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 .
DETAILED ACTION
Applicant’s Request for Reconsideration dated January 29, 2026 is acknowledged.
Claims 7, 8 and 10-13 are pending.
Claims 1-6 and 9 are cancelled.
Claims 7, 12 and 13 are currently amended.
Claims 7, 8 and 10-13 as filed on January 29, 2026 are under consideration.
This action is made FINAL.
Withdrawn Objections / Rejections
In view of the amendment of the claims, all previous claim objections are withdrawn and all previous claim rejections under 35 USC 103 over Torres are withdrawn.
Applicant’s arguments 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 Rejections and/or objections not reiterated from previous office actions are hereby withdrawn.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 Objections
Claims 7 and 12 are objected to because of the following informalities: the acronyms AMP and TEA should be spelled out at the first recitation thereof, e.g., AMP is presumably aminomethylpropanol. Appropriate correction is required.
New Grounds of Rejection Necessitated by Amendment
Claim Rejections - 35 USC § 112(b)
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 7, 8 and 10-13 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claims 7 and 12 as currently amended recite resins inclusive of (acrylate/alkyl acrylamide) copolymer (TEA). While it is routine in the polymer art to recite monomers within parentheses, the recitation of TEA within parentheses renders it unclear whether the TEA is required or optional. Claims 8, 10, 11 and 13 are included in this rejection because they depend from claim 7 and because they do not remedy the noted ambiguity.
Maintained Grounds of Rejection / New Grounds of Rejection Necessitated by Amendment
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 7, 8, 10 and 12 are rejected under 35 U.S.C. 103 as being unpatentable over Anzalone et al. (WO 2021/041956, published March 4, 2021 and claiming priority to August 28, 2019, of record) in view of Belluscio et al. (US 2014/0219927, published August 7, 2014, of record).
Anzalone teaches personal care compositions comprising trans-1233zd (trans-1-chloro-3,3,3-trifluoropropene (hydrofluoroolefin having boiling point of 19 ºC as evidenced by paragraph [23] of the instant specification)) and ethanol (title; abstract; claims; Figure; paragraph [0005]). The compositions comprise a non-flammable propellant, an active component for treating the hair, and a carrier comprising about 4 to 10 wt% of trans-1233zd and about 1 to less than 5 wt% of ethanol, wherein the weight ratio of the trans-1233zd to the ethanol is at least about 2; the amount of active component can vary based on the particular application, but is preferably about 3 to 15 wt% (4 to 10 wt% trans-1233zd / ([4 to 10] + [1 to 5] + [3 to 15]), for example ~ = 4 to 10 / ([4 to 10] + 1 + 3) ~= 4/8 (50 wt%) to 10/14) (claims 1, 2; paragraph [0011]; Formulation 3A of Table 3), as required by instant claim 8. Formulation 3A of Table 3 comprises:
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starch (active), 50 wt% trans-1233zd by weight of the composition without propellant trans-1234ze (e.g., paragraph [0037]), and has a trans-1233zd:ethanol ratio of 2:1, as required by instant claim 8. The formulations are introduced into aerosol (pressurized) spray cans (Figure; paragraph [0035]). Anzalone further teaches personal care polymers (paragraph [0015]).
Regarding the recitation of a spray for hair styling, a recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. Additionally, Anzalone teaches hair sprays (paragraph [0002]).
Anzalone does not specifically teach a resin soluble in the solvent selected from the group inclusive of acrylate/alkyl acrylamide as required by claims 7, 10 and 12.
Anzalone does not teach a compressed gas as required by claim 10.
These deficiencies are made up for in the teachings of Belluscio.
Belluscio teaches hair fixative compositions (hair sprays) comprising a hair fixative polymer (resin) and a solvent system comprising ethanol and another non-aqueous solvent, and optionally a propellant (title; abstract; claims; paragraphs [0002], [0013]). Suitable fixative polymers include acrylates/octylacrylamide (acrylates/alkyl acrylamide) copolymer (claim 6). When the polymer comprises (meth)acrylate monomers, the acid group can be neutralized with typical reagents such as triethanol amine (TEA) (paragraph [0019]). Suitable propellants include halogenated hydrocarbons or compressed gas (claims 12-14). The fixative polymer is dissolved in the solvent system to form a solution (claims 15, 17).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the active component of the personal care compositions of Anzalone to comprise a hair fixative polymer inclusive of acrylates/octylacrylamide (acrylates/alkyl acrylamide) copolymer neutralized with TEA as taught by Belluscio which is soluble in ethanol in order to produce a hair fixative composition. There would be a reasonable expectation of success because Anzalone embraces polymers as the active and because Anzalone teaches hair sprays (fixatives). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention that the hair fixative polymer should be solubilized in the hair sprays of Anzalone in view of Belluscio because Belluscio teaches such. There would be a reasonable expectation of success because Anzalone contemplates hair sprays.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to substitute propellants as taught by Belluscio inclusive of compressed gas for the non-flammable propellant of the personal care compositions of Anzalone because simple substitution of functionally equivalent elements yields predictable results, absent evidence to the contrary.
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Anzalone et al. (WO 2021/041956, published March 4, 2021 and claiming priority to August 28, 2019, of record) in view of Belluscio et al. (US 2014/0219927, published August 7, 2014, of record) as applied to claims 7, 8, 10 and 12 above, and further in view of Gilroy (US 4,940,171, published July 10, 1990, of record).
The teachings of Anzalone and Belluscio have been described supra.
They do not teach a valve with a gas phase introduction hole (vapor tap as described in paragraph [49] of the instant specification) as required by claim 11.
This deficiency is made up for in the teachings of Gilroy.
Gilroy teaches an aerosol package having compressed gas propellant and vapor tap; vapor taps are well known in the art (title; abstract; claims; column 3, lines 19-22). The vapor tap permits the passage of the passage of the propellant gas into the aerosol valve, permitting lesser initial can pressure (abstract).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the aerosol spray cans of Anzalone to further comprise a vapor tap as taught by Gilroy when the propellant is a compressed gas in order to permit the passage of the propellant gas into the aerosol valve, permitting lesser initial can pressure.
Claims 11 and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Anzalone et al. (WO 2021/041956, published March 4, 2021 and claiming priority to August 28, 2019, of record) in view of Belluscio et al. (US 2014/0219927, published August 7, 2014, of record) as applied to claims 7, 8, 10 and 12 above, and further in view of Kohler et al. (US 5,143,288, published September 1, 1992, of record).
The teachings of Anzalone and Belluscio have been described supra.
They do not teach a valve with a gas phase introduction hole (vapor tap as described in paragraph [49] of the instant specification) as required by claim 11.
They do not teach the average particle size of the sprayed composition is 5 to 50 microns, the valve comprises a housing with the gas phase introduction hole having an area of 0.01 to 0.20 mm2, and a liquid phase introduction hole having an area of 0.1 to 3.5 mm2 as required by claim 13.
These deficiencies are made up for in the teachings of Kohler.
Kohler teaches a compressed gas aerosol spray system with a dip tube vapor tap hole; the vapor tap hole allows compressed gas to enter the tube maintaining an effective aerosol spray having a particle spray size of 50 microns (title; abstract; claims; Figures). The dip tube (housing) is coupled to the valve, has a liquid entrance hole, and has a vapor tap hole (abstract; Figure 2; column 4, lines 27-62). The dip tube (liquid phase introduction hole) has an inner diameter from 0.10 to 0.635 cm (1 to 6.35 mm, A ~ = (3.14/4) * (1 mm)2 ~= 0.8 mm2 to (3.14/4) * (6.35 mm)2 ~= 31.7 mm2) (column 5, lines 42-50). The vapor tap (gas phase introduction) hole has a diameter from 0.005 to 0.076 cm (0.05 to 0.76 mm, A ~ = (3.14/4) * (0.05 mm)2 ~= 0.002 mm2 to (3.14/4) * (0.76 mm)2 ~= 0.453 mm2) (column 5, lines 51-61).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the aerosol spray cans of Anzalone to further comprise a vapor tap as taught by Kohler when the propellant is a compressed gas in order to permit the passage of the propellant gas into the dispensed product, permitting effective maintenance of the aerosol spray at a particle size of 50 microns.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention that the vapor tap of the aerosol spray cans of Anzalone in view of Kohler should be located and sized according to the guidance of Kohler comprising an appropriately sized dip tube to permit sufficient liquid entrance through the valve in order to permit effective maintenance of the aerosol spray at a particle size of 50 microns.
Claims 7, 8 and 10-12 are rejected under 35 U.S.C. 103 as being unpatentable over Brown et al. (US 2020/0146950, published May 14, 2020, of record) in view of Anzalone et al. (WO 2021/041956, published March 4, 2021 and claiming priority to August 28, 2019, of record) and Belluscio et al. (US 2014/0219927, published August 7, 2014, of record).
Brown teaches an aerosol hair spray product including a pressurizable container having a propellant, a hairstyling formulation comprising 20 to 75 wt% alcohol and from 1 wt% hairstyling polymer (resin); the container comprises a valve comprising a body (housing) comprising a restricted tail piece (liquid phase introduction hole) having a diameter of 0.1 to 2.5 mm (A ~ = (3.14/4) * (0.1 mm)2 ~= 0.01 mm2 to (3.14/4) * (2.5 mm)2 ~= 4.91 mm2) and a vapor phase tap having a diameter of 0.1 to 1.5 mm (A ~ = (3.14/4) * (0.1 mm)2 ~= 0.01 mm2 to (3.14/4) * (1.5 mm)2 ~= 1.77 mm2) (title; abstract; claims; Figure 3; paragraph [0031]), as required by instant claims 11, 13.
Propellants include compressed gases (paragraph [0046]).
Hair styling polymers include acrylates/octylacrylamide (acrylates/alkyl acrylamide) copolymer (paragraphs [0048]-[0050]; claim 5). Brown further teaches neutralizers inclusive of triethanolamine (TEA) (paragraphs [0047], [0051]).
Alcohols include ethanol (paragraph [0052]).
Brown does not teach a hydrofluoroolefin having a boiling point of 5 to 40 ºC, the mass ratio of HFO:alcohol is 50:50 to 99:1, wherein the resin is soluble in the solvent as required by claims 7, 10, 12.
Brown does not teach 50 to 98 wt% HFO as required by claim 8.
These deficiencies are made up for in the teachings of Anzalone and Belluscio.
The teachings of Anzalone have been described supra. Anzalone further teaches trans-1233zd (trans-1-chloro-3,3,3-trifluoropropene (hydrofluoroolefin having boiling point of 19 ºC as evidenced by paragraph [23] of the instant specification)) improves the spray characteristics of ethanol carriers when included in a weight ratio of trans-1233zd:ethanol of at least 2 (abstract; paragraphs [0002]-[0005]).
The teachings of Belluscio have been described supra.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the hairstyling formulations of Brown comprising hair styling polymers inclusive of acrylates / octylacrylamide neutralized with triethanolamine to further comprise trans-1233zd (hydrofluoroolefin) in a weight ratio of trans-1233zd:ethanol of at least 2 as taught by Anzalone in order to improve the spray characteristics of the ethanol carrier.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention that hair styling polymers of Brown inclusive of acrylates/octylacrylamide (acrylates/alkyl acrylamide) copolymer is soluble in solvent systems comprising ethanol because Belluscio teaches fixative polymers inclusive of acrylates/octylacrylamide copolymer dissolves in ethanol (e.g., claims 1, 6, 17).
Regarding claim 8, the combined teachings of Brown and Anzalone render obvious compositions comprising 20 to 75 wt% alcohol and trans-1233zd (hydrofluoroolefin), wherein the weight ratio of trans-1233zd:ethanol is at least 2.
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over Brown et al. (US 2020/0146950, published May 14, 2020, of record) in view of Anzalone et al. (WO 2021/041956, published March 4, 2021 and claiming priority to August 28, 2019, of record) and Belluscio et al. (US 2014/0219927, published August 7, 2014, of record) as applied to claims 7, 8 and 10-12 above, and further in view of Birkel et al. (EP 2,570,110 A2, published March 20, 2013, of record).
The teachings of Brown, Anzalone and Belluscio have been described supra.
They do not teach a particle size of 5 to 50 microns as required by claim 13.
This deficiency is made up for in the teachings of Birkel.
Birkel teaches an aerosol hairspray product for styling and/or shaping hair (title; abstract; claims). The term “aerosol” means a suspension of fine droplets (paragraph [0013]). The median size of the ejected composition is from about 10 to 80 microns (paragraph [0033]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the aerosol hair spray product of Brown to be capable of ejecting the hairstyling formulation to have droplets of about 10 to 80 microns as taught by Birkel because droplets of this size are suitable for delivering aerosol hairspray products.
Response to Arguments: Claim Rejections - 35 USC § 103
Applicant’s arguments have been fully considered but they substantially moot. Applicant’s arguments are addressed herein to the extent they pertain to the modified grounds of rejection re-iterated infra as necessitated by Applicant’s amendments.
Applicant’s speculations at page 6 of the Remarks that the rejection over Anzalone appears to not consider the references as a whole is unpersuasive and incorrect. Anzalone, as a whole, is drawn to personal care products comprising any active component and a carrier comprising trans-1233zd (trans-1-chloro-3,3,3-trifluoropropene (hydrofluoroolefin having boiling point of 19 ºC as evidenced by paragraph [23] of the instant specification)) and ethanol (e.g., abstract). The rejection evidences the obviousness of employing hair fixative polymers as instantly claimed as the active with a reasonable expectation of success because Anzalone expressly contemplates hairsprays. The disclosure of Anzalone is not limited to the examples thereof as argued by Applicant. See MPEP 2123.
Applicant’s citation to paragraphs [0016] and [0024] of the instant specification at page 7 of the Remarks in support of the proposition that the claimed HFO prevents clogging of valves of spray members and improves drying is noted but unpersuasive because there is no evidence of record that clogging or drying is a concern in the HFO/EtOH aerosols of Anzalone. To the contrary, Anzalone expressly teaches the products thereof can be “ejected reliable from the spray nozzle” (e.g., paragraph [0004]) and Anzalone expressly teaches the products thereof are “dry or dry-feel personal care product spray” (e.g., paragraph [0029]). "Expected beneficial results are evidence of obviousness of a claimed invention, just as unexpected results are evidence of unobviousness thereof." In re Gershon, 372 F.2d 535, 538, 152 USPQ 602, 604 (CCPA 1967). See MPEP 716.02(c).
Applicant’s arguments at pages 8-10 of the Remarks that neither Gilroy nor Kohler make up for the deficiencies of the combination of Anzalone and Belluscio is unpersuasive because there are no deficiencies.
Applicant’s re-iteration of the arguments presented for the rejection based on Anzalone for the rejection based on Brown at pages 13-14 of the Remarks is unpersuasive for at least the reasons elaborated supra.
Applicant’s argument at pages 14-15 of the Remarks that Birkel does not make up for the deficiencies of the combination of Brown, Anzalone and Belluscio is unpersuasive because there are no deficiencies.
Therefore, the rejections of record are properly maintained in modified form and new grounds of rejection are applied infra as necessitated by Applicant’s amendments.
Many of the difficulties encountered in the prosecution of patent applications after final rejection may be alleviated if each applicant includes, at the time of filing or no later than the first reply, claims varying from the broadest to which they believe they are entitled to the most detailed that they are willing to accept.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Matsui et al. (JP 2012-001464 A, as evidenced by the Google translation) teaches hair spray compositions comprising a resin inclusive of alkyl acrylate / diactone acrylamide copolymer AMP dissolved in ethanol and further teaches aerosol products thereof (title; abstract; claims; page 2, lower half).
Merlau et al. (US 7,651,693) teaches hair styling compositions comprising hair fixative polymers inclusive of AMP-acrylates/diacetone acrylamide copolymer (title; abstract; claims; column 6, lines 1-30).
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALISSA PROSSER whose telephone number is (571)272-5164. The examiner can normally be reached M - Th, 10 am - 6 pm.
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.
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/ALISSA PROSSER/
Examiner, Art Unit 1619
/BENNETT M CELSA/Primary Examiner, Art Unit 1600