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 .
Response to Amendment
The Amendment filed on May 27th 2025 has been entered. Claims 1, 3-13, and 15-19 are pending in the application. Claim 2 and claim 14 have been cancelled.
The rejection of claims 1, 3-13, 15-17, and 19 under 35 U.S.C. 103 as obvious over Song (US 20190105247 A1) is withdrawn.
The rejection of claim 18 under 35 U.S.C. 103 as obvious over Song (US 20190105247 A1) and O’Connor (WO 2019194949 A1) is withdrawn.
Claim Rejections - 35 USC § 103
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 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 text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1, 3-11, 15-17, and 19 rejected under 35 U.S.C. 103 as being unpatentable over Botto (US 20190365623 A1) and further in view of Bruen (US 20210267869 A1).
With regard to claims 1, 7-8 and 10-11, Botto discloses a concentrated rinse-off cleansing composition useful for cleaning hair (see Abstract). Botto further discloses a non-sulfate anionic surfactant (see [0037]) and potassium lauroyl sarcosinate at 0.01-25wt% (see [0087]-[0088]). Botto further discloses amphoteric surfactants at 2-25wt% (see [0098]) and betaines as suitable amphoteric surfactants (see [0099]). Botto further teaches cocamidopropyl betaine as a suitable betaine surfactant (see [0103]). Botto further discloses 0.1-10wt% of conditioning agents (see [0124]) and cationic polymers as suitable conditioning agents (see [0125]). Botto further teaches the cationic polymers as having a molecular weight of 5,000-10,000,000 (see [0127]) and a charge density of 0.8-3meq/g (see [0128]). Botto further discloses the composition as having a viscosity of 2500 cP to 15,000 cP (see [0284]). Botto further discloses the composition may comprise one or more thickening agents (see [0022]).
However, Botto fails to disclose an inorganic salt.
Bruen discloses a hair cleaning agent (see Abstract). Bruen further discloses anionic surfactants (see [0012]) and amphoteric surfactants (see [0053]). Bruen further discloses sodium chloride as an inorganic salt (see [0039]) at 0.15-3wt% (see [0040]). Bruen further discloses sodium chloride as a preferable inorganic salt from the aspect of the thickening effect.
It would have been obvious to one of ordinary skill in the art, before the effective filing date, to utilize the sodium chloride of Bruen in the hair cleansing composition of Botto for the purpose of thickening the composition, as disclosed by Bruen.
With respect to the ratio of charge density to inorganic salt of 1.2:1 to 2:1, considering that Botto teaches a cationic deposition polymer having a charge density of 0.8-3, as disclosed in [0128], and Bruen teaches inorganic salt at 0.15% to 3% by weight, as disclosed in [0040], the subject matter as a whole would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have selected the overlapping portion of the range disclosed by the reference (e.g. charge density of 1.2meq/g: 1 wt% inorganic salt or 1.2:1) because overlapping ranges have been held to be a prima facie case of obviousness, see In re Malagari, 182 U.S.P.Q 549; In re Woodruff, 919 F.2d 1575, 1578, 16 USPQ2d 1934, 1936-37 (Fed. Cir. 1990); In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976). In addition, a prima facie case of obviousness exists because the claimed ranges "overlap or lie inside ranges disclosed by the prior art", see In re Wertheim, 541 F.2d 257,191 USPQ 90 (CCPA 1976; In re Woodruff; 919 F.2d 1575,16USPQ2d 1934 (Fed. Cir. 1990). See MPEP 2144.05(I).
With regard to claim 3 and claim 4, while Botto and Bruen do not disclose the composition as comprising a %T value of at least 80 and lacking an in situ coacervate, Botto and Bruen disclose all of the limitations of claim 1. The composition of Botto may comprise cocamidopropyl betaine, sodium cocoyl isethionate, sodium lauroyl sarcosinate, and JR trademark salts of hydroxyethyl cellulose, similar to the composition disclosed in the instant specifications. Botto further discloses the composition may comprise a thickener. Bruen discloses sodium chloride as an inorganic salt useful as a thickener. As these are similar components to Example 7 (see page 25-26 of the instant specifications). It stands to reason that the disclosed composition would meet the requirement of comprising a %T value of at least 80 and lacking an in situ coacervate. Applicant is directed to MPEP 2112.01(I), “where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977)” and 2112.01(II), "products of identical chemical composition can not have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).
With regard to claim 5, Botto and Bruen disclose all of the limitations of claim 1.
With respect to the ratio of anionic surfactant to amphoteric surfactant of 0.1:1 to 1.5:1, considering that Botto teaches anionic surfactants at 0.01-25wt%, as disclosed in [0088], and teaches amphoteric surfactants at 2% to 25% by weight, as disclosed in [0098], it would have been obvious to one of ordinary skill in the art, before the effective filing date, to utilize the claimed ratio of anionic surfactant to amphoteric surfactant as determined through routine optimization. Optimization or even simply varying of the relative amounts within the prior art’s general conditions amounts to routine experimentation. 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) MPEP 2144.05.
With regard to claim 6, Botto discloses the composition as having a pH of use between 4 and 8 (see [0128]).
With regard to claim 9, Botto discloses cationic guar derivatives (see [0138]).
With regard to claim 15, Botto discloses the compositions impart desirable styling properties to the hair, such as smoothness, detangling, and shine, without requiring use of silicones (see [0007]).
With regard to claim 16, Botto discloses a surfactant system comprising: (i) one or more non-sulfate anionic surfactants; (ii) one or more alkyl polyglucosides; and (iii) one or more amphoteric surfactants; (b) one or more conditioning agents; and (c) water (see Abstract). Further, while the examples of Botto disclose compositions comprising a greater number of components, the “comprising” language of Botto indicates that these components are not necessary. Only those components disclosed above (one or more non-sulfate anionic surfactants; (ii) one or more alkyl polyglucosides; and (iii) one or more amphoteric surfactants; (b) one or more conditioning agents; and (c) water), totaling one non-sulfate anionic surfactant, one alkyl polyglucoside, one amphoteric surfactant, one conditioning agent, and water, are necessary. Even with the addition of the inorganic salt, as disclosed by Bruen, the composition would comprise six components.
With regard to claim 17, Botto discloses the composition may comprise one or more thickeners (see [0189]). As this component is optional, it would be obvious that the composition may be free of modifiers.
With regard to claim 19, Botto discloses a concentrated rinse-off cleansing composition useful for cleaning hair (see Abstract). Botto further discloses a non-sulfate anionic surfactant (see [0037]) and potassium lauroyl sarcosinate at 0.01-25wt% (see [0087]-[0088]). Botto further discloses amphoteric surfactants at 2-25wt% (see [0098]) and betaines as suitable amphoteric surfactants (see [0099]). Botto further teaches cocamidopropyl betaine as a suitable betaine surfactant (see [0103]). Botto further discloses 0.1-10wt% of conditioning agents (see [0124]) and cationic polymers as suitable conditioning agents (see [0125]). Botto further teaches the cationic polymers as having a molecular weight of 5,000-10,000,000 (see [0127]) and a charge density of 0.8-3meq/g (see [0128]). Botto further discloses the composition as having a viscosity of 2500 cP to 15,000 cP (see [0284]).
However, Botto fails to disclose an inorganic salt.
Bruen discloses a hair cleaning agent (see Abstract). Bruen further discloses sodium chloride as an inorganic salt (see [0039]) at 0.15-3wt% (see [0040]). Bruen further discloses sodium chloride as a preferable inorganic salt from the aspect of the thickening effect.
It would have been obvious to one of ordinary skill in the art, before the effective filing date, to utilize the sodium chloride of Bruen in the hair cleansing composition of Botto for the purpose of thickening the composition, as disclosed by Bruen.
With respect to the ratio of anionic surfactant to amphoteric surfactant of 0.1:1 to 1.5:1, considering that Botto teaches anionic surfactants at 0.01-25wt%, as disclosed in [0088], and teaches amphoteric surfactants at 2% to 25% by weight, as disclosed in [0098], it would have been obvious to one of ordinary skill in the art, before the effective filing date, to utilize the claimed ratio of anionic surfactant to amphoteric surfactant as determined through routine optimization. Optimization or even simply varying of the relative amounts within the prior art’s general conditions amounts to routine experimentation. 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) MPEP 2144.05.
While Botto and Bruen do not disclose the composition as comprising a %T value of at least 80 and lacking an in situ coacervate, Botto and Bruen disclose all of the limitations of claim 1. The composition of Botto may comprise cocamidopropyl betaine, sodium cocoyl isethionate, sodium lauroyl sarcosinate, and JR trademark salts of hydroxyethyl cellulose, similar to the composition disclosed in the instant specifications. Botto further discloses the composition may comprise a thickener. Bruen discloses sodium chloride as an inorganic salt useful as a thickener. As these are similar components to Example 7 (see page 25-26 of the instant specifications). It stands to reason that the disclosed composition would meet the requirement of comprising a %T value of at least 80 and lacking an in situ coacervate. Applicant is directed to MPEP 2112.01(I), “where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977)” and 2112.01(II), "products of identical chemical composition can not have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).
With respect to the ratio of charge density to inorganic salt of 1.2:1 to 2:1, considering that Botto teaches a cationic deposition polymer having a charge density of 0.8-3, as disclosed in [0128], and Bruen teaches inorganic salt at 0.15% to 3% by weight, as disclosed in [0040], it would have been obvious to one of ordinary skill in the art, before the effective filing date, to utilize the claimed ratio of charge density to inorganic salt as determined through routine optimization. Optimization or even simply varying of the relative amounts within the prior art’s general conditions amounts to routine experimentation. 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) MPEP 2144.05.
Claim 12 and claim 13 are rejected under 35 U.S.C. 103 as being unpatentable over Botto (US 20190365623 A1) and Bruen (US 20210267869 A1), as applied to claim 1 above, and in further view of Ceballos (US 20190365619 A1).
With regard to claim 12 and claim 13, Botto and Bruen disclose all of the limitations of claim 1.
However, Botto and Bruen fail to disclose an anti-dandruff agent.
Ceballos discloses an anti-dandruff cleansing composition, an analogous art (see Abstract). Ceballos further discloses anionic (see [0017]) and amphoteric (see [0091]) surfactants. Ceballos further discloses zinc pyrithione, piroctone olamine, and selenium disulfide as common anti-fungal agents (see [0002]). Ceballos further discloses anti-fungal agents as commonly used to control dandruff by eliminating or reducing the multiplication of resident yeast on the scalp (see [0002]).
It would have been obvious to one of ordinary skill in the art, before the effective filing date, to utilize the zinc pyrithione, piroctone olamine, and selenium disulfide of Ceballos in the concentrated rinse-off cleansing composition of Botto for the purpose of controlling dandruff by eliminating or reducing the multiplication of resident yeast on the scalp, as disclosed by Ceballos.
Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over Botto (US 20190365623 A1) and Bruen (US 20210267869 A1), as applied to claim 1 above, and in further view of O’Connor (WO 2019194949 A1).
With regard to claim 18, Botto and Bruen disclose all of the limitations of claim 1.
However, Botto and Bruen fail to disclose a method for cleaning hair comprising:
a. providing the shampoo composition of claim 1;
b. dispensing the shampoo composition into a palm or a cleaning implement;
c. applying the shampoo composition onto wet hair and massaging the shampoo
composition across the hair and scalp; wherein the shampoo composition is
diluted forming a coacervate that is deposited onto the hair;
d. rinsing the shampoo composition from the hair.
O’Connor teaches a personal care composition (see Abstract), an analogous art, and further teaches a personal care composition is selected from a group including shampoo (see [0017]). O’Connor further discloses a method for use of a personal care composition comprising providing the personal care composition, applying the composition to at least one of skin and hair, and further comprising rinsing the personal care composition with rinse water (see [0048]).
O’Connor teaches a personal care composition, which may be a shampoo, and a method for using disclosed composition. Botto discloses a concentrated rinse-off cleansing composition useful for cleaning hair.
It would have been obvious to one of ordinary skill in the art, before the effective filing date, to use the concentrated rinse-off cleansing composition useful for cleaning hair of Botto in the same steps as those recited by O’Connor as said steps are for the use of a personal care composition for hair and Botto discloses a concentrated rinse-off cleansing composition useful for cleaning hair.
Response to Arguments
Applicant’s arguments with respect to claims 1, 3-13, and 15-19 have been considered 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.
Applicant argues that Song fails to disclose a stable sulfate-free shampoo composition with 1.3% to 1.5% by weight of total inorganic salt (sodium chloride). As Song is no longer relied upon as prior art, Applicant’s arguments with respect to Song are moot. Further, as stated above, Bruen discloses a hair cleaning agent (see Abstract). Bruen further discloses sodium chloride as an inorganic salt (see [0039]) at 0.15-3wt% (see [0040]). Bruen further discloses sodium chloride as a preferable inorganic salt from the aspect of the thickening effect.
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.
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/B.S.H./Examiner, Art Unit 1761
/ANGELA C BROWN-PETTIGREW/Supervisory Patent Examiner, Art Unit 1761