DETAILED OFFICIAL 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 .
Examiner Note
It is noted that all references hereinafter to Applicant’s specification (“spec”) are to the published application US 2023/0323595, unless stated otherwise. Further, any italicized text utilized hereinafter is to be interpreted as emphasis placed thereupon.
Election/Restrictions
Applicant’s election without traverse of Species I-A, claim 3, and Species II-A, claim 5 in the reply filed on 08 December 2025 is acknowledged. Claims 4, 6, and 10-11 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to nonelected species, there being no allowable generic or linking claim.
As such, claims 1-3, 5, 7-9, and 12-26 are under examination on the merits.
Information Disclosure Statement
The information disclosure statements filed 12 July 2023, 17 August 2023, 31 August 2023, and 16 February 2026 are in compliance with 37 CFR 1.97 and have been considered.
Specification
The disclosure is objected to because of the following informalities. The sub-bullets below, if present, constitute amendments respectfully suggested for correction of the identified issues.
The recitation of “algininc acids” at [0013] and [0111] constitutes a misspelling and/or typographical error (the aforecited paragraphs correspond respectively to [0013] and [0107] of the specification filed 07 April 2023)
alginic acids
The use of the terms “Polyphase PW40” and “Reputain B30”, which are trade names or marks used in commerce, have been noted in this application – see spec [0163; Table 2] (corresponding to [0139] and [0142, Table 2] in specification filed 07 April 2023) – and are objected to for improper formatting
Each term should be accompanied by the generic terminology; furthermore each term should be capitalized wherever it appears or, where appropriate, include a proper symbol indicating use in commerce such as ™, SM , or ® following the term.
Appropriate correction is required.
Claim Objections
Claims 12, 16-20, and 23-24 are objected to because of the following informalities. The sub-bullets, if present, constitute amendments which are respectfully suggested for correction of the identified issues.
[claim 12] – “the one or more compartments” constitutes inconsistent claim language relative to that of claim 1
wherein the casing and each of the at least one compartment
[claims 16-20] – “The encased dye tablet” recited as the preamble of each of claims 16-20 is improper/inconsistent, given that the claims are directly or ultimately dependent upon claim 15 whose preamble recites, “The casing”
The casing according to…
[claim 17] – “algininc acids” constitutes a misspelling and/or typographical error, and “wherein binder” constitutes improper grammar; see rejection under 35 U.S.C. 112(b) below for additionally-suggested amendments
wherein the binder comprises hyaluronic acid powder, gelatin, gums, alginic acids and salts, and polymers
[claim 23] – the emphasized phrase of the recitation “within the at least one compartment of the one or more casings in a powdered form” constitutes redundant claim language which hinders the readability of claim 23
…wherein at least one of the one or more casings comprises one or more agents disposed within the at least one compartment
[claim 24] – the emphasized phrase of the recitation “within the at least one compartment of the one or more casings in a form of the dye-tablet” constitutes redundant claim language which hinders the readability of claim 24, and as set forth below “the dye-tablet” lacks sufficient antecedent basis under 35 U.S.C. 112(b)
…wherein at least one of the one or more casings comprises one or more agents disposed within the at least one compartmenta dye-tablet.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
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.
Claims 1-3, 5, 7-9, and 12-26 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention.
Regarding claim 1, the limitation “wherein the one or more agents are configured to impart an artistic effect to an article” renders the claim indefinite. The metes and bounds of the scope of the one or more agents, in view of the term “artistic effect” and the corresponding phrase “configured to impart an artistic effect to an article”, read in light of the spec [0035-0036], are unclear – the boundaries of the subject matter for which patent protection is sought are not clearly delineated and cannot be readily determined or envisaged by one of ordinary skill in the art, and the public would not be informed of what constitutes infringement thereupon (see MPEP 2173, MPEP 2173.01(I), MPEP 2173.03, MPEP 2173.04, MPEP 2173.05(a)(I), and MPEP 2173.05(g)).
Specifically, it is noted that the spec [0035] states (emphasis added): “As used herein the phrase ‘imparting an artistic effect to an article’ refers to transforming an article through the use of one or more agents, and does not include cleaning and/or bleaching the article.” Immediately thereafter, the spec [0036] states: “As used herein, the term ‘artistic effect’ refers to an effect that is preferably selected from the group consisting of color, scent, texture, glitter, pattern, and combinations thereof.”
The recitation “configured to impart an artistic effect to an article” in claim 1 constitutes a functional limitation of the “one or more agents”, i.e. what the one or more agents “does” rather than what the one or more agents “is” (MPEP 2173.05(g)). In view of the spec, the function of the one or more agents is to impart an effect preferably selected from a color, scent, texture, glitter, pattern, or combination thereof, to an article. However, the claimed functional limitation regarding the one or more agents [being] “configured to impart an artistic effect to an article” is not the same as the phrase “imparting an artistic effect to an article” explicitly defined the spec [0035], wherein the aforesaid phrase does not indicate how or in what manner the one or more agents are configured in order to achieve the artistic effect, i.e. is not described in relation to, or otherwise associated with, the one or more agents being configured to impart the artistic effect. Further, at least some of the aforesaid effects identified in the spec for which the one or more agents are configured to impart (e.g. color, scent, texture) are effects which are commonly associated with, and imparted to articles by, agents typically included in cleaning, bleaching, washing, and/or detergent compositions, e.g. laundry detergent compositions which include fragrances/perfumes and/or dyes and/or fabric softeners, as readily recognized by one of ordinary skill in the art.
In view of the aforesaid minor differences in wording between the claimed functional limitation of the one or more agents and the phrase defined in the spec which excludes cleaning and/or bleaching, i.e. “imparting an artistic effect to an article” [0035]; the use of preferential terminology, i.e. “preferably” in the spec definition of “artistic effect” which the one or more agents are (as claimed) configured to impart; and the readily recognized overlap between effects imparted by cleaning/bleaching compositions and those imparted by “artistic compositions” based on the agents contained therein, it is unclear what one or more agents are encompassed within, or specifically excluded from, the scope of the claim limitation “one or more agents configured to impart an artistic effect to an article”. Phrased alternatively, it is unclear how one of ordinary skill in the art is to determine whether any one particular agent (species) is, or is not, configured to impart an artistic effect and thereby encompassed within, or excluded by, the claim.
For examination on the merits, the limitation “wherein the one or more agents are configured to impart an artistic effect to an article” is interpreted, in view of Applicant’s spec, as encompassing any one or more agents which impart, or are capable of imparting, one or more of a color, scent, texture, glitter, pattern, decoration, or other visual change/effect, to any degree or in any form/manner, to an article, regardless of whether said one or more agents are included in, or otherwise associated with a cleaning and/or bleaching composition.
Regarding claim 13, the limitation “ruptures the casing to release colorant formulation” renders the claim indefinite. Given that claim 13 is dependent upon claim 2 which recites “a colorant formulation” as a species within the Markush group, it is unclear if the term “colorant formulation” in claim 13 further limits the casing of claim 2 such that the casing of claim 13 requires the species “a colorant formulation” of claim 2 (i.e. “colorant formulation” of 13 is the species “a colorant formulation” of claim 2); or if “colorant formulation” in claim 13 is a general term unrelated to the aforesaid species “a colorant formulation” in claim 2 such that, e.g. glitter being released from the casing resultant from rupture would read on the “colorant formulation” of claim 13 and the species “glitter” of claim 2. Simply put, the term “colorant formulation” in claim 13, in light of the dependency, is ambiguous.
For examination on the merits, claim 13 is interpreted in accordance with the latter, i.e. where “colorant formulation” is a general term which is read on by any of the species of the one or more agents listed in the Markush group of claim 2.
Claim 15 recites “at least one or more agents”, followed by “one or more agents compounded with a binder and an optional filler”, followed by “the at least one or more agents”, followed by “wherein the one or more agents”. The repetitive recitations, and inconsistent claim language therebetween and in relation to claim 1, hinders the readability of the claim to the point that it is unclear whether “the at least one or more agents comprise at least one colorant formulation and at least one fixative” intends to limit the claim such that the casing requires said colorant formulation and fixative in addition to the dye tablet, of if the aforesaid colorant and fixative are components of the dye tablet and compounded with said binder and optional filler, or if the colorant and fixative are also in the form of a dye tablet and present in addition to the dye table inclusive of the binder and optional filler.
Further, it is unclear whether the colorant/fixative, or the dye tablet, or both, are intended to be limited by “configured to impart an artistic effect to an article”. Furthermore, the aforesaid limitation “configured to impart an artistic effect to an article” alone renders claim 15 indefinite on the same grounds set forth above in the rejection of claim 1.
One of the two amendment alternatives (A) and (B) to claim 15 below is respectfully suggested to overcome the issues identified above.
(A) “The casing according to claim 1, wherein the comprises at least one colorant formulation, at least one fixative, and a dye tablet comprising one or more agents compounded with a binder and an optional filler.
(B) “The casing according to claim 1, wherein the comprises a dye tablet comprising one or more agents including at least one colorant formulation and at least one fixative, compounded with a binder and an optional filler.
Claim 15, and those dependent directly or ultimately thereupon, are interpreted for examination on the merits in accordance with either of the amendments suggested above, i.e. (A) wherein the one or more agents comprises at least one colorant formulation, at least one fixative, and a dye tablet comprising one or more agents, a binder, and an optional filler, or (B) wherein the one or more agents comprises a dye tablet comprising at least one colorant formulation and at least one fixative, compounded with a binder and optionally a filler.
Regarding claim 16, the phrase “wherein the optional filler comprises” renders the claim indefinite. Given that the filler introduced in claim 15 is optional and thus not required by the casing of claim 15, the further recitation of the filler being “optional” in claim 16, in the absence of additional claim language which positively recites the filler being present, renders claim 16 ambiguous. That is, it is unclear if the claim is to be interpreted such that the filler is present, i.e. is a requisite component and limited to the species recited; or to be interpreted such that when/if the filler is present, the filler is limited to the species recited, where in accordance with the latter interpretation, claim 16 does not constitute a required limitation and would thereby be read on by prior art which does not include a filler.
In order to overcome the indefiniteness issue, it is respectfully suggested to amend claim 16 to clarify that the filler is present. For examination on the merits, claim 16 is interpreted as being read on by the absence of a filler, or being read on by the presence of a filler that comprises a clay, starch, polymeric resin, cellulose compound, or saccharide.
Regarding claim 17, the use of the transitional phrase “comprises”, in view of each of “gums”, “alginic acids and salts”, and “polymers” being plural, further in view of the recitation of “and” – in light of Applicant’s spec – renders the claim indefinite. It is unclear whether the claimed binder requires all of the aforesaid components, i.e. requires hyaluronic acid powder, gelatin, multiple gums, multiple alginic acids, multiple alginic acid salts, and multiple polymers; or if the claimed binder is required to comprise at least one of the foregoing, i.e. as if the claim read as follows: “wherein the binder comprises hyaluronic acid powder, gelatin, gum alginic acid, alginic acid salt, [[and]]or polymer
In view of the spec which implies and exemplifies that one or more of the foregoing binder species may be utilized [0111; Tables 1-2]] (the exemplified binder identified in Table 2 comprises hyaluronic acid powder, glycerin, water, Reputain B30 preservative, and Polyphase PW40 preservative), claim 17 is interpreted for examination on the merits in accordance with the latter of the foregoing, i.e. in accordance with the mark-up formatting presented hereinabove, of which is also respectfully suggested as an amendment to overcome the indefiniteness issue.
Regarding claim 21, the limitation “the one or more agents are configured to impart an artistic effect to an article” (regarding the encased dye table) renders the claim indefinite on the same grounds set forth above in the rejection of claim 1 – the rejection of claim 1 above, inclusive of the interpretation of the aforesaid limitation for examination on the merits, is incorporated herein by reference (not repeated for sake of brevity).
Further regarding claim 21, the limitation “wherein the encased dye tablet comprises…” renders the claim indefinite, as it is unclear whether only one of the “one or more encased dye tablets”, if present, is required to comprise “the one or more agents compounded with a filler and a binder, wherein…”, or if each of the “one or more encased dye tablets”, if present, is required to comprise the foregoing. Said alternatively, based on the claim language “the encased dye tablet” in contrast to “one or more encased dye tablets” recited prior thereto, it is unclear which dye tablet, or if all dye tablets, require(s) the “one or more agents…”.
For examination on the merits, claim 21 is interpreted in accordance with the following amendment, of which is also respectfully suggested for correction of the indefiniteness issue: “wherein the one or more encased dye tablets comprise
Regarding claim 22, the limitation “wherein at least one of the one or more casings and one or more encased dye tables comprises a colorant formulation” is ambiguous and thereby renders the claim indefinite. Claim 21, upon which claim 22 is directly dependent, does not require that the activity-kit include a casing and an encased dye tablet, in accordance with the limitation “comprising: one or more casings according to claim 1, one or more encased dye tablets, or a combination thereof”. As such, the phrase “at least one of”, followed by “and” separating “the one or more casings” and “one or more encased dye tablets”, may be interpreted two ways: (1) at least one casing and at least one encased dye tablet are required (to be present in the activity-kit in combination and) to comprise a colorant formulation, or (2) at least one casing or dye tablet is required to comprise a colorant formulation.
For examination on the merits, claim 22 is interpreted in accordance with said interpretation (2), that is, where only one casing, or one dye tablet, relative to the total number of casings and/or dye tablets present in the activity-kit, is required to include the colorant formulation.
Regarding claim 24, the term “the dye-tablet” lacks sufficient antecedent basis and thereby renders the claim indefinite. There is no recitation of a “dye-tablet” in claim 24 or claim 21 (upon which claim 24 is dependent); rather, claim 21 only recites the term “encased dye tablet”. As such, it is unclear if “the dye-tablet” recited in claim 24 is referring to an “encased dye tablet” as recited in claim 21, or if “dye-tablet” is an element distinct therefrom which is being (improperly) introduced in claim 24.
For examination on the merits, claim 24 is interpreted in accordance with the latter – that is, interpreted to read in accordance with the following amendment, of which is respectfully suggested in order to overcome the indefiniteness issue: “…in a form of [[the]]a dye-tablet”.
Claims 2-3, 5, 7-9, and 12-26 are indefinite and rejected under 112(b) as they are, or may be, directly or ultimately dependent upon claim 1 and therefore include, and do not remedy the indefiniteness issue(s) identified above. Claims 16-20 are indefinite and rejected under 112(b) as they are directly or ultimately dependent upon claim 15 and therefore include, and do not remedy the indefiniteness issue(s) identified above. Claims 22-26 are indefinite and rejected under 112(b) as they are directly or ultimately dependent upon claim 21 and therefore include, and do not remedy the indefiniteness issue(s) identified above.
Appropriate action is required.
Claim Rejections - 35 USC § 102
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 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.
Claims 1-2, 5, 12, and 14 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Shull, Jr. (US 3,580,390; “Shull”).
Regarding claim 1, Shull discloses a water-soluble packet (casing) formed from a water-soluble film folded over itself and peripheral edge-sealed along [the remaining] three edges to define a single central compartment (at least one compartment formed of a water-soluble film), said packet/compartment exhibiting a generally ellipsoidal shape [Abstract; Fig. 2; col. 1 ln. 48-75; col. 2 ln. 24-26, 65-70]. A dry powder pigment, or a blend of dry powder pigments, having color characteristics suitable for producing a desired color, and an optional fine white powder extender, are enclosed within the compartment (one or more agents disposed within the at least one compartment) whereby the packet is added to water to which dry cementitious powders are subsequently added to form a colored slurry (wherein the one or more agents are configured to impart an artistic effect to an article) for forming colored finished plaster walls [Abstract; Fig. 1; col. 1 ln. 41-75; col. 2 ln. 1-25, 48-64]. The water-soluble packet of Shull anticipates the casing defined by each and every limitation of claim 1.
Regarding claim 2, in view of the rejection of claim 1 above, the dry powder pigment, or the blend of dry powder pigments, optionally including the white powder extender blended therewith (the one or more agents), read on the claimed species “a colorant formulation”. The packet of Shull anticipates the casing defined by claim 2.
Regarding claim 5, in view of the rejection of claim 1 above, Shull discloses that the water-soluble films defining the packet are suitably formed from polyvinyl alcohol (PVOH) or polyethylene oxide (PEO) [col. 2 ln. 65-69] (see MPEP 2131.02(II)). PVOH reads on the corresponding claimed species, and PEO reads on the claimed species ”poly(ethylene glycol) (PEG)”. The packet of Shull anticipates the casing defined by claim 5.
Regarding claim 12, as set forth above in the rejection of claim 1, the packet/compartment of Shull, as depicted therein [Fig. 2], exhibits an ellipsoidal shape (wherein the casing and each of the one or more compartments has a shape of an ellipsoid).
Regarding claim 14, in view of the rejection of claim 1 above, Shull discloses that the water-soluble film exhibits a thickness of 0.003 inch (76.2 µm) [col. 2 ln. 65-69], of which is within, and thereby anticipates the claimed thickness range of 10-150 µm (see MPEP 2131.03(I)).
Claims 1-3, 5, and 7-8 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Pettifer et al. (US 2002/0108184; “Pettifer”).
Regarding claim 1, Pettifer discloses a water-soluble pouch (casing) formed from water-soluble film, said film defining a compartment (at least one compartment formed of a water-soluble film) of the pouch; and a composition within the compartment, completely enclosed by the water-soluble film [0104-0106, 0111, 0114]. The composition is a solid, specifically in the form of a tablet, and includes at least a dye and a dye auxiliary agent co-compacted into said tablet (“dye tablet”) [0105, 0107, 0119, 0128] (one or more agents disposed within the at least one compartment). The composition is a fabric dyeing composition for changing the color of a fabric by contacting the fabric surface with said composition, and is free of bleach/does not include any bleaching agent [Abstract; 0001, 0007-0017, 0099-0103, 0121, 0124] (the one or more agents within the at least one compartment are configured to impart an artistic effect to an article). The water-soluble pouch of Pettifer anticipates the casing defined by each and every limitation of claim 1.
Regarding claim 2, in view of the rejection of claim 1 above, the dye composition inclusive of the dye and dye auxiliary agent reads on at least the claimed species “a colorant formulation”. The pouch of Pettifer anticipates the casing defined by claim 2.
Regarding claim 3, in view of the rejection of claim 1 above, Pettifer discloses that the dye is a fabric substantive dye, preferably a reactive dye [0008-0013] (at least one colorant formulation), and that the dye auxiliary agent is a fixative [0014-0017] (at least one fixative); the composition can also include additional ingredients including, inter alia perfume(s), sodium sulfate (filler salt), and sodium carbonate and/or sodium bicarbonate (buffer) [0100-0103]. Further, Pettifer refers to only a single compartment of the pouch defined by the water-soluble film, and does not explicitly teach, suggest, or otherwise imply that the pouch includes additional compartments [0106-0107, 0114].
As such, the pouch of Pettifer is reasonably interpreted as including only a single compartment (casing comprises a single compartment formed of the water-soluble film), in which the solid dye tablet is completely enclosed (one or more agents comprises at least one colorant formulation and at least one fixative, disposed as a mixture in the compartment). The pouch of Pettifer anticipates the casing defined by claim 3.
Regarding claim 5, in view of the rejection of claim 1 above, Pettifer discloses that the water-soluble film is formed from, inter alia PVOH [0111-0114] (see MPEP 2131.02(II)) (wherein the water-soluble film comprises PVOH).
Regarding claim 7, in view of the rejection of claim 2 above, the rejection of claim 3 above is incorporated herein by reference. The dye of the dye tablet is a fabric substantive dye, specifically a reactive dye (wherein the colorant formulation comprises a reactive dye, wherein the colorant formulation comprises a fabric dye).
Regarding claim 8, in view of the rejection of claim 2 above, the rejection of claim 3 above is incorporated herein by reference. The dye of the dye tablet is a reactive dye which is water-soluble, such as Drimarene K (Navy) [0008-0013, 0126-0129] (wherein the colorant formulation comprises a water-soluble dye selected from…reactive dye).
Claims 1-3, 5, 7-8, and 12 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Aubert et al. (US 2016/0367447; “Aubert”).
Regarding claim 1, Aubert discloses a water-soluble envelope (casing) comprising one compartment formed by superimposed, peripheral edge-sealed, water-soluble nonwoven “laps”, i.e. “webs”, i.e. water-soluble non-woven films (11, 12) [Figs. 1a-1b] formed from water-soluble polymeric fibers, e.g. PVOH fibers (at least one compartment formed of a water-soluble film); and (i) an anhydrous dye composition containing at least one oxidation dye, and (ii) optionally at least one anhydrous oxidizing agent, each preferably in powdered form, accommodated within the compartment [Abstract; Figs. 1a-1b; 0014-0019, 0027-0029, 0034, 0038, 0044, 0166-0168, 0170, 0174-0177, 0179, 0186, 0192, 0209-0211, 0387-0388] (one or more agents disposed within the at least one compartment); the envelope and components (i) and (ii) are mixed with and dissolve in water or an aqueous solution, and the resultant composition is applied to keratin fibers, e.g. hair to dye the fibers a desired color [0005, 0019, 0208, 0354-0356, 0364] (the one or more agents are configured to impart an artistic effect to an article).
The water-soluble envelope of Aubert anticipates the casing defined by each and every limitation of claim 1.
Regarding claims 2-3, in view of the rejection of claim 1 above, Aubert discloses that the oxidation dye(s) is an oxidation base(s) [0211-0226]; the (i) anhydrous dye composition may also contain direct dye(s), also in powder form and combined (mixed) with said oxidation dye(s) [0227-0228, 0230-0231] (wherein the one or more agents comprising a colorant formulation, claim 2; wherein the one or more agents comprises at least one colorant formulation, claim 3); and the (ii) oxidizing agent may be a polymer, such as polyvinylpyrrolidone (PVP), complexed with hydrogen peroxide [0234-0252].
Additional agents are suitably included in the compartment (casing comprises a single compartment formed of the water-soluble film) with, and combined with, (i) and (ii), including: (iii) inter alia sodium carbonate, calcium carbonate, and/or ammonium sulfate [0256-0263] (see MPEP 2131.02(II); see spec [0078-0079]) (at least one fixative, at least one colorant formulation and at least one fixative disposed as a mixture in the compartment, claim 3); (iv) one or more thickening polymers such as gums, polysaccharides, starch/starch derivatives, guar gum/guar gum derivatives, and cellulose/cellulose derivatives [0273-0286]; and (v) clay as a filler, (vi) vinylpyrrolidone as a binder, (vii) antioxidants, and (viii) preserving agents [0350-0353].
The water-soluble envelope of Aubert anticipates each casing defined by claims 2-3.
Regarding claim 5, as set forth above in the rejection of claim 1, Aubert discloses that the water-soluble nonwoven films (11, 12) are formed from, inter alia preferably PVOH (wherein the water-soluble film comprises PVOH).
Regarding claim 7, the rejection of claim 2 above reads on the casing defined by claim 7. That is, the (i) anhydrous dye composition includes one or more oxidation dyes, i.e. one or more oxidation bases (colorant formulation comprises a basic dye), and may also include one or more direct dyes (colorant formulation comprises a direct dye).
Regarding claim 8, the rejection of claim 2 above (see also rejection of claim 7 above) reads on the casing defined by claim 8. The oxidation (base(s)) dye(s) are water-soluble basic dyes (colorant formulation comprises a water-soluble basic dye); additionally/alternatively the direct dye(s) included in (i) are water-soluble direct dyes (colorant formulation comprises a water-soluble direct dye).
Regarding claim 12, in view of the rejection of claim 1 above, Aubert discloses/depicts the shape of the envelope as ellipsoidal [Fig. 1a; 0186, 0192-0193] (wherein the casing and compartment have a shape of an ellipsoid); and further discloses that alternatively, that the envelope/compartment may take the shape of a rectangular prism (cuboid) or square (cube/cuboid) [0186, 0192-0193] (wherein the casing and compartment have a shape of a cube or a cuboid).
Claim Rejections - 35 USC § 103
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.
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.
Claim 12 is rejected under 35 U.S.C. 102(a)(1) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over Aubert as applied to claim 2 under 35 U.S.C. 102(a)(1) above.
Regarding claim 12, in view of the rejection of claim 2 under 102(a)(1) above, Aubert does not explicitly disclose that the envelope is compressible such that when compressed the envelope ruptures to release components (i) and (ii) for creating an art form, as claimed.
However, Aubert discloses that the envelope is “touch-deformable”, meaning that the envelope/nonwoven water-soluble films (11, 12) become deformed when they are pinched between a user’s fingers [0037].
In light thereof, it is noted that the limitation “which when compressed ruptures the casing to release colorant formulation for creating an art form” constitutes a functional limitation (see MPEP 2173.05(g)), wherein claim 13 does not define a requisite degree of compressibility exhibited by the casing (in the form of said compressible pouch) which allows for/results in rupture thereof, e.g. does not describe or quantitatively limit any material and/or mechanical properties of the casing required to achieve rupture, and/or does not define the compressive force/pressure required to be applied to the casing to necessarily cause said rupture. Further, the spec does not explicitly indicate or otherwise suggest any of the foregoing. As such, the broadest reasonable interpretation of “compressible pouch” and “which when compressed ruptures the casing”, in view of Applicant’s spec (see MPEP 2111; MPEP 2173.05(g)), encompasses casings (pouches) which are capable of rupturing and thereby releasing contents under any degree of compressive force/pressure applied thereto.
In view of the aforecited disclosure of Aubert, in view of the scope of claim 13 in view of Applicant’s spec, and given that the non-woven water-soluble films forming the envelope are each made from PVOH which is substantially identical to Applicant’s claimed and disclosed polymeric material utilized as the water-soluble film [claim 5; 0153-0154, 0164], it stands to reason, and there is a strong and reasonable expectation, that the envelope of Aubert would have necessarily exhibited the capability to be ruptured – and thereby release the components (i) and (ii) within the compartment – when subject to a non-limited degree of compressive force applied thereto, absent a showing of factually supported objective evidence to the contrary. Alternatively, one of ordinary skill in the art would have found the aforesaid capability of the envelope to be ruptured when subject to unlimited compressive force prima facie obvious prior to the effective filing date of the claimed invention. See MPEP 2112(IV) and (V); MPEP 2112.01(I) and (II); MPEP 2145; and MPEP 2145(I).
The envelope of Aubert, set forth/cited above, reads on the casing defined by claim 13.
Claim 14 is rejected under 35 U.S.C. 103 as being unpatentable over Aubert as applied to claim 1 under 35 U.S.C. 102(a)(1) above.
Regarding claim 14, in view of the rejection of claim 1 under 102(a)(1) above, Aubert discloses that the non-woven water-soluble films (11, 12) may each exhibit a thickness of, e.g. from 0.1-3 mm [0197] (100-3,000 µm). The aforesaid thickness range overlaps the claimed range of 10-150 µm, specifically, is within the lower bound of, and encompasses the upper bound of the claimed range, and thereby renders the range prima facie obvious (see MPEP 2144.05(I)).
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Aubert as applied to claim 1 under 35 U.S.C. 102(a)(1) above, further in view of Morita et al. (US 2012/0301524; “Morita”).
Regarding claim 9, in view of the rejection of claim 1 under 102(a)(1) above, the rejection of claims 2-3 above (¶55-56) are incorporated herein by reference. That is, Aubert discloses that additional agents (e.g. (iii)-(viii) above) are suitably included in the composition enclosed within the compartment of the envelope, wherein Aubert further discloses that silicone-based materials, e.g. silicone oils are suitably included in the composition when in anhydrous paste (in alternative to powder) form, e.g. the powder materials above may be dispersed in the silicone oil [0267-0271]; additionally/alternatively, Aubert discloses that (ix) lubricants and/or film-forming agents are suitably included in the composition [0351]. Aubert is silent regarding the composition including an oxime silicone, as claimed.
Morita teaches a silicone oil composition in the form of a paste/cream/grease [Abstract; 0001, 0003, 0006, 0040-0041, 0099], suitable for addition to cosmetic compositions including those utilized for (preferably) hair treatments including, inter alia hair dye compositions [0042], and for use as a lubricating agent [0003, 0099]. The aforesaid hair dye compositions to which the silicone oil composition is added are suitably in the form of creams, semi-solids, solids, or powders [0042]; the silicone oil composition imparts a smooth feel or tangling-resistant function to hair [0099-0100]. The silicone is a condensation reaction-crosslinkable silicone including an organopolysiloxane having at least two oxime groups bonded to Si atoms, and a silane having at least three oxime groups bonded to Si atoms [0018, 0020, 0028-0031] (one or more agents comprise an oxime silicone).
Morita constitutes prior art which is directly analogous to the claims invention. In view of the combined teachings of the foregoing prior art, it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to have modified the envelope of Aubert above by having included the silicone oil composition (oxime silicone) of Morita in the composition (hair dye composition) enclosed within the envelope, as the silicone oil composition would have been readily recognized as suitable for the intended use as a (ix) lubricant and/or film-forming agent (MPEP 2144.07); and/or for the intended use as the silicone oil disclosed by Aubert, and as a silicone oil suitable for inclusion in cosmetic compositions, specifically hair dye compositions (MPEP 2144.07); and/or in order to provide the hair dye composition of Aubert with the capability/function to impart a smooth feel and/or tangling-resistant function to hair.
In accordance with the foregoing modification, the envelope of Aubert would have included an oxime silicone in addition to components (i) and (ii), or components (i)-(viii), in the hair dye composition enclosed within the compartment of the envelope, thereby reading on claim 9 “wherein the one or more agents comprises an oxime silicone”.
Claims 15-20 are rejected under 35 U.S.C. 103 as being unpatentable over Aubert as applied to claim 1 under 35 U.S.C. 102(a)(1) above, further in view of Ghilardi et al. (US 3,981,678; “Ghilardi”) and Erkens et al. (US 2017/0312188; “Erkens”).
Regarding claim 15, in view of, and as set forth in the rejection of claim 1 under 102(a)(1) above, Aubert discloses that the components of the composition (hereinafter “dye composition” for simplicity) accommodated with the compartment of the envelope are preferably in anhydrous powder (solid) form and mixed with one another.
Further, Aubert states that said anhydrous powder form refers to particles/particulate-form, advantageously having a particle size between 100 µm and 3 mm [0027]. Furthermore, Aubert desires that the aforesaid anhydrous powder form of the dye composition is preferably substantially free of dust (or fine particles) [0027].
However, Aubert does not disclose or suggest the dye composition being in the form of a tablet, as claimed.
Ghilardi teaches that it was known in the art to form powder hair (keratin fiber) dye compositions, inclusive of dyes (oxidation bases) admixed with other adjuvants including direct/basic/acidic/azo dyes, resins, thickeners, perfumes and other agents, into the form of a tablet or pill by compression of the powders, said tablet suitable for use in (subsequent) preparation of hair dye solutions [Abstract; col. 1 ln. 26-32; col. 3 ln. 37-56; col. 5 ln. 1-13].
Erkens teaches that in the alternative to powder/granulate form, hair dye compositions may suitably take the form of a compressed tablet [Abstract; 0088]. The tablet form of the hair dye composition is packaged in a water-soluble casing formed from a water-soluble film, thereby preventing or reducing generation of dust and allowing for quick and residue-free formation of the dye (solution) preparation [0002, 0008, 0013, 0030-0031]. The water-soluble film is suitably formed from PVOH, and exhibits at thickness of about 0.01 to 0.1 mm (10-100 µm) [0030-0031]. The dyes may be oxidation bases or precursors thereof, and may additionally include direct dyes [Abstract; 0008-0016, 0045-0046, 0078].
Ghilardi and Erkens each constitute prior art which is directly analogous to the claimed invention, as well as are in the same field of endeavor of Aubert. In view of the combined teachings of the foregoing prior art, it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to have modified the envelope of Aubert by having compacted the mixed components of the dye composition in powder form into a pressed tablet, in order to reduce/prevent generation of dust associated with the powder composition in powder form, and/or because the aforesaid tablet form of the composition would have been readily recognized as functionally equivalent to said powder form and suitable for the intended use of preparing hair dye (solutions) preparations, in addition to suitable for- and capable of- being packaged within water-soluble casings formed from PVOH water-soluble films (see MPEP 2144.06(II); MPEP 2144.07).
In view of the aforesaid modification, it is noted that the grounds of rejection of claims 2-3 set forth above (¶55-56) are incorporated herein by reference (not repeated for sake of brevity). In accordance therewith, and in accordance with said modification, the envelope of Aubert, as modified (hereinafter “modified Aubert”), would have comprised the dye composition inclusive of components (i)-(viii) above in the form of a compressed tablet (dye tablet) (rather than mixed anhydrous powders) and disposed within the compartment of the envelope (casing is an encased tablet). Component (i), or components (i) and (ii) read on “at least one colorant formulation”; component (iii) reads on “at least one fixative”; component(s) (iv) and/or (vi) read(s) on “compounded with a binder”; component (v) reads on “and an optional filler”. The envelope of modified Aubert, in accordance with the foregoing, reads on the casing defined by each and every limitation of claim 15.
Regarding claim 16, the rejection of claim 15 above reads on the casing defined by claim 16. Component (v) of the dye tablet of modified Aubert is a clay filler (wherein the optional filler comprises a clay). Alternatively, it is noted that other components of the dye tablet may also be interpreted to read on one or more of the additional claimed species of optional filler.
Regarding claim 17, the rejection of claim 15 above reads on the casing defined by claim 17. Component (iv) of the dye tablet of modified Aubert is one or more thickening polymers such as, inter alia gums (binder comprises gum), polysaccharides (binder comprises polymer), starch and derivatives thereof (binder comprises polymer), guar gum and derivatives thereof (binder comprises gum), and cellulose and derivatives thereof. Additionally/alternatively, component (vi) of the dye tablet of modified Aubert is vinylpyrrolidone (binder comprises polymer).
Regarding claim 18, the rejection of claim 15 above reads on the casing defined by claim 18. Component (i) of the dye tablet of modified Aubert includes an oxidation dye(s) (oxidation base, i.e. basic dye) (colorant formulation comprises a basic dye), and may suitably/additionally include direct dye(s) (colorant formulation comprises a direct dye).
Regarding claim 19, in view of the rejection of claim 15 above, the rejection of claim 18 above is incorporated herein by reference and reads on the casing defined by claim 19.
Regarding claim 20, in view of the rejection of claim 16 above, the rejection of claim 15 above reads on the casing defined by claim 20. Component(s) (vii) and/or (viii) of the dye tablet of modified Aubert, an antioxidant(s) and preserving agent(s), respectively, read on “one or more agents further comprises a preservative”. Additionally/alternatively, the dye tablet enclosed within the envelope of modified Aubert may also include fragrance(s) [Aubert, 0350-0351] (one or more agents further comprises a fragrance).
Claims 1-3, 5, 7-8, and 21-26 are rejected under 35 U.S.C. 103 as being unpatentable over Peters et al. (US 2021/0140103; “Peters”), in view of Sonenstein (US 4,481,326; “Sonenstein”) and Pettifer.
Erkens is relied upon as an evidentiary reference in support of the grounds of rejection.
Regarding claim 21 and claim 1, Peters discloses a do-it-yourself (DIY) kit for dyeing, e.g. tie-dyeing various materials/objects including fabrics/garments [Abstract; 0002-0005, 0011-0014]. The kit includes instructions for tie-dyeing an object [0013, 0032-0035] (claim 21, instructions to form at least one of a decoration art, a tie-dye art, or a squeezable art), and a dye composition, in the form of a powder or tablet, for preparation of an aqueous dye solution used to color the object [0013-0015, 0036].
The dye composition may include one or more dyes/colorants, such as, inter alia reactive dye, fiber reactive dye, dichlorotriazine reactive dye, monochlorotriazine reactive dye, direct dye, acid dye, basic dye, FD&C dye, D&C dye, natural dye, solvent dye, and pigments [0005, 0014, 0022-0024]; and one or more fixatives such as, inter alia soda ash (sodium carbonate), baking soda (sodium bicarbonate), potassium carbonate, sodium chloride, sodium sulfate [0005, 0015, 0022-0024]. The dye composition may also include additional additives such as thickeners [0023].
The dye composition, in powder or tablet form, is included in one or more bottles (110) [Fig. 1; 0013-0014, 0017-0019, 0021, 0036] intended for preparation of the aqueous dye solution therein by addition of water to the bottle by the user to thereby dissolve the dye composition [0013, 0036].
With respect to the difference(s) relative to the DIY activity-kit defined by claim 21, Peters is silent regarding the dye composition, in powder or tablet form, being disposed within a compartment of a water-soluble casing.
Sonenstein teaches that it was known in the art to package water-soluble or water-dispersible, dry, solid materials – which may be toxic or otherwise harmful to the user, may be difficult to weigh into accurate portions, or may be inconvenient to handle – including dyes, pigments, and other pulverulent or powdery materials/chemicals intended to be dissolved or suspended in aqueous solutions for use, in water-soluble films [col. 1 ln. 20-35; col. 3 ln. 14-32; col. 7 ln. 53-59]. The aforesaid package is suitably formed by sealing three peripheral edges of superimposed water-soluble films (e.g. comprising PVOH), disposing the solid/powdery material into the resultant opening between the films at the fourth peripheral edge, and thereafter sealing said opening [col. 7 ln. 53-66] to enclose, i.e. encase the material therein, thereby forming a “casing”, “pouch”, “packet”, “envelope”, etc.
The disclosure/teachings of Pettifer, set forth/cited above at ¶45-51, are incorporated herein by reference (not repeated for sake of brevity). In view of the incorporated disclosure/teachings, Pettifer teaches that it was known in the art to package dye compositions for dyeing of fabrics, which are in solid form – such as a tablet or a powder [0104-0105] – and which are intended to be added to water or aqueous solution for dyeing of the fabric, in a water-soluble pouch (compartment) formed from water-soluble film (e.g. comprising PVOH) [0106-0116]. The (solid) dye composition, in the form of said tablet or powder enclosed in the compartment of the pouch, is prevented from exposure/contact with anything outside of the pouch until the pouch is dissolved [0107].
Sonenstein and Pettifer each constitute prior art which is directly analogous to the claimed invention. In view of the combined teachings of the foregoing prior art, it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to have modified the kit of Peters by having disposed the dye composition, in powder or tablet form, in a water-soluble casing (compartment thereof) formed from water-soluble film(s), in order to have prevented the dye composition from being exposed to ambient conditions (e.g. high/low humidity) and/or from being undesirably contacted prior to, or during use of the kit; in order to have prevented or reduced the probability of the user coming into contact with the powder or tablet, or being exposed to dust resultant from said solid forms [Erkens, 0003, 0005, 0007, 0012-0013]; and/or to have prevented or reduced the probability of, e.g. unintentional/accidental spilling and/or loss of the dye composition from within the bottle (110) prior to or during use of the kit by the user. Additionally/alternatively, see MPEP 2144.07.
In accordance with the foregoing modification, the solid dye composition of the kit of Peters (hereinafter “modified Peters”), in tablet or powder form and inclusive of the components identified above, would have been enclosed and sealed within the (single) compartment of a water-soluble casing formed from water-soluble film(s) (hereinafter “encased dye tablet” and “encased dye powder”, respectively), and disposed in the bottle (110).
The aforesaid encased dye powder or encased dye tablet of the kit of modified Peters reads on the casing defined by each and every limitation of claim 1, wherein the one or more dyes/colorants reads on “one or more agents disposed within the at least one compartment, wherein the one or more agents are configured to impart an artistic effect to an article”. As such, the kit of modified Peters inclusive of said encased dye tablet or encased dye powder reads on the DIY activity-kit defined by claim 21, wherein the encased dye powder or encased dye tablet reads on “one or more casings according to claim 1”, and the instructions (set forth/cited above) read on “instructions to form at least one of a decoration art, a tie-dye art, or a squeezable art”.
Regarding claim 22, in view of the rejection and corresponding interpretation of claim 22 under 35 U.S.C. 112(b) above, and in view of MPEP 2111.05 and MPEP 2112.01(III), the rejection of claim 21 above reads on the DIY activity-kit defined by claim 22. That is, the encased dye tablet or encased dye powder of modified Peters above reads on “comprises a colorant formulation”. The remainder of the limitations of claim 22, which are directed to the instructions of the DIY activity-kit – specifically, the content of the instruction steps – are not functionally or structurally related to the medium/substrate on which the instructions are printed or otherwise disposed. As such, the instructions steps, as claimed, are not given patentable weight.
Applicant is respectfully directed to MPEP 2111.05 and MPEP 2111.05(I)(B), which indicate: “a limitation is printed matter only if it claims the content of information”. See In re DiStefano, 808 F.3d 845, 848, 117 USPQ2d 1265, 1267 (Fed. Cir. 2015). “For example, in a kit containing a set of chemicals and a printed set of instructions for using the chemicals, the instructions are not related to that particular set of chemicals.” In re Ngai, 367 F.3d at 1339, 70 USPQ2d at 1864.
Further, see MPEP 2112.01(III): “Where the only difference between a prior art product and a claimed product is printed matter that is not functionally related to the product, the content of the printed matter will not distinguish the claimed product from the prior art. In re Ngai, 367 F.3d 1336, 1339, 70 USPQ2d 1862, 1864 (Fed. Cir. 2004) (Claim at issue was a kit requiring instructions and a buffer agent. The Federal Circuit held that the claim was anticipated by a prior art reference that taught a kit that included instructions and a buffer agent, even though the content of the instructions differed, explaining "[i]f we were to adopt [applicant’s] position, anyone could continue patenting a product indefinitely provided that they add a new instruction sheet to the product."). See also In re Gulack, 703 F.2d 1381, 1385-86, 217 USPQ 401, 404 (Fed. Cir. 1983).
Regarding claim 23, the rejection of claim 21 above reads on the kit defined by claim 23. The encased dye powder of the kit of modified Peters reads on “at least one of the one or more casings comprises one or more agents disposed within the at least one compartment of the one or more casings in a powdered form”.
Regarding claim 24, the rejection of claim 21 above reads on the kit defined by claim 24. The encased dye tablet of the kit of modified Peters reads on “at least one of the one or more casings comprises one or more agents disposed within the at least one compartment of the one or more casings in a form of a dye-tablet”.
Regarding claims 25-26, the rejection of claim 22 above is incorporated herein by reference and reads on each kit defined by claims 25-26. See MPEP 2111.05, MPEP 2111.05(I)(B), MPEP 2112.01(III). The instruction steps recited in claims 25-26 are not given patentable weight.
Regarding claims 2-3, 5, and 7-8, the rejection of claim 1 above reads on each casing defined by claims 2-3, 5, and 7-8. The dye composition of the encased dye tablet or encased dye powder of modified Peters reads on claims 2-3 and 7-8, and the water-soluble film defining the compartment of said encased dye tablet or encased dye powder, in light of the teachings of Sonenstein and Pettifer, is suitably formed from water-soluble polymer(s) comprising PVOH (see MPEP 2144.07), thereby reading on claim 5.
Pertinent Prior Art
The following constitutes a list of prior art which are not relied upon herein, but are considered pertinent to the claimed invention and/or written description thereof. The prior art are purposely made of record hereinafter to facilitate compact/expedient prosecution, and consideration thereof is respectfully suggested.
US 2017/0001045 to Aubert et al. – discloses a water-soluble envelope enclosing a dye composition therein, said composition including at least one direct dye and intended for use in dyeing keratin fibers [Abstract]
US 5,640,859 to Fromm – discloses a tie-dyeing kit including a plurality of containers, dye contained therein, and a booklet of instructions [Abstract; Fig. 1; cols. 1-2]
US 2009/0226116 to Hill et al. – discloses a water-soluble paper-based pouch for enclosing/packaging dyes or chemicals, such as those utilized to change color in batch processing [Abstract; 0003-0013]
US 2021/0113453 to Landa et al. – discloses a kit comprising a container and an oxime silicone-inclusive composition for dyeing hair fibers contained in one or more compartments of the container [Abstract; 0041, 0048-0056, 0295-0333, 0700]
US 2023/0357576 to Sill et al. – discloses a water-soluble receptacle formed from water-soluble film(s), and a dye composition enclosed within a compartment of the receptacle, said composition including at least one dye, additives such as fixatives, and suitably in tablet/briquette or powder form, the former being formed via compression of powders having a polymeric binder agent added thereto [Abstract; 0027, 0037, 0042, 0088-0103, 0125, 0150]
US 2014/0242286 to Allison et al. – discloses an enhanced washability ink composition suitable for fabric, walls, or skin [Abstract]
US 2019/0382610 to Durant et al. – discloses a kit including a composition comprising polymer, modeling compound, and reflective particles, said composition suitable for application to surfaces or objects, and said kit including the composition in a container for storage thereof [Abstract; Figs. 8-10; 0005, 0048-0049, 0059, 0063]
US 3,640,741 to Etes – discloses a plastic composition dissolvable in aqueous media and suitable for set up into a plastic gel, said composition disposed within a ring-shaped container [Abstract; Figs. 1-3; cols. 1-3]
US 2015/0175810 to Rieland et al. – discloses dissolvable films for customizing art materials, specifically imparting an artistic effect to an article, and a kit comprising said films [Abstract; 0003, 0006-0015]
US 6,677,295 to Tcheou et al. – discloses detergent tablets comprising powder material mixed with a binder for forming said tablet [Abstract; cols. 1-12]
US 5,474,805 to Vaughn – discloses painting kits [Abstract; Figs. 1-3; cols. 2-6]
Conclusion
Any inquiry concerning this communication or earlier communications from the Examiner should be directed to Michael C. Romanowski whose telephone number is (571)270-1387. The Examiner can normally be reached M-F, 09:30-17:30.
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If attempts to reach the Examiner by telephone are unsuccessful, the Examiner’s supervisor, Aaron Austin can be reached at (571) 272-8935. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MICHAEL C. ROMANOWSKI/Primary Examiner, Art Unit 1782