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 .
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.
Claim Status
Applicant’s amendment of 10/31/2025 is acknowledged. Claims 1, 10, and 12 are amended; claims 6, 11, and 14 remain cancelled; and claims 16-21 are new. Claims 1-5, 7-10, 12-13, 15-21 are currently pending and are examined on the merits herein.
Priority
The instant application claims foreign priority to DE102022103160.8 filed on 02/10/2022 as reflected in the filing receipt dated on 04/27/2023. Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Withdrawn Objections and Rejections
Applicant’s amendments to the claims have overcome/rendered moot the previous 103 rejections. Thus, the rejections are hereby withdrawn. Applicant’s amendment and introduction of new claims have prompted the new/revised grounds of rejection presented herein.
Claim Rejections - 35 USC § 112(b)
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 1-5, 7-10, 12-13, and 15 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claims 1, 10, and 12 recite the limitation “wherein an ammonium ion of the ammonium salt is…or a tri-alkylated ammonium ion” in lines 3-5. By using the article “an” to define the subsequent ammonium ion, it is unclear whether all ammonium ions comprising the ammonium salt must be “NH4+…or a tri-alkylated ion”, or whether only one or some ammonium ions comprising the ammonium salt must be “NH4+…or a tri-alkylated ion”. Therefore, the metes and bounds of the claimed invention are indefinite.
Claims 2-5, 7-10, 12-13, and 15 are rejected by virtue of their dependency on claim 1, as they do not resolve the ambiguity in question.
Claims 18 and 19 are rejected by virtue of their dependency on claim 10, as they do not resolve the ambiguity in question.
Claims 13, 15, and 20-21 are rejected by virtue of their dependency on claim 12, as they do not resolve the ambiguity in question.
Response to Arguments
Applicant’s Remarks filed 10/31/2025 are acknowledged. Applicant states that the present amendments to the claims provide clarity. However, claim 1 still recites the limitation “wherein an ammonium ion of the ammonium salt is…or a tri-alkylated ammonium ion”. It remains unclear whether only one, some, or all ammonium ions of the ammonium salt must be “NH4+…or a tri-alkylated ion”, and claims 10 and 12 now recite this limitation. Therefore, the 112(b) rejections of record are maintained. If Applicant intends for all ammonium ions in the claimed ammonium salt to be “NH4+…or a tri-alkylated ion” and not, for example, a quaternary ammonium ion, the Examiner recommends amending the claim to recite “wherein the ammonium ion of the ammonium salt is…or a tri-alkylated ammonium ion”.
Claim Interpretation
The Examiner is interpreting the limitation “a salt of a mono-C8-C18-alkyl sulfate and an ammonium salt” to mean that a single compound comprising both salts, e.g. an ammonium mono-C8-C18-alkyl sulfate, reads on both claimed features.
In light of the open claim language “comprising”, the limitation “a salt of a mono-C8-C18-alkyl sulfate” is interpreted as meaning one or more salts of a mono-C8-C18-alkyl sulfate as is consistent with Applicant’s instant specification, which states that “the salt of a mono-C8-C18-alkyl sulfate can also be a mixture of different salts of one or more different alkyl sulfates” (Page 3, Paragraph 1).
Claim Rejections - 35 USC § 102/103
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-3, 5, 8-10, 12, and 15 are rejected under 35 U.S.C. 102(a)(2) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over Pinay et al. (US20240009099A1; published: 01/11/2024; effectively filed: 12/03/2020; PTO-892).
Pinay teaches an anhydrous solid composition comprising one or more anionic surfactants, one or more amphoteric or zwitterionic surfactants, and one or more C8-C32 fatty acid salts (Abstract and Claims). Preferentially, the composition is in the form of a powder (Paragraph 0037).
In an exemplary embodiment, Composition A comprises, by weight: 42.1% sodium lauryl sulfate; 20.8% sodium coco sulfate; 16.2% cocamidopropyl betaine; 3.3% hydroxypropyl guar hydroxypropyltrimonium chloride; 2.5% PPG-5-ceteth-20; 3.0% magnesium stearate; 5.9% preservatives; 2.9% sodium chloride; and 3.3% fragrance (Paragraph 0362).
Regarding the salt of a mono-C8-C18-alkyl sulfate recited in claim 1: Both sodium lauryl sulfate and sodium coco sulfate meet the claim limitation as evidenced by their chemical structures and Applicant’s instant specification (Page 1, Paragraph 6).
Regarding the ammonium salt recited in claim 1: Pinay further teaches that the sulfate anionic surfactants are preferably in the form of an alkali metal or alkaline earth metal, ammonium, or aminoalcohol salts (Paragraph 0106). Because Pinay discloses a sufficiently limited list of suitable salts, one of ordinary skill in the art before the effective filing date of the claimed invention could at once envisage an embodiment wherein ammonium coco sulfate is used rather than sodium coco sulfate. Note: MPEP 2131.02(III). The amount of ammonium coco sulfate lies within and thus reads on the instantly claimed range of ammonium salt.
In the interest of compact prosecution, the Examiner notes that while sodium lauryl sulfate is also present in the composition, alternatively, ammonium coco sulfate alone is sufficient to read on both the instantly claimed salt of a mono-C8-C18-alkyl sulfate and instantly claimed the ammonium salt.
In the instance that Applicant demonstrates that the claimed ammonium salt not anticipated, alternatively, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to substitute sodium coco sulfate with ammonium coco sulfate because Pinay explicitly teaches both alkali metals and ammonium salts as preferred forms of the sulfate anionic surfactant.
Regarding the limitation “wherein, upon mixing with water…produces a clear and stable shower gel or shampoo” recited in claim 1: The Examiner notes that the instant claim is drawn to a powder or granular material, not a method of making a shower gel or shampoo, nor a shower gel or shampoo product. Thus, the “wherein” clause is an intended use of the claimed composition. A recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. Because Pinay teaches a composition having the same components in the same concentrations as instantly claimed, the composition, upon mixing with water, would necessarily produce a shampoo possessing the same properties as instantly claimed.
It is further supported by the teachings of Pinay that the composition would necessarily be clear and stable for at least two weeks. For example, Pinay explicitly teaches that compositions of the invention, once reformulated with water, advantageously result in transparent compositions such as shampoos (Paragraphs 0015 and 0022). For example, when Composition A is mixed with water, the aqueous composition obtained, MA, is transparent and exhibits a transmittance of 97% (Paragraphs 0364-0367). Pinay further recognizes that transparency of the aqueous composition, which Applicant directly relates to stability (see Instant Specification, Page 2, “stable…i.e., surfactant does not crystallize out within a few weeks”), is particularly attractive and desired by users (Paragraphs 0349). Accordingly, Pinay teaches that its aqueous compositions have a transmittance of greater than or equal to 80% at 25°C and can be used for several weeks after being prepared (Paragraphs 0015 and 0349-0353). The term “several weeks” necessarily means more weeks than one, which lies within Applicant’s claimed range of at least two weeks. Together, Pinay’s teachings clearly suggest that its powder compositions, when mixed with water, produce shampoos that are clear and stable, and would remain stable for at least two weeks.
In the instance that Applicant demonstrates that the properties are not anticipated, alternatively, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to manipulate the relative concentrations of ingredients within the powder composition according to the teachings of Pinay to achieve a composition that is, upon mixing with water, both clear and stable for at least two weeks because Pinay clearly teaches that these properties are seen as desirable by the user, and explicitly teaches that a more transparent or translucent composition can be achieved when left to rest for a longer time after mixing (Paragraphs 0343-0345).
Regarding claims 2 and 3: Both sodium lauryl sulfate and ammonium coco sulfate meet the claim.
Regarding claim 4: The combined amount of sodium lauryl sulfate and ammonium coco sulfate is 62.9% by weight of the composition, which lies within and thus reads on the instantly claimed range.
Regarding claim 8: The combined amount of cosurfactants in the composition (e.g., cocamidopropyl betaine and PPG-5-ceteth-20) is 18.7% by weight of the composition, which is less than half of the combined amount of sodium lauryl sulfate and ammonium coco sulfate and thus meets the claim.
Regarding claim 9: The composition, which is a solid, does not contain a further liquid cosurfactant and thus meets the claim.
Regarding claim 10: As discussed above, Pinay explicitly teaches that the powder composition, which comprises all instantly claimed components in the claimed amounts, is mixed with water (Paragraphs 0015 and 0364-0365) and therefore reads on the instantly claimed active method step. Regarding the limitation “to produce a clear and stable shower gel or shampoo…remaining stable for at least two weeks”, the teachings of Pinay anticipate, or alternatively, render obvious the limitation for the same reasons as discussed in relation to instant claim 1 above.
Regarding claim 12: As discussed above, Pinay explicitly teaches that the powder composition, upon mixing with water, produces a shampoo comprising all instantly claimed components in the claimed amounts. Regarding the limitation “wherein the powder or granular material is dissolved in water to produce…”: The Examiner notes that the limitation is a product-by-process limitation, which does not require that the product is made the same process, despite the fact that Pinay indeed teaches the same process (Paragraphs 0340-0343). Because the prior art teaches a shampoo having the same components in the same amounts as instantly claimed, the teachings of Pinay anticipate, or alternatively, render obvious the claimed properties for the same reasons as discussed in relation to instant claim 1 above.
Regarding claim 15: When the powder composition is mixed with water, the relative amounts of surfactants in the composition would not change. Therefore, the combined amount of cosurfactants in the resulting shampoo remains less than half of the combined amount of sodium lauryl sulfate and ammonium coco sulfate and thus meets the claim.
Regarding claims 16 and 17: The Examiner again notes that the parent claim is drawn to a powder or granular material, not a shower gel or shampoo product. Because Pinay teaches a composition having the same components in the same concentrations as instantly claimed, the composition, upon mixing with water, would necessarily produce a shampoo possessing the same properties as instantly claimed.
In further support, while Pinay is silent as to the turbidity of the resulting shampoo, the reference expressly teaches that the % transmittance of its shampoo compositions is 80% or greater at 25°C (Paragraph 0353). Thus, an ordinarily skilled artisan would reasonably expect that a composition having a high % transmittance at 25°C, which lies within and thus reads on the range recited in instant claim 17, would necessarily have a low turbidity at the same temperature, which is an indicator of product stability at said temperature.
In the instance that Applicant demonstrates that the properties are not anticipated, alternatively, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to manipulate the relative concentrations of ingredients within the shampoo according to the teachings of Pinay in order to achieve a transparent composition with sufficiently low turbidity that is stable at 25°C, as clearly desired by Pinay.
Regarding instant claims 18 and 19: The teachings of Pinay anticipate, or alternatively, render obvious the limitations for the same reasons as discussed in relation to instant claims 16 and 17, respectively, above.
Regarding instant claims 20 and 21: The teachings of Pinay anticipate, or alternatively, render obvious the limitations for the same reasons as discussed in relation to instant claims 16 and 17, respectively, above.
Claim Rejections - 35 USC § 103
Claims 1-5, 8-10, 12, and 15-21 are rejected under 35 U.S.C. 103 as being unpatentable over Pinay et al. (US20240009099A1; published: 01/11/2024; effectively filed: 12/03/2020; PTO-892 of instant action), as applied to claims 1-3, 5, 8-10, 12, and 15-21 above, and further in view of Science Toys (Science Toys, webpage <http://sci-toys.com>, archived: 11/05/2003; PTO-892 of instant action).
Pinay teaches the invention(s) of instant claims 1-3, 5, 8-10, 12, and 15-21 as discussed in detail above and further incorporated herein.
However, Pinay does not expressly teach the limitation wherein the ammonium salt is an ammonium halide as recited in instant claim 4.
Science Toys teaches that sodium chloride is used in shampoos to thicken the mixture if the surfactants are sodium-based sulfates, but if the surfactants are ammonium based, then ammonium chloride is used (Page 2).
Regarding claim 4: Because the powder composition of Pinay comprises both sodium- and ammonium-based surfactants, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to substitute the sodium chloride thickener with the ammonium chloride of Science Toys, which is taught as an equally useful thickener when ammonium-based surfactants are used. Regarding the claimed amount of ammonium salt, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to adjust the concentration of ammonium sulfate up to 20% by weight of the composition, which overlaps the instantly claimed range, in order to achieve a particular viscosity because Pinay teaches that this amount of additive is permitted to obtain a desired composition (Paragraph 0324). Even without adjusting the existing amounts of additives (e.g., preservatives and fragrance), one could still achieve a concentration of ammonium sulfate of up to 10.8% by weight, which overlaps and thus renders obvious the claimed range.
One of ordinary skill in the art would reasonably expect success in modifying the prior art composition as proposed because all ingredients and concentrations are known in the art to be useful in formulating shampoos comprising sulfate-based surfactants.
Claims 1-5, 7-10, 12, and 15-21 are rejected under 35 U.S.C. 103 as being unpatentable over Pinay et al. (US20240009099A1; published: 01/11/2024; effectively filed: 12/03/2020; PTO-892 of instant action) and Science Toys (Science Toys, webpage <http://sci-toys.com>, archived: 11/05/2003; PTO-892 of instant action), as applied to claims 1-5, 8-10, 12, and 15-21 above, and further in view of Buttke et al. (J. Phys. Chem. A, vol. 120, p. 6424-6433; published: 08/02/2016; PTO-892 of 11/18/2024).
Pinay teaches the invention(s) of instant claims 1-5, 8-10, 12, and 15-21 as discussed in detail above and further incorporated herein.
However, Pinay does not expressly teach the ratio of ammonium ions relative to mono-C8-C18-alkyl sulfate ions as recited in instant claim 7.
Buttke teaches, through varying mole concentrations of salts, that ammonium ions stabilize the counterions of sodium and ammonium salts in solution, thus allowing greater solubility of the salts (Page 6430).
Regarding claim 7: It would have been obvious to a one of ordinary skill in the art before the effective filing date of the claimed invention to further modify the powder composition taught by the combination of Pinay and Science Toys by manipulating the mole concentration of ammonium ions through routine experimentation, as taught by Buttke, in order to improve solubility of the resulting shampoo composition.
One of ordinary skill in the art would reasonably expect success in modifying the prior art composition as proposed because stabilizing the sulfate counterions of the sodium lauryl sulfate and ammonium coco sulfate surfactants is conducive to Pinay’s goal of producing shampoo compositions that are transparent upon mixing with water.
Claims 1-3, 5, 8-10, 12-13, and 15-21 are rejected under 35 U.S.C. 103 as being unpatentable over Pinay et al. (US20240009099A1; published: 01/11/2024; effectively filed: 12/03/2020; PTO-892 of instant action), as applied to claims 1-3, 5, 8-10, 12, and 15-21 above, and further in view of Stanborough (Healthline, p. 1-9, published: 08/29/2019; PTO-892 of instant action).
Pinay teaches the invention(s) of instant claims 1-3, 5, 8-10, 12, and 15-21 as discussed in detail above and further incorporated herein.
However, Pinay does not expressly teach the limitation wherein the shampoo does not contain a further cosurfactant as recited in instant claim 13.
Stanborough teaches that personal care products containing cocamidopropyl betaine can lead to allergic skin reactions like contact dermatitis and eye irritation due to manufacturing impurities, and recommends avoiding the irritant (Pages 1-3).
Regarding claim 13: Pinay teaches that its anhydrous solid compositions comprise one or more anionic surfactants and one or more amphoteric or zwitterionic surfactants (Claim 1), which allows for the inclusion of other surfactant types or, alternatively, their exclusion. Therefore, one of ordinary skill in the art could at once envisage an embodiment wherein the resulting shampoo taught by Pinay does not comprise PPG-5-Ceteth-20, which is characterized as a non-ionic surfactant (Paragraph 0318), according to the desired cleansing properties one wishes to impart to the composition when mixed with water. Regarding the cocamidopropyl betaine, which is characterized as an amphoteric surfactant (Paragraph 0153), it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to exclude cocamidopropyl betaine from the shampoo of Pinay in order to make the composition more user friendly since Stanborough teaches that its presence frequently leads to allergic reactions and thus recommend that consumers avoid the irritant.
An ordinarily skilled artisan would reasonably expect success in modifying the composition of Pinay with the teachings of Stanborough without changing the principal operation of the invention because Pinay discloses no critical advantages or unexpected properties achieved by including the amphoteric surfactant component and/or the nonionic surfactant component. Rather, it is the presence of the exemplary C8-C32 fatty acid salt, magnesium stearate, affords the invention its smooth, fluid appearance that is both advantageous for storage and for mixing with water (Paragraphs 0370-0372). Moreover, the inclusion of an additional anionic alkyl sulfate appears to have the most positive effect on the transparency and stability of the shampoo (e.g., aqueous composition MA exhibited a transmittance of 97%), whereas the presence of cocamidopropyl betaine did not prevent formation of an opaque shampoo (e.g, composition ME) (Paragraphs 0362-0367). Thus, an ordinarily skilled artisan would expect that a composition including only mono-C8-C18-alkyl sulfates as the surfactant would reasonably produce a transparent shampoo without changing the principal operation of the invention.
Response to Arguments
Applicant’s arguments submitted on 10/31/2025 with respect to rejections under 35 U.S.C. 102 and 103 have been fully considered have been considered but are moot because the new grounds of rejection do not rely on any reference applied in the prior rejections of record for any teaching or matter specifically challenged in the argument.
All instantly claimed features are anticipated, or alternatively, rendered obvious by the teachings of Pinay, Science Toys, Buttke, and/or Stanborough as discussed in detail above.
To the extent that Applicant’s argument of unexpected results applies to the new grounds of rejection presented herein: The Examiner reiterates that the data which demonstrate the alleged criticality of the claimed ammonium salt concentration are not commensurate in scope with the instant claims, which are drawn to any salt of a mono-C8-C18-alkyl sulfate and any ammonium salt at the claimed concentration. Further, they do not show criticality over the entire claimed range. Note: MPEP 716.02. To establish unexpected results over a claimed range, Applicant should compare a sufficient number of tests both inside and outside the claimed range of 10 wt.% to 40 wt.% ammonium salt to show the criticality of the claimed range. In re Hill, 284 F.2d 955, 128 USPQ 197 (CCPA 1960). In this case, Applicant only demonstrates the effect of two ammonium chloride concentrations which fall on one side of the claimed range and only one concentration within the claimed range. Thus, Applicant fails to provide sufficient evidence to establish "that the differences in results are in fact unexpected and unobvious and of both statistical and practical significance." Ex parte Gelles, 22 USPQ2d 1318, 1319 (Bd. Pat. App. & Inter. 1992).
In view of the foregoing, when all of the evidence is considered, the totality of the rebuttal evidence of nonobviousness fails to outweigh the evidence of obviousness. Therefore, the prior art rejections of record are maintained.
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 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 SARAH CLINKSCALES WISTNER whose telephone number is (571)270-7715. The examiner can normally be reached Monday - Thursday 8:00 AM - 5:00 PM 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, Sue Liu can be reached at (571)272-5539. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/SARAH C WISTNER/ Examiner, Art Unit 1616
/Mina Haghighatian/ Primary Examiner, Art Unit 1616