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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 December 18, 2025 has been entered.
Status of Claims
Claim 5, 7, 10-11 and 15-25 are pending. Claim 1-4, 6, 8-9 and 12-14 are canceled. Claims 15-25 are newly added.
Claims 11, 20 and 25 are withdrawn as being drawn to a non-elected invention or species, there being no linking or generic claim.
Claims 5, 7, 10, 15-19 and 21-24 are examined on their merits.
Previous Rejections
Rejections and/or objections not reiterated from previous office actions are hereby withdrawn as are those rejections and/or objections expressly stated to be withdrawn.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.
Rejections Withdrawn
Claim Rejections - 35 USC § 112(b)
In light of the cancelation of the claims the rejection of claims 13-14 under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which applicant regards as the invention is withdrawn.
Claim Rejections - 35 USC § 103
In light of the amendments to the claims the rejection of claims 1-2 and 5-10 under 35 U.S.C. 103 as being unpatentable over JP 2005-239570 (9/8/2005)(“JP 2005”)(11/28/2022 IDS) in view of Sun US 2015/0272834 (10/1/2015) is withdrawn.
In light of the cancelation of the claims the rejection of claims 13-14 under 35 U.S.C. 103 as being unpatentable over JP 2005-239570 (9/8/2005)(“JP 2005”)(11/28/2022 IDS) in view of Sun US 2015/0272834 (10/1/2015) as applied to claims 1-2 and 5-10 and further in view of Lei et al. US 2014/0044760 (2/13/2014) is withdrawn as moot.
New Rejections
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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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 5, 7, 10, 15-19 and 21-24 are rejected under 35 U.S.C. 103 as being unpatentable over JP 2005-239570 (9/8/2005)(“JP 2005”)(11/28/2022 IDS) in view of Sun US 2015/0272834 (10/1/2015), Lei et al. US 2014/0044760 (2/13/2014) and Cohen et al. US 2017/0216165 (8/3/2017).
JP 2005 teaches a non-washing-away type hair cosmetic which has a pH of 2-5 at 25 °C when diluted 20 fold by weight with water, and which contains (A) an organic dicarboxylic acid having 2-8 carbon atoms or a salt thereof, (B) an organic solvent having a specific ClpP value and (C) a hair restoration/hair growth promoting component, and further contains a setting polymer (see claims 1-2). Specifically, JP 2005 discloses a hair growth/hair restoration aerosol agent which contains malic acid in a stock solution, containing carbon dioxide as a propellant and is adjusted to a pH of 3.7. (See Example 3). The dicarboxylic acid is present in an amount of 0.01 to 30%. (See [0013]). 0.01 to 30% overlaps with the from 0.3% to 5% called for in instant claims 15, 16 and 21. The acid can include mixtures of acids.
A pH of 3.7 falls within the pH range of between 3.0 and 5.0 called for in instant claims 15, 16 and 21. A pH of 3.7 also falls within the pH range of between 3.0 and 4.2 called for in instant claims 10 and 19. A carbon dioxide propellant is called for in instant claims 15, 16 and 21. An organic dicarboxylic acid having 2-8 carbon atoms is an organic acid (that is not citric acid) as called for in instant claims 15, 16 and 21.
JP 2005 teaches that its composition may contain a surfactant, including an anionic surfactant. (See [0042]). Surfactants can be present in an amount of 0.01 to 10%. (See [0050]). 0.01 to 10% overlaps with the 0.2% to 15% called for in instant claims 15, 16 and 21.
With respect to the ratio of acid to surfactant in claims 5, 17 and 22, JP 2005 teaches that surfactants can be present in an amount of 0.01 to 10%. (See [0050]). JP 2005 teaches that the amount of the acid is from 0.01 to 30%. Thus the ratio of the acid to the surfactant is 0.01 to 30% : 0.01 to 10% (1 to 3) which overlaps with the 0.005 or more to 20 or less called for in claims 5, 17 and 22. Additional acid and mixtures of acids are taught to be suitable as well. JP 2005 teaches that it improves the gloss, firmness and cohesiveness of hair. (See [0006]).
JP 2005 does not teach a p-toluenesulfonic acid nor succinic acid. JP 2005 does not teach a cleansing composition. JP 2005 does not teach a nonionic polymer with a molecular weight of from 1,000,000 to 3,500,000. JP 2005 does not teach hydroxyethyl cellulose, sodium laureth sulfate, ammonium laureth sulfate or sodium cocoyl glutamate. JP 2005 does not teach PEG-60 hydrogenated castor oil. These deficiencies are made up for with the teachings of Sun et al., Lei and Cohen et al.
Sun et al. teaches a powder comprising core/shell particles with great versatility in application and is especially suitable for hair compositions such as shampoos and aerosol sprays. (See Abstract, [0102], [0107]). Sun teaches that its powder can contain benefit agents that are weak base drugs in nature, such as minoxidil. (See [0035] and Example 2). Sun teaches a shampoo which is a hair cleansing composition as called for in instant claims 7 and 18.
Sun teaches that suitable solubility enhancing agents for basic active agents or benefit agents include acids such as succinic acid and p-toluenesulfonic acid and mixtures thereof. (See [0037]). The solubility enhancing agent is present in an amount of from about 0.1% to about 30%. (See [0036]). P-toluenesulfonic acid is called for in instant claims 15, 16 and 21.
Sun teaches that suitable solubility enhancing agents for basic active agents or benefit agents include acids such as succinic acid and p-toluenesulfonic acid and mixtures thereof. (See [0037]). The solubility enhancing agent is present in an amount of from about 0.1% to about 30%. (See [0036]). Succinic acid is called for in instant claims 15, 16 and 21. 0.1% to about 30% overlaps with the 0.3 to 5.0% called for in instant claims 15, 16 and 21. Sun teaches that mixtures of succinic acid and p-toluenesulfonic acid are suitable. Sun teaches 0.1% to about 30% succinic acid and 0.1% to about 30% p-toluenesulfonic acid which overlaps with the range of 1/0.5 to 1/5 ratio of succinic acid to p-toluenesulfonic acid called for in instant claims 15, 16 and 21.
Lei et al. (Lei) teaches a flowable, stable silica capsule formulation comprised of a silica capsule suspension and an adjuvant for use in a personal care product such as shampoos and aerosols. (See Abstract, [0002] and [0069]). In an embodiment the flowable, stable silica capsule formulation encapsulates an active material such as a fragrance oil and has an adjuvant that is a nonionic polymer. (See [0006]). The nonionic polymer has a molecular weight in the range of 15,000 to 3,000,000. 15,000 to 3,000,000 overlaps with the 1,000,000 to 3,500,000 called for in instant claim 13. (See [0006] and [0019]). The nonionic polymer is present in an amount of 0.01% to 5%. (See [0022]). 0.01% to 5% nonionic polymer overlaps with the 0.02 to 0.5% called for in instant claim 13. Lei teaches that the nonionic polymer improves the stability of the silica capsules and stabilizes the suspension or slurry against coagulation, sedimentation and/or creaming. (See [0018]).
Cohen et al. (Cohen) teaches a composition that can be a shampoo with one or more encapsulates containing a moisturizing agent. (See Abstract and [0133]). The preferred lathering surfactants include sodium laureth sulfate, ammonium laureth sulfate and sodium cocoyl glutamate. (See [0147] and [0153]). Sodium laureth sulfate, ammonium laureth sulfate and sodium cocoyl glutamate are called for in instant claim 15 and at least one of these is called for in instant claim 21. The moisturizing agent can be PEG-60 hydrogenated castor oil. (See [0029]). PEG-60 hydrogenated castor oil is called for in instant claim 16. A cellulose for use in a cellulose derived capsule in the composition is hydroxyethyl cellulose. (See [0016]). Hydroxyethyl cellulose is called for in instant claim 21.
It would be prima facie obvious before the earliest effective filing date for one of ordinary skill in the art making the JP 2005 hair composition with 0.01 to 30% organic dicarboxylic acid having 2-8 carbon atoms or mixtures of acids, 0.01 to 10% surfactant, carbon dioxide propellant, and a setting polymer with a pH of around 3.7 to add a core/shell particle powder containing minoxidil and 0.1 to 30% p-toluenesulfonic acid and make the composition an aerosol shampoo as taught by Sun in order to have a shampoo with a benefit agent of minoxidil in a stable formulation as taught by Sun. An artisan of ordinary skill would be motivated to make the aerosol composition a shampoo in order to have a composition that can cleanse hair as taught by Sun.
It would be prima facie obvious before the earliest effective filing date for one of ordinary skill in the art making the JP 2005 hair composition with 0.01 to 30% organic dicarboxylic acid having 2-8 carbon atoms or mixtures of acids, 0.01 to 10% surfactant, carbon dioxide propellant, 0.1 to 30% succinic acid and p-toluenesulfonic acid and a setting polymer with a pH of around 3.7 to add a silica capsule suspension of fragrance oil with 0.01% to 5% nonionic polymer with a molecular weight in the range of 15,000 to 3,000,000 taught by Lei in order to have a fragrance with a highly stable formulation that is suitable for use with a shampoo and an aerosol as taught by Lei. It would be prima facie obvious before the earliest effective filing date for one of ordinary skill in the art making the JP 2005 composition to have the nonionic polymer with a molecular weight in the range of 15,000 to 3,000,000 be hydroxyethyl cellulose taught by Cohen in order to have a nonionic polymer capable of encapsulating a moisturizing agent that is suitable for use with a shampoo and an aerosol as taught by Cohen.
It would be prima facie obvious before the earliest effective filing date for one of ordinary skill in the art making the JP 2005 hair composition with 0.01 to 30% organic dicarboxylic acid having 2-8 carbon atoms or mixtures of acids, 0.01 to 10% surfactant, carbon dioxide propellant, 0.1 to 30% succinic acid and p-toluenesulfonic acid and a setting polymer with a pH of around 3.7 to have the surfactants be sodium laureth sulfate, ammonium laureth sulfate and sodium cocoyl glutamate taught by Cohen in order to have preferred lathering surfactants for a shampoo hair cleansing composition that can create an aesthetically pleasing lather and to add PEG-60 hydrogenated castor oil taught by Cohen in order to have a encapsulatable moisturizing agent as taught by Cohen.
Response to Arguments
Applicants’ comments of December 18, 2025 have been fully reviewed and are found to be partly persuasive for the reasons described below.
Applicants assert that none of the cited references teach the limitations that the claims have been amended to recite, namely the required use of specified surfactants and the additional use in some claims of hydroxyethyl cellulose having a weight average molecular weight of 1,500,000 to 2,000,000.
Applicants also assert that the instantly claimed aerosol cosmetic hair preparations afford unexpected advantages that could not have been anticipated from the cited references.
Applicants assert that the claims are commensurate in scope with the advantageous results.
Applicants’ arguments have been considered and in light of the amendments to the claims are found to be sufficiently persuasive. The rejections are withdrawn above.
With respect to Applicants’ assertion that the presently claimed aerosol cosmetic hair preparation shows unexpected advantages, it is noted that these unexpected advantages are not described, so it is unclear what advantages Applicants are referring to. However, it will be assumed that Applicants are referring to the previously asserted significant improvement in Increment rate of stress relaxation rate of hair (%) (which is essentially the retention of style when hair is treated with the composition), it is noted that JP 2005 teaches that it improves the gloss, firmness and cohesiveness of hair. (See [0006]). This indicates that firmness and styling hold of hair treated with the composition in the prior art is suggested by the prior art as well.
The remaining arguments are moot in view of the new rejections applied above.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SARAH CHICKOS whose telephone number is (571)270-3884. The examiner can normally be reached on M-F 9-6.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, David Blanchard can be reached on 571-272-0827. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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.
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 CHICKOS
Examiner
Art Unit 1619
/SARAH ALAWADI/Primary Examiner, Art Unit 1619