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 .
Status of Claims
Applicant’s reply filed 5/12/26 is acknowledged. Claims 1-39 are pending and are under examination.
Response to Reply
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1, 3-7 and 9-38 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. Claim 1, for example, recites “analyzing one or more first characteristics of a natural melanin composition of a hair sample from a subject,” “determining a theoretical artificial melanin formulation to approximate the one or more characteristics of the natural melanin composition; and “preparing a prepared artificial melanin formulation according to the theoretical artificial melanin composition”, which are considered abstract ideas because each step appear to mental processes that can be based on an observation, evaluation, judgement and/or opinion. See MPEP 2106.04(a). This judicial exception is not integrated into a practical application because after the “preparing” step, no action is taken. Claim 1 does not include additional elements that are sufficient to amount to significantly more than the judicial exception because the steps are routine, and hair samples, natural and artificial melanin compositions are conventional in the art, especially in light of the cited prior art reference.
Dependent claims 3-7 and 9-38 all further refine the method steps and were considered, however, the subject matter does not affect the result established above.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1, 3-7 and 9-38 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. The claim language, “the one or more characteristics comprises one or more of: . . . a structural characteristic; an optical characteristic; and a radical quenching characteristic;” does not appear to be support by the originally filed disclosure because the claimed characteristics refer to the one or more artificial melanin materials, as recited in [0140] of the applicant’s specification.
In light of applicant’s claim amendments, the prior art rejections under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, are withdrawn, and a new rejection follows.
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 10-13 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.
Claim 10 is rejected because the claim depends on canceled claim 2. For examination purposes, the Office will interpret claim 10 to depend on claim 1.
Claim Interpretation
The Office asserts that a “wherein” clause may have a limiting effect on a claim if the language limits the claim to a particular structure. MPEP 2111.04. The determination of whether a “wherein” clause is a limitation in a claim depends on the specific facts of the case. While all words in each claim are considered in judging the patentability of the claim language, including functional claim limitations, not all limitations provide a patentable distinction.
During patent examination, the examined claims must be given their broadest reasonable interpretation consistent with the specification, unless a term has been given a special definition in the specification (“BRI”). See MPEP 2111.
Prior Art Rejection
In light of applicant’s claim amendments, the prior art rejection is modified.
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.
Claims 1, 3-7 and 9-38 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Gianneschi et al. (“Gianneschi,” WO 2021/096692, previously cited and cited in IDS).
As to claims 1, 3-5, 10-12 and 32-34, Gianneschi teaches a method for matching hair composition (Mimicking Natural Human Hair Pigmentation with Synthetic Melanin in [0177] et seq.), the method comprising: analyzing one or more first characteristics of a natural melanin composition (see e.g., analysis of natural human hair can pertain to evaluating the human hair for its structural characteristic(s), which include the composition of human hair, 65-95% by weight of protein, such as Keratin, and also melanin that is mainly composed of polydopamine; see e.g., [0179] et seq.) of a hair sample from a subject (human hair in [0178] et seq.);
determining a theoretical artificial melanin formulation to approximate the one or more characteristics of the natural melanin composition (see e.g., teaches determining a synthetic version of the naturally occurring nano sized melanin pigment particles to reestablish color of the hair fibers in [0181] et seq.; teaches to approximate “natural color” characteristic);
preparing a prepared artificial melanin formulation according to the theoretical artificial melanin composition (see e.g., teaches preparing a formulation without metal chelators or strong oxidants to generate not only black/brown, but also orange/gold colorations from blond hair, for example in [0182] et seq.); wherein the prepared artificial melanin formulation is characterized by one or more third characteristics (see e.g., teaches the formulation is characterized to mimic natural melanin in [0183] et seq.);
wherein the prepared artificial melanin formulation comprises one or more artificial melanin materials (e.g., synthetic versions mimicking eumelanin in [0090], and ammonium hydroxide in [0183] et seq.); and
wherein the one or more third characteristics is within 10% error and/or has at least 70% spectral matching with the one or more first characteristics (see e.g., color characteristic of artificial melanin formulation should be at least 70% spectral matching to the structural (e.g., color) characteristic of the natural melanin composition because both contain polydopamine in [0183] et seq.; UV-Vis was used to monitor the formation of polydopamine in solution in [0184]. Alternatively, the spectral matching between the artificial and natural formulations should be within 10% error or at least 70% spectral matching as shown in e.g., [0188] et seq. because the graphs describe data sets of the natural hair and the dyed hair.
As to claim 6, Gianneschi teaches mixing the one or more artificial melanin materials to form an artificial melanin mixture in [0025] et seq.
As to claims 7, 9 and 13, Gianneschi teaches the prepared artificial melanin formulation is characterized by one or more third characteristics each being approximately equivalent to the respective first characteristic of the natural melanin composition in [0178] et seq.
As to claims 14 and 16, Gianneschi teaches the theoretical and prepared artificial melanin compositions comprise one or more artificial eumelanins, one or more artificial pheomelanins in [0060], [0089] et seq.
As to claims 15 and 31, Gianneschi teaches each of the one or more melanin materials is not bound to, conjugated to, attached to, coated by, encompassed by, or otherwise chemically associated with a natural or biological proteinaceous matrix, component, or lipid in [0086] et seq.
As to claims 17, 24 and 29-31, Gianneschi teaches the artificial melanin material comprises artificial melanin nanoparticles in [0022] et seq. As to the porous and pore properties, see MPEP 2112.01(II).
As to claims 18 and 20, Gianneschi teaches each melanin polymer comprises a plurality of covalently-bonded melanin base units; and substituted or unsubstituted naphthalene in [0150] et seq.
As to claim 19, Gianneschi teaches said melanin base units are one or more substituted or unsubstituted catechol-based monomer units in [0174] et seq.
As to claim 21, Gianneschi teaches the term eumelanin refers to a melanin whose chemical formula comprises at least one dihydoxyindole (DH I) (e.g., 5,6- dihydroxyindole), at least one dihydroxyindole-2-carboxylic acid (DHICA) (e.g., 5,6- dihydroxyindole-2-carboxylic acid), or a combination of these in [0090] et seq.
As to claim 22, Gianneschi teaches at least 50% of the plurality of melanin polymers are selected from the group consisting of dimers, trimers, tetramers, pentamers, and any combination thereof in [0021] et seq.
As to claim 23, Gianneschi teaches each melanin oligomer is non-covalently associated with at least one other melanin oligomer in [0086] et seq.
As to claim 25, Gianneschi teaches at least a portion of the one or more artificial melanin materials comprises at least one substituted or unsubstituted benzothiazine in [0089] et seq.
As to claims 26-28, Gianneschi teaches at least a portion of the artificial melanin material comprises one or more selenomelanin polymers, which may be a pheomelanin in [0088] et seq.
As to claim 35, Gianneschi teaches the step of extracting is performed via chemical extraction, enzymatic extraction in [0013] et seq.
As to claims 36-38, Gianneschi teaches the prepared artificial melanin formulation is provided to an end-user, which include an individual customer or a hair treatment facility in [0008] et seq.
Response to Arguments
Applicant's arguments filed 5/12/26 have been fully considered but they are not persuasive.
In response to applicant’s argument that Gianneschi does not disclose (i) analyzing characteristics of a natural melanin composition of a hair sample from a subject; (ii) determining a theoretical formulation to approximate those characteristics, and (iii) preparing a formulation having characteristics within 10% error and/or has at least 70% spectral matching with the analyzed characteristics.
The Office respectfully disagrees. During patent examination, the pending claims must be given their broadest reasonable interpretation consistent with the specification, unless a term has been given a special definition in the specification. See MPEP 2111. As to item (i), under BRI, Gianneschi teaches analyzing characteristics of a natural melanin composition of a hair sample from a subject because Gianneschi teaches e.g., [0178] et seq., the analysis of natural human hair can pertain to evaluating the human hair for its structural characteristic(s), which include the composition of human hair, 65-95% by weight of protein, such as Keratin, and also melanin that is mainly composed of polydopamine. As to item (ii), under BRI, Gianneschi teaches in e.g., [0181] et seq., determining a synthetic version of the naturally occurring nano sized melanin pigment particles to reestablish color of the hair fibers. As to item (iii), under BRI and MPEP 2131.03, Gianneschi teaches in e.g., [0183] et seq., the color characteristic of artificial melanin formulation should be at least 70% spectral matching to the structural (e.g., color) characteristic of the natural melanin composition because both contain polydopamine in [0183] et seq.; and UV-Vis was used to monitor the formation of polydopamine in solution in [0184]. Alternatively, the spectral matching between the artificial and natural formulations should be within 10% error or at least 70% spectral matching as shown in e.g., [0188] et seq. because the graphs describe data sets of the natural hair and the dyed hair).
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LORE RAMILLANO JARRETT whose telephone number is (571)272-7420. The examiner can normally be reached Monday to Friday.
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/LORE R JARRETT/Primary Examiner, Art Unit 1797
7/31/2026
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