DETAILED ACTION
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 .
Applicants’ arguments, filed 04/23/2026, have been fully considered. Rejections and/or objections not reiterated from previous office action are hereby withdrawn.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 Rejections - 35 USC § 112 – Indefiniteness; New by Amendment
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 20-22, 24-37 and 39-40 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 20, 39 and 40 recites the limitation "formula (Ib)", “R” and “R’ “. There is insufficient antecedent basis for this limitation in the claim.
Claim Rejections - 35 USC § 112 – Improper Dependent Form; New by Amendment
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 22 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 22 recited structural limitations that have been specifically excluded by claim 20, the claim from which claim 22 depends. 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 – New by Amendment
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 (i.e., changing from AIA to pre-AIA ) 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.
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.
1) Claims 20-22, 24-30, 32-37 and 39-40 are rejected under 35 U.S.C. 103 as being unpatentable over Allard et al. (FR 3026006 A1, publication date 03/25/2016; citing English machine translation) in view of Weser et al. (US 2018/0168998 A1, publication date 06/21/2018).
Allred “relates to a composition for the dyeing of keratinous fibers, comprising at least two different oxidation bases, of which a first oxidation base (a) is 2- (methoxymethyl) benzene-1,4-diamine salts thereof. addition and its solvates, and a second oxidation base (b) is pyrazolo-pyridine or pyrazolo-pyrazolone type” (i.e., oxidative hair dye) [abstract]. Allred discloses that “[m]ore preferably, the coloring composition (A) comprises at least 30% by weight of fatty substances, in particular liquid non-silicone fatty substances at room temperature (25 ° C.)” [p. 27, lines 3-4]. Allred also discloses “[t]he composition according to the invention may optionally comprise one or more additives, different from the compounds of the invention and among which mention may be made of organic solvents, cationic, … polymers” [p. 25, para. 1, lines 12-15]. Allred exemplifies polyquaternium-67 as a suitable cationic polymer in embodiment A3 at page 31 which comprises:
Component
Amount (wt. %)
Role [as evidenced by]
Ethanolamine
4.43
Alkaline agent
[instant claims 34 and 35]
EDTA
0.2
Sequestrant
[Instant Spec., p. 33, line 26]
2-(methoxymethyl)benzene-1,4-diamine hydrochloride
0.5
--
2-methyl-5-hydroxyethylaminophenol
0.11
Coupler
[Allard, p. 10, 1st half of para. 2]
4-amino-2-hydroxytoluene
0.7
Coupler
[Allard, p. 10, 1st half of para. 2]
Mineral oil
59.7
Liquid fatty substance
[Instant Spec., p. 11, lines 12 and 29]
Polyquaternium-67
0.2
Cationic cellulosic associative polymer according to instant claim 23 (which reads on instant claims 20-23)
[Instant Specification, p. 9, lines 19-25]
Polysorbate-21
2.4
Surfactant
Embodiment A3 is free of any chemical oxidizing agent (i.e., instant claim 36).
Allred does not disclose a cellulosic associative polymer that is does not comprise trimethylammonium chloride as R when R’ is dimethyldodecylammonium chloride (i.e., polyquaternium-67).
Weser relates to a oxidative hair dye compositions [abstract] which preferably contain at least one cationic polymer [0062]. According to Weser “[s]uitable cationic polymers, which are derived from natural polymers, are cationic derivatives of polysaccharides, cationic derivatives of cellulose” [0073] and “[p]articularly preferred cationic celluloses are Polyquaternium-10, Polyquaternium-24, Polyquaternium-67 and Polyquaternium-72” [0074].
Polyquaternium-24 falls within the scope of formula (Ib) as recited at instant claims 22 and 40, as evidenced by the instant specification at page 9, line 14.
It would have been obvious to one of ordinary skill in the art, before the effective filling date of the claimed invention, to have simply substituted the polyquaternium-24 of Weser in the place of the polyquaternium-67 of Allred. One would have been motivated to, and had an expectation of success in making this substitution because Weser discloses polyquaternium-24 and polyquaternium-67 are both suitable cationic polymers for oxidative dye compositions and Allred desires a cationic polymer. The simple substitution of one known element (e.g., the polyquaternium-24 of Weser) in place of another (e.g., the polyquaternium-67 of Allred) in order to achieve predictable results (cationic polymer) is prima facie obvious. See MPEP 2143, Exemplary Rationale B.
In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I). In the present case, the instantly claimed ranges for fatty substance (at least 30% and at least 35%; instant claims 20/40 and 28/29), Compound of formula (I) (0.001-20%; instant claim 26), cellulosic associative polymer (0.01-20%; instant claim 27) all overlap with the amounts of the prior art (see table above) and so a prima facie case of obviousness exists for each range
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filling date of the claimed invention, to have formulated a composition comprising an addition salt of 2-(methoxymethyl)benzene-1,4-diamine (2-(methoxymethyl)benzene-1,4-diamine hydrochloride), the cationic associative polymer of instant claims 21-22 and 40 (polyquaternium-24), a liquid fatty substance (mineral oil), at least one oxidation coupler (4-amino-2-hydroxytoluene), a surfactant (polysorbate-21), a sequestrant (EDTA), an alkanolamine alkaline agent (ethanolamine), and no chemical oxidizing agent, wherein each component is present in the composition in an amount entirely within the instantly claimed ranges of claims 20, 26-29 and 40.
Regarding instant claim 25, Allard also discloses the composition of A3 was combined with the composition of B3 at a wight ratio of 1 [p. 30, 2nd half of para. 1]. The composition B3 comprises hydrogen peroxide and cetearyl alcohol (i.e., a solid fatty substance according to the instant specification at line 28 of page 17; instant claim 25) and 20% w/w mineral oil [p. 32, B3 Table]. The composition resulting from combining A3 and B3 at a ratio of 1 would comprise about 40% w/w mineral oil.
Given the disclosure of each component individually, it would have been prima facie obvious for a person having ordinary skill in the art at, before the effective filling date of the claimed invention, to have selected and combined known components for their established functions with predictable results by following the teachings of Allred. MPEP 2143 and 2144.06(I). In the present case, it would have been obvious to one of ordinary skill in the art, before the effective filling date of the claimed invention, to have formulated the composition taught by Allred and Weser, as discussed above, and combined it with the composition B3 of Allred because Allred desires the combination.
In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I). In the present case, the instantly claimed ranges for fatty substance (at least 30% and at least 35%; instant claims 20/40 and 28/29), Compound of formula (I) (0.001-20%; instant claim 26), and cellulosic associative polymer (0.01-20%; instant claim 27) all overlap with the amounts of the prior art for fatty substance (40%), Compound of formula (I) (0.25%), cellulosic associative polymer (0.1%) and so a prima facie case of obviousness exists for each range
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filling date of the claimed invention, to have formulated composition comprising an addition salt of 2-(methoxymethyl)benzene-1,4-diamine (2-(methoxymethyl)benzene-1,4-diamine hydrochloride), the cationic associative polymer of instant claims 21-22 and 40 (polyquaternium-24), a liquid fatty substance (mineral oil), a solid fatty substance (cetearyl alcohol), at least one oxidation coupler (4-amino-2-hydroxytoluene), a surfactant (polysorbate-21), a sequestrant (EDTA), an alkanolamine alkaline agent (ethanolamine), and a chemical oxidizing agent (hydrogen peroxide), wherein each component is present in the composition in an amount entirely within the instantly claimed ranges of claims 20 and 26-29.
Regarding instant claim 39, Allard discloses “a device with at least two compartments comprising: a) in a first compartment, a composition (A). . . and b) in a second compartment, a composition (B) comprising at least one oxidizing agent chemical, preferably hydrogen peroxide” (emphasis added) [p. 5, first paragraph].
It would have been obvious to one of ordinary skill in the art, before the effective filling date of the claimed invention, to have combined the teaching of a kit with compositions A and B with the composition A taught by Allred an Weser. One would have been motivated to, and had an expectation of success in making this kit because Allred specifically desires it. See MPEP 2143, Exemplary Rationale A.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filling date of the claimed invention, to have formulated a device (kit) with a first compartment comprising the modified composition A3 taught by Allred and Weser (i.e., 2-(methoxymethyl)benzene-1,4-diamine, a cellulosic associative polymer and at least 30% w/w of at least one fatty substance) and a second compartment comprising composition B3 (i.e., chemical oxidizing agent).
2) Claim 31 is rejected under 35 U.S.C. 103 as being unpatentable over Allard et al. (FR 3026006 A1, publication date 03/25/2016; citing English machine translation) in view of Weser et al. (US 2018/0168998 A1, publication date 06/21/2018) as applied to claims 20-22, 24-30, 32-37 and 39-40 above, and further in view of Nicou et al. (WO 2017/108841 A1, publication date 06/29/2017) and Sutton et al. (US 2013/0255004 A1, publication date 10/03/2013).
Allard and Weser, which are taught above, differ from the instant claims insofar as they do not teach insofar as they do not disclose 6-hydroxybenzomorpholine, hydroxyethyl-3,4-methylenedioxyaniline, 2- amino-5-ethylphenol, addition salts thereof, solvates thereof, solvates of their salts thereof, or mixtures of two or more thereof.
Nicou “relates to a composition for dyeing keratin fibres, comprising an oxidation base, a 2-amino-5-ethyl-phenol coupler and at least 20% by weight of fatty substance relative to the total weight of the composition” (emphasis added) [abstract]. The composition disclosed by Nicou “makes it possible to produce particularly intense and sparingly selective colourations, i.e. colourations that are uniform along the length of the fibre. Moreover, the colourations obtained by means of the composition according
to the invention withstand well the various attacking factors to which the hair may be
subjected, such as light, bad weather, washing and perspiration” [p. 2, lines 23-28].
Nicou does not disclose 2-(methoxymethyl)benzene-1,4-diamine as a developer.
Sutton discloses a “[h]air colorant compositions comprising 3-amino-2,6-dimethylphenol and 1,4-phenylenediamine-type developers” [title]. The 1,4-phenylenediamine-type developers include 2-methoxymethyl-1,4-benzenediamine (i.e., 2-(methoxymethyl)benzene-1,4-diamine) [abstract]. Sutton disclose additional couplers which are suitable for the composition include 2-amino-5-ethylphenol [0037].
It would have been obvious to one of ordinary skill in the art, at the time of filling, to have simply substituted the 2-amino-5-ethylphenol coupler of Nicou for the couplers disclosed in Allard. One would have been motivated to make this substitution because Nicou teaches that compositions comprising an oxidation base and at least 20% w/w fatty substance, such as those compositions disclosed in Allard, may have more intense and uniform coloration when they comprise a 2-amino-5-ethyl-phenol coupler. One would have had an expectation of success because Sutton discloses the developer of Allard (i.e., 2-(methoxymethyl)benzene-1,4-diamine) and the 2-amino-5-ethyl-phenol coupler are compatible. The skilled artisan would have been motivated to have substituted the 2-amino-5-ethyl-phenol coupler of Nicou in place of the couplers of Allard as the oxidation coupler with a reasonable expectation of success. The simple substitution of one known element (e.g., 2-amino-5-ethyl-phenol coupler of Nicou) in place of another (e.g., the couplers of Allard) in order to achieve predictable results (oxidative hair dye) is prima facie obvious. See MPEP 2143, Exemplary Rationale B.
Therefore, it would have been obvious to one of ordinary skill in the art, at the time of filling, to have formulated the composition taught by Allred and Weser, and discussed above, such that the oxidation coupler is 2-amino-5-ethylphenol.
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.
1) Claims 20-37 and 39 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 19-38 of copending Application No. 18/253,667 in view of Croda (Croda, Specialty Ingredients for Personal Care, November 2005, p. 1-11 and 58-62).
The claims of ‘667 and the instant application both disclose a composition comprising 2-(methoxymethyl)benzene-1,4-diamine (in amounts from 0.001% to 20% [instant claim 26; claim 26]), at least 30% w/w fatty substance (including liquid and solid [instant claims 24 and 25; claims 21 and 22]) [instant claim 20; claim 19], a coupler chosen from 6-hydroxybenzomorpholine, hydroxyethyl-3,4-methylenedioxyaniline, 2- amino-5-ethylphenol [instant claims 30-31; claim 30], at least one surfactant [instant claim 32; claim 31], at least one sequestrant [instant claim 33; claim 33] and at least one alkaline agent [instant claim 34-35; claim 34]. Wherein the composition is substantially free of an oxidizing agent [instant claim 36; claim 35] or comprises a chemical oxidizer [instant claim 37; claim 36]. The claims of ‘667 also disclose a kit as instantly claimed [instant claim 39; claim 38].
The claims of ‘667 do not specifically disclose the cationic associative polymer described in instant claims 20-23.
Croda discloses Crodacel QM is “[h]ighly substantive to the hair without causing build-up. Impart body, texture and gloss. Improve wet and dry combability, manageability and ease of styling. Reduce fly-away … Usage levels: 0.2 - 2%” [p. 10, row 1].
Crodacel QM falls within formula (Ib) as instantly claimed, as evidenced by the instant specification at page 9, line 16.
It would have been obvious to one of ordinary skill in the art, at the time of filling, to have combined the Crodacel QM of Croda with the composition disclosed by the claims of ‘667 to provide the desirable effects disclosed by Croda. One would have had an expectation of success because Croda discloses the Croda QM for hair care products. Additionally, in combining these elements one would have expected nothing more than predictable results because, when combined, each prior art element would have performed the same function as it had separately. See MPEP 2143, Exemplary Rationale A.
Therefore, it would have been obvious to one of ordinary skill in the art, at the time of filling, to have formulated the composition of the claims of ‘667 to further comprise Crodacel QM within the instantly claimed amounts.
This is a provisional nonstatutory double patenting rejection.
2) Claims 20-37 and 39 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 16, 18-30, and 32-35 of copending Application No. 18/253,820 in view of Croda (Croda, Specialty Ingredients for Personal Care, November 2005, p. 1-11 and 58-62).
The claims of ‘820 and the instant application both disclose a composition comprising 2-(methoxymethyl)benzene-1,4-diamine (in amounts from 0.001% to 20% [instant claim 26; claim 16]), at least one solid and liquid fatty substance [instant claims 20, 24 and 25; claim 19-23], a coupler chosen from 6-hydroxybenzomorpholine, hydroxyethyl-3,4-methylenedioxyaniline, 2- amino-5-ethylphenol [instant claims 30-31; claim 18], at least one surfactant [instant claim 32; claim 16], at least one sequestrant [instant claim 33; claim 25] and at least one alkaline agent [instant claim 34-35; claims 26-27]. Wherein the composition is substantially free of an oxidizing agent [instant claim 36; claim 28] or comprises a chemical oxidizer [instant claim 37; claim 29]. The claims of ‘820 also disclose a kit as instantly claimed [instant claim 39; claim 35].
The claims of ‘820 do not specifically disclose the cationic associative polymer described in instant claims 20-23.
Croda discloses Crodacel QM is “[h]ighly substantive to the hair without causing build-up. Impart body, texture and gloss. Improve wet and dry combability, manageability and ease of styling. Reduce fly-away … Usage levels: 0.2 - 2%” [p. 10, row 1].
Crodacel QM falls within formula (Ib) as instantly claimed, as evidenced by the instant specification at page 9, line 16.
It would have been obvious to one of ordinary skill in the art, at the time of filling, to have combined the Crodacel QM of Croda with the composition disclosed by the claims of ‘820 to provide the desirable effects disclosed by Croda. One would have had an expectation of success because Croda discloses the Croda QM for hair care products. Additionally, in combining these elements one would have expected nothing more than predictable results because, when combined, each prior art element would have performed the same function as it had separately. See MPEP 2143, Exemplary Rationale A.
It would have been obvious to one of ordinary skill in the art, at the time of filling, to have formulated a composition comprising a fatty substance within the instantly claimed amounts through routine optimization. It has been held that it is not inventive to discover the optimum workable ranges by routine experimentation where, as is here, the general conditions of the claim are disclosed in the prior art. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). One of ordinary skill in the art would have been motivated to optimize the composition disclosed by the claims of ‘820 and Croda because of the “normal desire of scientists to improve upon what is already generally known”. Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382. Please refer to MPEP 2144.05.
Therefore, it would have been obvious to one of ordinary skill in the art, at the time of filling, to have formulated the composition of the claims of ‘820 to further comprise Crodacel QM, wherein all the components are within the instantly claimed amounts.
This is a provisional nonstatutory double patenting rejection.
3) Claims 20-37 and 39 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-18 of U.S. Patent No. US 12390408 B2 in view of Croda (Croda, Specialty Ingredients for Personal Care, November 2005, p. 1-11 and 58-62).
The claims of ‘408 and the instant application both disclose a composition comprising 2-(methoxymethyl)benzene-1,4-diamine [instant claim 20; claim 6] (in amounts from 0.001% to 20% [instant claim 26; claim 7]), at least one solid and/or liquid fatty substance [instant claims 20, 24 and 25; claims 11-12], a coupler chosen from 6-hydroxybenzomorpholine and 2- amino-5-ethylphenol [instant claims 30-31; claim 1], at least one surfactant [instant claim 32; claim 13], and at least one alkaline agent [instant claim 34-35; claim 14]. Wherein the composition is substantially free of an oxidizing agent [instant claim 36; claim 15] or comprises a chemical oxidizer [instant claim 37; claim 16]. The claims of ‘408 also disclose a kit as instantly claimed [instant claim 39; claim 18]. The claims of ‘408 disclose the composition comprises N,N-dicarboxymethyl glutamic acid [claim 1], which is a sequestrant according to the instant specification at line 5 on page 34 (i.e., instant claim 33).
The claims of ‘408 do not specifically disclose the cationic associative polymer described in instant claims 20-23.
Croda discloses Crodacel QM is “[h]ighly substantive to the hair without causing build-up. Impart body, texture and gloss. Improve wet and dry combability, manageability and ease of styling. Reduce fly-away … Usage levels: 0.2 - 2%” [p. 10, row 1].
Crodacel QM falls within formula (Ib) as instantly claimed, as evidenced by the instant specification at page 9, line 16.
It would have been obvious to one of ordinary skill in the art, at the time of filling, to have combined the Crodacel QM of Croda with the composition disclosed by the claims of ‘408 to provide the desirable effects disclosed by Croda. One would have had an expectation of success because Croda discloses the Croda QM for hair care products. Additionally, in combining these elements one would have expected nothing more than predictable results because, when combined, each prior art element would have performed the same function as it had separately. See MPEP 2143, Exemplary Rationale A.
It would have been obvious to one of ordinary skill in the art, at the time of filling, to have formulated a composition comprising a fatty substance within the instantly claimed amounts through routine optimization. It has been held that it is not inventive to discover the optimum workable ranges by routine experimentation where, as is here, the general conditions of the claim are disclosed in the prior art. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). One of ordinary skill in the art would have been motivated to optimize the composition disclosed by the claims of ‘408 and Croda because of the “normal desire of scientists to improve upon what is already generally known”. Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382. Please refer to MPEP 2144.05.
Therefore, it would have been obvious to one of ordinary skill in the art, at the time of filling, to have formulated the composition of the claims of ‘408 to further comprise Crodacel QM, wherein all the components are within the instantly claimed amounts.
4) Claims 20-37 and 39 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of US Pat. No. US 12296035 B2 in view of Croda (Croda, Specialty Ingredients for Personal Care, November 2005, p. 1-11 and 58-62).
The claims of ‘035 and the instant application both disclose a composition comprising 2-(methoxymethyl)benzene-1,4-diamine (in amounts from 0.001% to 20% [instant claim 26; claim 6]), at least 30% w/w fatty substance (including liquid and solid [instant claims 24 and 25; claims 2-4]) [instant claim 20; claim 2], a coupler chosen from 6-hydroxybenzomorpholine, hydroxyethyl-3,4-methylenedioxyaniline, 2- amino-5-ethylphenol [instant claims 30-31; claim 1], at least one surfactant [instant claim 32; claim 11], at least one sequestrant [instant claim 33; claim 10] and at least one alkaline agent [instant claim 34-35; claim 15]. Wherein the composition is substantially free of an oxidizing agent [instant claim 36; claim 16] or comprises a chemical oxidizer [instant claim 37; claim 17]. The claims of ‘035 also disclose a kit as instantly claimed [instant claim 39; claim 20].
The claims of ‘035 do not specifically disclose the cationic associative polymer described in instant claims 20-23.
Croda discloses Crodacel QM is “[h]ighly substantive to the hair without causing build-up. Impart body, texture and gloss. Improve wet and dry combability, manageability and ease of styling. Reduce fly-away … Usage levels: 0.2 - 2%” [p. 10, row 1].
Crodacel QM falls within formula (Ib) as instantly claimed, as evidenced by the instant specification at page 9, line 16.
It would have been obvious to one of ordinary skill in the art, at the time of filling, to have combined the Crodacel QM of Croda with the composition disclosed by the claims of ‘035 to provide the desirable effects disclosed by Croda. One would have had an expectation of success because Croda discloses the Croda QM for hair care products. Additionally, in combining these elements one would have expected nothing more than predictable results because, when combined, each prior art element would have performed the same function as it had separately. See MPEP 2143, Exemplary Rationale A.
Therefore, it would have been obvious to one of ordinary skill in the art, at the time of filling, to have formulated the composition of the claims of ‘035 to further comprise Crodacel QM within the instantly claimed amounts.
5) Claims 20-37 and 39 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 19-38 of copending Application No. 18/268,088 in view of Croda (Croda, Specialty Ingredients for Personal Care, November 2005, p. 1-11 and 58-62).
The claims of ‘088 and the instant application both disclose a composition comprising 2-(methoxymethyl)benzene-1,4-diamine [instant claim 20; claim 19] (in amounts from 0.001% to 20% [instant claim 26; claim 20]), at least one solid and/or liquid fatty substance [instant claims 20, 24 and 25; claims 26-29], hydroxyethyl-3,4-methylenedioxyaniline as a coupler [instant claims 30-31; claim 19], at least one surfactant [instant claim 32; claim 30], at least one sequestrant [instant claim 33; claim 33] and at least one alkaline agent [instant claim 34-35; claims 34-35]. The claims of ‘088 also disclose a kit with the instantly claimed composition separated from an oxidizing agent (i.e., instant claim 36), which is later combined with the second component which is an oxidizing agent (i.e., instant claim 37) [instant claim 39; claim 38].
The claims of ‘088 do not specifically disclose the cationic associative polymer described in instant claims 20-23.
Croda discloses Crodacel QM is “[h]ighly substantive to the hair without causing build-up. Impart body, texture and gloss. Improve wet and dry combability, manageability and ease of styling. Reduce fly-away … Usage levels: 0.2 - 2%” [p. 10, row 1].
Crodacel QM falls within formula (Ib) as instantly claimed, as evidenced by the instant specification at page 9, line 16.
It would have been obvious to one of ordinary skill in the art, at the time of filling, to have combined the Crodacel QM of Croda with the composition disclosed by the claims of ‘088 to provide the desirable effects disclosed by Croda. One would have had an expectation of success because Croda discloses the Croda QM for hair care products. Additionally, in combining these elements one would have expected nothing more than predictable results because, when combined, each prior art element would have performed the same function as it had separately. See MPEP 2143, Exemplary Rationale A.
It would have been obvious to one of ordinary skill in the art, at the time of filling, to have formulated a composition comprising a fatty substance within the instantly claimed amounts through routine optimization. It has been held that it is not inventive to discover the optimum workable ranges by routine experimentation where, as is here, the general conditions of the claim are disclosed in the prior art. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). One of ordinary skill in the art would have been motivated to optimize the composition disclosed by the claims of ‘088 and Croda because of the “normal desire of scientists to improve upon what is already generally known”. Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382. Please refer to MPEP 2144.05.
Therefore, it would have been obvious to one of ordinary skill in the art, at the time of filling, to have formulated the composition of the claims of ‘088 to further comprise Croda QM, wherein all the components are within the instantly claimed amounts.
This is a provisional nonstatutory double patenting rejection.
6) Claims 20-37 and 39 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 19-38 of copending Application No. 18/266,729 in view of Croda (Croda, Specialty Ingredients for Personal Care, November 2005, p. 1-11 and 58-62).
The claims of ‘729 and the instant application both disclose a composition comprising 2-(methoxymethyl)benzene-1,4-diamine [instant claim 20; claim 19] (in amounts from 0.001% to 20% [instant claim 26; claim 20]), at least one solid and/or liquid fatty substance [instant claims 20, 24 and 25; claims 26-30], 2-amino-5-ethylphenol as a coupler [instant claims 30-31; claim 19], at least one surfactant [instant claim 32; claim 31], at least one sequestrant [instant claim 33; claim 32] and at least one alkaline agent [instant claim 34-35; claims 33-34]. Wherein the composition is substantially free of an oxidizing agent [instant claim 36; claim 35] or comprises an oxidizing agent [instant claim 37; claim 36]. The claims of ‘729 also disclose a kit [instant claim 39; claim 38].
The claims of ‘729 do not specifically disclose the cationic associative polymer described in instant claims 20-23.
Croda discloses Crodacel QM is “[h]ighly substantive to the hair without causing build-up. Impart body, texture and gloss. Improve wet and dry combability, manageability and ease of styling. Reduce fly-away … Usage levels: 0.2 - 2%” [p. 10, row 1].
Crodacel QM falls within formula (Ib) as instantly claimed, as evidenced by the instant specification at page 9, line 16.
It would have been obvious to one of ordinary skill in the art, at the time of filling, to have combined the Crodacel QM of Croda with the composition disclosed by the claims of ‘729 to provide the desirable effects disclosed by Croda. One would have had an expectation of success because Croda discloses the Croda QM for hair care products. Additionally, in combining these elements one would have expected nothing more than predictable results because, when combined, each prior art element would have performed the same function as it had separately. See MPEP 2143, Exemplary Rationale A.
It would have been obvious to one of ordinary skill in the art, at the time of filling, to have formulated a composition comprising a fatty substance within the instantly claimed amounts through routine optimization. It has been held that it is not inventive to discover the optimum workable ranges by routine experimentation where, as is here, the general conditions of the claim are disclosed in the prior art. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). One of ordinary skill in the art would have been motivated to optimize the composition disclosed by the claims of ‘729 and Croda because of the “normal desire of scientists to improve upon what is already generally known”. Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382. Please refer to MPEP 2144.05.
Therefore, it would have been obvious to one of ordinary skill in the art, at the time of filling, to have formulated the composition of the claims of ‘729 to further comprise Croda QM, wherein all the components are within the instantly claimed amounts.
This is a provisional nonstatutory double patenting rejection.
7) Claims 20-37 and 39 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-21 of copending Application No. 18/257,841 in view of Croda (Croda, Specialty Ingredients for Personal Care, November 2005, p. 1-11 and 58-62) and Sutton et al. (US 20130255004 A1, publication date 10/03/2013).
The claims of ‘841 and the instant application both disclose a composition comprising a para-phenylenediamines oxidation base [instant claim 20; claim 9], couplers such as 6-hydroxybenzomorpholine and hydroxyethyl-3,4- methylenedioxyaniline [instant claims 30-31; claim 1] at least one solid and/or liquid fatty substance [instant claims 20, 24 and 25; claim 11-13], at least one surfactant [instant claim 32; claim 14], and at least one alkaline agent [instant claim 34-35; claims 16]. The claims of ‘841 also describe a multi-component device which separates the dye composition from an oxidizing agent (i.e., composition free of and later comprising an oxidizing agent; instant claim 36 and 37), which reads on a kit [instant claim 39; claim 21]. The claims of ‘841 disclose the composition comprises N,N-dicarboxymethyl glutamic acid [claim 7], which is a sequestrant according to the instant specification at line 5 on page 34 (i.e., instant claim 33).
The claims of ‘841 do not specifically disclose the cationic associative polymer described in instant claims 20-23 and the 2-(methoxymethyl)benzene-1,4-diamine.
Croda discloses Crodacel QM is “[h]ighly substantive to the hair without causing build-up. Impart body, texture and gloss. Improve wet and dry combability, manageability and ease of styling. Reduce fly-away … Usage levels: 0.2 - 2%” [p. 10, row 1].
Crodacel QM falls within formula (Ib) as instantly claimed, as evidenced by the instant specification at page 9, line 16.
It would have been obvious to one of ordinary skill in the art, at the time of filling, to have combined the Crodacel QM of Croda with the composition disclosed by the claims of ‘841 to provide the desirable effects disclosed by Croda. One would have had an expectation of success because Croda discloses the Croda QM for hair care products. Additionally, in combining these elements one would have expected nothing more than predictable results because, when combined, each prior art element would have performed the same function as it had separately. See MPEP 2143, Exemplary Rationale A.
The claims of ‘841 and Croda do not disclose the claimed oxidation base.
Sutton discloses a hair coloring composition comprising a developer such as 2-methoxymethyl-1,4-benzenediamine [abstract] and that suitable couplers include 6-hydroxybenzomorpholine and hydroxyethyl-3,4-methylenedioxyaniline [0037].
Generally, it is prima facie obvious to select a known material based on its suitability for its intended use. See MPEP 2144.07. In the present case it would have been obvious to one of ordinary skill in the art, at the time of filling, to have selected 2-methoxymethyl-1,4-benzenediamine oxidation base desired by the claims of ‘841 because Sutton discloses it a suitable base for the two couplers disclosed by the claims of ‘841.
It also would have been obvious to one of ordinary skill in the art, at the time of filling, to have formulated a composition comprising a fatty substance within the instantly claimed amounts through routine optimization. It has been held that it is not inventive to discover the optimum workable ranges by routine experimentation where, as is here, the general conditions of the claim are disclosed in the prior art. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). One of ordinary skill in the art would have been motivated to optimize the composition disclosed by the claims of ‘841 and Croda because of the “normal desire of scientists to improve upon what is already generally known”. Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382. Please refer to MPEP 2144.05.
Therefore, it would have been obvious to one of ordinary skill in the art, at the time of filling, to have formulated the composition of the claims of ‘841 to further comprise Crodacel QM, 2-methoxymethyl-1,4-benzenediamine, 2-amino-5-ethylphenol and a sequestrant, wherein all the components are within the instantly claimed amounts.
This is a provisional nonstatutory double patenting rejection.
8) Claims 20-37 and 39 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of copending Application No. 18/257,983 in view of Croda (Croda, Specialty Ingredients for Personal Care, November 2005, p. 1-11 and 58-62).
The claims of the ‘983 and the instant application both disclose a composition comprising 2-(methoxymethyl)benzene-1,4-diamine [instant claim 20; claim 8] in amounts from 0.005% to 15% w/w [instant claim 26; claim 9], couplers such as 6-hydroxybenzomorpholine and hydroxyethyl-3,4- methylenedioxyaniline [instant claims 30-31; claim 1] at least one solid and/or liquid fatty substance [instant claims 20, 24 and 25; claim 10-12], at least one surfactant [instant claim 32; claim 1], at least one sequestrant [instant claims 33; claim 14] and at least one alkaline agent [instant claim 34-35; claims 15]. The claims of ‘983 also describe a multi-component device which separates the dye composition from an oxidizing agent (i.e., composition free of and later comprising an oxidizing agent; instant claim 36 and 37), which reads on a kit [instant claim 39; claim 20].
The claims of ‘983 do not specifically disclose the cationic associative polymer described in instant claims 20-23.
Croda discloses Crodacel QM is “[h]ighly substantive to the hair without causing build-up. Impart body, texture and gloss. Improve wet and dry combability, manageability and ease of styling. Reduce fly-away … Usage levels: 0.2 - 2%” [p. 10, row 1].
Crodacel QM falls within formula (Ib) as instantly claimed, as evidenced by the instant specification at page 9, line 16.
It would have been obvious to one of ordinary skill in the art, at the time of filling, to have combined the Crodacel QM of Croda with the composition disclosed by the claims of ‘983 to provide the desirable effects disclosed by Croda. One would have had an expectation of success because Croda discloses the Croda QM for hair care products. Additionally, in combining these elements one would have expected nothing more than predictable results because, when combined, each prior art element would have performed the same function as it had separately. See MPEP 2143, Exemplary Rationale A.
It also would have been obvious to one of ordinary skill in the art, at the time of filling, to have formulated a composition comprising a fatty substance within the instantly claimed amounts through routine optimization. It has been held that it is not inventive to discover the optimum workable ranges by routine experimentation where, as is here, the general conditions of the claim are disclosed in the prior art. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). One of ordinary skill in the art would have been motivated to optimize the composition disclosed by the claims of ‘983 and Croda because of the “normal desire of scientists to improve upon what is already generally known”. Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382. Please refer to MPEP 2144.05.
Therefore, it would have been obvious to one of ordinary skill in the art, at the time of filling, to have formulated the composition of the claims of ‘983 to further comprise Crodacel QM, wherein all the components are within the instantly claimed amounts.
This is a provisional nonstatutory double patenting rejection.
9) Claims 20-37 and 39 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 17-36 of copending Application No. 18/267,927 in view of Croda (Croda, Specialty Ingredients for Personal Care, November 2005, p. 1-11 and 58-62) and Sutton et al. (US 20130255004 A1, publication date 10/03/2013).
The claims of the ‘927 and the instant application both disclose a composition comprising 2-(methoxymethyl)benzene-1,4-diamine [instant claim 20; claim 17-18], at least one coupler [claim 17], at least one solid and/or liquid fatty substance [instant claims 20, 24 and 25; claim 28-31], at least one surfactant [instant claim 32; claim 32-33], and at least one alkaline agent [instant claim 34-35; claims 33]. The claims of ‘927 also describe a kit which separates the dye composition from an oxidizing agent (i.e., composition free of and later comprising an oxidizing agent; instant claim 36 and 37) [instant claim 39; claim 36]. The claims of ‘927 disclose the composition comprises N,N-dicarboxymethyl glutamic acid [claim 25], which is a sequestrant according to the instant specification at line 5 on page 34 (i.e., instant claim 33).
The claims of ‘927 do not specifically disclose the cationic associative polymer described in instant claims 20-23, 6-hydroxybenzomorpholine, hydroxyethyl-3,4-methylenedioxyaniline, and 2- amino-5-ethylphenol.
Croda discloses Crodacel QM is “[h]ighly substantive to the hair without causing build-up. Impart body, texture and gloss. Improve wet and dry combability, manageability and ease of styling. Reduce fly-away … Usage levels: 0.2 - 2%” [p. 10, row 1].
Crodacel QM falls within formula (Ib) as instantly claimed, as evidenced by the instant specification at page 9, line 16.
It would have been obvious to one of ordinary skill in the art, at the time of filling, to have combined the Crodacel QM of Croda with the composition disclosed by the claims of ‘927 to provide the desirable effects disclosed by Croda. One would have had an expectation of success because Croda discloses the Croda QM for hair care products. Additionally, in combining these elements one would have expected nothing more than predictable results because, when combined, each prior art element would have performed the same function as it had separately. See MPEP 2143, Exemplary Rationale A.
The claims of ‘927 and Croda do not disclose couplers such as 6-hydroxybenzomorpholine, hydroxyethyl-3,4-methylenedioxyaniline, and 2-amino-5-ethylphenol.
Sutton discloses a hair coloring composition comprising a developer such as 2-methoxymethyl-1,4-benzenediamine [abstract] and that suitable couplers include 6-hydroxybenzomorpholine and hydroxyethyl-3,4-methylenedioxyaniline [0037].
Generally, it is prima facie obvious to select a known material based on its suitability for its intended use. See MPEP 2144.07. In the present case it would have been obvious to one of ordinary skill in the art, at the time of filling, to have 6-hydroxybenzomorpholine and/or hydroxyethyl-3,4-methylenedioxyaniline as the coupler desired by the claims of ‘927 because Sutton discloses them as suitable couplers for the oxidation base disclosed by the claims of ‘927.
It also would have been obvious to one of ordinary skill in the art, at the time of filling, to have formulated a composition comprising a fatty substance within the instantly claimed amounts through routine optimization. It has been held that it is not inventive to discover the optimum workable ranges by routine experimentation where, as is here, the general conditions of the claim are disclosed in the prior art. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). One of ordinary skill in the art would have been motivated to optimize the composition disclosed by the claims of ‘927 and Croda because of the “normal desire of scientists to improve upon what is already generally known”. Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382. Please refer to MPEP 2144.05.
Therefore, it would have been obvious to one of ordinary skill in the art, at the time of filling, to have formulated the composition of the claims of ‘927 to further comprise Crodacel QM and 6-hydroxybenzomorpholine and/or hydroxyethyl-3,4-methylenedioxyaniline, wherein all the components are within the instantly claimed amounts.
This is a provisional nonstatutory double patenting rejection.
10) Claims 20-37 and 39 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-19 of US Pat. No. US 12290586 B2 in view of Croda (Croda, Specialty Ingredients for Personal Care, November 2005, p. 1-11 and 58-62) and Sutton et al. (US 20130255004 A1, publication date 10/03/2013).
The claims of ‘586 and the instant application both disclose a composition comprising a para-phenylenediamines oxidation base [instant claim 20; claim 6], couplers such as 6-hydroxybenzomorpholine and hydroxyethyl-3,4- methylenedioxyaniline [instant claims 30-31; claim 1] at least one solid and/or liquid fatty substance [instant claims 20, 24 and 25; claim 9-11], at least one surfactant [instant claim 32; claim 12], at least one sequestrant [instant claim 33; claim 13] and at least one alkaline agent [instant claim 34-35; claims 14]. The claims of ‘586 also describe a multi-component device which separates the dye composition from an oxidizing agent (i.e., composition free of and later comprising an oxidizing agent; instant claim 36 and 37), which reads on a kit [instant claim 39; claim 19].
The claims of ‘586 do not specifically disclose the cationic associative polymer described in instant claims 20-23 and the 2-(methoxymethyl)benzene-1,4-diamine.
Croda discloses Crodacel QM is “[h]ighly substantive to the hair without causing build-up. Impart body, texture and gloss. Improve wet and dry combability, manageability and ease of styling. Reduce fly-away … Usage levels: 0.2 - 2%” [p. 10, row 1].
Crodacel QM falls within formula (Ib) as instantly claimed, as evidenced by the instant specification at page 9, line 16.
It would have been obvious to one of ordinary skill in the art, at the time of filling, to have combined the Crodacel QM of Croda with the composition disclosed by the claims of ‘586 to provide the desirable effects disclosed by Croda. One would have had an expectation of success because Croda discloses the Croda QM for hair care products. Additionally, in combining these elements one would have expected nothing more than predictable results because, when combined, each prior art element would have performed the same function as it had separately. See MPEP 2143, Exemplary Rationale A.
The claims of ‘586 and Croda do not disclose the claimed oxidation base.
Sutton discloses a hair coloring composition comprising a developer such as 2-methoxymethyl-1,4-benzenediamine [abstract] and that suitable couplers include 6-hydroxybenzomorpholine and hydroxyethyl-3,4-methylenedioxyaniline [0037].
Generally, it is prima facie obvious to select a known material based on its suitability for its intended use. See MPEP 2144.07. In the present case it would have been obvious to one of ordinary skill in the art, at the time of filling, to have selected 2-methoxymethyl-1,4-benzenediamine as the oxidation base desired by the claims of ‘586 because Sutton discloses it a suitable base for the two couplers disclosed by the claims of ‘968.
It also would have been obvious to one of ordinary skill in the art, at the time of filling, to have formulated a composition comprising a fatty substance within the instantly claimed amounts through routine optimization. It has been held that it is not inventive to discover the optimum workable ranges by routine experimentation where, as is here, the general conditions of the claim are disclosed in the prior art. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). One of ordinary skill in the art would have been motivated to optimize the composition disclosed by the claims of ‘586 and Croda because of the “normal desire of scientists to improve upon what is already generally known”. Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382. Please refer to MPEP 2144.05.
Therefore, it would have been obvious to one of ordinary skill in the art, at the time of filling, to have formulated the composition of the claims of ‘586 to further comprise Crodacel QM, and 2-methoxymethyl-1,4-benzenediamine, wherein all the components are within the instantly claimed amounts.
Response to Arguments
1) On pages 14 of their Remarks, Applicant argues that the instantly claimed compositions would not have been obvious over the prior art because the rejection relies on Allard's composition A3 as the base composition, which contains polyquaternium-67 at 0.2% as its cellulosic associative polymer.
This argument is moot in view of the new rejections necessitated by amendment.
2) On page 14 of their Remarks, Applicant argues that a skilled person would not have been motivated to combine and modify the references in such a manner as to arrive at the composition set forth in claim 31 because polyquaternium-67 is excluded from the composition.
This argument is moot in view of the new rejections necessitated by amendment.
3) On page 15 of their Remarks, Applicant argues that the Nicou and Sutton do not cure the deficiencies of Allred.
This argument is moot in view of the new rejections necessitated by amendment.
4) The claims of the copending application and the claims of the conflicting patents discussed above continue to read on the instant claims.
Conclusion
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 COLMAN WELLES whose telephone number is (571)272-3843. The examiner can normally be reached Monday - Friday, 8:30am - 5:00pm ET.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sahana Kaup can be reached at (571)272-6897. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/C.T.W./Examiner, Art Unit 1612
/WALTER E WEBB/Primary Examiner, Art Unit 1612
Prosecution Insights