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 . Claims included in prosecution are claims 30-49.
Previous Rejections
Applicants' arguments in the Request for Continued Examination, filed February 10, 2026, have been fully considered. Rejections and/or objections not reiterated from previous office actions are hereby withdrawn. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application.
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim Rejections - 35 USC § 103 (Maintained)
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 30-49 are rejected under 35 U.S.C. 103 as being unpatentable over Ceballos et al. (US 2019/0365619, Dec. 5, 2019) (hereinafter Ceballos) in view of Rughani et al. (US 2018/0280269, Oct. 4, 2018) (hereinafter Rughani), as evidenced by Adeline Chemicals (Sodium Cocoamphoacetate) (hereinafter Adeline Chemicals).
Ceballos teaches an anti-dandruff cleansing composition comprising: (a) salicylic acid; (b) a surfactant system comprising: (i) one or more non-sulfate anionic surfactants; (ii) one or more amphoteric surfactants; (iii) at least 10 wt. % of a plurality of nonionic surfactants comprising: (iii-a) one or more alkyl polyglucosides; and (iii-b) one or more amide surfactants; and (c) water (Abstract). The composition is particularly useful in methods for treating dandruff, for cleansing hair, and for providing a variety of other cosmetic benefits to the hair (Abstract). The composition includes about 15 to about 45 wt. % of the surfactant system (¶ [0007 & 0009]). Said surfactant system comprises: about 1 to about 15 wt. % of the one or more non-sulfate anionic surfactants; about 1 to about 15 wt.% of the one or more amphoteric surfactants; and at least 10 wt. % of the plurality of nonionic surfactants comprising about 1 to about 15 wt.% of the one or more alkyl polyglucosides (¶ [0009-0013]). Suitable non-sulfate anionic surfactants include alkyl sulfosuccinates (i.e. claimed component (b)(iii)), acyl isethionates (i.e. claimed component (b)(ii)), alkoxylated monoacids (i.e. claimed component (b)(iii)), acyl amino acids such as acyl taurates (i.e. claimed component (b)(i)), salts thereof, and a mixture thereof (i.e., claimed anionic surfactant system components) (¶ [0017]). The anti-dandruff cleansing compositions may also include one or more conditioning agents and thickening agents (¶ [0022]). Suitable conditioning agents include cationic polymers and silicones (¶ [0022]). The total amount of conditioning agents in the anti-dandruff cleansing compositions is typically from about 0.1 to about 10 wt.% (¶ [0142]). The composition may also be free or essentially free of sulfate-based surfactants (¶ [0023]).
Ceballos differs from the instant claim insofar as not disclosing wherein the composition comprises sodium chloride and comprises sodium cocoamphoacetate.
However, Rughani teaches of methods of treating hair which include cleansing hair with a shampoo (¶ [0033]). The composition may include one or more thickening agents including salts, such as sodium chloride (¶ [0152]). The thickening agents may be included in an amount from 0.1 to about 15 wt. % (¶ [0154]). The composition may also include amphoteric surfactants with the formula:
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wherein R10 is an alkyl group having 8-18 carbon atoms (¶ [0211]-[0213]). Suitable amphoteric surfactants include sodium cocoamphoacetate (¶ [0252]).
Generally, it is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use. See MPEP 2144.07. Ceballos discloses wherein the composition may include thickening agents. Accordingly, it would have been obvious to one of ordinary skill in the art to have incorporated about 0.1 to about 15 wt. % of sodium chloride into the composition of Ceballos since it is a known and effective thickening agent and amount thereof for a hair composition as taught by Rughani.
Ceballos discloses wherein the composition comprises one or more amphoteric surfactants. Accordingly, it would have been obvious to one of ordinary skill in the art to have incorporated sodium cocamphoacetate into the composition of Ceballos since it is a known and effective amphoteric surfactant for a hair composition as taught by Rughani.
Regarding claims 30, 46, and 49, reciting the amount of amphoteric surfactant, acyl taurate, acyl isethionate, alkoxylated monoacid, and/or alkyl polyglucosides, 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(A). As discussed above, Ceballos discloses about 15 to about 45% of a surfactant system comprising about 1% to about 15% of one or more non-sulfate anionic surfactants such as acyl taurates, acyl isethionates, and alkoxylated monoacids; and about 1 to about 15 % one or more amphoteric surfactants. Thus, the composition comprises about 0.15 to about 6.75% acyl taurates, acyl isethionates, and alkoxylated monoacids, and 0.15 to about 6.75% amphoteric surfactant. Furthermore, Ceballos discloses that at least 10 wt. % of the plurality of nonionic surfactants comprise about 1 to about 15 wt.% of the one or more alkyl polyglucosides. Thus, the claimed amounts would have been obvious since the claimed ranges overlaps with the ranges disclosed in the prior art.
In regards to claims 30 and 31 reciting wherein the weight ratio of the anionic surfactant system to sodium chloride ranges from about 8:1 to about 12:1 and about 8:1 to about 10:1, respectively, 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(A). As discussed above, Ceballos discloses about 15 to about 45% of a surfactant system comprising about 1% to about 15% of one or more non-sulfate anionic surfactants such as acyl taurates, acyl isethionates, and alkoxylated monoacids. Thus, the amount of non-sulfate anionic surfactants (i.e. claimed (b) anionic surfactant system) in the composition may be from about 0.15% to about 6.75%. Rughani discloses about 0.1 to about 15 wt. % of sodium chloride. The claimed weight ratio would have been obvious from one selecting amounts of one or more non-sulfate anionic surfactants and sodium chloride from these ranges and arriving at a weight ratio that overlaps with the claimed range.
Regarding claims 32, 33, and 46, as discussed above, the anti-dandruff cleansing compositions may include one or more conditioning agents such as cationic polymers and silicones (¶ [0022]). The total amount of conditioning agents in the anti-dandruff cleansing compositions is typically from about 0.1 to about 10 wt.% (¶ [0142]).
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(A). As such, the claimed amounts of cationic polymers (e.g. about 0.01% to about 10%) and silicone compounds (e.g. less than about 2%) would have been obvious since the amounts selected for each from prior art range (e.g. about 0.1 to about 10%) overlaps with the claimed range.
In regards to the formulas in claim 34, Rughani discloses the following structure wherein R10 is an alkyl group having 8-18 carbon atoms (¶ [0211]).
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As evidenced by Adeline Chemicals, sodium cocoamphoacetate has a structure substantially the same as the structure disclosed in of Rughani and includes a cationic counterion (1st page, figure 1).
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Regarding claims 35, 36 and 47, Ceballos further discloses wherein suitable amphoteric surfactants include betaines (¶ [0092]). Particularly useful betaines include coco betaine, cocamidopropyl betaine, lauryl betaine (i.e. C12 alkylbetaine), laurylhydroxy sulfobetaine, lauryldimethyl betaine, behenyl betaine, capryl/capramidopropyl betaine, stearyl betaine, and mixtures thereof.
Regarding claim 37, Ceballos further discloses wherein suitable acyl taurates include those of formula (IX), wherein R is H or an alkyl chain having 1-24 carbon atoms, said chain being saturated or unsaturated, linear or branched (¶ [0080-0081]).
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Regarding claim 38, Ceballos further discloses that examples of acyl taurates include sodium methyl cocoyl taurate (¶ [0081]).
Regarding claim 39, Ceballos further discloses that suitable alkoxylated monoacids include compounds corresponding to formula (VII):
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wherein: R is a hydrocarbon radical containing from about 6 to about 40 carbon atoms; u, v and w, independently of one another, represent numbers of from 0 to 60; x, y and z, independently of one another, represent numbers of from 0 to 13; R' represents hydrogen or alkyl, and the sum of x+y+z>0 (¶ [0065-0071]).
Regarding claim 40, Ceballos further discloses that examples of alkoxylated monoacids include coceth-7 carboxylic acid, laureth-4 carboxylic acid, laureth-5 carboxylic acid, laureth-6 carboxylic acid, and mixtures thereof (¶ [0074]).
Regarding claim 41, Ceballos further discloses that suitable acyl isethionates include those of the formulas (V) and (VI):
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wherein R is H or an alkyl chain having 1-24 carbon atoms, said chain being saturated or unsaturated, linear or branched (¶ [0048-0049]).
Regarding claim 42, Ceballos further discloses that examples of acyl isethionates include sodium cocoyl isethionate, sodium lauroyl methyl isethionate, and sodium cocoyl methyl isethionate (i.e., claimed acyl isethionates) (¶ [0049]).
Regarding claim 43, Ceballos further discloses that suitable alkyl polyglucosides include those having the formula (XII):
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wherein R1 is an alkyl group having 8-18 carbon atoms; R2 is an ethylene or propylene group; Z is a saccharide group with 5 to 6 carbon atoms; n is an integer from 0 to 10; and x is an integer from 1 to 5 (¶ [0112-0117]).
Regarding claim 44, Ceballos further discloses that examples of alkyl poly glucosides include lauryl glucoside, decyl glucoside and, caprylyl/capryl glucoside (¶ [0118]).
Regarding claims 45 and 48, Ceballos further discloses that the anti-dandruff cleansing compositions do not require silicones and thus, may be free or essentially free of silicones (¶ [0023]).
In regards to claim 46 reciting wherein the weight ratio of the anionic surfactant system to sodium chloride ranges from about 8:1 to about 12:1, 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(A). As discussed above, Ceballos discloses about 15 to about 45% of a surfactant system comprising about 1% to about 15% of one or more non-sulfate anionic surfactants such as acyl taurates, acyl isethionates, and alkoxylated monoacids. Thus, the amount of non-sulfate anionic surfactants (i.e. claimed (b) anionic surfactant system) in the composition may be from about 0.15% to about 6.75%. Rughani discloses about 0.1 to about 15 wt. % of sodium chloride. The claimed weight ratio would have been obvious from one selecting amounts of one or more non-sulfate anionic surfactants and sodium chloride from these ranges and arriving at a weight ratio that overlaps with the claimed range.
Regarding claim 49, Ceballos also discloses methods treating dandruff, and for cleansing and conditioning hair that typically include applying an effective amount of the anti -dandruff cleansing composition to the hair, allowing it to remain on the hair for a period of time, and subsequently rinsing it from the hair (¶ [0277]).
In regards to claim 49 reciting wherein the weight ratio of the anionic surfactant system to sodium chloride ranges from about 8:1 to about 12:1, 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(A). As discussed above, Ceballos discloses about 15 to about 45% of a surfactant system comprising about 1% to about 15% of one or more non-sulfate anionic surfactants such as acyl taurates, acyl isethionates, and alkoxylated monoacids. Thus, the amount of non-sulfate anionic surfactants (i.e. claimed (b) anionic surfactant system) in the composition may be from about 0.15% to about 6.75%. Rughani discloses about 0.1 to about 15 wt. % of sodium chloride. The claimed weight ratio would have been obvious from one selecting amounts of one or more non-sulfate anionic surfactants and sodium chloride from these ranges and arriving at a weight ratio that overlaps with the claimed range.
Therefore, the combined teachings of Ceballos and Rughani, as evidenced by Adeline Chemicals, render obvious claims 30-49.
Response to Arguments
Regarding allegations of unexpected results recited in the Declaration submitted Feb. 10, 2026, please refer to the Response to Declaration below.
Response to Declaration by Jianxin Feng
Regarding the data presented in the Declaration submitted Feb. 10, 2026, an affidavit or declaration must compare the claimed subject matter with the closest prior art to be effective to rebut a prima facie case of obviousness. See MPEP § 716.02(e).
Applicant does not appear to have compared their compositions to the closest prior art. Instead, Applicant compares their inventive compositions to a “commercially available shampoo that contains sulfate-based surfactants (C1)” and “a comparative composition having a sulfate-based surfactant system (C2)”. The Examiner points to the fact that Ceballos is directed to compositions which are free or essentially free of sulfate-based surfactants (¶ [0023]). Furthermore, Ceballos’ compositions exhibit good cleansing ability, lather, foaming and foam stability (¶ [0024]). Absent a direct comparison with a comparative formulation of the prior art, it is unclear if the alleged improvement is indeed a surprising and unexpected change or if these results fall within the range of expected outcomes in the art, and a meaningful assessment cannot be made. In other words, if an inventive composition is compared to a distant composition, the alleged improvements or advantages may appear disproportionately more significant than they actually are. As such, it is critical to compare an inventive composition with the closest prior art. Applicant’s comparisons with a “commercially available shampoo that contains sulfate-based surfactants (C1)” and “a comparative composition having a sulfate-based surfactant system (C2)” do not satisfy this requirement.
Furthermore, assuming, purely arguendo, that Applicant has compared the claimed subject matter with the closest prior art, Applicant has the burden of explaining the data in any declaration they proffer as evidence of non-obviousness. MPEP § 716.02(b)(II).
Applicant has not adequately explained the results. For instance, the results provided in Example 2 do not appear to contain any data with which the degree of ease/quickness in generating foam, good foam quality, and abundance may be determined. For example, with regards to the ease/quickness in generating foam, no data was included to show the times it took for compositions 1A-1C to generate foam in comparison to comparative product C1. No quantitative data from testing “foam quality” was provided to support Applicant’s assertion of unexpected results. Also, no data concerning the height of foaming, for example, was included to support foam “abundance” of the examples were superior to that of the comparative example. Furthermore, no amounts were included for the ingredients in the comparative product C1 recited. For instance, compositions 1A-1C may have included higher amounts of different surfactants, which significantly aid in foaming, in comparison to the amount of surfactants in the comparative product C1. One of ordinary skill in the art would reasonably conclude that a higher amount of surfactant would more than likely affect the ease/quickness in generating foam, good foam quality, and abundance. Therefore, since the amount of surfactants and other components in the comparative product is not known and was not explained by Applicant, one of ordinary skill in the art would not be able to properly ascertain how the comparative composition actually compares to the examples of the instant specification.
As such, the Examiner finds that the Declaration is insufficient to overcome the rejection of record and the rejection is maintained.
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 30-49 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 30-49 of copending Application No. 18/091,009 (reference application).
Although the claims at issue are not identical, they are not patentably distinct from each other because they both recite compositions for treating keratin materials comprising:(a) at least one amphoteric surfactant; (b) an anionic surfactant system comprising: i. at least one acyl taurate; ii. at least one acyl isethionate; and iii. at least one additional anionic surfactant chosen from alkoxylated monoacids, alkyl sulfosuccinates, alkyl ether sulfosuccinates, or mixtures thereof; (c) optionally at least one cationic compound; and (d) sodium chloride. The difference between the instant claims and the copending claims lies in that the copending claims recite different ranges for the weight ratio between the anionic surfactant system and the sodium chloride. However, the two inventions are not patentably distinct because it would have been obvious to have used the anionic surfactant system and sodium chloride ratio ranges recited in the copending claims since they overlap with those recited in the instant claims.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
2. Claims 30-49 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-2, 4, and 6-18 of copending Application No. 17/008,135 (reference application).
Although the claims at issue are not identical, they are not patentably distinct from each other because they both recite compositions for treating keratin materials comprising at least one amphoteric surfactant; at least one nonionic surfactant; and at least one anionic surfactant. The difference between the instant claims and the copending claims lies in that the copending claims do not recite wherein the composition comprises sodium chloride, as instantly claimed. Accordingly, the invention of the instant claims is a species of the genus invention of copending Application No. 17/008,135. Thus, the two are not patentably distinct.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Response to Arguments
Regarding the rejection of claims 30-49 on the grounds of non-statutory double patenting, Applicants‘ arguments and the amendment have been fully considered and deemed unpersuasive for the reasons that follow. Applicants have not submitted arguments or documentation (i.e. terminal disclaimer) in response to the double patenting rejection. Applicant requested that the double patenting rejection(s) recited above be held in abeyance until otherwise allowable subject matter is identified. Therefore, the previous rejection of non- statutory double patenting is maintained.
Conclusion
Claims 30-49 are rejected.
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Abdulrahman Abbas whose telephone number is (571)270-0878. The examiner can normally be reached M-F: 8:30 - 5:30.
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/A.A./Examiner, Art Unit 1612
/LEZAH ROBERTS/Primary Examiner, Art Unit 1612
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