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
The Applicant’s reply filed on 12/5/25 is acknowledged. Claims 1-25 and 27 are pending. Claims 3, 4, 8-14, 25 and 27 have been withdrawn. Claims 1 and 22 have been amended. Claims 1, 2, 5-7 and 15-24 are under consideration.
Election/Restrictions
Applicant's election with traverse of the invention of Group I, claims 1-24, and the species of (a) sodium laureth sulfate, and (b) cocoamidopropylbetaine and cocoglycoside in the reply filed on 8/15/25 is acknowledged.
Objections Withdrawn
The objection to Claim 22 is withdrawn in view of the amended claim.
Rejections Withdrawn
The rejection of Claims 1, 2, 5-7, 18-21, and 24 under 35 U.S.C. 102(a)(1) as being anticipated by Kita-Tokarczyk et al. (US 2018/0353410) is withdrawn in view of the amended claims is withdrawn in view of the amended claim(s).
The rejection of Claims 1, 2, 5-7, 17-21 and 24 under 35 U.S.C. 102(a)(1) as being anticipated by Molenda et al. (US 2011/0206629), as evidenced by Luviquat Sensation (BASF 2018) is withdrawn in view of the amended claim(s).
The rejection of Claims 1, 2, 5-7, and 17-24 under 35 U.S.C. 103 as being unpatentable over Kita-Tokarczyk et al. (US 2018/0353410) is withdrawn in view of the amended claim(s).
Rejections Maintained and New Grounds of Rejections
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 2 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 1 has been amended to recite “wherein an amount of (a) is from 1.5 to 10 wt%, based on the weight of the styling shampoo composition”. Claim 2 broadens that range by reciting “wherein the amount of (a) is from 0.3 to 2.5 wt%”.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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 1, 2, 5-7, 15-21, and 24 are rejected under 35 U.S.C. 103 as being unpatentable over Molenda et al. (US 2011/0206629), as evidenced by Luviquat Sensation (BASF 2018).
Molenda et al. teach an aqueous cleansing composition for keratin fibres, especially human hair (e.g. abstract; paragraph 0001).
Molenda et al. exemplify a composition (e.g. Example 13) comprising:
0.8 wt% polyquaternium-87 (i.e. (a) a cationic polymer);
3.0 wt% sodium laureth sulfate (i.e. (b) at least one anionic surfactant);
3.0 wt% cocoyl betaine (i.e. (c) an amphoteric surfactant);
3.0 wt% cocoyl polyglucoside (i.e. (c) non-ionic surfactant); and
3.0 wt% PEG-90 glyceryl isostearate (i.e. thickener), and having a pH of 5.5.
Regarding Claims 1, 2, 5-7, 17-21, and 24, Molenda et al. teach that the polyquaternium-87 is Luviquat Sensation (e.g. paragraph 0019), and as evidenced by Luviquat Sensation, the molecular weight is 100-180 kDa and a charge density is 5.2 meq/g (e.g. page 7), which are within the claimed ranges. While the exemplified amount of polyquaternium-87 is slightly below the range of claim 1 (it is within the range of claim 2), Molenda et al. more broadly teach 0.01-5 wt% of cationic polymer, which overlaps with the claimed ranges (e.g. paragraph 0021). It would have been obvious to one of ordinary skill in the art at the time of filing to vary the polyquaternium-87 concentration through routine experimentation to arrive at the concentration of 1.5-10% in order to optimize the resulting product. Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Regarding Claims 15 and 16, Molenda et al. in Example 13 exemplify 6.0 wt% sodium lauryl ether carboxylate, which is above the claimed range. However, Molenda et al. more broadly teach the inclusion of 0.5-50 wt% of anionic surfactants, including alkyl ether carboxylates wherein the alkyl is C8-C20, and the ethoxy is 1-20 (e.g. paragraphs 0024 and 0026) and exemplify 3.0 wt% (e.g. Example 12). While there is not a single example comprising each of the claimed components, the ingredients are included among a short list of preferred ingredients. It would have been obvious to one of ordinary skill in the art at the time of the instant invention to combine the elements as claimed by known methods with no change in their respective functions, and the combination yielding nothing more than predictable results.
Claims 22 and 23 are rejected under 35 U.S.C. 103 as being unpatentable over Molenda et al. (US 2011/0206629), as evidenced by Luviquat Sensation (BASF 2018), as applied to claims 1, 2, 5-7, 15-21 and 24, and further in view of Fishman (Take a Closer Look At Cellulose Thickeners; 2012).
Regarding Claims 1, 2, 5-7, 15-21 and 24, the teachings of Molenda et al. are described supra. Molenda et al. further teach the inclusion of one or more thickeners (e.g. paragraph 0088), but do not teach the inclusion of hydroxyalkylcellulose as recited in claims 22 and 23. This is made up for by the teachings of Fishman.
Fishman teaches that some of the most useful thickeners for aqueous systems are cellulose derivatives (e.g. page 2, paragraph 1). Fishman teaches that cellulose derivatives can be used in both shampoos and conditioners. In shampoos, besides providing viscosity, they boost and stabilize foam and add a creamy texture to formulations. They are stable in salt and cationic solutions, increase viscosity across a broad pH range and allow the use of little or no salt (e.g. page 2, paragraph 2). Fishman teach hydroxypropyl and hydroxyethyl celluloses (e.g. Table).
Regarding Claims 22 and 23, it would have been obvious to one of ordinary skill in the art at the time of filing to select the hydroxypropyl or hydroxyethyl celluloses as disclosed by Fishman for use in the shampoos of Molenda et al. It would have been obvious to one of ordinary skill in the art to combine the elements as claimed by known methods with no change in their respective functions, and the combination yielding nothing more than predictable results. One of ordinary skill in the art would have predicted success both Molenda and Fishman teach shampoo compositions comprising thickeners, and one of ordinary skill would have been motivated in order to provide the benefits of viscosity, boosted and stabilized foam, and creamy texture, as taught by Fishman.
Response to Arguments
Applicant's arguments filed 12/5/25 have been fully considered but they are not persuasive. Arguments relevant to the current grounds of rejection will be addressed below.
Applicant argues that the inventors have found that the combination of a charge density of 5 to 10 meq/gram in 1.5 to 10 wt% brings about unexpected results. In particular, the amended charge density of cationic polymer (a) of 5 to 10 meq/gram according to the present invention is supported by Example 2 in the description (containing Luviquat Excellence with a charge density of 6.1 meq/gram), compared to Example 1 (containing luviquat HM 552 with a charge density of only 3 meq/gram). As can be seen, the foaming and styling effects are much better according to the present invention.
This is not found persuasive. Applicant has not compared to the closest prior art, which is Molenda et al. Example 1 is not representative of Molenda et al. in cationic polymer type or concentration. An affidavit or declaration under 37 CFR 1.132 must compare the claimed subject matter with the closest prior art to be effective to rebut a prima facie case of obviousness. In re Burckel, 592 F.2d 1175, 201 USPQ 67 (CCPA 1979).
Conclusion
No claim is 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 extension fee 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 date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to NICOLE PLOURDE BABSON whose telephone number is (571)272-3055. The examiner can normally be reached M-Th 8-4:30; F 8-12:30.
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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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/NICOLE P BABSON/ Primary Examiner, Art Unit 1619