*DETAILED ACTION*
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 July 20, 2026 has been entered.
Priority
This application is divisional of 16/611,787 filed on 11/07/2019, which is a 371 of
PCT/EP2018/061575 filed on 05/04/2018, and claims foreign priority in French application
FRI 754194 filed on 05/12/2017.
Claim Status
Claims 1-21 were canceled. Claims 22-41 are examined. Claims 28 and 32 were
amended.
Maintained 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.
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.
Claims 22-33 and 37-41 are rejected under 35 U.S.C. 103 as being unpatentable over
Krause (US 2005/0226838 Published October 13, 2005 – of record in IDS dated 12/27/2022) and
further in view of Hessefort (WO 02/083089 Al Published October 24, 2002).
The claims encompass a method of altering the color of keratin fibers comprising
applying to the keratin fibers a composition comprising components i-iii.
The teachings of Krause are related to a hair treatment composition (Abstract). The hair
treatment compositions can be applied in different application forms, e.g. as leave on or as rinse-off products. They can be permanent, semi-permanent or temporary hair dye composition, e.g.
oxidative hair dye compositions or non-oxidative hair coloring compositions or hair bleaching
compositions (paragraph 0016). In one embodiment the composition further comprises a polymer
with anionic or anionizable groups in an amount of preferably from 0.01 to 20 percent by weight,
as a hair-fixing or hair-care effective ingredient. Anionizable groups are understood to be acid
groups, such as carboxylic acid, sulfuric acid or phosphoric acid groups, which can be
deprotonated by means of a conventional base, such as an organic amine or alkali metal or
alkaline earth metal hydroxide (paragraph 0018). Suitable polymers with acid groups are
especially homopolymers of acrylic acid or methacrylic acid, which are not cross-linked or
crosslinked with polyfunctional agents (paragraph 0021). Preferred polymers with acid groups
include copolymers of vinyl acetate, crotonic acid and vinyl propionate; copolymers of vinyl
acetate, crotonic acid and vinyl neodecanoate (INCI names: VA/crotonates/vinyl propionate
copolymer, VA/crotonates/vinyl neodecanoate copolymer) (paragraph 0022). Suitable cationic
polymers include quaternary silicone polymers (paragraph 0028). The composition further
contains at least one silicone compound including cyclomethicone, dimethicone, dimethiconol,
dimethicone copolyol, phenyl trimethicone, amodimethicone, trimethylsilylamodimethicone,
stearyl siloxysilicates, polymethylsilsesquioxane and dimethicone cross polymers (paragraph
0038). Preferred silicones are cyclic dimethylsiloxanes, linear polydimethylsiloxanes, block
polymers comprising polydimethyl siloxanes and polyethylene oxides and/or polypropylene
oxides, polydimethyl siloxanes with terminal or side polyethylene oxide or polypropylene oxide
groups, polydimethyl siloxanes with terminal hydroxy groups, phenyl substituted polydimethyl
siloxanes, silicone emulsions, silicone elastomers, silicone waxes, silicone gums and amino
substituted silicones (paragraph 0039). In various other embodiments the composition can
contain at least one haircoloring pigment, which imparts color and/or a luster effect to the hair
(paragraph 0063). Krause teaches a method of treating hair comprising preparing a hair treatment
composition, applying the hair treatment composition to hair, and leaving the hair treatment
composition on the hair or rinsing out after an acting time (paragraphs 0103-0106).
Krause does not teach drying the keratin fibers at 50-220°C.
The teachings of Hessefort are related to compositions and methods of treating hair (Abstract and page 1 lines 5-9). The compositions contain ingredients normally used in cosmetics, such as dyestuffs which can serve to color the composition itself or the fibers of the hair (page 8 lines 13-16). The composition is applied to wet or dry hair by spraying or by rubbing onto the hair manually. The treated hair is then mechanically fixed in the desired configuration using, for example, any of a variety of rollers or curlers. In the case of
application to wet hair, the hair is then dried using ambient air, electric or hot air drying using, for example, a blow dryer (page 8 lines 22-29). Example 10 teaches drying the hair at 65°C (page 21 lines 22-24).
The teachings of Krause and Hessefort are related compositions and methods of treating hair, wherein the compositions contain dyestuffs intended to color the fibers of the hair, and it would have been obvious to have combined them because they are in the same field of endeavor.
Regarding claim 22, it would have been prima facie obvious to a person of ordinary skill
in the art before the effective filing date of the claimed invention to have formed a composition
for temporarily altering the color of hair, the composition comprising a copolymer of vinyl
acetate, crotonic acid and vinyl neodecanoate; an aminosilicone, and a pigment, with a
reasonable expectation of success because Krause teaches a composition for treating hair
comprising a copolymer of vinyl acetate, crotonic acid and vinyl neodecanoate; an
aminosilicone, and a pigment wherein the composition is intended for temporarily dying hair. It
would have been obvious to have practiced a method of temporarily altering the color of hair
comprising applying to the hair the composition as described above, with a reasonable
expectation of success because Krause teaches a method of treating hair comprising applying the
composition to hair. Krause's composition is intended for temporarily dying hair, therefore the
method of applying the composition would have been a method of temporarily dying the hair.
It would have been obvious to have rinsed the hair treatment composition out of the hair
after a predetermined time because Krause teaches rinsing the hair treatment composition out of
the hair after a predetermined acting time (paragraphs 0103-0106 and claim 29). It would have
been further obvious to have dried the hair after rinsing because drying wet hair after washing was known from Hessefort. It would have been obvious to have dried the hair at a temperature of
65°C, with a reasonable expectation of success because Hessefort teaches drying washed hair at
a temperature of 65°C. The selection of a known method base on its suitability for its intended purpose supports obviousness. Krause’s method ends with wet hair. The skilled artisan would have known from the teachings of Hessefort that wet hair is dried and that drying wet hair is accomplished by exposing the wet hair to ambient air or hot air using a blow dryer. It would have been obvious dry the wet hair in Krause because drying wet hair was known in the art and Krouse does not teach against drying the wet hair. The claimed range is obvious because it encompasses 65°C.
Regarding claims 23, it would have been obvious to have formed the composition with a
mixture of different silicone compounds in a concentration of 0.01-15 wt.% because Krause
teaches that the composition contains at least one silicone compound in a concentration of 0.01-
15 wt.% where the silicone compound includes amino-substituted silicones, silicone gums,
linear polydimethylsiloxane, and silicone elastomers, among others. The claimed concentration
range is obvious because it overlaps with the prior art range.
Regarding claim 24, linear polydimethylsiloxane is dimethicone.
Regarding claim 25, Krause teaches the copolymer of vinyl acetate, crotonic acid and
vinyl neodecanoate.
Regarding claim 26, it would have been obvious to have formed the composition to
comprise a thickener selected from crosslinked copolymers of acrylic and/or methacrylic acid,
with a reasonable expectation of success because Krause teaches that the composition contains a
thickening copolymer formed of at least one first type of monomer and at least one second type
of monomer wherein the first type of monomer is acrylic or methacrylic acid (paragraph 0092).
Regarding claim 27, it would have been obvious to have formed the composition to
contain the copolymer of vinyl acetate, crotonic acid and vinyl neodecanoate in a concentration
of 0.01-20 wt.% and at least one silicone in a concentration of 0.01-15 wt.% because Krause
teaches that the composition contains a polymer with anionic or anionizable group in an amount
of 0.01-20 wt.% (paragraph 0018) and at least one silicone compound in a concentration of
0.01-15 wt.%. The weight ratio of the copolymer to the at least one silicone compound would
range from 0.01:15 to 20:0.01 which is equivalent to 1:1500 to 2000:1.
In preferred embodiments, the copolymer and the at least one silicone compound are each
present in a concentration of 0.1-5 wt. %, thus in the preferred embodiment the ratio of the two
would have ranged from 0.1 :5 to 5:0.1 or from 1 :50 to 50: 1. The claimed range of weight ratios
is obvious because it overlaps with the prior art range.
Regarding claims 28 and 30, it would have been prima facie obvious to a person of
ordinary skill in the art before the effective filing date of the claimed invention to have formed a
composition for temporarily altering the color of hair, the composition comprising a copolymer
of vinyl acetate, crotonic acid and vinyl neodecanoate in a concentration of 0.01-20 wt.%; an
aminosilicone, and a pigment, with a reasonable expectation of success because Krause teaches a
composition for treating hair comprising a copolymer of vinyl acetate, crotonic acid and vinyl
neodecanoate in a concentration of 0.01-20 wt.%; an aminosilicone, and a pigment wherein the
composition is intended for temporarily dying hair. It would have been obvious to have practiced
a method temporarily altering the color of hair comprising applying to the hair the composition
as described above, with a reasonable expectation of success because Krause teaches a method of
treating hair comprising applying the composition to hair. Krause's composition is intended for
temporarily dying hair, therefore the method of applying the composition would have been a
method of temporarily dying the hair. The claimed concentration range is obvious because it
overlaps with the prior art range. It would have been further obvious to have dried the hair after rinsing because drying hair after washing was known from Hessefort. It would have been obvious to have dried the hair at a temperature of 65°C, with a reasonable expectation of success because Hessefort teaches drying washed hair at a temperature of 65°C. The selection of a known method to be suitable for its intended purpose supports obviousness. The claimed range is obvious because it encompasses 65°C.
Regarding claim 29, it would have been obvious to have formed the composition with a
mixture of silicones in a concentration range of0.01-15 wt.%, with a reasonable expectation of
success because Krause teaches that the composition contains at least one silicone compound
which renders the claimed range of at least two obvious and wherein the at least one silicone
compound is present in a concentration range of 0.01-15 wt.%.
Regarding claim 31, it would have been obvious to have formed the composition to
comprise a thickener selected from crosslinked copolymers of acrylic and/or methacrylic acid,
with a reasonable expectation of success because Krause teaches that the composition contains a
thickening copolymer formed of at least one first type of monomer and at least one second type
of monomer wherein the first type of monomer is acrylic or methacrylic acid (paragraph 0092).
Regarding claims 32 and 33, it would have been prima facie obvious to a person of
ordinary skill in the art before the effective filing date of the claimed invention to have formed a
composition for temporarily altering the color of hair, the composition comprising a copolymer
of vinyl acetate, crotonic acid and vinyl neodecanoate in a concentration; at least one silicone in
a concentration of0.01-15 wt.%, and a pigment, with a reasonable expectation of success
because Krause teaches a composition for treating hair comprising a copolymer of vinyl acetate,
crotonic acid and vinyl neodecanoate; at least one silicone compound in a concentration of 0.01-
15 wt. %, and a pigment wherein the composition is intended for temporarily dying hair. It
would have been obvious to have practiced a method temporarily altering the color of hair
comprising applying to the hair the composition as described above, with a reasonable
expectation of success because Krause teaches a method of treating hair comprising applying the
composition to hair. Krause's composition is intended for temporarily dying hair, therefore the
method of applying the composition would have been a method of temporarily dying the hair.
The claimed concentration range is obvious because it overlaps with the prior art range.
Regarding claims 37 and 38, Krause teaches a copolymer of vinyl acetate, crotonic acid
and vinyl neodecanoate which meets the limitations of (a) because it contains repeating unit
derived from crotonic acid monomer, and meets limitations of (b) because it contains vinyl
acetate and vinyl neodecanoate.
Regarding claim 39, Krause teaches at least one silicone compound which renders the
claimed at least two different silicones obvious.
Regarding claim 40, it would have been obvious to have selected aminosilicone or a
linear polydimethylsiloxane as the at least one silicone compound because Krause teaches
aminosilicone and a linear polydimethylsiloxane as suitable compounds.
Regarding claim 41, it would have been obvious to have formed the composition to
contain the copolymer of vinyl acetate, crotonic acid and vinyl neodecanoate in a concentration
of 0.01-20 wt.% and at least one silicone in a concentration of 0.01-15 wt.% because Krause
teaches that the composition contains a polymer with anionic or anionizable group in an amount
of 0.01-20 wt.% (paragraph 0018) and at least one silicone compound in a concentration of
0.01-15 wt.%. The weight ratio of the copolymer to the at least one silicone compound would
range from 0.01:15 to 20:0.01 which is equivalent to 1:1500 to 2000:1.
In preferred embodiments, the copolymer and the at least one silicone compound
are each present in a concentration of 0.1-5 wt. %, thus in the preferred embodiment the ratio of
the two would have ranged from 0.1 :5 to 5:0.1 or from I :50 to 50: 1. The claimed range of
weight ratios is obvious because it overlaps with the prior art range.
Claims 34 and 35 are rejected under 35 U.S.C. 103 as being unpatentable over Krause
and Hessefort as applied to claims 22-33 and 37-41 above, and further in view of Wakita (JP-HI
1171741-A Published June 29, 1999 - English language machine translation appended thereto).
The claims further define the method of claim 32 by requiring the at least one copolymer
to be at least one crotonic acid derivative chosen from crotonic acid esters.
The teachings of Krause and Hessefort are relied upon as summarized above, however
they do not teach the limitations of claims 34 and 25.
The teachings of Wakita are related to a temporary hair dye composition (Abstract). The
composition comprises a copolymer derived from nonionic monomer units comprising vinyl
acetate, methyl crotonate, and ethyl crotonate, among others (paragraph bridging pages 4-5).
The teachings of Wakita and Krause modified with Hessefort are related to compositions
for temporarily dying hair and it would have been obvious to have combined them because they
are in the same field of endeavor. It would have been obvious to have formed the composition of
Krause by adding a nonionic copolymer, with a reasonable expectation of success because
Krause teaches that the composition contains a nonionic copolymer formed from vinyl
pyrrolidones, vinyl caprolactam, and vinyl esters such vinyl acetate (paragraph 0036). It would
have been obvious to have selected methyl crotonate as a nonionic monomer and used it form the
nonionic copolymer comprising vinyl esters, with a reasonable expectation of success because it
was known from Wakita that methyl crotonate is a nonionic monomer suitable for making
copolymers intended to be used in temporary hair dye compositions. The selection of a known
material based on its suitability for its intended purpose supports obviousness. Krause's nonionic
copolymer would have contained methyl crotonate which meets the limitation of (a) and crotonic
acid ester of the claimed formula when R' 1 is a carbon based chain containing one carbon atom;
and vinyl acetate which meets the limitations of (b).
Claims 34 and 36 rejected under 35 U.S.C. 103 as being unpatentable over Krause and
Hessefort as applied to claims 22-33 and 37-41 above, and further in view of Witte (WO
2010/124897 A2 Published November 4, 2010 - English language translation appended thereto).
The claims further define the method of claim 32 by requiring the at least one copolymer
to be at least one crotonic acid derivative chosen from crotonic acid amides.
The teachings of Krause and Hessefort are relied upon as summarized above, however
they do not teach the limitations of claims 34 and 25.
The teachings Witte are related to compositions for changing hair color (Abstract). The
compositions comprise at least one non-permanently ionic copolymer which is derived from at
least one catinonizable monomer (bottom of page 3). Cationizable polymer comprises
crotonamide and N,N-dimethyl crotonic acid, among others (bottom of page 6).
The teachings of Witte and Krause modified by Hessefort are related to compositions for
changing hair color and it would have been obvious to have combined them because they are in
the same field of endeavor. It would have been obvious to have formed the composition of
Krause by adding a cationic copolymer comprising cationic or cationizable groups, with a
reasonable expectation of success because Krause teaches that the composition contains a
cationic copolymer comprising cationic or cationizable groups (paragraph 0025). It would have
been obvious to have selected crotonamide or N,N-dimethyl crotonamide as a cationizable
monomer and used it form the cationic copolymer, with a reasonable expectation of success
because it was known from Witte that crotonamide and N,N-dimethyl crotonamide are
cationizable monomers suitable for making copolymers intended to be used in temporary hair
dye compositions. It would have been obvious to have formed the copolymer with non-cationic
monomers such as vinyl acetate because Krause teaches that the cationic or cationizable
copolymer also contains repeating units derived from non-cationic monomers such as vinyl
acetate. The selection of a known material based on its suitability for its intended purpose
supports obviousness. Krause's cationic copolymer would have contained crotonamide which
meets the limitation of (a) and crotonic acid amide of the claimed formula when R'2 and R"2 are
both a hydrogen atom; and vinyl acetate which meets the limitations of (b).
Response to Arguments
Applicant’s arguments submitted in the response dated July 20, 2026 were fully considered, but are not persuasive for the following reasons.
The Office Action does not mischaracterize Hessefort because the cited section (lines 22-24 on page 21) of the reference specifically recites “To a 2 g washed hair tress is evenly applied 0.5 g of the styling glaze formulation of Example 5. The hair tress is dried using a hair dryer at 65 °C for 5 minutes.”. Thus, the hair in the reference was wet after washing and the purpose of exposing the wet hair to 65°C for 5 minutes was to dry the hair. The fact that the hair carries a styling product is irrelevant. The reference was cited to show that it was common in the art to dry wet hair and that 65°C is a suitable hair drying temperature.
The purpose of Hessefort’s drying step is to dry wet hair. The reference was relied upon to show that it was known in the art to dry wet hair. Hessefort teaches that after washing and treating hair, the wet hair is then dried using ambient air, electric or hot air drying using, for example, a blow dryer (page 8 lines 22-29) and exemplifies drying the hair at 65°C (page 21 lines 22-24). It is also noted that Hessefort’s compositions are described as having dyestuffs that are intended for coloring the fiber of the hair. Thus, Hessefort teaches drying wet hair after the hair has been treated with a composition that contains dye for coloring hair.
Hessefort is not required to explicitly teach that the hair drying step is applicable to Krause’s hair dying method for the obviousness rejection to be proper. Krause does not teach drying the hair after the application of 5-30g of the composition to hand towel dried hair. The method stops with wet hair. Also, Krause does not teach away from drying the hair after the application of the composition. A person skilled in the art would have understood that hand towel dried hair still contains water and is not in fact dry. Hessefort teaches drying wet hair, after washing, using ambient air or hot air. Thus, it would have been obvious to dry the wet hair in Krause’s method by exposing the hair to heat such as 65°C using a blow dryer. The specification was reviewed and there is no evidence that the claimed drying temperature range is critical.
Applicant’s argument that the Office has not provided a fact-specific reason why a person of ordinary skill in the art would apply Hessefort’s styling-related drying technique to Krause’s color method with predictable results, is not persuasive because there is nothing on the record that would have lead the skilled artisan to conclude that drying hair at 65°C in Krause would not have had the predictable result of obtaining dry hair. There is also nothing on the record that would have lead the skilled artisan to conclude that drying at 65°C with a blow dryer is exclusively applicable to the method in Hessefort. Drying hair at 65°C in Krause’s method would have been obvious because Hessefort teaches drying hair using either ambient air or heat produced by a hair dryer after the hair has been treated with a composition intended for styling hair or coloring hair. Hessefort teaches that the compositions may contain dyestuffs intended for coloring the hair. Thus, Hessefort teaches drying wet hair that has been colored where drying is accomplished by exposing wet hair to ambient air or hot air.
Hessefort uses the phrase “the hair tress is dried” when referring to the step of applying 65°C for 5 minutes to wet hair that contains a styling agent. The skilled artisan would have interpreted this phrase to mean that the purpose of exposing the wet hair to 65°C was to dry the hair and the elevated temperature was not intended to be used solely for setting or styling the hair. Similarly, the broader teachings on Hessefort’s page 8 state “wet hair, the hair is then dried using ambient air … or hot air drying”. Based on these teachings, it is readily apparent that the elevated temperature is intended to dry the wet hair. Krause’s method concludes with wet hair, without further teachings about drying the wet hair. The skilled artisan would have been aware that drying wet hair using ambient air or hot hair was known from Hessefort, and would have been motivated to dry the wet hair in Krause either by ambient air or hot air such as 65°C with a reasonable expectation of success of drying the hair. The drying step would have been obvious because it is common practice to dry wet hair and Krause does not teach away from drying the wet hair. There is no evidence on the record that drying wet hair at 65°C in Krause’s method would have had undesirable or negative effects or ruined the results of Krause’s method in any way.
Applicant’s arguments against references used in the rejections of claims 34-36 are not persuasive because Krause and Hessefort are not deficient for reasons described above.
Instant application was reviewed and there is no evidence that the claimed method has unexpected effects nor that any of the claimed ranges and combinations of components are critical.
Conclusion
No claims are allowed.
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/ALMA PIPIC/Primary Examiner, Art Unit 1617
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