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 15 January 2026, is acknowledged.
Claims 1-6, 8-9, 11-12, 14, and 16-17 have been amended.
Claims 13 and 15 have been cancelled.
New claims 18-26 have been added.
Claims 1-12, 14, and 16-26 are pending in the instant Office Action.
Newly submitted claims 23-24 are directed to an invention that is independent or distinct from the invention originally claimed for the following reasons: In the Response to Election/Requirement filed on 22 July 2025, Applicant elected the specific quaternary ammonium salt of formula (I) to be the compound of formula (IAI), wherein R1=R5=R6=H and R2=R3=R4=methyl. Claims 23-24 recite the mutually exclusive quaternary ammonium salt of formula (I) species in which R5=R0, a radical with a structure that is not H, and in the case of claim 24, R6=R0 rather than H.
Since applicant has received an action on the merits for the originally presented invention, this invention has been constructively elected by original presentation for prosecution on the merits. Accordingly, claims 23-24 are withdrawn from consideration as being directed to a non-elected invention. See 37 CFR 1.142(b) and MPEP § 821.03.
To preserve a right to petition, the reply to this action must distinctly and specifically point out supposed errors in the restriction requirement. Otherwise, the election shall be treated as a final election without traverse. Traversal must be timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are subsequently added, applicant must indicate which of the subsequently added claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
Claims 1-12, 14, 16-22, and 25-26 are under consideration in the instant Office Action, to the extent of the following elected species:
the quaternary ammonium salt of formula (I) is the compound of formula (IAI)
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the other cationic surfactant in the composition is dimethylamine (SAPDMA);
the fatty alcohol or alcohols is stearyl alcohol; and
the excipients or diluents are panthenol and ethanol.
Objections Withdrawn
Objections to Claims
Applicant’s amendment to 1-3 and 9, submitted on 15 January 2026, has overcome the objection to the claims set forth in the Office Action mailed on 16 October 2025. Accordingly, the relevant objections are withdrawn.
Rejections Withdrawn
Rejections pursuant to 35 U.S.C. § 112
The rejections of claims 1-12, 14, and 16-17 under 35 U.S.C. § 112 are withdrawn in view of Applicant’s amendments to the claims. The rejection of claims 13 and 15 under 35 U.S.C. § 112 is rendered moot in view of Applicant’s cancellation of the claims.
Rejections pursuant to 35 U.S.C. § 103
The rejections of claims 1-12, 14, and 16-17 under 35 U.S.C. § 103 are withdrawn in view of Applicant’s amendments to the claims and in favor of the new grounds of rejection below. The rejection of claims 13 and 15 under 35 U.S.C. § 103 is rendered moot in view of Applicant’s cancellation of the claims.
Double Patenting Rejections
The nonstatutory double patenting (NSDP) rejections of claims 1-12, 14, and 16-17 are withdrawn in view of Applicant’s amendments to the claims and made anew below. The NSDP rejections of claims 13 and 15 are rendered moot in view of Applicant’s cancellation of the claims.
New Grounds of Objection
Claim Objections
Claims 8-12, 14, 16-18, and 26 are objected to because of the following informalities:
A series of singular dependent claims is permissible in which a dependent claim refers to a preceding claim which, in turn, refers to another preceding claim.
A claim which depends from a dependent claim should not be separated by any claim which does not also depend from said dependent claim. It should be kept in mind that a dependent claim may refer to any preceding independent claim. In general, applicant's sequence will not be changed. See MPEP § 608.01(n).
Claims 8-12, 14, and 16-17 have been amended to depend from claim 18, which succeeds the specified claims and is therefore improper. The claims should be amended to depend from a preceding claim(s) or should be cancelled and added as new claims that succeed claim 18.
Claims 18 and 26 recite the salt of formula (I) and its counteranion “are between them” in a given ratio in the antepenultimate and penultimate lines of the claims. While it is apparent in each instance that ratio of the two species should be one of the recited values, clarity would be improved if the phrases read “present”, e.g., the antepenultimate and penultimate lines of the claims recite “…molecule and its counteranioni mX- are present in a stoichiometric ratio…”.
Appropriate correction is required.
New Grounds of Rejection
Claim Rejections - 35 USC § 112
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 18 and 26 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 18 and 26 recite the limitation "the quaternary ammonium molecule" in the antepenultimate line of each claim. There is insufficient antecedent basis for this limitation in the claims because each claim recites a “quaternary ammonium salt of formula (I)” in the first line. There is ambiguity whether the limitation “the quaternary ammonium molecule” is meant to refer to the salt of formula (I) or a different quaternary ammonium molecule, rending the claims indefinite. Applicant may overcome this rejection by amending the claims to recite the “quaternary ammonium salt of formula (I)”.
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, 3-7, and 26 are rejected under 35 U.S.C. 103 as being unpatentable over Journoux-Lapp et al. (Green Chem. 2017, 19, 5647., hereafter referred to as J-L) in view of Zhang et al. (J. Mol. Liq. 2017, 241, 638., hereafter referred to as Zhang).
J-L teaches the mechanism of bio-based betaine hydrochloride esterification with glycerol (Abstract). Glycine betaine (GB), a “zwitterionic quaternary ammonium-carboxylate compound”, is taught to be one of the primary side products of the sugar beet industry (pg. 5647, Introduction, para. 1). GB produced from the beet industry, considered to be a bio-based production, has “a carbon footprint nearly 80% lower than the synthetic GB obtained from fossil resources” and is a rare, natural source of a quaternary ammonium salt (pg. 5647, Introduction, para. 2). Uses of GB are taught to include food, sports nutrition, and cosmetics (pg. 5647, Introduction, para. 2).
Esterified GB is taught to be usable as a biodegradable, safe cationic surfactant (pg. 5648, left column, para. 2). GB esterified with alkyl alcohols are “expected to become an environmentally friendly alternative to alkyl ester ammonium compounds that were widely used in industry but nowadays nearly abandoned in Europe due to their toxicity and poor biodegradability” (pg. 5648, left column, para. 2). Esterification of glycine betaine with renewable glycerol is taught to be “a model reaction to mimic ammonium functionalization of polyols, an important reaction to synthesize cationic biosurfactants” (pg. 5648, left column, para. 4). J-L teaches a synthetic pathway of esterifying glycine betaine with glycerol to produce glyceryl glycine betaine esters (GlyGB) as chloride salts under solvent free conditions and without the need for metal catalysts (pg. 5648, Esterification of GB1 with glycerol, para. 1). J-L teaches the production of diglyceryl betaine ester (Gly2GB) as a chloride salt from the same reaction mixture (pg. 5648, Esterification of GB1 with glycerol, para. 2).
Finally, J-L teaches a comparison of acid catalysts with respect to their impact on the time, conversion efficiency, and space time yield (a measure of the productivity of a bio-based chemical reaction) taken to esterify GB (pg. 5651, left column, para. 2 - right column, final para.). The acids methane sulfonic acid, sulfuric acid, trifluoromethane sulfonic acid, and p-toluene sulfonic acid were compared with hydrochloric acid as used in previous reactions (pg. 5651, right column, para. 2). J-L found that methane sulfonic acid was of particular interest “not only because it led to high activity and high space time yield but also because it is allowed for use in cosmetics, an industrial field which has a strong demand for the supply of bio-based ionic (macro)molecules” (pg. 5651, right column, final para. - pg. 5652, left column, para. 1).
J-L does not teach Gly2GB to possess an acetate counteranion. This deficiency is offset by the teachings of Zhang.
Zhang teaches the impact counterions have on quaternary ammonium salts used as surfactants, including their surface tension, micelle aggregation, and antibacterial properties, as well as their suitability for different applications (Abstract). In addition to acting as textile softeners and emulsifiers, quaternary ammonium surfactants (QAS) are particularly useful for their antibacterial properties which partly arise due to electrostatic attraction between the cationic ammonium group of the QAS and the anionic surface of bacteria (pg. 638, Introduction, para. 1-2). Zhang notes that while antibacterial effect has been studied, most research focuses on changing the headgroup of QAS and does not focus on the impact of the counterion – an issue addressed by Zhang by investigating the impact of chloride, bromide, and alkyl carboxylates of different alkyl chain lengths, including formate and acetate (final para., pg. 638 - pg. 639, para. 3). Experiments directed to the surface activity, aggregation number, antibacterial properties, foaming, wettability, and emulsifying ability (pg. 640-644, 3. Results and discussion) found that the surfactant properties initially reduce and then improve along with the alkyl chain length of the counterion, while the antibacterial properties followed the opposite pattern (Abstract). Zhang highlighted the antibacterial effect of the formate and acetate counterions in Tables 3 and 5, demonstrating that they have the greatest antibacterial effect against Staphylococcus aureus (S.A.), Escherichia coli (E. coli), Monilia albican (M.A.), Bacillus subtilis (B.S.), and Pseudomonas aeruginosa (P.A.). In particular, the acetate counterion is taught to have the shortest dealing time, or time for onset of antibacterial effect, against S.A. (Table 3).
It would have been prima facie obvious to a person of ordinary skill in the art, prior to the filing of the instant application, in view of the teachings of Zhang to replace the chloride counterion in Gly2GB taught by J-L with an acetate counterion because the use of a technique known in the art to improve a known product produces predictable results. J-L teaches that Gly2GB could be a useful, biodegradable cationic surfactant in cosmetics, and that modification of synthetic parameters can produce the surfactant with high efficiency. In view of the teachings of Zhang, a person of ordinary skill would be motivated to try using acetate as the counterion of Gly2GB because Zhang teaches it to be suitable for use in cosmetics and to have significant antimicrobial effect with rapid onset. The ordinary artisan would recognize antimicrobial effects as advantageous in a surfactant that is intended for use in cosmetics and further would desire the antimicrobial effect to take place rapidly to impart the effects with lower contact time.
The stoichiometric ratio of a cationic quaternary ammonium molecule and its anionic counterion is an inherent property of the molecules dictated by their electrical charges. "Products of identical chemical composition can not have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. See MPEP § 2112.01. The Gly2GB molecule taught by J-L has a net charge of +1 and the acetate ion taught by Zhang has a net charge of -1, therefore any salt formed from the two ions would necessarily have the Gly2GB and acetate ions in a ratio of 1:1. As a result, there is a reasonable expectation of success in arriving at the invention of instant claims 1, 3-7, and 26 in view of the teachings of J-L and Zhang.
Response to Arguments
Applicant’s arguments regarding the use of acetic acid during the production of diglyceryl betaine from the final para. of pg. 11 to para. 1 of pg. 13 in the remarks filed on 15 January 2026, with respect to the rejection of claims 1-7 under 35 U.S.C. § 103 have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground of rejection is made over J-L in view of Zhang (vide supra). In brief, the substitution of a chloride counterion for an acetate ion would be obvious to a person of ordinary skill in the art given the benefits taught by Zhang and could easily be done using a well-known procedure such as salt metathesis (see, for example, Butch et al. Precis. Chem. 2025, 3, 105.).
Claims 1, 3-9, 12, 14, 16, 18, 21-22, and 25-26 are rejected under 35 U.S.C. 103 as being unpatentable over Reay et al. (U.S. Patent Application Publication No. US 2020/0129398 A1, published on 30 April 2020, hereafter referred to as Reay) in view of J-L (Green Chem. 2017, 19, 5647.) and Zhang (J. Mol. Liq. 2017, 241, 638.).
Reay teaches a hair cleansing conditioner composition comprising 0.01-20% w/w of a cationic surfactant, 0.01-20% w/w of a polyglyceryl ester, and 0.01-15% w/w of at least one fatty alcohol (Abstract and claim 1). In some embodiments, the cationic surfactant of the composition is taught to be a quaternary ammonium compound or esterquat (an alkyl ester ammonium compound) (para. [0008] and [0024] and claim 2). The one or more fatty alcohols are taught to have “desirably a carbon chain length from about C14-C22 carbon atoms”, including the specific species stearyl alcohol (para. [0041-0042] and claims 11 and 18). Finally, the composition is taught to optionally comprise additional ingredients such as conditioning agents, pH adjustment agents, alcohols, chelating agents, or vitamins (para. [0017] and [0052] and claim 14). Reay specifies that a preferred alcohol is one that is water-soluble, such as ethanol (para. [0042] and [0046] and claim 14).
Reay does not teach the cationic surfactant in their composition to be Gly2GB-acetate. This deficiency is offset by the teachings of J-L and Zhang.
J-L and Zhang teach the above and particularly relevant to claims 1, 3-9, 12, 14, 16, 18, 21-22, and 25-26, J-L teaches that GB may be used in cosmetics (pg. 5647, Introduction, para. 2). Esterified GB is taught to be usable as a biodegradable, safe cationic surfactant (pg. 5648, left column, para. 2). GB esterified with alkyl alcohols are “expected to become an environmentally friendly alternative to alkyl ester ammonium compounds that were widely used in industry but nowadays nearly abandoned in Europe due to their toxicity and poor biodegradability” (pg. 5648, left column, para. 2). Esterification of glycine betaine with renewable glycerol is taught to be “a model reaction to mimic ammonium functionalization of polyols, an important reaction to synthesize cationic biosurfactants” (pg. 5648, left column, para. 4).
It would have been prima facie obvious to a person of ordinary skill in the art, prior to the filing of the instant application, in view of the teachings of J-L and Zhang, to modify the invention of Reay to use Gly2GB-acetate as a cationic surfactant in a composition for hair cleansing and conditioning because simple substitution of one known element for another in a related composition produces predictable results. Reay teaches cosmetic compositions which may be used as hair cleansing and conditioning compositions comprising cationic surfactants, which in some embodiments may be alkyl ester ammonium compounds (esterquats), and stearyl alcohol in amounts that overlap with the ranges recited in the instant claims. In view of the teachings of J-L and Zhang, one of ordinary skill would be motivated to replace the esterquats in the invention of Reay with Gly2GB-acetate because J-L teaches esterified glycine betaine to be a biodegradable, safe cationic surfactant, that it can be used in cosmetics, and that it can replace esterquats to improve biodegradability and reduce environmental toxicity. Further, Zhang teaches that the acetate counterion can provide antimicrobial effects when ionically bound to a QAS to form a salt. An ordinary artisan would be motivated to use the esterified glycine betaine compound Gly2GB-acetate in the hair conditioning composition taught by Reay because a composition that is more environmentally friendly is desirable, as are antimicrobial properties. Neither J-L nor Zhang teach a concentration of cationic surfactant to be used in cosmetic compositions, and one of ordinary skill would be motivated to use the range taught by Reay to enable the creation of a hair conditioning composition. As a result, there is a reasonable expectation of success in arriving at the invention of claims 1, 3-9, 12, 14, 18, 21-22, and 25-26 in view of the teachings of Reay, J-L, and Zhang.
Instant claim 16 is interpreted as an intended use claim, reciting a possible application of the cosmetic formulation rendered obvious above. The use of a product that would have been obvious from the prior art for a different use does not limit the invention and is not considered to limit the claim. See MPEP § 2112.02. Therefore, because the composition of claim 18 is prima facie obvious in view of the teachings of Reay, J-L, and Zhang, so too is claim 16 obvious.
Response to Arguments
Applicant's arguments filed 15 January 2026, have been fully considered but they are not persuasive. In the sections titled “Additional Combination With Reay” that spans pg. 13-14, “Conclusion regarding Claims 1 and Its Dependent Claims” on pg. 14, and “New Independent Claim 26” spanning pg. 14-16, Applicant argues against the combination of Reay with the J-L and Vitkalova references. That rejection has been withdrawn in favor of the new grounds of rejection above and the argument is considered moot.
In the section titled “New Independent Claim 18” that begins on pg. 16, Applicant also argues against the combination of Reay with the J-L and Vitkalova references from the penultimate para. of pg. 16 to the penultimate para. of pg. 17, which has been rendered moot in view of the new grounds of rejection above. From the final para. of pg. 17 to the antepenultimate para. of pg. 19, Applicant argues that they have found unexpected results using the QAS of formula (IA1). Guidelines on determining whether results are expected or unexpected are provided in MPEP § 716.02. To demonstrate that results are unexpected and significant, the Applicant has the responsibility of presenting evidence that establishes “that the differences in results are in fact unexpected and unobvious and of both statistical and practical significance” (bold added for emphasis). Ex parte Gelles, 22 USPQ2d 1318, 1319 (Bd. Pat. App. & Inter. 1992). “Evidence of unexpected properties may be in the form of a direct or indirect comparison of the claimed invention with the closest prior art which is commensurate in scope with the claims” (bold added for emphasis). See In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980) and MPEP § 716.02(d) - § 716.02(e).
In the argument supporting the finding of unexpected results, Applicant refers to Fig. 5, which compares the “combability” of hair following treatment with a 5% w/w aqueous solution of cetyltrimethylammonium chloride/behentrimonium chloride (CTAC/BTAC) vs a 5% w/w aqueous solution containing a salt of formula (I). Applicant also refers to Fig. 8, which compares the static charge buildup on hair in the absence of conditioning or following conditioning with Control 1 (which Applicant claims to be Pantene Pro-V), Control 2 (which Applicant claims to be Garnier Fructus Conditioning Cream), or the green conditioning shampoo of Example 1.3.
Regarding the comparison depicted in Fig. 5, the comparison is not a persuasive demonstration of unexpected and surprising results. The only comparison allowed by the information provided is between aqueous compositions containing the surfactants and not cosmetic compositions containing the surfactants in the amount taught by Reay or the amount recited in instant claim 9. Further, a surfactant of formula (IA1) is not unexpected because a molecule of the identical formula is taught by J-L and IA1-acetate is obvious in view of the teachings of J-L and Zhang.
Regarding the comparison depicted in Fig. 8, the instant specification does not disclose the identities of Control 1 nor Control 2. The specification instead states that Fig. 8 is a comparison with “market-leading products comprising quaternary monoalkyl linear chains of CTAC and BTAC” (pg. 30, lines 4-5) and that treatments were made with “conditioning products formulated with different cationic ingredients (control)” (pg. 28, lines 8-9). For the sake of argument, if Control 1 and Control 2 are the products identified in the remarks filed on 15 January 2026, with the compositions recited on pg. 18-19, the identity of the cationic surfactant is not the only variable changing between the three compositions. For example, only Control 1 is stated to contain sodium chloride and both Control 1 and 2 are stated to contain citric acid, while the green conditioning shampoo of Example 1.3 in the instant specification is not taught to contain citric acid. The claimed unexpected benefits cannot be determined to arise from the identity of the cationic surfactant when many other components are changing.
The Applicant has also not demonstrated unexpected results commensurate in scope with the claimed invention. “To establish unexpected results over a claimed range, applicants should compare a sufficient number of tests both inside and outside the claimed range to show the criticality of the claimed range.” In re Hill, 284 F.2d 955, 128 USPQ 197 (CCPA 1960). See MPEP § 716.02(d). Examples 2.2-2.4 disclose treatment of hair with a hair conditioning product formulated with the quaternary ammonium salt of formula (IA1) present in the amount of 3% w/w (Example 1.3) and comparisons are made with commercial products that do not contain a salt of formula (IA1). A comparison of one data point within the claimed range to the absence of the component (i.e., 0% w/w salt of formula (IA1)) is not a sufficient number of tests both inside and outside the claimed range and therefore does not demonstrate the criticality of the claimed range.
Finally, the Applicant has not compared their invention with the closest prior art. See MPEP § 716.02(e). The comparison provided in Fig. 5 and 8 of the instant specification is with two unidentified commercially available conditioning products that do not contain a salt of formula (IA1) and which Applicant has asserted are Pantene Pro-V and Garnier Fructus Conditioning Cream in the remarks filed on 15 January 2026. Reay et al. (U.S. Patent Application Publication No. US 2020/0129398 A1) teach hair cleansing conditioner compositions comprising 0.01-20% w/w of a cationic surfactant, 0.01-20% w/w of a polyglyceryl ester, and 0.01-15% w/w of at least one fatty alcohol, which may be stearyl alcohol. Therefore, a comparison with the closest subject matter in the prior art should include a comparison to Reay et al.
Claims 2 and 19-20 are rejected under 35 U.S.C. 103 as being unpatentable over Reay (U.S. Patent Application Publication No. US 2020/0129398 A1, published on 30 April 2020) in view of J-L (Green Chem. 2017, 19, 5647.) and Zhang (J. Mol. Liq. 2017, 241, 638.) as applied to claims 1, 3-9, 12, 14, 16, 18, 21-22, and 25-26 above, and further in view of Ponder et al. (U.S. Patent Application No. US 2011/0201534 A1, published on 18 August 2011, hereafter referred to as Ponder).
Ponder teaches benefit compositions comprising polyglycerol esters for surface treatments (Abstract and claim 1). Polyglycerol esters (PGEs) are taught by Ponder to be useful for many applications and that their properties can be modified by selection of chemical structure (para. [0023-0024]). In particular, the average number of polyglycerol units (oligomerization) is taught to impact the softening ability, viscosity, and biodegradability of PGEs (para. [0024]). Ponder found that an average number of polyglycerol units below ~1.5 results in “a decreased softening performance” while high degrees of oligomerization result in “decreased biodegradability properties” (para. [0024]). To achieve optimal properties, Ponder teaches that it is essential for the polyglycerol backbone of their PGEs to contain 2-8, preferably 3-5, glycerol units (para. [0036] and claim 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, in view of the teachings of Ponder to modify the invention rendered obvious by the teachings of Reay, J-L, and Zhang to use a polyglycerol chain with 3-5 glycerol units in the ester of glycine betaine with glycerol because the use of a known technique to improve a known product to provide a known benefit produces predictable results. Reay, J-L, and Zhang rendered obvious a cosmetic composition containing an ester of glycine betaine with glycerol with an acetate counterion as a biodegradable, safe cationic surfactant. In view of the teachings of Ponder, one of ordinary skill would be motivated to use a polyglycerol chain with 3-5 glycerol units in place of a single glycerol or diglycerol molecule because Ponder teaches that the resulting esters have poor softening properties when the number of glycerol units is below ~1.5, that the ester is not biodegradable when too many glycerol units are present, and that an ideal range is 3-5 glycerol units. One of ordinary skill would desire the surfactant used in the cosmetic composition to have good softening properties and to maintain biodegradability, particularly in view of the teachings of J-L that biodegradability is a goal of the surfactant. As a result, there is a reasonable expectation of success in arriving at the invention of claims 2 and 19-20 in view of the teachings of Reay, J-L, and Zhang and further in view of the teachings of Ponder.
Response to Arguments
Applicant's arguments filed 15 January 2026, have been fully considered but they are not persuasive. In the section titled “Dependent Claim 2” on pg. 14, Applicant argues that the amendment to claim 2 requiring a polyglycerol tail of 3-10 units renders the amended claim allowable. This limitation has been rendered obvious in the new ground of rejection above and the argument is therefore found unpersuasive.
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Reay (U.S. Patent Application Publication No. US 2020/0129398 A1, published on 30 April 2020) in view of J-L (Green Chem. 2017, 19, 5647.) and Zhang (J. Mol. Liq. 2017, 241, 638.) as applied to claims 1, 3-9, 12, 14, 16, 18, 21-22, and 25-26 above, and further in view of Dalrymple et al. (Multifunctional Ingredients in Hair Care Products. In Multifunctional Cosmetics. Ch. 3, 2001, Marcel Dekker, Inc., 29., hereafter referred to as Dalrymple).
Reay, J-L, and Zhang teach the above.
Reay, J-L, and Zhang do not teach their composition to also include the cationic surfactant stearamidopropyl dimethylamine (SAPDMA). This deficiency is offset by the teachings of Dalrymple.
Dalrymple teaches the use of multifunctional ingredients in hair care products, particularly the use of secondary surfactants (pg. 30, para. 3 and pg. 33, 2. Multifunctional Surfactants). Secondary surfactants are compounds which improve the properties of primary surfactants and enhance the performance of the final formulation (pg. 30, para. 3). One example of such a secondary surfactant is stearamidopropyl dimethylamine, which is described as “a very simple molecule with two functional groups [which] demonstrate[s] how a little bit of science and common sense can go a long way toward multifunctionality” (pg. 34, Section 2.1.1, para. 2). The primary purpose of SAPDMA is taught to be conditioning and emulsification and, when used in conjunction with a quaternizing agent, improves the “dermatological profile, conditioning rheological control, and antistatic behavior” of compositions (pg. 35, 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, in view of the teachings of Dalrymple, to modify the invention rendered obvious by the teachings of Reay, J-L, and Zhang to use SAPDMA as a secondary surfactant because the combination of known elements in similar compositions to provide a known benefit produces predictable results. Reay, J-L, and Zhang rendered obvious a cosmetic composition containing esterified glycine betaine as a biodegradable, safe cationic surfactant and stearyl alcohol. In view of the teachings of Dalrymple, one of ordinary skill would be motivated to use SAPDMA as a secondary surfactant in the above composition because Dalrymple teaches the molecule, when used in conjunction with a quaternizing agent, to improve the properties of the primary surfactant (i.e., esterified glycine betaine) and impart desirable characteristics to the final composition. An ordinary artisan would desire their composition to include components that benefit the entire formulation and would subsequently be motivated to include SAPDMA as a secondary surfactant. As a result, there is a reasonable expectation of success in arriving at the invention of instant claim 10 in view of the teachings of Reay, J-L, and Zhang and further in view of the teachings of Dalrymple.
Response to Arguments
Applicant's arguments filed 15 January 2026, have been fully considered but they are not persuasive. Applicant argues in the para. that spans the bottom of pg. 19 and top of pg. 20 that because the Dalrymple reference teaches that SAPDMA is “especially compatible with anionic surfactants” and does not “suggest combining SAPDMA with another quaternary ammonium salt”, an artisan would not be motivated to use SAPDMA in the composition rendered obvious above.
The Examiner respectfully disagrees and directs Applicant to MPEP § 2143.01.”[T]he prior art’s mere disclosure of more than one alternative does not constitute a teaching away from any of these alternatives because such disclosure does not criticize, discredit, or otherwise discourage the solution claimed…." 391 F.3d at 1200-01, 73 USPQ2d at 1145-46. The Dalrymple reference does not teach that SAPDMA would not impart the taught benefits in a composition with a QAS and mere teaching of compatibility with anionic surfactants is not a teaching away from the combination motivated in the rejection above. As a result, Applicant’s arguments are not found to be persuasive.
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Reay (U.S. Patent Application Publication No. US 2020/0129398 A1, published on 30 April 2020) in view of J-L (Green Chem. 2017, 19, 5647.) and Zhang (J. Mol. Liq. 2017, 241, 638.) as applied to claims 1, 3-9, 12, 14, 16, 18, 21-22, and 25-26 above, and further in view of Dias et al. (Int. J. Trichol. 2014, 6 (3), 95., hereafter referred to as Dias).
Reay, J-L, and Zhang teach the above, and particularly relevant to claim 11, Reay teaches that pH adjustment agents are suitable additives to their cosmetic compositions (para. [0017] and claim 14).
Reay, J-L, and Zhang do not teach the pH of hair care compositions. This deficiency is offset by the teachings of Dias.
Dias teaches the impact of pH values in hair cleansing compositions and preferred ranges for products (Abstract). Because hair cleansing compositions clean not only the scalp but also the hair shaft, Dias teaches that compositions should not only treat the scalp but also preserve the “softness, comparability and shine of the hair shaft”, which is impacted by the pH of the composition (pg. 95, para. 1-2). The pH of the human scalp is taught to be 5.5, while the pH of hair shafts is taught to be 3.67, and alkaline pH values are taught to potentially increase “the negative electrical net charge of the hair fiber surface and, therefore, increase the friction between the fibers” (pg. 96, left column, para. 1). After testing 123 shampoos, Dias concluded that hair cleansing compositions do not have a standard pH and is typically not displayed on products, but because hair fibers are pH 3.67, “a pH closer to 3.67 has less possibility to increase the negative electric charge that normally involves the capillary fiber” (pg. 98-99, Conclusion, para. 1). Further, to successfully treat the scalp, Dias teaches that “shampoos must not have a pH higher than 5.5” so as not to damage the scalp (pg. 99, Conclusion, 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, in view of the teachings of Dias to modify the invention rendered obvious by the teachings of Reay, J-L, and Zhang to have a pH in the range of 3.67-5.5 because the use of a technique known in the art to improve a similar product produces predictable results. Dias teaches pH values in the range of 3.67-5.5 to be the optimally safe pH for cosmetic compositions that may come into contact with the human scalp and/or hair. An ordinary artisan would find it obvious to make their cosmetic composition safe for users by adjusting the pH of the composition. Further, Reay taught that pH adjustment agents are suitable for use in their cosmetic compositions but did not teach a specific pH range. An ordinary artisan would recognize the pH of the cosmetic composition to be important given Reay’s teachings regarding adjustment agents and would be motivated to use the pH range taught by Dias to provide missing information and because it is taught to be safe for users. As a result, there is a reasonable expectation of success in arriving at the invention of instant claim 11 in view of the teachings of Reay, J-L, and Zhang and further in view of the teachings of Dias.
Response to Arguments
Applicant's arguments filed 15 January 2026, have been fully considered but they are not persuasive. Applicant argues in para. 2 of pg. 20 that because approximately one-third of the commercial shampoos analyzed by Dias had a pH ≤ 5.5 and because there is no standardized pH value, specifying a pH range “is not a routine or obvious design choice…[and] requires inventive judgement”. This argument does not address the motivation presented in the rejection in the Office Action mailed on 16 October 2025, and remade above, which relies upon the teachings that two specific pH values, 3.67 and 5.5, are important and relevant to human hair. In fact, Dias specifically states that “a pH closer to 3.67 has less possibility to increase the negative electric charge that normally involves the capillary fiber” and that “shampoos must not have a pH higher than 5.5”. As a result, Applicant’s argument is found unpersuasive.
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over Reay (U.S. Patent Application Publication No. US 2020/0129398 A1, published on 30 April 2020) in view of J-L (Green Chem. 2017, 19, 5647.) and Zhang (J. Mol. Liq. 2017, 241, 638.) as applied to claims 1, 3-9, 12, 14, 16, 18, 21-22, and 25-26 above, and further in view of Camargo et al. (J. Cosmet. Sci. 2011, 62, 361., hereafter referred to as Camargo).
Reay, J-L, and Zhang teach the above, and particularly relevant to claim 17, Reay teaches their composition to include additional ingredients such as alcohols, and in some embodiments specifies that a preferred alcohol is one that is water-soluble, such as ethanol (para. [0017], [0042], [0046], and [0052] and claim 14).
Reay, J-L, and Zhang do not teach their composition to include the excipient panthenol. This deficiency is offset by the teachings of Camargo.
Camargo teaches the efficacy of panthenol in moisturizing skin when contained in cosmetic formulations. “Panthenol, the biologically active alcohol analogue of pantothenic acid, is a pro-vitamin of the B-complex group that is a normal constituent of skin and hair” and is taught to be converted to pantothenic acid by the human body, which is “essential to normal epithelial function” (pg. 362, para. 1). Panthenol has been used in the art to maintain healthy skin, appearing in topically applied cosmetics to treat wounds, allergic dermatitis, and skin irritation (pg. 362, para. 2). Camargo performed a study on the “hydration and protective effects of cosmetic formulations containing panthenol in different concentrations” and found that concentrations of 1-5% w/w panthenol in cosmetic formulations significantly reduced transepidermal water loss (TEWL), a parameter that correlates with the moisturization of skin (pg. 362, para. 5 and pg. 367, para. 2). Camargo concluded that compositions comprising panthenol “increased skin moisture and had a significant effect on skin barrier function by decreasing TEWL values” and that its use in the compositions may maintain skin conditions and prevent dry skin (pg. 368, Conclusion).
It would have been prima facie obvious to a person of ordinary skill in the art, prior to the filing of the instant application, in view of the teachings of Camargo, to modify the invention rendered obvious by the teachings of Reay, J-L, and Zhang to include panthenol because the combination of known elements in similar compositions to provide a known benefit produces predictable results. Reay, J-L, and Zhang rendered obvious a cosmetic composition containing esterified glycine betaine acetate as a biodegradable, safe cationic surfactant, stearyl alcohol, and ethanol, which may be used to cleanse and condition hair. In view of the teachings of Camargo, a person of ordinary skill would be motivated to include panthenol in the composition rendered obvious by Reay, J-L, and Zhang because Camargo teaches the chemical to moisturize and protect skin, which an ordinary artisan would desire in a composition that will contact the human scalp. As a result, there is a reasonable expectation of success in arriving at the invention of instant claim 17 in view of the teachings of Reay, J-L, and Zhang and further in view of the teachings of Camargo.
Response to Arguments
Applicant's arguments filed 15 January 2026, have been fully considered but they are not persuasive. Applicant argues in para. 3 of pg. 20 that the Dias and Carmargo references “do not disclose the particular combination of excipients and diluents recited in claim 17” and that the Applicant has demonstrated unexpected results. The allegation of unexpected results has been addressed above. In a phone call on 3 October 2025, attorney Erik Overberger communicated that Applicant elected the combination of excipients and diluents to be panthenol and ethanol. This election was confirmed in the response filed on 15 January 2026 (see para. 1 of Summary of the Office Action, pg. 8).
The Dias reference was not argued to teach panthenol or ethanol and that particular argument is considered moot. The Carmargo reference was argued to teach panthenol, not ethanol, and that argument is also considered moot. The Applicant has not provided a specific argument against the motivation to combine panthenol with the composition previously rendered obvious and the argument is therefore not found to be persuasive.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-12, 14, 16-22, and 25 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 5-8, and 10-14 of copending Application No. 17/718,399 in view of Reay (U.S. Patent Application Publication No. US 2020/0129398 A1, published on 30 April 2020), Camargo (J. Cosmet. Sci. 2011, 62, 361.), and Dalrymple (Multifunctional Ingredients in Hair Care Products. In Multifunctional Cosmetics. Ch. 3, 2001, Marcel Dekker, Inc., 29.).
This is a provisional nonstatutory double patenting rejection.
Application No. 17/718,399 recites a composition for hair restructuring comprising at least one sulpho-derivative of vegetable fatty acids and a quaternary ammonium salt of formula (I), which is identical to formula (I) of instant claim 1, wherein one embodiment has R2=R3=R4=methyl, R1=R5=R6=H, n=2-5, m=1, and the counteranion acetate, which is identical to formula IAI (claims 1 and 5-6). Application ‘399 further recites a cosmetic formulation comprising the above quaternary ammonium salt in addition to suitable excipients and/or diluents, wherein the concentration of the salt of formula (I) is “less than 20% by weight of the sulpho-derivative of vegetable fatty acids” (claims 7-8). If the only components in the composition are assumed to be the a sulpho-derivative of vegetable fatty acids and a quaternary ammonium salt of formula (I), the concentration of the quaternary ammonium salt would be <16.67% w/w, which encompasses the range recited in instant claim 9. Claim 10 of ‘399 recites the pH of the cosmetic formulation to have a pH between 3.5 and 6.0. Finally, claims 11-14 recite the cosmetic formulation to be a hair cleansing or conditioning product, with claim 12 additionally reciting the formulation to contain fatty alcohols with a number of carbon atoms between 14 and 22.
Copending Application No. 17/718,399 does not recite the specific fatty alcohol stearyl alcohol, the specific excipient panthenol, the specific diluent ethanol, nor the inclusion of the additional cationic surfactant SAPDMA. These deficiencies are offset by the teachings of Reay, Camargo, and Dalrymple.
Reay, Camargo, and Dalrymple have been described above.
It would have been prima facie obvious to a person of ordinary skill, prior to the filing of the instant application, to modify the invention recited by copending Application No. 17/718,399 in view of the teachings of Reay, Camargo, and Dalrymple to arrive at the claimed invention because the combination of prior art elements in similar product to impart known benefits produces predictable results. Application ‘399 recites a cosmetic formulation, which may be used for hair conditioning, that comprises a cationic surfactant of formula (IAI) in amounts that overlap with the range recited in instant claim 9, a fatty alcohol, excipients, and diluents, at a pH range that significantly overlaps with the range recited in instant claim 11. In view of the teachings of Reay, an ordinary artisan would be motivated to use stearyl alcohol and ethanol as the fatty alcohol and diluent, respectively, because copending Application ‘399 does not recite specific species and Reay teaches those species to be suitable for use in a cosmetic formulation that will be applied to the hair. In view of the teachings of Camargo, one of ordinary skill would be motivated to select panthenol as the specific excipient because Application ‘399 does not recite a specific species and Camargo teaches the benefit of panthenol in cosmetic compositions that will contact the scalp. Finally, in view of the teachings of Dalrymple, a person of ordinary skill would be motivated to include the additional cationic surfactant SAPDMA in the composition recited by ‘399 because Dalrymple teaches the molecule, when used in conjunction with a quaternizing agent, to improve the properties of the primary surfactant (i.e., the surfactant of formula IAI) and impart desirable characteristics to the final composition, which an ordinary artisan would desire in their composition.
Copending Application 17/718,399 does not recite the composition to be a cleaning, conditioning, or softening composition for surface treatments as recited in instant claim 16. However, applicant is reminded that the intended use of a product claim is given no patentable weight, see MPEP § 2111.02. As a result, there is a reasonable expectation of success in arriving at the instant invention in view of claims 1, 5-8, and 10-14 recited in copending Application No. 17/718,399 and in view of the teachings of Reay, Camargo, and Dalrymple.
Claims 1-12, 14, 16-22, and 25 are directed to an invention not patentably distinct from claim 1, 5-8, and 10-14 of commonly assigned copending Application No. 17/718,399 in view of the teachings of Reay, Camargo, and Dalrymple. Specifically, see above.
The U.S. Patent and Trademark Office may not institute a derivation proceeding in the absence of a timely filed petition. The USPTO normally will not institute a derivation proceeding between applications or a patent and an application having common ownership (see 37 CFR 42.411). Commonly assigned copending Application No. 17/718,399, discussed above, may form the basis for a rejection of the noted claims under 35 U.S.C. 102 or 103 if the commonly assigned case qualifies as prior art under 35 U.S.C. 102(a)(2) and the patentably indistinct inventions were not commonly owned or deemed to be commonly owned not later than the effective filing date under 35 U.S.C. 100(i) of the claimed invention.
In order for the examiner to resolve this issue the applicant or patent owner can provide a statement under 35 U.S.C. 102(b)(2)(C) and 37 CFR 1.104(c)(4)(i) to the effect that the subject matter and the claimed invention, not later than the effective filing date of the claimed invention, were owned by the same person or subject to an obligation of assignment to the same person. Alternatively, the applicant or patent owner can provide a statement under 35 U.S.C. 102(c) and 37 CFR 1.104(c)(4)(ii) to the effect that the subject matter was developed and the claimed invention was made by or on behalf of one or more parties to a joint research agreement that was in effect on or before the effective filing date of the claimed invention, and the claimed invention was made as a result of activities undertaken within the scope of the joint research agreement; the application must also be amended to disclose the names of the parties to the joint research agreement.
A showing that the inventions were commonly owned or deemed to be commonly owned not later than the effective filing date under 35 U.S.C. 100(i) of the claimed invention will preclude a rejection under 35 U.S.C. 102 or 103 based upon the commonly assigned case. Alternatively, applicant may take action to amend or cancel claims such that the applications, or the patent and the application, no longer contain claims directed to patentably indistinct inventions.
Response to Arguments
Applicant's arguments filed 15 January 2026, have been fully considered but they are not persuasive. In the para. that spans the bottom of pg. 20 and top of pg. 21 of the remarks, Applicant argues that because the instant claims do not recite sulpho-derivatives, are not directed to hair restructuring, and recite a salt that “provides significantly better compatibility and reduced electrostatic charge compared with traditional quaternary surfactants”, the instant claims are not obvious variants of the invention recited in U.S. Patent Application Publication No. 2020/0129398 A1.
The Examiner respectfully disagrees, first pertaining to the instant claims not reciting sulpho-derivatives, because the NSDP rejection relied upon the teaching of a quaternary ammonium salt of formula (IA1) and not the sulpho-derivative. The mere presence of other components does not obviate the teaching of the identical molecule and the instant claims do not require the omission of other components. Regarding the claims of copending Application No. 17/718,399 being directed to a hair restructuring composition, this is still a composition comprising a salt of formula (IA1) as recited in instant claims 8-12, 14, 16-22, and 25. Finally, regarding Applicant’s assertion that the instant application provides unexpected results, this is found unpersuasive for the reasons detailed above.
In the final para. of pg. 21 of the remarks, Applicant “requests that…the issue be held in abeyance pending further prosecution”. A complete response to a nonstatutory double patenting (NSDP) rejection is either a reply by the Applicant showing that the claims subject to the restriction are patentably distinct from the reference claims, or the filing of a terminal disclaimer in accordance with 37 CFR 1.321 in the pending application(s) with a reply to the Office action (see MPEP § 1490 for a discussion of terminal disclaimers). Such a response is required even when the nonstatutory double patenting rejection is provisional.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Sean J. Steinke, Ph.D., whose telephone number is (571) 272-3396. The examiner can normally be reached Mon. - Fri., 09:00 - 17:00 ET.
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/S.J.S./
Examiner, Art Unit 1619
/DAVID J BLANCHARD/Supervisory Patent Examiner, Art Unit 1619