DETAILED ACTION
Notice of Pre-AIA or AIA Status
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 present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 05/19/2026 has been entered.
Claim Status
Applicant’s amendment of 05/19/2026 is acknowledged. Claims 1, 10, and 12 are amended, and claims 6, 11, and 14 are cancelled. Claims 1-5, 7-10, 12-13, and 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.
Previous Rejections/Objections
Applicant’s arguments filed 05/19/2026 have been fully considered. Rejections and/or objections not reiterated from the previous Office Action are hereby withdrawn. The following rejections and/or objections are either reiterated or newly applied as necessitated by Applicant’s amendment to the claims. They constitute the complete set of rejections and/or objections presently being applied to the instant application. Applicant’s arguments insofar as they pertain to the present grounds of rejections and/or objections are addressed herein.
Claim Interpretation
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” [pg. 3, para. 1].
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
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 1-5, 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 02/19/2026) as evidenced by LEHVOSS (pg. 1-4; published: 03/15/2021; PTO-892 of instant action).
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 [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 [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 [pg. 1, para. 6].
Regarding the ammonium salt recited in claim 1: Absent a limiting definition provided in Applicant’s instant specification and under broadest reasonable interpretation, hydroxypropyl guar hydroxypropyltrimonium chloride, which contains a positively charged nitrogen having three alkyl substituents and one guar-derived substituent, meets the limitation of “a tri-alkylated ammonium ion”.
Regarding the amount of ammonium salt recited in claim 1: Pinay further teaches that cationic polymer(s) are preferably present in a total content of from 0.1% to 20% by weight of the total composition [0286-0289]. Because hydroxypropyl guar hydroxypropyltrimonium chloride is a keratin conditioning agent, as evidenced by LEHVOSS [pg. 2, bullet points], it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to manipulate the concentration of the cationic polymer within the prior art range, which overlaps the instantly claimed range, to achieve a desired conditioning effect. 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. There is a reasonable expectation of success because Pinay expressly permits cationic polymer(s) within the disclosed range and teaches conditioning keratin fibers as a use for its compositions, which should confer suppleness, a good feel, softness and sheen, and facilitate the disentangling [claim 13; 0021].
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 [0015; 0022]. For example, when Composition A is mixed with water, the aqueous composition obtained, MA, is transparent and exhibits a transmittance of 97% [0364-0367]. Changes in hydroxypropyl guar hydroxypropyltrimonium chloride concentration is not expected to affect the transparency of the composition because it is known to be suitable for use in transparent products, as evidenced by LEHVOSS [pg. 2, bullet points]. Pinay further recognizes that transparency of the aqueous composition, which Applicant directly relates to stability [see instant spec., pg. 2, “stable…i.e., surfactant does not crystallize out within a few weeks”], is particularly attractive and desired by users [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 [0015; 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 do not necessarily flow from the prior art composition, 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 [0343-0345].
Regarding claims 2 and 3: Both sodium lauryl sulfate and sodium coco sulfate meet the claim.
Regarding claim 4: Hydroxypropyl guar hydroxypropyltrimonium chloride is an ammonium halide and thus meets the claim.
Regarding claim 5: The combined amount of sodium lauryl sulfate and sodium 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 sodium 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 teaches that the powder composition, which comprises all instantly claimed components in the claimed amounts, is mixed with water [0015; 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 composition taught by Pinay meets the limitation for the same reasons as discussed in relation to instant claim 1 above.
Regarding claim 12: As discussed above, Pinay 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 [0340-0343]. Because the prior art teaches a shampoo having the same components in the same amounts as instantly claimed, the composition taught by Pinay meets the limitation 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 [0353]. Changes in hydroxypropyl guar hydroxypropyltrimonium chloride concentration is not expected to affect the turbidity of the composition because it is known to be suitable for use in transparent products, as evidenced by LEHVOSS [pg. 2, bullet points]. 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 temperature 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 do not necessarily flow from the prior art composition, 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 composition taught by Pinay meets the limitations for the same reasons as discussed in relation to instant claims 16 and 17, respectively, above.
Regarding instant claims 20 and 21: T The composition taught by Pinay meets the limitations for the same reasons as discussed in relation to instant claims 16 and 17, respectively, above.
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 02/19/2026), 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) and as evidenced by LEHVOSS (pg. 1-4; published: 03/15/2021; PTO-892 of instant action).
Pinay as evidenced by LEHVOSS 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 [pg. 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 1-5, 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 02/19/2026), as applied to claims 1-5, 8-10, 12, and 15-21 above, and further in view of Stanborough (Healthline, p. 1-9, published: 08/29/2019; PTO-892 of 02/19/2026) and as evidenced by LEHVOSS (pg. 1-4; published: 03/15/2021; PTO-892 of instant action).
Pinay as evidenced by LEHVOSS 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 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 [pg. 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 readily envision an embodiment wherein the resulting shampoo taught by Pinay does not comprise PPG-5-Ceteth-20, which is characterized as a non-ionic surfactant [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 [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 [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) [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 05/19/2026 with respect to rejections under 35 U.S.C. 103 have been fully considered to the extent that they apply to the new/modified grounds of rejection presented herein but were not found to be persuasive.
Applicant argues that replacement of the 20.8% sodium coco sulfate in Pinay’s Composition A with ammonium coco sulfate requires several specific choices from Pinay that are not taught or suggested by Pinay and alleges that the choices appear to be based on hindsight reasoning. Without acquiescing to Applicant’s position, the argument is moot in view of the new/modified grounds of rejection set forth above in response to Applicant’s amendment to distinguish the sulfate salt and the ammonium salt as different compounds. Upon reconsideration of the claim scope and absent a limiting definition provided in Applicant’s instant specification, the Examiner has determined that Pinay’s hydroxypropyl guar hydroxypropyltrimonium chloride, which contains a positively charged nitrogen having three alkyl substituents and one guar-derived substituent, meets the limitation of “a tri-alkylated ammonium ion” and, thus, the prior art reference still reads on the instant claims under their broadest reasonable interpretation.
Regarding Applicant’s argument that the instant specification teaches that the claimed ammonium salt concentration is meaningful and results a clear and stable product, this argument was not found to be persuasive. It is generally noted that differences in concentrations do not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration is critical. Because Applicant has not provided such evidence, as discussed previously in the Office action dated 08/07/2025 in response to Applicant’s Declaration submitted 07/02/2025, it is concluded that the normal desire of scientists or artisans to improve upon what is already generally known would provide the motivation to determine where in a disclosed set of ranges is the optimum concentration. NOTE: MPEP 2144.05.
Regarding Applicant’s argument that Pinay does not disclose using 10 wt.% to 40 wt.% of an ammonium salt to prevent crystallization of the sulfate salt after dissolution or recognize the balance between clarity, stability, viscosity, and avoidance of crystallization, this argument was not found to be persuasive. First, the reason or motivation to modify the reference may suggest what the inventor has done, but for a different purpose. In this case, the prior art recognizes Pinay’s ammonium salt as a conditioning agent and, as such, it would have been obvious to manipulate the concentration of hydroxypropyl guar hydroxypropyltrimonium chloride to achieve the desired conditioning effect. It is not necessary that the prior art suggest the combination to achieve the same advantage or result discovered by Applicant.
Second, as discuss in greater detail above, Pinay clearly teaches that its anhydrous compositions produce transparent formulations upon mixing, which can be used for several weeks and wherein a more transparent or translucent composition can be achieved when left to rest for a longer time after mixing. Applicant’s argument that Pinay does not specify that the composition remains clear and stable for two weeks is merely allegation and not supported by objective evidence. While it is the Examiner’s position that the properties Applicant claims do necessarily flow from the composition taught by the prior art—especially because hydroxypropyl guar hydroxypropyltrimonium chloride is known to be suitable for transparent products—even if the properties do not, it would have been obvious to an ordinarily skilled artisan 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 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.
Applicant lastly argues that the other cited references do not remedy the deficiencies of Pinay. This argument was not found to be persuasive for the reasons discussed above in relation to the Pinay reference.
In view of the foregoing, the prior art discloses and/or obviates all features of Applicant’s invention(s) as instantly claimed. Therefore, the prior art rejections of record are maintained.
Conclusion
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.
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/SARAH C WISTNER/Examiner, Art Unit 1616
/Mina Haghighatian/Primary Examiner, Art Unit 1616
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