DETAILED ACTION
Previous Rejections
Applicants' arguments, filed 03 March 2026, have been fully considered. Rejections and/or objections not reiterated from previous office actions are hereby withdrawn. In particular, the nonstatutory double patenting rejections are overcome in view of the terminal disclaimers filed with the response. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 20-37 are rejected under 35 U.S.C. 103 as being unpatentable over Segalen-Guiraud et al. (PCT Patent Application Publication WO 2019/001940) in view of Botto et al. (US Patent Application Publication 2019/0365623).
Segalen-Guiraud et al. discloses anhydrous solid cosmetic compositions useful for treating keratin material (abstract). The composition comprises at least one anionic surfactant chosen from isethionic acid derivatives, at least one anionic surfactant chosen from glutamic acid derivatives, and at least one amphoteric surfactant (id.).
One example (example 1) has 16.65 wt% of sodium cocoyl isethionate, which is the elected species of anionic surfactant of sulfonate type, and this ingredient reads upon instantly recited element (i).
This example also has 8.33 wt% of sodium lauroyl glutamate, which is the elected species of anionic surfactant of carboxylate type, and this ingredient reads upon instantly recited element (ii).
This example also has 5.56 wt% of the amphoteric surfactant cocamidopropylbetaine, and this ingredient reads upon instantly recited element (iii).
This example further has no water present.
Independent instant claim 20 recites the inclusion of a cationic polymer as element (iv), whereas the example disclosed by Segalen-Guiraud et al. does not comprise such a polymer. However, Segalen-Guiraud et al. does suggest the inclusion of adjuvants normally used in the cosmetic field, and especially those in cleansing products (page 27, lines 27-29).
Botto et al. discloses cleansing compositions comprising conditioning agents and surfactants which are useful for cleansing hair (abstract). Useful conditioning agents for hair include cationic guar gum derivatives, such as hydroxypropyl guar hydroxypropyltrimonium chloride (claim 15). This guar derivative is the elected species of cationic polymer, and reads upon instantly recited element (iv).
Therefore, it would have been prima facie obvious to one of ordinary skill in the art at the time of filing to have include a conditioning agent into the hair cleansing product disclosed by Segalen-Guiraud et al. Generally, it is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use. See MPEP 2144.07. Further, adding it would provide for the additional beneficial property of conditioning the hair while also cleansing the hair.
Instant claim 20 further limits the relative amount of (i) to (ii). Segalen-Guiraud et al. suggests amounts for these two ingredients (claims 5 & 7), and these two suggested amounts provide for a range of relative amounts. The ranges do not read upon the instantly recited range, but they do overlap. And in cases involving overlapping ranges, where the instantly claimed ranges “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists. See MPEP 2144.05. Thus, the composition recited by independent instant claim 20 is rendered prima facie obvious.
Instant claims 21-23 further limit instantly recited element (i), and are read upon by the sodium cocoyl isethionate cited above.
Instant claims 24-27 further limit instantly recited element (ii), and are read upon by the sodium lauroyl glutamate cited above.
Instant claim 28 further limits the relative amount of (i) to (ii), and instant claims 29-30 recite total amounts for both (i) and (ii). Segalen-Guiraud et al. suggests amounts for these two ingredients which provide for a range of relative and total amounts (claims 5 & 7). The ranges do not read upon the instantly recited range, but they do overlap.
Instant claim 31 recites a limitation to element (iii), and the betaine amphoteric surfactant in the above cited example reads upon this limitation.
Instant claim 32 further limits the cationic polymer (element (iv), and the guar derivative taught by Botto et al. reads upon this limitation.
Instant claims 33 and 34 recite the further inclusion of a filler, and such a filler (rice starch) is present in the above cited example.
Instant claim 35 recites the further inclusion of a glycoside surfactant. Segalen-Guiraud et al. does not suggest these specific surfactants, but does suggest the inclusion of nonionic surfactants (page 13, lines 1-10). And Botto et al. suggests such glycosides as nonionic surfactants (paragraph [117]). Therefore, it would have been prima facie obvious to one of ordinary skill in the art at the time of filing to have include such glycosides into the composition disclosed by Segalen-Guiraud et al. Generally, it is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use.
Instant claim 36 recites a limitation to the total amount of surfactants (i)-(iii). And the amount in the above cited example reads upon this range.
Instant claim 37 recites a limitation to the additional inclusion of an organic solvent. And such a solvent (propylene glycol) is present in the above cited example.
Response to Arguments
The Applicant argues that the obviousness rejection is not proper for several reasons. The Applicant argues that the compositions of Segalen-Guiraud et al. and Botto et al. are not combinable because Botto et al. requires the presence of water, whereas Segalen-Guiraud et al. relates to anhydrous compositions. The Applicant also argues that the rejection is not proper as the weight ratio is not taught by wither reference, and a variable has to be recognized as result-effective in order to be optimized. Also, the amounts in the example do not provide a ratio as instantly recited.
The Applicant also argues that the claimed invention provides for unexpected results. The inclusion of the cationic polymer in the composition allows for the generation of more abundant, creamier, and better held foam than when the cationic polymer is not present. This is supported by Additional Test #1 as shown in the declaration filed under 37 CFR 1.132. Also, Additional Test #2 shows that the wight ratio leads to better cosmetic properties when the weight ratio is 0.8 when compared to a composition with a weight ratio of 0.5.
The Examiner acknowledges the arguments presented, but does not consider them persuasive. With respect to the combination of the two references, the rejection is not based on the combination of the compositions as a whole. Rather, the rejection relies of Botto for suggesting specific conditioning agents. Segalen-Guiraud et al. suggest the inclusion of adjuvants normally used in the cosmetic field, and especially those in cleansing products (page 27, lines 27-29). And the rationale for adding just this one ingredient was that generally it is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use. See MPEP 2144.07. Further, adding it would provide for the additional beneficial property of conditioning the hair while also cleansing the hair.
The arguments regarding the weight ratio are also not found persuasive. It is noted that the rejection did not state that this is a variable which is optimized, so the argument relating to recognition of it being result effective is not found persuasive. Also, the example was not relied upon for teaching this ratio. Instead Segalen-Guiraud et al. suggests amounts for these two ingredients (claims 5 & 7), and these two suggested amounts provide for a range of relative amounts.
The arguments relating to the unexpected results are not found persuasive for overcoming the rejection. The results are considered to demonstrate results which are unexpected. One of ordinary skill in the art would not expect the inclusion of 0.6 wt% of the hydroxypropyl guar hydoxypropyltrimonium chloride to have the demonstrated effects on the foam. And one of ordinary skill in the art would not expect that adjusting the amounts of the sodium cocoyl isethionate and sodium lauroyl glutamate from a ratio of 0.5 to 9.8 would have the demonstrated effect on cosmetic properties.
However, once unexpectedness has been established, the probative value of the evidence as compared to the invention as claimed must be determined, i.e., claims must be “commensurate in scope” with the showing. See MPEP 716.02(d). In other words, the showing of unexpected results must be reviewed to see if the results occur over the entire claimed range or whether or not there is adequate basis for reasonably concluding that the number and variety of species included by the claims would behave in the same manner as those tested.
The evidence does not support the conclusion that the unexpected results would be present over the entire claimed range. For example, with respect to the weight ratio, only two species of surfactants were evaluated, and it is unclear whether the effect would be present with other surfactants. Also, the ratio of the surfactant recited by instant claim 20 is greater than or equal to 0.6, and this endpoint is closer to the example without the unexpected result (0.5) than the example with the unexpected result (0.8). Likewise, the single cationic polymer (in a single amount) does not sup[port the broader range of polymers recited by the claimed invention.
Conclusion
THIS ACTION IS MADE FINAL. 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 Brian Gulledge whose telephone number is (571) 270-5756. The examiner can normally be reached Monday - Friday 7am - 4pm.
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/Brian Gulledge/Primary Examiner, Art Unit 1699