DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Election/Restrictions
Applicants elected glyoxylic acid as specific keto acid; cetyl alcohol as specific fatty alcohol; isopropylidene glycerol as specific water-miscible solvent; stearamidopropyl dimethylamine as specific cationic surfactant; propylene carbonate as specific cyclic carbonate and amodimethicone as specific amino silicones with traverse base on arguments there is no burden to examine all species together. This is not persuasive because there is indeed burden to search and examine all species together.
For compact prosecution purpose, the election of species requirement for fatty alcohol, water-miscible solvent, cationic surfactant, cyclic carbonate and amino silicones is withdrawn. The application is examined in view of glyoxylic acid as specific keto acid. Claims 1-9, 11-12 read on the elected species and are under examination; claims 10 and 13-15 do not read on the elected species and are withdrawn from consideration.
Claims 1-15 are pending, claims 1-9 and 11-12 are under examination.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 12/08/2023 & 08/06/2024 is being considered by the examiner.
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.
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.
Claim 3 is 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.
A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 3 recites the broad recitation about 2 to about 6, and the claim also recites about 2 to about 5, which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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.
Claims 1-3, 5-9 and 11 are rejected under 35 U.S.C. 103 as being unpatentable over Rose et al. (US20160220462) in view of Uchida et al. (US20030108502) and Brautigam et al. (US20040234491).
Determination of the scope and content of the prior art
(MPEP 2141.01)
Rose et al. teaches a process for semi-permanent hair straightening and aftercare treatment and to a kit of compositions for use in this process. A process, which comprises the following steps performed in this order: (a) application of a straightening composition onto the hair, (b) leaving the composition on the hair for 1 to 120 minutes; (c) optionally rinsing off the hair; (d) drying the hair, (e) treating the hair with an iron having a surface temperature of 130 to 250° C; (f) optionally rinsing off and/or shampooing the hair and drying; (g) treating the hair with a one or both, preferably both of a cleansing composition and a conditioning composition; wherein the straightening composition has a pH of 4 or lower and comprises at least one carboxylic acid of the Formula (I) and/or a hydrate thereof and/or a salt thereof; the cleansing composition has a pH of 4 or lower and comprises one or more surfactants selected from anionic, non-ionic and amphoteric surfactants and at least one carboxylic acid of the Formula (I) and/or a hydrate thereof and/or a salt thereof; and the conditioning composition has a pH of 4 or lower and comprises one or more conditioning components and at least one carboxylic acid of the Formula (I) and/or a hydrate thereof and/or a salt thereof: R—CO—COOH Formula (I) ([0011-0021]). In the present invention, steps (a) to (f) refer to the straightening treatment and are carried out in direct succession, while step (g) refers to an after-treatment, which can be performed whenever it is desired to cleanse and/or condition the hair ([0022]). The straightening composition comprises at least one carboxylic acid of the following formula (I) as the active component: R—CO—COOH, Formula (I). As preferred examples, glyoxylic acid, pyruvic acid and 2-ketobutyric acid can be mentioned. The concentration of the at least one carboxylic acid of the Formula (I) and/or a hydrate thereof and/or salts thereof is in the range of 0.1 to 40%, preferably 0.5 to 30%, more preferably 1 to 25% and even more preferably 2.5 to 20% by weight, based on the total weight of the straightening composition ([0033-0035, 0039-0040]). The straightening composition may suitably comprise further ingredients such as surfactants and/or conditioning agents as defined below, and may suitably be in the form of a solution, emulsion, cream, gel, paste and/or mousse. As the surfactants, one or more of the anionic surfactants, the non-ionic surfactants and the amphoteric/zwitterionic surfactants defined below in connection with the cleansing composition may be used. The concentration thereof may suitably be in the range of 0.1 to 20% by weight, preferably 0.5 to 10% by weight, more preferably 1 to 5% by weight, based on the weight of the straightening composition. As the conditioning components, one or more of the silicones, the cationic polymers, the oil components, the fatty alcohols and the cationic surfactants defined below in connection with the conditioning composition may be used. The concentration thereof may suitably be in the range of 0.1 to 20% by weight, preferably 0.5 to 10% by weight, more preferably 1 to 5% by weight, based on the weight of the straightening composition ([0043-0045]). There are no particular limitations with respect to the conditioning composition (conditioner) used in the present invention, as long as it comprises at least one compound according to the above general Formula (I) and/or a hydrate thereof and/or a salt thereof. The conditioning composition of the present invention is preferably a leave-in composition, which is not rinsed off from the hair after application onto either wet or dry hair. Alternatively, the conditioner may be a rinse-off conditioner which is rinsed off from the hair after application and leaving on the hair for a certain period of time. Regardless of the type of application, the conditioner may be in the form of a solution, dispersion, emulsion, foam or gel ([0089-0092]). A cationic polymer is a polymer having a cationic group or a group capable of being ionized into a cationic group, and in general, an amphoteric polymer acquiring net cationic charge is also included in the terminology. That is, the cationic polymer is a polymer containing an amino group or an ammonium group in a side chain of the polymer chain, or a polymer including a diallyl quaternary ammonium salt as a constituent unit, and examples thereof include cationized cellulose, cationic starch, cationic guar gum, a polymer or copolymer of a diallyl quaternary ammonium salt, and quaternized polyvinylpyrrolidone ([0101]). The content of the cationic polymer is preferably 0.001 to 20 wt %, more preferably 0.01 to 10 wt. %, and even more preferably 0.05 to 5 wt. %, based on the weight of the conditioning composition ([0105]). In order to improve the feel of use, the conditioner preferably contains a silicone. Examples of the silicone include dimethylpolysiloxane, and modified silicone (for example, amino-modified silicone, fluorine-modified silicone, alcohol-modified silicone, polyether-modified silicone, epoxy-modified silicone, or alkyl-modified silicone), but dimethylpolysiloxane, polyether-modified silicone and amino-modified silicone are preferred. The amino-modified silicone may be any silicone having an amino group or an ammonium group, and examples thereof include an amino-modified silicone oil having all or a part of the terminal hydroxyl groups capped with a methyl group or the like, and an amodimethicone which does not have the terminals capped. The total content of these silicones in the compositions of the present invention is usually 0.1 to 20 wt. %, preferably 0.2% to 10 wt. % and more preferably 0.5 to 5 wt. %, based on the weight of the conditioning composition ([00107. 0110, 0112]). From the viewpoint of improving the sense of touch and stability, the conditioner may also contain a higher alcohol having 8 carbon atoms or more. Usually, the higher alcohol has 8 to 24 carbon atoms, and preferably 16 to 22 carbon atoms. Specific examples thereof include cetyl alcohol, stearyl alcohol, behenyl alcohol, and mixtures thereof. The higher alcohol may be used in combination of two or more kinds, and the content thereof is typically 0.1 to 20 wt. %, preferably 0.2 to 10 wt. %, more preferably 0.5 to 5 wt. %, based on the weight of the conditioning composition ([0122-0123]). The conditioner may also contain a cationic surfactant. The cationic surfactant is preferably a mono-long chain alkyl quaternary ammonium salt, having a C8-C24 alkyl residue and three C1-C4 alkyl residues. The cationic surfactant may be used in combination of two or more kinds, and the content thereof is typically 0.1 to 20 wt. %, preferably 0.2 to 10 wt. %, more preferably 0.5 to 5 wt. %, based on the total weight of the conditioning composition ([0126, 0130]). In example, a leave-in conditioning comprising 20% ethanol, 0.8% of PEG-40 Hydrogenated castor oil (nonionic surfactant), 10% of propylene glycol and water at about 67% ([0174]).
Uchida et al. teaches anhydrous cosmetic compositions comprising: (a) a hydrophobic polyol; and (b) a hydrophilic polyol; which can provide improved conditioning benefits such as moisturizing benefit, and also can provide improved deposition of oily conditioning agents when included in the compositions (abstract). The hydrophobic polyols can be included in the composition at a level by weight of, preferably from about 2% to about 60%, more preferably from about 5% to about 50%, still preferably from about 10% to about 40% in view of providing conditioning benefits such as moisturizing benefit while providing reduced stickiness. The hydrophilic polyols can be included in the composition at a level by weight of, preferably from about 15% to about 85%, more preferably from about 20% to about 80%, still preferably from about 25% to about 75% in view of the desired viscosity and spreadability of the composition ([0021]). Various anhydrous cosmetic compositions such as anhydrous hair care compositions and anhydrous skin care compositions can be used in the present invention. The anhydrous hair care compositions useful herein include, for example, anhydrous hair shampoo compositions, anhydrous hair styling compositions, anhydrous hair conditioning compositions, anhydrous hair color compositions, anhydrous hair growth compositions, and mixtures thereof. The anhydrous compositions of the present invention contain, preferably 3% or less of water, more preferably 1% or less of water. Still more preferably, no water is purposely added to the anhydrous composition of the present invention ([0022]). The anhydrous cosmetic compositions of the present invention can be in the form of rinse-off products or leave-on products ([0023]). he anhydrous compositions can be applied to wet hair and/or wet skin to mix with water remaining on the hair and/or skin. The anhydrous compositions can be applied to wet and/or dry hair and/or skin to mix with water when rinsed-off ([0024]). The hydrophilic polyols useful herein include, for example, polyethylene glycol, propylene glycol, butylene glycol, hexylene glycol, glycerin, diglycerin, diethylene glycol, dipropylene glycol, and mixtures thereof. Among them, preferred are polyethylene glycol, propylene glycol, butylene glycol, hexylene glycol, glycerin, diglycerin, and mixtures thereof. More preferred is polyethylene glycol in view of its ability to generate a heat by mixing with water and physical properties such as viscosity and fluidity ([0049]). The other ingredients includes Amino-substituted siloxanes known as “amodimethicone”([0067]), fatty alcohol ([0070-0071]), cationic surfactant ([0115]) such as stearamidopropyl dimethylamine ([0119]). The anhydrous hair care composition of the present invention preferably contains nonionic surfactant in view of providing a physical stability. The nonionic surfactant can be included in the composition of the present invention at a level by weight of, preferably from about 0.01% to about 10%, more preferably from about 0.05% to about 8%, still preferably from about 0.1% to about 5% ([0121]).
Brautigam et al. teaches a transparent gel type of hair conditioner composition showing relatively low viscosity changes at fluctuating temperatures and comprising at least one cationic polymer, polyquaternium 37, as a thickener and stabilizer and free from fatty alcohols, and, therefore, not in the emulsion form which is especially excellently suitable for rinse off application as well as leave in application (abstract). The conditioner compositions may contain organic solvents, for example, as penetration enhancer such as ethanol, propanol, isopropanol, benzyl alcohol, benzyloxyethanol, alkylene carbonates such as ethylene carbonate and propylene carbonate, phenoxyethanol, butanol, isobutanol, cyclohexane, cyclohexanol, hexyleneglycol, ethylene glycol, butylenes glycol, propylene glycol, benzyl glycol, ethylene glycol monoethylether, ethylene glycol monobutyl ether, ethylene glycol monophenyl ether, 1-phenylethylalcohol, 2-phenylethylalcohol, o-methoxyphenol. Concentration of organic solvents in the conditioner composition can be in the range from 0.1 to 10% by weight, preferably 0.1 to 7.5% by weight, and more preferably 0.1 to 5% by weight calculated to the total composition. The organic solvents may at the same time serve to solubilize ingredients which are not readily soluble in the conditioner composition (abstract).
Ascertainment of the difference between the prior art and the claims
(MPEP 2141.02)
The difference between the instant application and Rose et al. is that Rose et al. do not expressly teach water-miscible solvent in rinse-of anhydrous conditioning composition, propylene carbonate in leave-in conditioning composition. This deficiency in Rose et al. is cured by the teachings of Uchida et al. and Brautigam et al.
Finding of prima facie obviousness
Rational and Motivation (MPEP 2142-2143)
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the invention of Rose et al., as suggested by Uchida et al. and Brautigam et al., and produce the instant invention.
Rose et al. teaches a hair treatment steps comprising (a) application of a straightening composition onto the hair, (b) leaving the composition on the hair for 1 to 120 minutes; (c) optionally rinsing off the hair; (d) drying the hair, (e) treating the hair with an iron having a surface temperature of 130 to 250° C; (f) optionally rinsing off and/or shampooing the hair and drying; (g) treating the hair with a one or both, preferably both of a cleansing composition and a conditioning composition; while step (g) refers to an after-treatment, which can be performed whenever it is desired to cleanse and/or condition the hair (rinse-off or leave-in). Since step(g) can be performed whenever it is desired, it is obvious to have conditioning composition (rise-off) and conditioning composition (leave-in) after step (c) for desired results. Thus, it is obvious to have the hair treatment steps comprising (a) application of a straightening composition onto the hair, (b) leaving the composition on the hair for 1 to 120 minutes; (c) optionally rinsing off the hair; (c1) application rinse-off conditioning composition, rinse off; (c2) application leave-in conditioning composition; (d) drying the hair, (e) treating the hair with an iron having a surface temperature of 130 to 250°C.
Regarding the limitation of step (i) in claim 1, claim 2, claim 7-9, Rose et al. teaches a hair treatment steps comprising (a) application of a straightening composition onto the hair, (b) leaving the composition on the hair for 1 to 120 minutes; (c) optionally rinsing off the hair; and straightening composition comprises 1-25% of glyoxylic acid, 1 to 5% of fatty alcohol and 1-5% of nonionic surfactant.
Regarding the limitation of step (ii) in claim 1, Rose et al. is silent about water-miscible solvent and anhydrous conditioning composition, one of ordinary skill in the art would have been motivated to have about 50-95% of water-miscible solvent as anhydrous carrier for conditioning composition (rinse-off) because about 50-95% of water-miscible solvent as anhydrous carrier is suitable carrier for conditioning composition. MPEP 2144.07. Under guidance from Uchida et al. teaching about 20% to about 80% of hydrophilic polyol such as glycerin as anhydrous carrier for conditioning composition for improved conditioning benefits such as moisturizing benefit and improved deposition of oily conditioning agents, it is obvious for one of ordinary skill in the art to about 50-95% of water-miscible solvent such as glycerin as anhydrous carrier for conditioning composition (rinse-off) and produce instant claimed invention with reasonable expectation of success.
Regarding the limitation of step (ii) in claim 1 and claim 11, prior art teaches step of applying rinse-off conditioning composition comprising 0.5% to 5% of fatty alcohol, 15-85% of water-miscible solvent glycerin and 0.5% to 5% of cationic surfactant, and rinse off.
Regarding the limitation of step (iii) in claim 1, Rose et al. is silent about propylene carbonate. One of ordinary skill in the art would have been motivated to replace propylene carbonate for propylene glycol in the leave-in conditioning composition because this is simple substitution of one known organic solvent for another to obtain predictable. MPEP 2143, it is prima facie obviousness for simple substitution of one known element for another to obtain predictable results. Under guidance from Rose et al. teaching 10% of propylene glycol in conditioning composition, Brautigam et al. teaching propylene carbonate as alternative solvent for propylene glycol in conditioning composition, it is obvious for one of ordinary skill in the art to replace propylene carbonate for propylene glycol in the leave-in conditioning composition and produce instant claimed invention with reasonable expectation of success.
Regarding the limitation of step (iii) in claim 1, claims 3 and 5, prior art teaches applying leave-in conditioning composition with pH about 4 comprising 10% of propylene carbonate, 0.5 to 5 wt. % amine-based silicone such as amodimethicone, 67% of water, 0.05-5% of cationic starch (polysaccharide), 0.8% of PEG-40 Hydrogenated castor oil (nonionic surfactant).
Regarding claim 5, prior art teaches step d) drying the hair, (e) treating the hair with an iron having a surface temperature of 130 to 250° C.
In light of the forgoing discussion, the Examiner concludes that the subject matter defined by the instant claims would have been obvious within the meaning of 35 USC 103.
From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole was prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, as evidenced by the references, especially in the absence of evidence to the contrary.
Claims 4 and 12 are rejected under 35 U.S.C. 103 as being unpatentable over Rose et al. (US20160220462) in view of Uchida et al. (US20030108502) and Brautigam et al. (US20040234491), as applied for the above 103 rejection for claims 1-3, 5-9 and 11, further in view of Blankenship et al. (US20060106153) and Mathonneau et al. (US20180250218).
Determination of the scope and content of the prior art
(MPEP 2141.01)
Rose et al., Uchida et al. and Brautigam et al. teaching have already been discussed in the above 103 rejection and are incorporated herein by reference.
Blankenship et al. teaching Nonionic associative thickeners (abstract). In one non-limiting embodiment, the nonionic water soluble polymer backbone of the nonionic associative thickener is a polyurethane polymer ([0060]). The nonionic associative thickener may be incorporated into compositions, including aqueous compositions or non-aqueous compositions, in amounts ranging from about 0.005 weight % to about 20 weight %, preferably from about 0.01 weight % to about 10 weight %, and most preferably from about 0.05 weight % to about 5 weight %, based on the weight of the composition ([0081]). Examples of aqueous compositions which may include the nonionic associative thickener of this invention are paints, such as latex paints; coatings; cosmetics, personal care items such as, for example, shampoos, hair conditioners ([0087]).
Mathonneau et al. teaches a composition for cleansing and conditioning keratin fibres, in particular human keratin fibers (abstract). The composition according to the invention may also comprise one or more standard additives that are well known in the art such as natural or synthetic thickeners or viscosity regulators. The thickener(s) may be chosen from cellulose-based thickeners. nonionic, anionic, cationic or amphoteric associative polymers, such as the polymers sold under the names Pemulen TR1 or TR2 by the company Goodrich, Salcare SC90 by the company Ciba, Aculyn 22, 28, 33, 44 or 46 by the company Röhm & Haas, and Elfacos T210 and T212 by the company Akzo. These additives are generally present in the composition according to the invention in an amount ranging from 0 to 20% by weight relative to the total weight of the composition ([0309, 0310 and 0312]). Elfacos T210 and T212 are nonionic associated polyether/polyurethanes thickener (according to applicant’s specification [0091]).
Ascertainment of the difference between the prior art and the claims
(MPEP 2141.02)
The difference between the instant application and Rose et al. is that Rose et al. do not expressly teach nonionic associate thickener. This deficiency in Rose et al. is cured by the teachings of Blankenship et al. and Mathonneau et al.
Finding of prima facie obviousness
Rational and Motivation (MPEP 2142-2143)
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the invention of Rose et al., as suggested by Blankenship et al. and Mathonneau et al., and produce the instant invention.
One of ordinary skill in the art would have been motivated to include a nonionic associated polymeric thickener because a nonionic associated polymeric thickener is a suitable thickener for desired viscosity for hair conditioner. Under guidance from Blankenship et al. teaching nonionic associative thickener polyurethane polymer at 0.05 to 5% for conditioner; Mathonneau et al. teaching Elfacos T210 and T212 (nonionic associative polyether/polyurethanes thickener) at 0-20% in conditioning composition; it is obvious for one of ordinary skill in the art to include a nonionic associative polymeric thickener at 0.05-5% in the leave-in conditioning composition and produce instant claimed invention with reasonable expectation of success.
Regarding claims 4 and 12, prior art teaches applying leave-in conditioning composition with pH about 4 comprising 10% of propylene carbonate, 0.5 to 5 wt. % amine-based silicone such as amodimethicone, 67% of water, 0.05-5% of nonionic associative polymeric thickener, 0.05-5% of cationic starch (polysaccharide), 0.8% of PEG-40 Hydrogenated castor oil (nonionic surfactant).
In light of the forgoing discussion, the Examiner concludes that the subject matter defined by the instant claims would have been obvious within the meaning of 35 USC 103.
From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole was prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, as evidenced by the references, especially in the absence of evidence to the contrary.
Conclusion
No claim is allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JIANFENG SONG. Ph.D. whose telephone number is (571)270-1978. The examiner can normally be reached M-F 8-5.
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/JIANFENG SONG/Primary Examiner, Art Unit 1613