficiencies are cured by Hawkins, Ananthapadmanabhan, and Brown whose teachings are as set forth above and further incorporated herein.
Regarding the structured surfactant phase of instant claim 1: It would have been obvious to one of ordinary skill in the art to modify the composition recited in the reference claims by combining the anionic surfactant (e.g., hydrophilic) component with the glyceryl caprylate/caprate (e.g., lipophilic) of Hawkins because the prior art teaches that this mixture readily assembles into a structured surfactant phase comprising multilamellar vesicles in aqueous systems, which have good suspending power and are phase stable—qualities which are desirable in the clear composition of the reference claims. Additionally, it would have been obvious to one of ordinary skill in the art to use sodium cocoyl alaninate as the sodium alaninate anionic surfactant because Ananthapadmanabhan teaches that this surfactant is known to be mild on the skin compared to other anionic surfactants. The reference claim range of anionic surfactants overlaps and thus renders obvious the instantly claimed amount of sodium cocoyl alaninate.
Regarding the triglyceride oil of instant claim 1: It would have been obvious to one of ordinary skill in the art to modify the composition taught by the combination of reference claims, Hawkins, and Ananthapadmanabhan by further including shea butter because Hawkins teaches that vegetable oils are useful emollients to enhance conditioning performance and demonstrates that shea butter and soybean oil are routinely used in personal care products [0041; 0062]. 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.
Regarding the pH of instant claims 1 and 3: It would have been obvious to one of ordinary skill in the art to adjust the pH within the range of about 5.0 to about 7.0, which renders obvious the instantly claimed range, because Hawkins teaches that this pH is suitable for personal care compositions comprising structured surfactants.
Regarding the yield stress of instant claims 1 and 4: It would have been obvious to one of ordinary skill in the art to manipulate the yield stress of the composition within the range of 0.01 Pa to 10 Pa, which substantially overlaps and thus renders obvious the instantly claimed range, because Brown teaches that this yield stress affords sufficient suspension of particles in personal care compositions comprising surfactants and a cationic deposition polymer in similar amounts in order to maintain a consumer desirable appearance.
Regarding instant claim 2: It would have been obvious to one of ordinary skill in the art to modify the composition taught by the combination of reference claims, Hawkins, Ananthapadmanabhan, and Brown by further including the zinc pyrithione of Hawkins because the prior art teaches this is ingredient is commonly used as an anti-dandruff agent, which would reduce skin irritation.
Regarding instant claim 6: There is no indication that the glyceryl caprylate/caprate taught by the combination of reference claims, Hawkins, Ananthapadmanabhan, and Brown exists with additional components. Therefore, the glyceryl caprylate/caprate meets the claim.
Regarding instant claim 9: Because the composition taught by the combination of reference claims, Hawkins, Ananthapadmanabhan, and Brown comprises the same ingredients in the same concentrations as instantly claimed, without further structural limitations, an ordinarily skilled artisan would reasonably expect that the modified composition has the same stability, e.g., no visible signs of any creaming, precipitation, tunneling, separation, or sedimentation at 5°C and 40°C, as instantly claimed.
There is a reasonable expectation of success because all ingredients, concentrations, and properties are known in the prior art to be useful in formulating clear and stable cleansing compositions.
Claims 1-4, 6-7, 9-13, and 15 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-21 of U.S. Patent No. 11,607,373 B2 in view of Hawkins et al. (US20140348759A1; published: 11/27/2014; PTO-892 of instant action) Ananthapadmanabhan (Tenside Surf. Det., vol 56, pg. 378-386; published: 09/10/2019; PTO-892 of instant action), and Brown et al. (US20200188243A1; published: 06/18/2020; PTO-892 of 10/21/2024), as applied to claims 1-4, 6, 9-13, and 15 above, and further in view of Wieczorek et al. (ZESZYTY NAUKOWE 2011, pg. 148-158; published: 04/12/2012; PTO-892 of instant action) and as evidenced by Fevola (Cosmetics & Toiletries, vol. 127, pg. 16-21; published: 01/2021); PTO-892 of instant action).
The combination of reference claims, Hawkins, Ananthapadmanabhan, and Brown teaches the invention(s) of instant claims 1-4, 6, 9-13, and 15 as discussed in detail above and further incorporated herein.
The reference claims and prior art combination does not expressly teach the zwitterionic surfactant of instant claim 7.
The teachings of Wieczorek are as set forth above and further incorporated herein.
Regarding instant claim 7: It would have been obvious to one of ordinary skill in the art to modify the composition taught by the combination of reference claims, Hawkins, Ananthapadmanabhan, and Brown by further including a zwitterionic surfactant, such as the cocobetaine of Wieczorek, in the range of 0.125 wt.% to 1 wt.%, which lies within and thus renders obvious the instantly claimed range, because this amount is known to effectively boost and stabilize foam in aqueous personal care products without high levels of salt (i.e., electrolyte).
There is a reasonable expectation of success because all ingredients, concentrations, and properties are known in the prior art to be useful in formulating clear and stable cleansing compositions.
Claims 1-4, 6, 8-13, and 15 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-21 of U.S. Patent No. 11,607,373 B2 in view of Hawkins et al. (US20140348759A1; published: 11/27/2014; PTO-892 of instant action) Ananthapadmanabhan (Tenside Surf. Det., vol 56, pg. 378-386; published: 09/10/2019; PTO-892 of instant action), and Brown et al. (US20200188243A1; published: 06/18/2020; PTO-892 of 10/21/2024), as applied to claims 1-4, 6, 9-13, and 15 above, and further in view of Naturally Thinking (webpage, <https://naturallythinking.com/lauric-acid>; archived: 08/11/2020; PTO-892 of 09/03/2025) and as evidenced by Fevola (Cosmetics & Toiletries, vol. 127, pg. 16-21; published: 01/2021); PTO-892 of instant action).
The combination of reference claims, Hawkins, Ananthapadmanabhan, and Brown teaches the invention(s) of instant claims 1-4, 6, 9-13, and 15 as discussed in detail above and further incorporated herein.
The reference claims and prior art combination does not expressly teach the lauric acid of instant claim 8.
The teachings of Naturally Thinking are as set forth above and further incorporated herein.
Regarding instant claim 8: It would have been obvious to one of ordinary skill in the art to modify the composition taught by the combination of reference claims, Hawkins, Ananthapadmanabhan, and Brown by further including the lauric acid taught by Naturally Thinking. One of ordinary skill in the art would have been motivated to add lauric acid in an amount of 1 wt.%, which lies within and thus renders obvious the instantly claimed range, with a reasonable expectation of success because Naturally Thinking teaches that this amount is known to be effective at solubilizing oils in personal cleansing compositions while imparting skin anti-inflammatory and antibacterial properties. 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.
There is a reasonable expectation of success because all ingredients, concentrations, and properties are known in the prior art to be useful in formulating clear and stable cleansing compositions.
Claims 1-4, 6, 9-13, and 15-16 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-21 of U.S. Patent No. 11,607,373 B2 in view of Hawkins et al. (US20140348759A1; published: 11/27/2014; PTO-892 of instant action) Ananthapadmanabhan (Tenside Surf. Det., vol 56, pg. 378-386; published: 09/10/2019; PTO-892 of instant action), and Brown et al. (US20200188243A1; published: 06/18/2020; PTO-892 of 10/21/2024), as applied to claims 1-4, 6, 9-13, and 15 above, and further in view of Kadamkode et al. (WO2020169372A1; published: 08/27/2020; PTO-892 of instant action) and as evidenced by Fevola (Cosmetics & Toiletries, vol. 127, pg. 16-21; published: 01/2021); PTO-892 of instant action).
The combination of reference claims, Hawkins, Ananthapadmanabhan, and Brown teaches the invention(s) of instant claims 1-4, 6, 9-13, and 15 as discussed in detail above and further incorporated herein.
The reference claims and prior art combination does not expressly teach the sodium benzoate of instant claim 16.
The teachings of Kadamkode are as set forth above and further incorporated herein.
Regarding instant claim 16: It would have been obvious to one of ordinary skill in the art to modify the composition taught by the combination of reference claims, Hawkins, Ananthapadmanabhan, and Brown by further including the preservation system of Kadamkode in an amount of 0.01 wt.% to 5 wt.%, which comprises sodium benzoate in an amount which overlaps and thus renders obvious the instantly claimed range, because this amount is known in the art to provide enhanced preservation acitivty to personal care compositions and is also cost-effective. Note: MPEP 2144.05. "[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).
There is a reasonable expectation of success because all ingredients, concentrations, and properties are known in the prior art to be useful in formulating clear and stable cleansing compositions.
Claims 1-4, 6, 9-13, 15, and 17 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-21 of U.S. Patent No. 11,607,373 B2 in view of Hawkins et al. (US20140348759A1; published: 11/27/2014; PTO-892 of instant action) Ananthapadmanabhan (Tenside Surf. Det., vol 56, pg. 378-386; published: 09/10/2019; PTO-892 of instant action), and Brown et al. (US20200188243A1; published: 06/18/2020; PTO-892 of 10/21/2024), as applied to claims 1-4, 6, 9-13, and 15 above, and further in view of Cosmetic Ingredient Review (Final Report, pg. 1-37; published: 03/27/2012; PTO-892 of instant action) and as evidenced by Fevola (Cosmetics & Toiletries, vol. 127, pg. 16-21; published: 01/2021); PTO-892 of instant action).
The combination of reference claims, Hawkins, Ananthapadmanabhan, and Brown teaches the invention(s) of instant claims 1-4, 6, 9-13, and 15 as discussed in detail above and further incorporated herein.
The reference claims and prior art combination does not expressly teach the citric acid of instant claim 17.
The teachings of Cosmetic Ingredient Review are as set forth above and further incorporated herein.
Regarding instant claim 17: It would have been obvious to one of ordinary skill in the art to modify the composition taught by the combination of reference claims, Hawkins, Ananthapadmanabhan, and Brown by further including citric acid within the range of 0.000002 wt.% – 10 wt.% as taught by Cosmetic Ingredient Review, which overlaps and thus renders obvious the instantly claimed range, to maintain a pH within the range of about 5 to about 7 as specified by Hawkins as suitable for personal care compositions comprising structured surfactants. Note: MPEP 2144.05. "[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).
There is a reasonable expectation of success because all ingredients, concentrations, and properties are known in the prior art to be useful in formulating clear and stable cleansing compositions.
Claims 1-4, 6, 9-13, and 15 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-14 of U.S. Patent No. 12,427,099 B2 (previously copending App. 17/529,427) in view of Hawkins et al. (US20140348759A1; published: 11/27/2014; PTO-892 of instant action) and Fevola (Cosmetics & Toiletries, vol. 127, pg. 16-21; published: 01/2021); PTO-892 of instant action).
The reference claims recite a personal care composition comprising: 5 – 20 wt.% sodium cocoyl alaninate, which overlaps and thus renders obvious the range recited in instant claim 1; a glyceryl ester selected from glyceryl caprate, glyceryl caprylate, or a mixture thereof, which renders obvious the mixture recited in instant claim 1; an antidandruff agent selected from zinc pyrithione, piroctone olamine and mixtures thereof, which reads on the same recited in instant claim 2; a liquid carrier, which reads on the same recited in instant claim 1; and 0.1 – 3% of a cationic deposition polymer selected from guar, cellulose, and derivatives and combinations of these, which reads on the cationic deposition polymer recited in instant claims 10 and 11. Reference claim 5 recites that the glyceryl ester is free of the components recited in instant claim 6 and thus meets the claim. Reference claim 6 recites that the composition has a yield stress of 0.005 Pa to 20 Pa, which renders obvious the ranges recited in instant claims 1 and 4. Reference claim 7 recites the amount of lauric acid recited in instant claim 8. Reference claim 8 recites the same stability as instant claim 9 and thus meets the claim. Reference claims 9 and 10 recite that the cationic deposition polymer has the same charge density and molecular weight recited in instant claim 12. Reference claim 11 recites that the amount of inorganic salt is less than 3 wt.%, which reads on instant claim 13. Reference claim 13 recites that the composition is substantially free of silicone and thus meets instant claim 15. Reference claim 14 recites that the composition pH is from 5 to 6, which renders obvious the ranges recited in instant claims 1 and 3. The reference claims do not recite that the composition comprises carbomers, EGDS, or thixotropic thickeners and thus meets the claim limitation.
The reference claims differ from the instant claims in that the reference claims do not expressly recite that the sodium cocoyl alaninate and glyceryl ester are the only components of a structured surfactant phase comprising a plurality of unilamellar and/or multilamellar vesicles, that the composition comprises a triglyceride oil comprising shea butter, or that the cationic polymer includes guar hydroxypropyltrimonium chloride as recited in instant claim 1.
These deficiencies are cured by Hawkins and Fevola whose teachings are as set forth above and further incorporated herein.
Regarding the structured surfactant phase of instant claim 1: It would have been obvious to one of ordinary skill in the art to modify the composition recited in the reference claims by combining the anionic surfactant (e.g., sodium cocoyl alaninate) component with the glyceryl caprylate/caprate (e.g., lipophilic) to assemble a structured surfactant phase comprising multilamellar vesicles in aqueous systems, as directed by Hawkins, because the prior art teaches these have good suspending power and are phase stable—qualities which are desirable in the personal care composition of the reference claims.
Regarding the triglyceride oil of instant claim 1: It would have been obvious to one of ordinary skill in the art to modify the composition taught by the combination of reference claims and Hawkins by further including shea butter because Hawkins teaches that vegetable oils are useful emollients to enhance conditioning performance and demonstrates that shea butter and soybean oil are routinely used in personal care products [0041; 0062]. 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.
Regarding the cationic polymer of instant claim 1: It would have been obvious to one of ordinary skill in the art to modify the composition taught by the combination of reference claims and Hawkins by selecting guar hydroxypropyltrimonium chloride as one of the cationic polymers because Fevola teaches the cationic polymer is routinely used in personal care compositions to achieve a desired viscosity while improving the formulation’s sensory profile and delivery of ingredients to the skin. The amount of cationic polymer recited in the reference claims overlaps and thus renders obvious the instantly claimed range.
There is a reasonable expectation of success because all ingredients, concentrations, and properties are known in the prior art to be useful in formulating stable personal care compositions.
Claims 1-4, 6-7, 9-13, and 15 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-14 of U.S. Patent No. 12,427,099 B2 (previously copending App. 17/529,427) in view of Hawkins et al. (US20140348759A1; published: 11/27/2014; PTO-892 of instant action) and Fevola (Cosmetics & Toiletries, vol. 127, pg. 16-21; published: 01/2021); PTO-892 of instant action), as applied to claims 1-4, 6, 9-13, and 15 above, and further in view of Wieczorek et al. (ZESZYTY NAUKOWE 2011, pg. 148-158; published: 04/12/2012; PTO-892 of instant action).
The combination of reference claims, Hawkins, and Fevola teaches the invention(s) of instant claims 1-4, 6, 9-13, and 15 as discussed in detail above and further incorporated herein.
The reference claims and prior art combination does not expressly teach the zwitterionic surfactant recited in instant claim 7.
The teachings of Wieczorek are as set forth above and further incorporated herein.
Regarding instant claim 7: It would have been obvious to one of ordinary skill in the art to modify the composition taught by the combination of reference claims, Hawkins, and Fevola by further including a zwitterionic surfactant, such as the cocobetaine of Wieczorek, in the range of 0.125 wt.% to 1 wt.%, which lies within and thus renders obvious the instantly claimed range, because this amount is known to effectively boost and stabilize foam in aqueous personal care products without high levels of salt (i.e., electrolyte).
There is a reasonable expectation of success because all ingredients, concentrations, and properties are known in the prior art to be useful in formulating stable personal care compositions.
Claims 1-4, 6, 9-13, and 15-16 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-14 of U.S. Patent No. 12,427,099 B2 (previously copending App. 17/529,427) in view of Hawkins et al. (US20140348759A1; published: 11/27/2014; PTO-892 of instant action) and Fevola (Cosmetics & Toiletries, vol. 127, pg. 16-21; published: 01/2021); PTO-892 of instant action), as applied to claims 1-4, 6, 9-13, and 15 above, and further in view of Kadamkode et al. (WO2020169372A1; published: 08/27/2020; PTO-892 of instant action).
The combination of reference claims, Hawkins, and Fevola teaches the invention(s) of instant claims 1-4, 6, 9-13, and 15 as discussed in detail above and further incorporated herein.
The reference claims and prior art combination do not expressly teach the sodium benzoate recited in instant claim 16.
The teachings of Kadamkode are as set forth above and further incorporated herein.
Regarding instant claim 16: It would have been obvious to one of ordinary skill in the art to modify the composition taught by the combination of reference claims, Hawkins, and Fevola by further including the preservation system of Kadamkode in an amount of 0.01 wt.% to 5 wt.%, which comprises sodium benzoate in an amount which overlaps and thus renders obvious the instantly claimed range, because this amount is known in the art to provide enhanced preservation acitivty to personal care compositions and is also cost-effective. Note: MPEP 2144.05. "[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).
There is a reasonable expectation of success because all ingredients, concentrations, and properties are known in the prior art to be useful in formulating stable personal care compositions.
Claims 1-4, 6, 9-13, 15, and 17 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-14 of U.S. Patent No. 12,427,099 B2 (previously copending App. 17/529,427) in view of Hawkins et al. (US20140348759A1; published: 11/27/2014; PTO-892 of instant action) and Fevola (Cosmetics & Toiletries, vol. 127, pg. 16-21; published: 01/2021); PTO-892 of instant action), as applied to claims 1-4, 6, 9-13, and 15 above, and further in view of Cosmetic Ingredient Review (Final Report, pg. 1-37; published: 03/27/2012; PTO-892 of instant action).
The combination of reference claims, Hawkins, and Fevola teaches the invention(s) of instant claims 1-4, 6, 9-13, and 15 as discussed in detail above and further incorporated herein.
The reference claims and prior art combination do not expressly teach the citric acid recited in instant claim 17.
The teachings of Cosmetic Ingredient Review are as set forth above and further incorporated herein.
Regarding instant claim 17: It would have been obvious to one of ordinary skill in the art to modify the composition taught by the combination of reference claims, Hawkins, and Fevola by further including citric acid within the range of 0.000002 wt.% – 10 wt.% as taught by Cosmetic Ingredient Review, which overlaps and thus renders obvious the instantly claimed range, to maintain a pH within the range of about 5 to about 7 as specified by Hawkins as suitable for personal care compositions comprising structured surfactants. Note: MPEP 2144.05. "[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).
There is a reasonable expectation of success because all ingredients, concentrations, and properties are known in the prior art to be useful in formulating stable personal care compositions.
Response to Arguments
Applicant’s Remarks filed 07/13/2026 are acknowledged. Applicant states that upon indication of allowable subject matter but for the non-statutory obviousness-type double patenting rejections, Applicant will consider filing a terminal disclaimer if necessary. Since no allowable subject matter has been indicated and Applicant has not made any substantive arguments in the Remarks filed on 07/13/2026 traversing the rejections, the double patenting rejections of record are maintained.
Conclusion
No claim is allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SARAH CLINKSCALES WISTNER whose telephone number is (571)270-7715. The examiner can normally be reached Monday - Thursday 8:00 AM - 5:00 PM ET.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sue Liu can be reached at (571)272-5539. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/SARAH C WISTNER/Examiner, Art Unit 1616
/ERIN E HIRT/Primary Examiner, Art Unit 1616
Prosecution Insights