DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after 16 March 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Amendments
Status of Claims
The amendment, filed on 30 July 2026, is acknowledged.
Claims 1 and 13 have been amended.
Claims 1-6, 8, and 13 are pending and under consideration in the instant Office Action, to the extent of the following previously elected species:
water is the compatible medium of the pretreatment composition;
Dynasylan MTMO (3-mercaptopropyltrimethoxysilane) is the organosilicone small molecule in the pretreatment composition;
polyethylene imine is the amine polymer in the pretreatment composition;
isopropanol is the compatible medium of the film forming composition;
red 122 paste is the pigment of the film forming composition;
Belsil P1101 (a copolymer of crotonic acid, C8-23 isoalkyl vinyl ester, vinyl acetate, and bis(vinyl) dimethicone) is the binder in the film forming composition; and
PERMUTEX XR-13-554 (polycarbodiimide with in-chain carbodiimides and alkyl links) is the linker in the film forming composition.
Objections Withdrawn
Objections to Claims
Applicant’s amendment to claim 1 has overcome the objection to the claim set forth in the Office Action mailed on 25 June 2026. Accordingly, the relevant objection is withdrawn.
Rejections Withdrawn
Rejections pursuant to 35 U.S.C. § 103
The rejection of claim 13 under 35 U.S.C. § 103 is withdrawn in view of Applicant’s amendment to the claim and in favor of the new grounds of rejection below.
Double Patenting Rejections
The terminal disclaimer, filed on 30 July 2026, disclaiming the terminal portion of any patent granted on this application which would extend beyond the expiration date of any patent granted on copending Application No. 18/574,989 has been reviewed and is accepted. The terminal disclaimer has been recorded.
The provisional nonstatutory double patenting rejection of claims 1-6, 8, and 13 over claims 1 and 34-35 of copending Application No. 18/574,989 in view of Herrlein (WIPO International Publication Number WO 2020/114647 A1, published on 11 June 2020, provided by Applicant in IDS) and Landa (U.S. Patent Application Publication No. US 2019/0350823 A1, published on 21 November 2019) is withdrawn in view of the approved Terminal Disclaimer, filed on 30 July 2026.
Maintained 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, 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 1-6 and 8 are rejected under 35 U.S.C. 103 as being unpatentable over Herrlein (WIPO International Publication Number WO 2020/114647 A1, published on 11 June 2020, provided by Applicant in IDS), Landa (U.S. Patent Application Publication No. US 2019/0350823 A1, published on 21 November 2019), and Dayin et al. (Proceedings of 2006 China International Wool Textile Conference 2006, 1, 618., hereafter referred to as Dayin).
Herrlein teaches a composition for coloration of materials, such as keratin fibers and material, comprising a carbodiimide (CDI) link compound, a polycarbodiimide, a polyamine, and optional additional components, and methods of its use (Abstract). Traditional treatments used to color keratin materials are taught to have a number of disadvantages, including irritating the scalp of users, altering hair structure, resisting removal, and producing uneven results, among others (para. [0002-0006]). As a result, Herrlein teaches that there is a clear need for improved compositions and methods “that not only make the hair coloring experience more pleasant, but also is user friendly, provides appropriate color and luster, and leaves the hair manageable, free flowing and capable of moving naturally and does not result in harm to hair protein” (para. [0007]).
To accomplish these goals, Herrlein teaches a method for coloring keratin material that comprises applying a composition, described as a “third component”, to keratin material to produce pretreated keratin material (claim 39). Subsequently, the pretreated keratin material is dried, followed by application of a coloring mixture to form a colored coating on the keratin material (claims 40-43). The coloring mixture is produced from a multicomponent composition which comprises a CDI link compound having at least two groups capable of linking with a CDI group, a compound with at least two CDI groups and inert or reactive termini, pigment microparticles, a small organic molecule with carboxylic acids, including a silicone polymer, and a nucleophilic molecule with at least two functional groups capable of linking with CDI groups (claims 1 and 10-15).
In Table 2, composition 2 contains the organic copolymer of crotonic acid, C8-23 isoalkyl vinyl ester, vinyl acetate, and bis(vinyl) dimethicone sold as Belsil P1101, the medium isopropanol, the linker polycarbodiimide with in-chain carbodiimides and alkyl links sold as PERMUTEX XR-13-554, and pigment paste mixture B, which contains pigment green 36. However, Herrlein teaches compositions with the pigment paste red 122 and that “[p]astes of different pigments can be mixed in order to achieve the desired color shade” (para. [00394]). In Table 3, compositions are taught as “third components” that produce pretreated keratin material, one comprising polyethyleneimine and the other the organosilicone small molecule (3-aminopropyl)triethoxysilane (APTES), and both in the compatible medium of water.
Herrlein does not teach the organosilicone small molecule in the pretreatment composition to be 3-mercaptopropyltrimethoxysilane (MTMO) (i.e., C2-C6 mercaptoalkyl trimethoxysilane) nor deep cleaning keratin fibers with a technique that falls within the genus of Fundamenta techniques. These deficiencies are offset by the teachings of Landa and Dayin.
Landa teaches a method of coating mammalian hair comprising applying an oil-in-water emulsion to the surface of individual hairs which comprises a condensation-curable film-forming amino-silicone pre-polymer, said pre-polymer forming an elastomer following condensation curing, and pigment particles, as well as kits containing the composition (Abstract). Traditional hair coloring is taught to involve penetration of direct dye or oxidation dye deep into hair shafts, generally preceded by bleaching, which can severely damage the hair (para. [0007]). Landa teaches alternatives, such as temporary, semi-permanent, and demi-permanent coloring, but each has associated drawbacks as well, demonstrating a need for long lasting hair coloring that does not damage keratin (para. [0008-0013]).
The invention of Landa is taught to address the above drawbacks by using a pre-polymer, that is a material “that can be cross-linked to form larger macro molecules through cross-linkable groups, also termed reactive groups, by techniques known as curing processes”, which is determined to be analogous to the linking compounds taught by Herrlein (para. [0016]). To color hair, Landa teaches that pigment particles may be dispersed in the oil-in-water emulsion so that, following curing, the pigments are “entrapped” by a 3D-network of the amino-silicone film (para. [0108]). Alternatively, Landa teaches that a film-forming hair masking binder formulation may be applied to hair prior to the oil-in-water emulsion as a pretreatment to produce a polymeric film on the hair (para. [0183]). The hair masking binder formulation may comprise organic or inorganic pigment particles and/or metallic-looking particles and/or flakes, which allows for multiple colors to be applied (para. [0181] and [0184]). The pigment flakes in some embodiments are taught to be coated with at least one coupling agent to aid binding of the amino-silicone elastomer to the film-forming hair masking binder formulation (para. [0190]). The coupling agent is taught to be a thiol coupling agent in some embodiments, an example of which is mercaptopropyltrimethoxysilane (MTMO), which is equivalent to the elected Dynasylan MTMO (para. [0191-0193]).
Dayin teaches a method of modifying the surface of hair using cold gas plasma of ionized oxygen (Abstract and pg. 619, Experimental processes and methods). The use of cold gas plasma to modify hair is taught to be more environmentally friendly than other techniques and to effect primarily the top layers of the hair fibers, leaving “the bulk properties of [hair]…unchanged” (pg. 618, Introduction, para. 1-2). Dayin concluded that cold plasma treatment increased the dye uptake of the hair fibers (pg. 621, Dye uptake and pg. 622, para. 1).
It would have been prima facie obvious to a person of ordinary skill in the art, prior to the filing of the instant application, to combine the teachings of Herrlein, Landa, and Dayin to arrive at the method of instant claims 1-6 and 8 because combining prior art elements according to known methods yields predictable results. In view of the teachings of Landa, an artisan would be motivated to use MTMO in the method of Herrlein as part of the “third component” to produce pretreated keratin fibers because the former reference teaches the organosilicone small molecule to aid coupling between layers of a hair treatment. The method of Herrlein comprises application of three different layers to keratin material and an artisan would desire that the layers adhere to each other, which Landa teaches will be aided by the inclusion of MTMO.
One of ordinary skill in the art would further be motivated to use a cold plasma of ionized oxygen to treat hair prior to coloring hair with the method rendered obvious by Herrlein and Landa in view of the teachings of Dayin because Dayin teaches the method to be environmentally friendly and prepare the hair to uptake more dye as compared to untreated hair. An artisan would recognize these properties as being beneficial for hair that will be colored and further would find it obvious to treat the hair prior to dyeing as part of a pretreatment because the cold plasma makes hair capable of uptaking more dye. As a result, there is a reasonable expectation of success in arriving at the method of claims 1-6 and 8 in view of the teachings of Herrlein, Landa, and Dayin.
Response to Arguments
The Applicant’s arguments, filed on 30 July 2026, have been fully considered but are not persuasive.
The declaration submitted on 30 July 2026, is acknowledged.
Applicant argues from the final para. of pg. 6 to para. 2 of pg. 8, citing the above declaration, that the cold plasma technique recited in the instant application is distinct from the plasma technique taught by the Dayin reference because the technique taught by Dayin would “not only destroy the hair but the treatment is so severe that the human’s scalp most likely would be damaged” and that the “low power ‘hand held atmospheric plasma pen’” discussed in the above declaration “is surprising and not suggested by Dayin”.
These arguments are not persuasive in overcoming the rejection above because instant claim 1 recites application of a cold plasma of ionized oxygen to keratin fibers to remove “at least partially the F layer fatty acid therefrom” and sebum, and optionally adjust the topography of the keratin fiber. The Dayin reference teaches a method of modifying the surface of hair using cold gas plasma of ionized oxygen which primarily affects the top layers of the hair fibers, leaving “the bulk properties of [hair]… unchanged” (vide supra). Instant claim 1 does not recite any limitations regarding damage to the hair or scalp or the use of a “low power ‘hand held atmospheric plasma pen’”, therefore the teachings of Dayin meet the limitations recited in claim 1 and the claim is still found obvious in view of the teachings discussed above.
Applicant further argues in para. 3 of pg. 8 that the Matz reference uses an acidic anionic surfactant rather than the basic anionic surfactant recited in amended claim 13 and does not teach the ultrasonically vibrating comb recited in amended claim 13. This argument is considered moot in view of the new grounds of rejection below.
New Grounds of Rejection
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claim 13 is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 13 was amended to recite a basic aqueous composition comprising “an anionic alkyl sulfate alkali metal salt”. The remarks filed on 30 July 2026, point to para. [0145-0146] of the instant spec. as support for this amendment. However, para. [0145] recites a preferable anionic surfactant to be “an alkali metal salt of a C8-C16 alkyl carboxylate, phosphate, sulfonate, sulfate”. The original disclosure has support for a basic aqueous composition comprising “an anionic C8-16 alkyl sulfate alkali metal salt”, but not the larger genus of “an anionic alkyl sulfate alkali metal salt”.
The limitations recited in claim 13, which did not appear in the specification, as filed, introduce new concepts and violate the description requirement of the first paragraph of 35 U.S.C 112. Applicant is required to provide sufficient written support for the limitations recited in present claim 13 in the specification or claims, as-filed, or remove these limitations in response to this Office Action.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this section can be found above.
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over Herrlein (WIPO International Publication Number WO 2020/114647 A1, published on 11 June 2020, provided by Applicant in IDS), Landa (U.S. Patent Application Publication No. US 2019/0350823 A1, published on 21 November 2019), and Dayin (Proceedings of 2006 China International Wool Textile Conference 2006, 1, 618.) as applied to claims 1-6 and 8 above, and further in view of Britva et al. (U.S. Patent Application Publication No. US 2014/0007895 A1, published on 9 January 2014, hereafter referred to as Britva), Malle et al. (U.S. Patent Application Publication No. US 2005/0136016 A1, published on 23 June 2005, hereafter referred to as Malle), and Cline et al. (Cutis. 2018, 101, 22., hereafter referred to as Cline).
Herrlein, Landa, and Dayin teach the above.
Herrlein, Landa, and Dayin do not teach the treatment of keratin fibers with a basic aqueous composition comprising an anionic alkyl sulfate alkali metal salt or agitation with an ultrasound fine tooth comb operating at ≥20 kHz prior to the application of a Fundamenta technique. This deficiency is offset by the teachings of Britva, Malle, and Cline.
Britva teaches a comb for hair or fibers connected to at least one ultrasound generator configured to apply compression waves in a manner that propagates surface waves through the teeth of the comb (Abstract). Britva teaches that their comb also dispenses a hair treatment product which is “worked into the hair by the teeth of the comb” (para. [0014] and [0034]). The ultrasonic energy is taught to improve dye penetration to hair fibers (para. [0048]), control lice and other parasites (para. [0049] and [0054]), have improved passage through curly and/or tangled hair (para. [0051]), and to dislodge “nits that are well known to adhere strongly to the hair shaft” (para. [0054]). The preferred operating frequency of the comb is taught to be 100-1,000 kHz (para. [0057]).
Guidelines on the obviousness of similar and overlapping ranges, amounts, and proportions are provided in MPEP § 2144.05. With respect to claimed ranges which “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). These guidelines apply to the operating frequency taught by Britva, which falls within the range recited in amended claim 13.
Malle teaches cosmetic compositions comprising basic components other than hydroxides for relaxing keratin fibers and methods of their use (Abstract). Malle teaches that two techniques are commonly used to reshape hair – the first comprising the use of a reducing agent to break disulfide bonds in hair and shaping with the hand or a comb and the second comprising the performance of a lanthionization reaction using a composition comprising a hydroxide base, leading to the replacement of disulfide bonds (-CH2-S-S-CH2-) with lanthionine bonds (-CH2-S-CH2-) (para. [009-0011]). However, these methods have well known drawbacks including malodors, damage to the scalp and/or hair, poor stability, and low durability of the reshaped hair, demonstrating the need for “relaxing compositions that are less aggressive to the hair and the skin” (para. [0015-0025]).
The composition of Malle is taught to possess at least one non-hydroxide base, a cosmetically acceptable medium, and optionally at least one reducing agent (claim 1 and para. [0042-0045]). The cosmetically acceptable medium is taught to be 0-50% w/w water, which is considered equivalent to an aqueous solution (claims 1 and 9). The pH of the composition is taught to be 9.6-14, which is considered to be basic (claims 1 and 6). Finally, Malle teaches the composition to comprise at least one surfactant, which in one embodiment may be an alkyl sulfate, but does not teach a specific species (claim 12 and para. [0051]).
Cline teaches the increased scrutiny of ingredients in shampoos and other cosmetic products by the public, in particular the use of sulfates and parabens (Abstract). The subcategory of surfactants that are anionic and comprise sulfate groups are commonly referred to as “sulfates”, which Cline teaches to have a negative reputation due to surfactants such as sodium lauryl sulfate (SLS) being a skin and scalp irritant and erroneously labelled as carcinogenic (pg. 23, left col., para. 3). Cline clarifies that “no known study has shown SLS to be carcinogenic” (pg. 23, left col., final para.).
Sulfates are taught to be inexpensive surfactants that are widely used to produce lather, with the “best-known and most commonly used” anionic surfactant taught to be sodium lauryl sulfate (pg. 23, right col., para. 2). SLS is taught to be nonvolatile and water-soluble, to have low bioaccumulation profiles in humans, to be readily biodegradable, derived from synthetic and naturally occurring sources, and to exhibit remarkable cleaning properties and lather formation (pg. 23, right col., para. 2). Because of their potent surfactant abilities, sulfates are taught to be able to remove dirt, debris, and oils from hair and the scalp and to be “the primary detergents in the formulation of deep-cleaning shampoos” (pg. 23, right col., final para.).
It would have been prima facie obvious to a person of ordinary skill in the art, prior to the filing of the instant application, to combine the teachings of Britva, Malle, and Cline with the method rendered obvious by the teachings of Herrlein, Landa, and Dayin to arrive at the method of instant claim 13 because combining prior art elements according to known methods to impart a known benefit yields predictable results. The teachings of Herrlein, Landa, and Dayin rendered obvious a method for coloring hair that comprises cold plasma treatment of hair prior to application of a pretreatment composition comprising water, 3-mercaptopropyltrimethoxysilane, and polyethylene imine and a film forming composition comprising, isopropanol, red 122 paste, Belsil P1101, and a polycarbodiimide with in-chain carbodiimides and alkyl links.
In view of the teachings of Britva, a person of ordinary skill in the art would be motivated to comb the hair of the subject in the method rendered obvious above with a comb connected to an ultrasound generator operating at 100 kHz - 1 MHz because Britva teaches their comb to improve dye penetration to hair fibers, control lice and other parasites, have improved passage through curly and/or tangled hair, and to dislodge nits. The ordinary artisan would desire hair that will be dyed to be better prepared to accept the dye and would therefore recognize the use of the comb in their method as beneficial. In addition, the person of ordinary skill would be motivated to use the comb prior to the cold plasma treatment taught by Dayin because they would desire the hair to not be tangled during treatment, which Britva teaches their comb to alleviate.
In view of the teachings of Malle, one of ordinary skill in the art would be motivated to use the basic aqueous composition comprising a surfactant because Malle teaches their composition to relax hair while being less aggressive to the hair and the skin than traditionally used hydroxide-containing compositions. The ordinary artisan would desire the hair in their method to be relaxed and properly shaped prior to applying their dyeing method and would therefore be motivated to use the composition of Malle. In addition, Britya teaches their ultrasound comb to dispense a hair treatment composition, but does not teach a specific composition, and the teaching of Malle provide information the ordinary artisan would desire to complete their invention.
Finally, in view of the teachings of Cline, a person of ordinary skill in the art would be motivated to select the anionic sodium lauryl sulfate as the alkyl sulfate surfactant in the composition taught by Malle because Cline teaches the species to be inexpensive, nonvolatile, and water-soluble, to have low bioaccumulation profiles in humans, to be readily biodegradable, to exhibit remarkable cleaning properties and lather formation, and to be able to remove dirt, debris, and oils from hair. SLS is an alkyl sulfate and an alkali salt of an anionic alkyl sulfate. The ordinary artisan would recognize these properties to be desirable in a surfactant that is applied to the hair prior to dyeing and would be motivated to include the species in their method. In addition, while Malle teaches their composition to include a surfactant, they do not teach a specific species and the teachings of Cline provide missing information that an ordinary artisan would desire to complete their invention. As a result, there is a reasonable expectation of success in arriving at the method of claim 13 in view of the teachings of Herrlein, Landa, and Dayin and further in view of the teachings of Britva, Malle, and Cline.
Conclusion
No claims are allowed.
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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/S.J.S./
Examiner, Art Unit 1619
/TIGABU KASSA/Primary Examiner, Art Unit 1619
