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 .
Status of the Claims
Claims 1-12, 14, and 15 are pending and under current examination. Claim 13 is cancelled.
Withdrawn Claim Objections and Rejections
All objections pertaining to claim 1 have been withdrawn in view of the amendments to the claims filed 12/1/2025.
All rejections pertaining to claim 13 are moot because the claim is cancelled in the amendments filed 12/1/2025.
All double patenting rejections over co-pending application no. 18/255,789 are withdrawn in view of the terminal disclaimer filed 12/1/2025.
All rejections not reiterated have been withdrawn.
Claim Rejections - 35 USC § 103
Applicants amendments to the claims filed 12/1/2025 have necessitated the new grounds of rejection.
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.
Claims 1-12 and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Dixon (U.S. Application Publication No. 2015/0139929, publication date: 5/21/2015, cited in the IDS filed 6/2/2023, of record) in view of Segalen-Guiraud (WO2019/001940, publication year: 2019), as evidenced by PubChem (Sodium Laurate, available 7/19/2005) and ChemSpider (Cocamidopropyl betaine, available 1/11/2015, of record).
Determination of the scope and the content of the prior art
(MPEP §2141.01)
Regarding claim 1, Dixon teaches a solid shampoo composition [0001] that may comprise from 1 to 75 wt.% sulfate surfactants [0084]. The sulfate surfactants refer to compounds of formula R7OSO3-M+ [0086]. The Examiner therefore considers the sulfate surfactants taught by Dixon to read on the “sulfate anionic surfactants” limitation of the instant claim. The composition may comprise from 0.1 to 10 wt.% amphoteric surfactant [0073]. Separately from the sulfate surfactant, the composition may also include salts of fatty acids as anionic surfactants [0037]. The anionic surfactants may be present from 0.1 to 12 wt.% [0074]. It is noted that Dixon is silent with regards to water and is in solid form and therefore reads on the “anhydrous” limitations of instant claim 1.
Regarding claim 2, Dixon teaches that suitable anionic surfactants include sulfates such as alkyl sulfates and alkyl ether sulfates [0036], including lauryl ether sulfates [0037].
Regarding claim 3, Dixon teaches a solid shampoo composition [0001] that may comprise from 1 to 75 wt.% sulfate surfactants [0084].
Regarding claim 4, Dixon teaches that the composition may contain cocamidopropyl betaine as an amphoteric surfactant [0073]. ChemSpider teaches that cocamidopropyl betaine is a C11-alkylamido-C3 alkyl betaine (pg. 1 Structure).
Regarding claim 5, Dixon teaches that the amphoteric surfactants may be present in the composition from 0.1 to 10 wt.% [0073].
Regarding claim 6, Dixon teaches a solid shampoo composition [0001] that may comprise from 1 to 75 wt.% sulfate surfactants [0084]. The composition may comprise from 0.1 to 10 wt.% amphoteric surfactant [0073].
Regarding claim 7, Dixon teaches that the composition may also include salts of fatty acids as anionic surfactants [0037].
Regarding claim 8, Dixon teaches that the composition may also include salts of fatty acids as anionic surfactants, such as lauryl ether sulfates [0037]. The anionic surfactants may be present from 0.1 to 12 wt.% [0074].
Regarding claim 9, Dixon teaches that cationic polysaccharide polymers are suitable for inclusion in the composition [0089].
Regarding claim 10, Dixon teaches that the composition may contain non-ionic surfactants [0035], including the condensation products of aliphatic C8-C15 primary or secondary linear or branched alcohols with ethylene oxide [0042].
Regarding claim 11, Dixon discloses a method of treating the hair and/or skin comprising contacting the hair and/or skin with a composition then rinsing the composition from the hair with water [0121]. The method may involve wetting the solid composition with water prior to contacting the composition with the hair and /or skin [0122].
Regarding claim 12, Dixon discloses the relevant limitations of claim 1 above.
Regarding claim 14, Dixon teaches that the composition is used in a method of washing the hair and/or skin [0123]. Dixon also discloses that the shampoo bar may be used by first rinsing the hair with warm water, wetting the shampoo bar with warm and water and applying three strokes of the solid composition to wet hair [00132 Table 1].
Ascertainment of the Difference Between Scope of the Prior Art and the Claims
(MPEP §2141.02)
Regarding claims 1 and 7, Dixon does not teach a C8-C32 fatty acid salt or an alkali and alkaline earth metal salt of stearic acid. However, this deficiency is cured by Segalen-Guiraud.
Segalen-Guiraud teaches an anhydrous solid composition intended for use in cleansing and/or removing makeup from keratin materials such as the skin and the hair ( pg. 1 lines 6-7). The composition may include anionic surfactants as soaps (pg. 18 line 17). The soaps are obtained from a fatty acid which is partially or completely saponified with a basic agent. Use may be made of fatty acids comprising from 8 to 30 carbon atoms and the basic agents that may be used include alkali metal hydroxides and alkaline-earth metal hydroxides. The fatty acid may be chosen in particular from stearic acid (pg. 20 lines 24-32).
Regarding claim 12, Dixon does not teach the ratio of solid composition to water used in the method of mixing the solid composition with water.
Finding of a Prima Facie Obviousness Rationale and Motivation
(MPEP §2142-2143)
Regarding claims 1 and 7, the idea for combining compounds each of which is known to be useful for the same purpose, in order to form a composition which is to be used for the same purpose, flows logically from their having been used individually in the prior art. See In re Kerkhoven 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980). As shown by the recited teachings, the instant claims define nothing more than the concomitant use of conventional fatty acid soaps used as an anionic surfactant in an anhydrous solid shampoo composition. It would follow that the recited claims define prima facie obvious subject matter. See MPEP 2144.06.
Regarding claim 12, the ratio of anhydrous solid composition to water is clearly a result effective parameter that a person of ordinary skill in the art would routinely optimize. Optimization of parameters is a routine practice that would be obvious for a person of ordinary skill in the art to employ and would reasonably expect success. It would have been customary for an artisan of ordinary skill to determine the optimal ratio of solid composition to water in order to best achieve the desired results as such would provide advantageous washing effect. It would have been prima facie obvious to one of ordinary skill in the art at the time of the invention to engage in routine experimentation to determine optimal or workable ranges that produce expected results. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F. 2d 454, 105 USPQ 233 (CCPA 1955). In the instant case, Dixon teaches that the method of treating the hair or skin may involve wetting the solid composition with water prior to contacting the composition with the hair and /or skin [0122]. Specifically, the shampoo bar may be used by first rinsing the hair with warm water, wetting the shampoo bar with warm water and applying three strokes of the solid composition to wet hair [00132 Table 1]. The Examiner considers it prima facie obvious to optimize the amount of shampoo bar applied to the hair relative to the amount of water used to wet the hair, absent unexpectedly superior properties of the claimed invention. In the instant case, one of ordinary skill in the art would have recognized that the amount of shampoo bar relative to the amount of water used to wet the hair would have a direct effect on the washing properties of the composition and therefore be an optimizable variable.
Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over Dixon (U.S. Application Publication No. 2015/0139929, publication date: 5/21/2015, cited in the IDS filed 6/2/2023, of record) in view of Segalen-Guiraud (WO2019/001940, publication year: 2019), as applied to claims 1-12 and 14 above, and further in view of Mathonneau (U.S. Application No. 2017/0348200, publication date: 12/7/2017, of record).
Determination of the scope and the content of the prior art
(MPEP §2141.01)
Dixon teaches that the composition is provided in an easy-to-handle form such as a bar or block. The composition may be provided with a cover. Such a cover may be easily opened to reveal all or part of the composition. [0109-0111]. The composition may also include packaging [0113] and any suitable packaging may be used and will depend on the exact nature of the product [0114].
Ascertainment of the Difference Between Scope of the Prior Art and the Claims
(MPEP §2141.02)
Dixon does not teach that the kit may contain a second compartment capable of containing the mixture of anhydrous solid composition with water. However, this deficiency is cured by Mathonneau.
Mathonneau teaches a solid anhydrous cosmetic composition that may be included in a kit [0041]. The composition is intended to be mixed before use and may be carried out directly on the keratin materials during application, or else in a container or in the hand before application [0041].
Finding of a Prima Facie Obviousness Rationale and Motivation
(MPEP §2142-2143)
It would have been prima facie obvious to include a second compartment capable of containing the mixture of anhydrous solid composition and water in the kit embraced by Dixon. One would have understood in view of Mathonneau that the anhydrous solid composition may be mixed with water in a container. It would have been obvious to include such a container in the kit embraced by Dixon. One of ordinary skill in the art of filing would have been motivated to include a second compartment for mixing the anhydrous solid composition with water in order to provide a container for mixing the composition with water before use. The artisan of ordinary skill would have had reasonable expectation of success because Dixon teaches that any suitable packaging may be used and will depend on the exact nature of the product [0114].
Response to Arguments
Applicant's arguments filed 12/1/2025 have been fully considered but they are not persuasive.
On page 17, Applicant argues that Dixon does not disclose or suggest an anhydrous solid composition as recited in the amended claims for the specific purpose of providing a good washing power, a good softness, suppleness, and flexibility to the hair treated by the composition, and providing an easy-use composition with good viscosity and fluidity. This is not found persuasive. In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., the purpose of providing a good washing power, etc.) are not recited in the rejected claim(s). 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). Furthermore, as described in the obviousness rejection above, Dixon, in view of Segalen-Guiraud, teaches an anhydrous solid shampoo composition that is nearly identical to that of the instant claim, therefore the good washing power and other features argues by the applicant must also be inherent in the composition taught by Dixon in view of Segalen-Guiraud. See MPEP 2112.01. Therefore, the argument is not persuasive and the rejection is maintained.
On page 18, Applicant argues that Dixon teaches against using a high content of sulfate surfactants in shampoo compositions. This is not found persuasive. As described in the obviousness rejection above, Dixon teaches that the composition may comprise from 1 to 75 wt.% sulfate surfactants [0084]. Therefore, Dixon does not teach away from a high content of sulfate surfactants in shampoo compositions and the rejection is maintained.
On page 19, Applicant argues that Dixon teaches that the content of sulfate anionic surfactants and salts of fatty acids ranges from 0.1 to 12% by weight and therefore a skilled person would not have been motivated by Dixon to prepare a composition with such a high amount of sulfate anionic surfactants and fatty acid salts as recited in the amended claim 1. This is not found persuasive. As described in the obviousness rejection above, Dixon teaches that the composition may comprise from 1 to 75 wt.% sulfate surfactants [0084] and that the anionic surfactants may be present from 0.1 to 12 wt.% [0074]. Dixon uses the term “sulfate surfactants” to refer specifically to surfactants having the structure
PNG
media_image1.png
195
682
media_image1.png
Greyscale
See also para 0005-0009, where Dixon describes adding surfactants having formula (I) in much higher amounts than the range disclosed elsewhere for “anionic surfactants”. Thus, Dixon appears to have solved the disadvantage mentioned in 0004 of the background section regarding high levels of sulfate surfactants. The “anionic surfactants” as the term is used by Dixon, are separate substances from the sulfate surfactants described by formula (I), above. See para 0035-0037, which lists the substances considered “anionic surfactants” within the meaning of the Dixon disclosure. Based on the disclosure of Dixon, it would have been obvious to a person of ordinary skill in the art of filing that the composition could contain 1 to 75% of sulfate surfactants in addition to the 0.1 to 12 wt.% anionic surfactants. Therefore, the argument is not persuasive and the rejection is maintained.
On page 19, Applicant argues that the skilled person would not have been motivated by Dixon to adjust the content of amphoteric surfactants to a range of 7% to 30% by weight of the composition. This is not found persuasive. The Examiner respectfully draws attention to MPEP 2144.05 (I) which states: “in the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists”. Dixon teaches that the composition may comprise from 0.1 to 10 wt.% amphoteric surfactant [0073]. This range overlaps with the claimed weight ranges of amphoteric surfactants recited in claims 1 and 5, therefore the claimed weight ranges of amphoteric surfactant recited in the instant claims are obvious over the teachings of Dixon.
On page 21, Applicant argues that the addition of a fatty acid salt to the composition improves that viscosity and fluidity of the composition as well as softness give to the treated hair. This is not found persuasive. Please refer to MPEP 716.02 (b) which details the burden on Applicant to establish that results in a side-by-side comparison to the closest prior art are unexpected and significant. Specifically, Applicant must establish that differences in results are in fact unexpected and unobvious and are of both practical and statistical significance. Additionally, evidence of unexpected properties must be commensurate in scope with the claims.
Differences in results are in fact unexpected and unobvious: The evidence of unexpected results amounts to good washing power and good cosmetic properties of the hair treated with an anhydrous shampoo composition with a high amount of amphoteric surfactant and fatty acid salts. Dixon teaches that the composition may comprise from 0.1 to 10 wt.% amphoteric surfactant [0073]. The composition may also include salts of fatty acids as anionic surfactants [0037]. The anionic surfactants may be present from 0.1 to 12 wt.% [0074]. Dixon also teaches that the compositions foam easily and provide a good lather and can be easily rinsed from the hair and skin. Hair treated using the composition is easy to comb and is soft and shiny [0107]. With regard to the results indicating that a high content of fatty acid salts enhances the fluidity of an anhydrous shampoo containing a high amount of amphoteric surfactants, Faqih et. al. (International Journal of Pharmaceutics, pg. 338-345, publication year: 2007) teaches that as powder cohesion increases, the presence of lubricants such as magnesium stearate allow for improved flowability of powders (pg. 339, Introduction and pg. 344, Conclusion). With regards to the unexpected result that increased fatty acid salts decrease the viscosity of the composition, Penfield (AIP Conference Proceedings, pg. 899-901, publication year: 2008) teaches that the viscosity of a simple surfactant solution is increased by the addition of low levels of salt, but is decreased at higher salinity (pg. 899, The Salt Curve). It therefore would have been obvious that the addition of a fatty acid salt such a magnesium stearate would both improve the flowability of the anhydrous powder and also decrease the viscosity of the resulting solution when included at a high level. Therefore, the differences are not unexpected or unobvious.
Differences are of both practical and statistical significance: The evidence of unexpected results amount to an improved suppleness, a soft feel, sheen and ease of disentangling of the hair. The examiner notes that these are subjective measures. The evidence of unexpected results also amount to a decreased viscosity, improved flowability and improved performance in terms of softness imparted to the hair. Therefore, the evidence of unexpected results are of practical significance. However, with regard to the improved suppleness, softness, sheen and ease of disentangling the hair, and increased flowability, there is no numerical data presented and therefore no statistical significance can be derived. The data relating to the reduced viscosity report only a single value from a single experiment, therefore the evidence of unexpected results is not of statistical significance.
Evidence of unexpected properties must be in commensurate scope with the claims: The evidence of unexpected properties details improved suppleness, a soft feel, sheen, ease of detangling the hair, and improved flowability rendered by magnesium stearate at 3 and 5% by weight of the composition. However, the claims embrace any C8-C32 fatty acid salt anywhere from 1 to 15% by weight. Therefore, the evidence of unexpected properties is not in commensurate scope with the claims.
Additionally, no side-by-side comparison to the closest prior art is provided to establish unexpectedly superior performance. There is no nexus between the purportedly unexpected property and the differences between the instant invention, as claimed, and the closest prior art. Thus, the Applicant’s argument is not persuasive and the rejection is maintained.
Double Patenting
Applicants amendments to the claims filed 12/1/2025 have necessitated the new grounds of rejection.
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-12, 14, and 15 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-15 of U.S. Patent No. 10,993,891, in view of Dixon (U.S. Application Publication No. 2015/0139929, publication date: 5/21/2015, cited in the IDS filed 6/2/2023, of record) and Segalen-Guiraud (WO2019/001940, publication year: 2019), as evidenced by PubChem (Sodium Laurate, available 7/19/2005).
Although the claims at issue are not identical, they are not patentably distinct from each other because the patented claims render obvious the instant claims.
Inter alia, the claims of the ‘891 patent embrace a solid anhydrous cosmetic composition comprising at least one anionic surfactant present from 30-70% by weight and at least one amphoteric surfactant present from 5-50% by weight. The anionic surfactant is chosen from a group including C6-C24 alkyl sulfates and alkyl ether sulfates. The amphoteric surfactants are chosen from a group including C8-C20 alkylbetaines and (C8-C20)alkylamido(C1-C6)alkylbetaines. The composition also contains at least one cationic polymer. The claims of the ‘891 patent also embrace a method for treating keratin materials comprising mixing the solid anhydrous cosmetic composition and the conditioning composition to obtain a final cosmetic composition and applying to keratin materials. The conditioning composition further comprises water in an amount of at least 40% by weight. The claims of the ‘891 patent also embrace a kit comprising the solid anhydrous composition and conditioning composition.
The claims of the ‘891 patent do not embrace a C8-C22 fatty acid salt, a non-ionic surfactant, or a kit comprising a sperate compartment for mixing the anhydrous solid composition with water. However, this deficiency is cured by Dixon and Segalen-Guiraud. Dixon teaches a solid shampoo composition [0001] that may comprise from 1 to 75 wt.% sulfate surfactants [0084]. The sulfate surfactants refer to compounds of formula R7OSO3-M+ [0086]. The Examiner therefore considers the sulfate surfactants taught by Dixon to read on the “sulfate anionic surfactants” limitation of the instant claim. The composition may comprise from 0.1 to 10 wt.% amphoteric surfactant [0073]. The composition may also include salts of fatty acids as anionic surfactants [0037]. The anionic surfactants may be present from 0.1 to 12 wt.% [0074]. It is noted that Dixon is silent with regards to water and is in solid form and therefore reads on the “anhydrous” limitations of instant claim 1. Dixon also teaches that the composition may contain non-ionic surfactants [0035], including the condensation products of aliphatic C8-C15 primary or secondary linear or branches alcohols with ethylene oxide [0042]. Dixon teaches that the composition is provided in an easy-to-handle form such as a bar of block. The composition may be provided with a cover. Such a cover may be easily opened to reveal all or part of the composition. [0109-0111]. The composition may also include packaging [0113] and any suitable packaging may be used and will depend on the exact nature of the product [0114]. Segalen-Guiraud teaches an anhydrous solid composition intended for use in cleansing and/or removing makeup from keratin materials such as the skin and the hair ( pg. 1 lines 6-7). The composition may include anionic surfactants as soaps (pg. 18 line 17). The soaps are obtained from a fatty acid which is partially or completely saponified with a basic agent. Use may be made of fatty acids comprising from 8 to 30 carbon atoms and the basic agents that may be used include alkali metal hydroxides and alkaline-earth metal hydroxides. The fatty acid may be chosen in particular from stearic acid (pg. 20 lines 24-32).
With regard to the fatty acid salts and nonionic surfactants of the instant claims, the idea for combining compounds each of which is known to be useful for the same purpose, in order to form a composition which is to be used for the same purpose, flows logically from their having been used individually in the prior art. See In re Kerkhoven 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980). As shown by the recited teachings, the instant claims define nothing more than the concomitant use of conventional surfactants used in anhydrous solid compositions. It would follow that the recited claims define prima facie obvious subject matter. See MPEP 2144.06.
The weight percentage of fatty acid salts, such as magnesium stearate, present in the composition is clearly a result effective parameter that a person of ordinary skill in the art would routinely optimize. Optimization of parameters is a routine practice that would be obvious for a person of ordinary skill in the art to employ and would reasonably expect success. It would have been customary for an artisan of ordinary skill to determine the optimal weight percentage in order to best achieve the desired results as such would provide advantageous surfactant effect. It would have been prima facie obvious to one of ordinary skill in the art at the time of the invention to engage in routine experimentation to determine optimal or workable ranges that produce expected results. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F. 2d 454, 105 USPQ 233 (CCPA 1955). In the instant case, Dixon teaches that fatty acid salts may be present in an anhydrous shampoo composition as an anionic surfactant [0037]. The Examiner considers it prima facie obvious to optimize the weight percentage of fatty acid salt present, absent unexpectedly superior properties of the claimed invention. In the instant case, one of ordinary skill in the art would have recognized that the amount of fatty acid salt present in the composition would directly affect the surfactant properties of the shampoo bar and therefore be an optimizable variable.
The instant claims recites the limitation “for washing…keratin fibers”, respectively; the intended use of a claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art, therefore the anhydrous solid composition embraced by the claims of the ‘891 patent reads on the instant claims. See MPEP 2112.01 (II).
It would have been prima facie obvious to one of ordinary skill in the art of filing to include a compartment for mixing the anhydrous solid composition in the kit embraced by the claims of the ‘891 patent. One would have understood in view of Dixon that any suitable packaging may be used for a nearly identical anhydrous solid composition and will depend on the exact nature of the product [0114]. It would have been obvious to include a compartment for mixing the anhydrous solid composition in the kit embraced by the claims of the ‘891 patent. One of ordinary skill in the art of filing would have been motivated to include a second compartment for mixing the anhydrous solid composition in order to provide a container for mixing the composition with water or conditioning agent before use. The artisan of ordinary skill would have had reasonable expectation of success because Dixon teaches that any suitable packaging may be used and will depend on the exact nature of the product [0114].
Response to Arguments
Applicant's arguments filed 12/1/2025 have been fully considered but they are not persuasive.
On page 22, Applicant argues that claims 1-15 of the ‘891 patent do not disclose or suggest the use of sulfate anionic surfactants, a minimum of 7% by weight of amphoteric or zwitterionic surfactants, or a C8-C32 fatty acid salt in an anhydrous solid composition. This is not found persuasive. As described in the new grounds of rejection above, the claims of the ‘891 patent embrace a sulfate anionic surfactant, such as alkyl sulfates, and an amphoteric surfactant present from 5 to about 50% by weight. The Examiner respectfully draws attention to MPEP 2144.05 (I) which states: “in the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists”. Furthermore, it would have been prima facie obvious, in view of the teachings of Dixon and Segalen-Guiraud, to include a C8-C32 fatty acid salt in the anhydrous composition for the reasons detailed in the rejection above. Therefore, the arguments are not persuasive and the rejection is maintained.
Conclusion
No claims are allowed.
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 ELIZABETH ANNE MEYERS whose telephone number is (571)272-2271. The examiner can normally be reached Monday-Friday 8am-5pm ET.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Ali Soroush can be reached at 571-272-9925. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
ELIZABETH ANNE MEYERS Examiner, Art Unit 1617
/KATHERINE PEEBLES/ Primary Examiner, Art Unit 1617