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 .
Applicants’ arguments, filed 12/01/2025, have been fully considered. Rejections and/or objections not reiterated from previous office action are hereby withdrawn. 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 § 112 – New by Amendment
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 1-9, 11-15 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.
Instant claim 1 recites “a density between 0.2 and 0.8” but does not recite any units. This renders the claim indefinite because a skilled artisan would not be able to reasonably appreciate the metes and bounds of the density. The Examiner appreciates the instant specification implies the unit of volume is mL: “By way of example, the density may be measured according to the following method. A given amount (mass, m) of powder is placed in a 250 mL measuring cylinder. The powder contained in the measuring cylinder then undergoes 2500 compressions and the volume (v) occupied by the powder is obtained. The volume (v) thus obtained is read on the measuring cylinder and the density (d) is then determined according to the formula d = m/v” [p. 5, lines 32 – p. 6, line 2]. However, there is no indication as to the units for mass. For the purposes of examination the density will be interpreted to read on any units.
Claim Rejections - 35 USC § 103 – New by Amendment
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 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
1) Claims 1-6, 8, 9, 11-15 are rejected under 35 U.S.C. 103 as being unpatentable over Dierassi et al. (US 4,330,438, date of patent 05/18/1982) in view of Nazdrajic et al. (International Journal of Advanced Research, December 2019, vol. 7, no. 12, p. 501-507), Mathonneau et al. (US 2017/0348200 A1, publication date 12/07/2017; cited in IDS 06/02/2023), Evans et al. (US 7,704,932 B2, date of patent 04/27/2010) and Tantawy et al. (US 8,906,842, date of patent 12/09/2014).
Regarding instant claims 1, 2, 9, 12-15 Dierassi discloses a “powder shampoo concentrate is disclosed comprising a mixture of an anionic surfactant and a nonionic derivative of a polygalactomannan gum together with conventional shampoo ingredients” [abstract]. The powdered shampoos of Dierassi “readily form liquid shampoos, when admixed with water, which are viscous and have satisfactory foaming and rinsability properties” [col. 1, lines 29-31]. In Example 3, column 4, Dierassi disclose compositions comprising alkyl sulfate anionic surfactants (i.e., instant claim 2):
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According to this example a “shampoo solution is prepared by diluting 1 part by weight of the powder mix with 39 parts by weight of tap water and stirring for 1 minute” (i.e., powder to water ratio of 0.02 and mixing for 1-120 seconds; ranges of instant claims 1 and 12). Dierassi discloses tresses (i.e., keratin materials) were washed with these compositions (i.e., instant claim 15) [co. 4, lines 26-27].
Dierassi does not disclose amphoteric surfactants, nonionic surfactants, a step of letting the liquid composition stand for at least 4 hours and a powder density.
Nazdrajic discloses “when amphoteric and nonionic surfactants are used with anionic surfactants, foaming of the formulations are improved. Amphoteric surfactants have antibacterial properties, low toxicity, excellent resistance to hard water, and is suitable with various kinds of surfactants” [abstract].
Mathonneau discloses a solid anhydrous cosmetic composition and a preparation process [abstract], wherein the solid anhydrous composition may be a powder [0046] and may be a shampoo [0439]. The preparation process comprises mixing a solid anhydrous composition with a conditioning composition, which is aqueous [0450]. The compositions are mixed to obtain a final cosmetic composition [0711]. Additionally, the solid anhydrous composition may comprise anionic surfactants [0052], amphoteric surfactants [0119] and non-ionic surfactants (i.e., instant claim 9) [0375].
Dierassi, Nazdrajic and Mathonneau do not disclose powder density and a step of letting the composition stand for at least 4 hours
Evans relates to a personal cleaning composition [title]. Evans discloses that “8.0% Sodium Laureth 2 Sulfate, 3.0% Sodium Lauryl Sulfate, 3.0% Sodium Lauroyl Sarcosinate, 3.0% Cocamidopropyl Betaine, 0.5% Lauric Acid, and 2% Sodium Sulfate, 0.5% of the suspected Fragrance Oil, and QS water. The composition is then mixed using a Speed Mixer (DAC400 (Dual Asymmetric Centrifuge) FVZ. Flaktek Inc. Landrum, S.C.) for 1 minute at 2000 rpm, after which it is left to stand until de-aerated” [col. 6, lines 8-16]. Evans also discloses that a suitable amount of time for a composition to de-aerate is 24 hours which is to eliminate any air bubbles (i.e., instant claim 13) [col. 11, lines 10-11].
Dierassi, Nazdrajic, Mathonneau and Evans do not disclose a powder density.
Tantawy relates to powdered soaps [title], and teaches that high bulk density powders sink and form sediments when added to water [col. 1, lines 30-35]. Tantawy discloses bulk density of from 350 g/1 to 700 g/l (i.e., 0.35 g/ml to 0.7 g/ml) can overcame this issue [col. 1, lines 53-54].
It would have been obvious to one of ordinary skill in the art, at the time of filling, to have combined amphoteric and nonionic surfactants of Mathonneau with the composition taught by Dierassi. One would have been motivated to make this combination because Nazdrajic discloses combining amphoteric and nonionic surfactants with anionic surfactants can improve foaming, as desired by Dierassi. Nazdrajic further motivates the addition of amphoteric surfactants by disclosing they have antibacterial properties. One would have had an expectation of success because Mathonneau discloses amphoteric and nonionic surfactants are suitable for powdered soaps intended to be mixed with water. Additionally, in combining these elements one would have expected nothing more than predictable results because, when combined, each prior art element would have performed the same function as it had separately. See MPEP 2143, Exemplary Rationale A.
Additionally, it would have been obvious to one of ordinary skill in the art, at the time of filling, to have combined the de-aerating method step of Evans with the methods disclosed by Dierassi. One would have been motivated to combine this step to provide a composition without air bubbles, as taught by Evans. One would have had an expectation of success because Evans discloses this step for a method of making a cleansing compositions.
To that end, it would have been obvious to one of ordinary skill in the art, at the time of filling, to have selected the 24 hours taught by Evans for the amount of time the composition de-aerates because Evans discloses 24 hours is an appropriate length of time to eliminate gas bubbles. See MPEP 2144.07.
Furthermore, in the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I). In the present case, the ranges in the prior art for the weight ratio of anhydrous to aqueous compositions (0.02) and the standing time (24 hours) overlap with the instantly claimed ranges for the weight ratio (0.01 to 0.5; instant claim 1) and standing time (at least 4 hours and at least 24 hours; instant claims 1 and 13, respectively). Accordingly, a prima facie case of obviousness exists for each range.
Finally, it would have been obvious to one of ordinary skill in the art, at the time of filling, to have formulated a composition with a density within the instantly claimed range through routine optimization. It has been held that it is not inventive to discover the optimum workable ranges by routine experimentation where, as is here, the general conditions of the claim are disclosed in the prior art. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). One of ordinary skill in the art would have been motivated to optimize the bulk density because Tantawy discloses density impacts the mixing properties of powdered soaps in water and Dierassi desires a powdered composition that readily mixes with water.
Therefore, it would have been obvious to one of ordinary skill in the art, at the time of filling, to have prepared, and applied, a composition for keratin materials by mixing together, then agitating resulting mixture of an anhydrous powder composition and a composition comprising water. Wherein the anhydrous composition comprises an alkyl sulfate anionic surfactant (sodium lauryl sulfate), amphoteric surfactant and a nonionic surfactant. Wherein the compositions are mixed at a ratio within the instantly claimed amounts and the final composition is left to stand within the instantly claimed time range. Since the prior art composition contains substantially the same components, i.e., a composition of anionic surfactant, amphoteric surfactant, nonionic surfactant and water which has rested for 24 hours, in the same relative proportions as instantly claimed, it would be expected to inherently possess the same chemical and physical properties, such as being transparent (i.e., instant claim 14).
Regarding instant claims 3, 5 and 6, Mathonneau discloses that the “solid anhydrous cosmetic composition, in particle form, and comprising at least 30% by weight of anionic surfactants, [and] at least 5% by weight of amphoteric surfactants” [abstract].
Generally, it is prima facie obvious to select a known material based on its suitability for its intended use. See MPEP 2144.07. In the present case, it would have been obvious to one of ordinary skill in the art, at the time of filling, to have selected the amounts amphoteric and anionic surfactants disclosed by Mathonneau for the amounts of anionic and amphoteric surfactants in the composition taught by the prior art, and discussed above, because Mathonneau disclosed those amounts are suitable for anhydrous compositions comprising amphoteric, anionic and nonionic surfactants.
In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I). In the present case, the ranges in the prior art for the weight percent of anionic surfactants, amphoteric surfactants and total surfactant content (i.e., at least 35% by weight) overlap with the instantly claimed ranges of anionic surfactants (55-90%w/w; instant claim 3), amphoteric surfactants (4-40%w/w; instant claim 4) and total surfactants (greater than or equal to 60%w/w; instant claim 6) and a prima facie case of obviousness exists for each range. Therefore, it would have been obvious to one of ordinary skill in the art, at the time of filling, to have mixed a solid anhydrous composition comprising surfactants within the instantly claimed ranges with water, as taught by Dierassi, Nazdrajic, Mathonneau, Evans and Tantawy and discussed above.
Regarding instant claim 4, Mathonneau discloses “amphoteric surfactants, in particular as defined above, and even better still chosen from, alone or as a mixture, (C8-C20)alkylbetaines, (C8-C20)alkylamido (C1 -C6)alkylbetaines, (C8-C20)alkyl amphoacetates and (C8 -C20)alkyl amphodiacetates” [0395].
Generally, it is prima facie obvious to select a known material based on its suitability for its intended use. See MPEP 2144.07. In the present case, it would have been obvious to one of ordinary skill in the art, at the time of filling, to have selected, for example, a (C8-C20)alklylbetaine as the amphoteric surfactant because Mathonneau discloses they are suitable surfactants for powdered shampoo compositions which are intended to be combined with compositions comprising water.
Regarding instant claim 8, Dierassi discloses the powdered composition may further comprise auxiliary conditioning agents [col. 2, lines 42].
Mathonneau discloses the powdered compositions may comprise “as conditioning agent, one or more polymers chosen from amphoteric or cationic polymers, and also mixtures thereof” [0518], such as cationic polysaccharides [0540].
Generally, it is prima facie obvious to select a known material based on its suitability for its intended use. See MPEP 2144.07. It would have been obvious to one of ordinary skill in the art, at the time of filling, to have selected the cationic polysaccharides of Mathonneau for the conditioning agents desired by Dierassi because Mathonneau discloses cationic polysaccharides are suitable conditioning agents for powdered shampoo compositions which are intended to be mixed with a composition comprising water.
Regarding instant claim 11, it would have been obvious to one of ordinary skill in the art, at the time of filling, to have combined the powder and water at a weight ratio within the instantly claimed range through routine optimization. It has been held that it is not inventive to discover the optimum workable ranges by routine experimentation where, as is here, the general conditions of the claim are disclosed in the prior art. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). One of ordinary skill in the art would have been motivated to optimize the methods taught by Dierassi to determine the optimal working range of beneficial components (i.e., surfactants, conditioning agents etc.) in the final liquid composition. One would have had an expectation of success because the weight ratio of powder to water directly impacts the final concentration of each component.
2) Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Dierassi et al. (US 4,330,438, date of patent 05/18/1982) in view of Nazdrajic et al. (International Journal of Advanced Research, December 2019, vol. 7, no. 12, p. 501-507), Mathonneau et al. (US 2017/0348200 A1, publication date 12/07/2017; cited in IDS 06/02/2023), Evans et al. (US 7,704,932 B2, date of patent 04/27/2010) and Tantawy et al. (US 8,906,842, date of patent 12/09/2014) as applied to claims 1-6, 8, 9, 11-15 above, and further in view of Bradford et al. (US 2,589,330, patent date 03/18/1952).
Dierassi, Nazdrajic, Mathonneau, Evans and Tantawy, which are taught above, differ from the instant claims insofar as they do not teach a specific anticaking agent. However, Dierassi desires an anticaking agent [col. 2, line 51].
Bradford discloses an anticaking agent for cleansing powders [title]. Specifically, Bradford discloses “The applicants have discovered that an anti-caking agent comprising finely divided metallic magnesium or magnesium salts will very effectively prevent caking of trisodium phosphate and silica, mixtures. It has been found that magnesium compounds in general, including magnesium phosphates, oxides, stearates, nitrates, sulphates, chlorides, palmitates, oleates, as well as powdered magnesium metal, have superior anti-caking properties” [col. 2, lines 4-13]. Bradford also discloses the anticaking agent is magnesium stearate [col. 4, claim 3].
Generally, it is prima facie obvious to select a known material based on its suitability for its intended use. See MPEP 2144.07. In the present case it would have been obvious to one of ordinary skill in the art, at the time of filling, to have selected magnesium stearate as the anti-caking agent desired by Dierassi because Bradford discloses magnesium stearate has superior anti-caking action in cleansing powders.
Therefore, it would have been obvious to one of ordinary skill in the art, at the time of filling, to have prepared a composition for keratin materials by mixing together, then agitating resulting mixture of, an anhydrous powder composition and a composition comprising water. Wherein the powder is the composition taught by Dierassi, Nazdrajic, Mathonneau, Evans and Tantawy and further comprising a salt of a fatty acid (magnesium stearate).
Response to Arguments
1) On page 14 of their remarks, Applicant argues the Mathonneau, Mustafa, Frank and Dierassi, alone or in combination, do not disclose or suggest step (iii) of claim 1; “composition (C) is left to stand for at least 4 hours before it is used on the keratin materials.”
This argument is moot in view of the new rejections necessitated by amendment.
2) On page 14 of their remarks, Applicant argues the Mathonneau, Mustafa, Frank and Dierassi, alone or in combination, do not disclose or suggest the density of the powdered composition.
This argument is moot in view of the new rejections necessitated by amendment.
3) On pages 14 and 15 of their remarks, Applicant argues that the teachings of Mathonneau do not enable users to recreate their shampoo at home to be used for several days or even several weeks after it has been prepared, which is the aim of the instant invention.
This argument is moot in view of the new rejections necessitated by amendment. However, the Examiner will respectfully note that arguments pertaining to aspects of the invention that are not claimed are generally not persuasive. Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
4) On page 15 of their remarks, Applicant argues Mathonneau, Mustafa, Frank and Dierassi, alone or in combination, do not disclose or suggest any reason to modify the density of the powder composition.
This argument is moot in view of the new rejections necessitated by amendment.
5) On page 15 and 16 of their remarks, Applicant argues that Mathonneau, Mustafa, Frank and Dierassi, alone or in combination, do not disclose or suggest formulating a transparent composition.
This argument is not persuasive. The methods and compositions of the prior art comprise substantially the same components. Therefore, one of ordinary skill in the art would have expected them to possess the same characteristics, e.g., transparent.
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.
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/C.T.W./Examiner, Art Unit 1612
/WALTER E WEBB/Primary Examiner, Art Unit 1612