DETAILED ACTION
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 . In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
Election/Restrictions
Applicant's election with traverse of Group I (claims 16-30) and the species of oligomer (oligomer of hydrogenated castor oil and sebacic acid) in the reply filed on 30 September 2025 is acknowledged. The traversal is on the ground(s) that the standard for determining whether a special technical feature is known is improper because it would encompass every invention combining known elements. This is not found persuasive because the reasoning was specific to the elements present, and is not based on an assertion that every combination of known ingredients is encompassed therein. The requirement is still deemed proper and is therefore made FINAL.
Claims 31-35 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim.
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.
Claims 16-24, 26, and 28-29 are rejected under 35 U.S.C. 103 as being unpatentable over Gawtrey et al. (US Patent Application Publication 2007/0154441) in view of Bermudez Agudelo et al. (US Patent Application Publication 2017/0273891).
Gawtrey et al. discloses cosmetic compositions comprising an amino silicone and at least one conditioner (abstract). The amino silicone has a total degree of polymerization between 1 and 1000 (claim 38). And thus this amino silicone reads upon the instantly recited element (b). And the cosmetic compositions were exemplified for use on hair (such as rinse-out conditioners (examples 2-4).
Gawtrey et al. does not disclose the inclusion of oligomeric element (a) as recited by independent instant claim 16.
Bermudez Agudelo et al. discloses cosmetic compositions for hair which comprises a copolymer composed of hydrogenated castor oil and an n-alkyl dicarboxylic acid with 4 to 10 carbon atoms (abstract). A preferred example copolymer is the oligoester of hydrogenated castor oil and sebacic acid (paragraph [22]), which is known for the use of repairing the cuticle layer in hair care products (paragraphs [7 & 22]). This ingredient is useful in from 0.1 to 2 wt% of the cosmetic (paragraph [23]). And this ingredient reads upon instantly recited oligomeric element (a).
Therefore, it would have been prima facie obvious to one of ordinary skill in the art at the time of filing to have added the oligoester of hydrogenated castor oil and sebacic acid taught by Bermudez Agudelo et al. into the hair cosmetic taught by Gawtrey et al. Doing so would provide the additional benefit of repairing the cuticle layer, which would motivate one of ordinary skill in the art to include it in the hair cosmetic.
Instant claims 18-20 recite further limitations to the oligomer element (a) and the oligoester of hydrogenated castor oil and sebacic acid taught by Bermudez Agudelo et al. reads upon these limitations.
Instant claim 21 further limits the amount of the amino silicone, and Gawtrey et al. suggests including it in from 1.5 wt% (examples).
Instant claims 22-24 recite the further inclusion of an additional silicone. Gawtrey et al. suggests at least one amino silicone of either formula (I) or formula (II). Choosing both (which is suggested by the language “at least one”) would thus read upon these limitations.
Instant claim 26 recites the further inclusion of water, which is present in the compositions disclosed by Gawtrey et al. (see examples).
Instant claim 28 recites the further inclusion of a cationic surfactant, and Gawtrey et al. suggests such an additional ingredient (paragraph [348]).
Instant claim 29 further limits the form of the composition, and the rinse-out compositions exemplified by Gawtrey et al. read upon this limitation.
Claims 25, 27, and 30 are rejected under 35 U.S.C. 103 as being unpatentable over Gawtrey et al. (US Patent Application Publication 2007/0154441) and Bermudez Agudelo et al. (US Patent Application Publication 2017/0273891) as applied to claim 16 above, and further in view of Lebre et al. (US Patent Application Publication 2006/0165640).
Instant claim 25 recites the further inclusion of an ester of a polyol and of a fatty diacid dimer. Instant claim 27 recites the further inclusion of a fatty alcohol And instant claim 30 recites both. Gawtrey et al. does not suggest the inclusion of these ingredients, though the inclusion of oils is suggested (abstract).
Lebre et al. discloses cosmetic compositions (abstract), and oils useful therein (paragraph [183]). These include diol dimer esters such as the one sold under the trade name Lusplan DD-DA5 (paragraph [208]) and fatty alcohols (paragraph [186]).
Therefore, it would have been prima facie obvious to one of ordinary skill in the art at the time of filing to have added the oils taught by Lebre et al. into the cosmetic formulation disclosed by Gawtrey et al. Generally, it is prima facie obvious to select a known material for incorporation into a composition (such as the fatty alcohol and diol dimer esters), based on its recognized suitability for its intended use (as an oil for hair care). See MPEP 2144.07.
Conclusion
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/Brian Gulledge/Primary Examiner, Art Unit 1699