DETAILED ACTION
Continued Examination
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 01/16/2026 has been entered.
Communication
The Examiner attempted to contact applicant’s representative Nicholas Barber at 571-267-7013 on 02/19/2026 regarding potential claim amendments discussed in the interview on 01/23/2026. No reply has been received.
Previous Rejections
Applicants' arguments, filed 01/16/2026, have been fully considered. Rejections and/or objections not reiterated from previous office actions are hereby withdrawn. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application.
Claim Rejections - 35 USC § 112 – Improper Markush Group
Claims 69 and 78 are rejected on the basis that it contains an improper Markush grouping of alternatives.
A Markush grouping is proper if the alternatives defined by the Markush group (i.e., alternatives from which a selection is to be made in the context of a combination or process, or alternative chemical compounds as a whole) share a “single structural similarity” and a common use. A Markush grouping meets these requirements in two situations. First, a Markush grouping is proper if the alternatives are all members of the same recognized physical or chemical class or the same art-recognized class, and are disclosed in the specification or known in the art to be functionally equivalent and have a common use. Second, where a Markush grouping describes alternative chemical compounds, whether by words or chemical formulas, and the alternatives do not belong to a recognized class as set forth above, the members of the Markush grouping may be considered to share a “single structural similarity” and common use where the alternatives share both a substantial structural feature and a common use that flows from the substantial structural feature. See MPEP § 2117.
The Markush grouping of claims 69 and 78 is improper because the alternatives defined by the Markush grouping do not share both a single structural similarity and a common use for the following reasons:
Claims 69 and 78 recite “polysaccharide thickening agents” where the polysaccharide thickening agent is chosen from hydroxypropyl guar, carrageenan, xanthan gum, cellulose gum, cyclodextrin, sclerotium gum, polyvinyl alcohol, or mixtures thereof. Each of the listed polysaccharide thickening agents other than polyvinyl alcohol are known in the art to be polysaccharides and share the structural similarity of monosaccharide units linked together by glycosidic bonds. To the contrary, polyvinyl alcohol is not known in the art to be a polysaccharide and is a synthetic polymer with the chemical formula [CH2CH(OH)]n.
Since there is nothing common to the Markush alternative chemical species, one can conclude that the instantly claimed species, polyvinyl alcohol, as recited in claims 69 and 78 fails to share a substantial structural similarity or any substantial structural feature or common activity that naturally flows from the substantial structural feature. Thus, not all members recited in this improper Markush group of species belong to the same recognized physical/ chemical class.
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 64-83 are rejected under 35 U.S.C. 103 as being obvious over Lagrange et al. (WO 2018/114875 A1).
Regarding independent claims 64 and 74, Lagrange teaches a composition to lighten the hair (abstract) comprising polyphosphorus derivatives such as sodium hexametaphosphate (pg. 8, lines 26-31) in an amount ranging from 0.5 to 20% by weight relative to the weight of the composition (pg. 12, lines 13-15), an organic thickener, such as xanthan gum (pg. 44, lines 21-27), in an amount of 0.01% to 20% by weight (pg. 45, lines 3-4), and water in an amount from 5 to 90% by weight (pg. 39, lines 23-24).
Claims 64 and 74 are rendered prima facie obvious over the teachings of Lagrange, because it is prima facie obvious to combine prior art elements according to known methods, to yield predictable results. In the instant case, all the claimed elements (e.g., sodium hexametaphosphate, xanthan gum, and water) were known in the prior art (e.g., Lagrange) and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination yielding nothing more than predictable results (e.g., a composition for the hair) to one of ordinary skill in the art. MPEP 2143.A.
Regarding the amounts of the components, in the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. Similarly, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. See MPEP 2144.05 A.
Further regarding claim 64, while the composition having a weight ratio of the total amount of polysaccharide thickening agent to the total amount of inorganic phosphate to provide styling effect to the hair is not explicitly disclosed, a chemical composition and its properties are inseparable. MPEP 2112.01 II. Therefore, because the prior art discloses a composition for the hair with the same components (i.e., sodium hexametaphosphate and xanthan gum in amounts overlapping with those claimed), the properties the applicant discloses and/or claims (provides styling effects) are necessarily present. Furthermore, Lagrange teaches that compositions containing the claimed amount of sodium hexametaphosphate and xanthan gum in the presence of water is applied to hair and used for lightening keratin fibers (abstract; Claim 25). It would be reasonably expected that the compositions of Lagrange would provide other forms of styling to hair.
Claims 65 and 75 are rendered prima facie obvious because Lagrange discloses sodium hexametaphosphate (pg. 8, lines 26-31) in an amount ranging from 0.5 to 20% by weight relative to the weight of the composition (pg. 12, lines 13-15) and an organic thickener, such as xanthan gum (pg. 44, lines 21-27), in an amount of 0.01% to 20% by weight (pg. 45, lines 3-4). A prima facie case of obviousness exists because of overlap, as previously discussed. Furthermore, where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. See MPEP 2144.05(II)(A). In this case, the general conditions of the amounts of sodium hexametaphosphate and xanthan gum have been taught by the prior art; as such, it would not have been inventive for the skilled artisan to have discovered the optimum ratio via routine experimentation.
Claims 66-67 are rendered prima facie obvious because Lagrange discloses the inorganic polyphosphate, sodium hexametaphosphate (pg. 8, lines 26-31).
Claim 68 and 76 are rendered prima facie obvious because Lagrange discloses the composition can further include lactones in an amount from 0.1% to 35% by weight (Claim 23). A prima facie case of obviousness exists because of overlap, as previously discussed.
Claims 69 and 78 are rendered prima facie obvious because Lagrange discloses the organic thickener xanthan gum (pg. 44, lines 21-27).
Claims 70 and 79 are rendered prima facie obvious because Lagrange discloses the composition has a pH less than or equal to 11 (Claim 24). A prima facie case of obviousness exists because of overlap, as previously discussed.
Claims 71 and 80 are rendered prima facie obvious because Lagrange discloses the composition can further include a polyol in an amount ranging from 0.1 to 35% by weight (pg. 36, lines 15-20). A prima facie case of obviousness exists because of overlap, as previously discussed.
Claims 72 and 81 are rendered prima facie obvious because Lagrange discloses the composition can further include surfactants, such as anionic surfactants (pg. 24, lines 9-10), which are present in the composition in an amount of 0.05 to 20% by weight (pg. 33, lines 24-25). A prima facie case of obviousness exists because of overlap, as previously discussed.
Claims 73 and 82 are rendered prima facie obvious because Lagrange discloses the composition can be left on for an hour (pg. 46, lines 21-22).
Claim 77 is rendered prima facie obvious because Lagrange taught lactones in an amount from 0.1% to 35% by weight (Claim 23) and sodium hexametaphosphate in an amount ranging from 0.5 to 20% by weight (pg. 8, lines 26-31; pg. 12, lines 13-15). A prima facie case of obviousness exists because of overlap, as previously discussed. Furthermore, where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. See MPEP 2144.05(II)(A). In this case, the general conditions of the amounts of sodium hexametaphosphate and lactones have been taught by the prior art; as such, it would not have been inventive for the skilled artisan to have discovered the optimum ratio via routine experimentation.
Regarding claim 83, Lagrange teaches applying a composition to human keratin fibers, such as the hair, to lighten the fibers (Claim 25; abstract) where the composition comprises polyphosphorus derivatives such as sodium hexametaphosphate (pg. 8, lines 26-31) in an amount ranging from 0.5 to 20% by weight relative to the weight of the composition (pg. 12, lines 13-15), an organic thickener, such as xanthan gum (pg. 44, lines 21-27), in an amount of 0.01% to 20% by weight (pg. 45, lines 3-4), and water as a solvent (pg. 39, lines 23-24). In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. See MPEP 2144.05 A.
Response to Arguments/Analysis of Alleged Unexpected Results
Applicant's arguments filed 01/16/2026 have been fully considered but they are not persuasive.
Applicants argue at pg. 8 that Lagrange is directed to a lightening composition for keratin fibers and does not recognize or suggest the unexpected lasting styling benefits obtained with the claimed composition.
The Examiner has fully reviewed and considered the alleged unexpected results. As shown in Table 2B, compositions 2B-2F (containing 1 wt.% xanthan gum, 1-10 wt.% sodium hexametaphosphate, and water) demonstrated lastingness of elongation and anti-frizz benefits compared to comparative compositions C8 (containing no sodium hexametaphosphate) or C9 (containing neither xanthan gum nor sodium hexametaphosphate). Composition 2A (with 0.5 wt.% sodium hexametaphosphate) does not show any benefit over Comparative composition C8 (no sodium hexametaphosphate) (Tables 2A-B). The benefit is seen with the combination of 3 wt.% sodium hexametaphosphate and 1 wt.% of the polysaccharide cyclodextrin, sclerotium gum, carrageenan, xanthan gum, or cellulose gum (Table 1) [00136].
The combination of xanthan gum (or cyclodextrin, sclerotium gum, carrageenan, or cellulose gum), sodium hexametaphosphate, and water providing lastingness of elongation and anti-frizz benefits to the hair is unexpected over the prior art.
Applicant argues that the amended ranges are commensurate in scope with the inventive examples disclosed in the specification.
The Examiner disagrees. The claims are not “commensurate in scope” with the showing. See MPEP § 716.02(d). Applicant has demonstrated the combination of xanthan gum (or cyclodextrin, sclerotium gum, carrageenan, or cellulose gum), sodium hexametaphosphate, and water provides unexpected styling effects to the hair. However, it is unclear that a comparative composition containing these specific components and in these specific amounts would be reasonably representative of compositions containing other inorganic phosphates (i.e., other than sodium hexametaphosphate), other anionic and/or nonionic polysaccharide thickening agents (i.e., other than those tested), and in differing amounts, falling within the broader scope currently claimed.
Claim 74 would be commensurate in scope with the showing if the amount of sodium hexametaphosphate were recited to be 1-10 wt.% (0.5 wt.% sodium hexametaphosphate did not show any benefit over the comparative composition as discussed above) and the tested polysaccharide thickening agents were recited (i.e., incorporating the subject matter of claim 78 into claim 74 minus polyvinyl alcohol because polyvinyl alcohol was neither tested nor does it have close structural similarity to the tested polysaccharides).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Ashlee E Wertz whose telephone number is (571)270-7663. The examiner can normally be reached Monday - Friday, 8 AM - 5 PM.
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/ASHLEE E WERTZ/Examiner , Art Unit 1612
/SAHANA S KAUP/Supervisory Primary Examiner, Art Unit 1612