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 Claims
The amendments and arguments filed 10 June 2026 are acknowledged and have been fully considered. Claims 1-21 are currently pending. Claims 1-17 and 19-20 are amended; no claims are cancelled; claims 12 and 17-20 are withdrawn; claim 21 is new.
Claims 1-11, 13-16, and 21 are examined on the merits herein.
Objections/Rejections Withdrawn
Rejections and/or objections not reiterated from previous Office Actions are hereby withdrawn. In particular, the objection to claims for minor informalities and the rejection of claims under 35 U.S.C. 112(b) are withdrawn in view of Applicant’s amendments to the claims. The following rejections and/or objections are either reiterated or newly applied, and 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.
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 1-11, 13-16, and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Nicou et al. (WO 2017/108840) in view of Agostino et al. (US 2013/0220358).
Claim 1 is drawn to a cosmetic composition comprising:
at least one oxidation coupler chosen from 6-hydroxybenzomorpholine, its addition salts, its solvates, and/or solvates of its salts in a content ranging from 0.001% to 20% by weight, relative to the weight of the composition;
at least one oxidation coupler chosen from hydroxyethyl-3,4-methylenedioxyaniline, its addition salts, its solvates, and/or solvates of its salts in a content ranging from 0.001% to 20% by weight, relative to the weight of the composition;
one or more nonionic surfactants of alkylpolyglycoside type (more specifically caprylyl/capryl glucoside (claim 6, Applicant’s elected species) in a content ranging from 0.05% to 15% by weight, relative to the weight of the composition.
Claim 2 is drawn to the composition of claim 1, wherein the 6-hydroxybenzomorpholine is present in a total content ranging from 0.005% to 15% by weight, relative to the weight of the composition.
Claim 3 is drawn to the composition of claim 1, wherein the hydroxyethyl-3,4-methylenedioxyaniline is present in a total content ranging from 0.005% to 15% by weight, relative to the weight of the composition.
Claim 4 is drawn to the composition of claim 1, wherein the total amount of 6-hydroxybenzomorpholine and hydroxyethyl-3,4-methylenedioxyaniline is present in a total content ranging from 0.001% to 20% by weight, relative to the weight of the composition.
Claim 7 is drawn to the composition of claim 1, wherein the total content of the alkylpolyglycoside ranges from 0.1% to 10% by weight, relative to the weight of the composition.
Nicou et al. teach compositions for dying hair comprising oxidation couplers (Abstract) including formula 1 (pgs. 26-27) comprising:
hydroxybenzomorpholine;
-; and
2.4% caprylyl/capryl glucoside,
further teaching the use of 6-hydroxybenzomorpholine as the oxidation coupler (Pg. 5 lines 7-8).
The composition of Nicou et al. differs from the instantly claimed composition in the following ways:
the composition of Nicou et al. does not comprise hydroxyethyl-3,4,-methylenedioxyaniline.
Yet, as to 1: Nicou et al. further teach that the composition can comprise additional couplers (Pg. 5 lines 1-6).
Agostino et al. teach similar hair dying compositions (Abstract) comprising oxidation couplers (Par. [0031]) including 6-hydroxybenzomorpholine and hydroxyethyl-3,4-methylenedioxyaniline (Par. [0033]).
And as discussed in MPEP 2144.06, “It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose… [T]he idea of combining them flows logically from their having been individually taught in the prior art.” In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980).
In the instant case, as both 6-hydroxybenzomorpholine and hydroxyethyl-3,4-methylenedioxyaniline are known in the prior art as oxidation couplers suitable for use in hair dyes, it would have been prima facie obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have modified the composition of Nicou et al. to include hydroxyethyl-3,4-methylenedioxyaniline. It would have been obvious to combine the two oxidation couplers to yield a composition further capable of acting as an oxidation coupler in a hair dye, with a reasonable expectation of success.
Nicou et al. further teach formula 1 comprising 0.006% 6-hydroxybenzomorpholine (pg. 26), overlapping with the instantly claimed range. Additionally, Nicou et al. teach the total amount of couplers ranging from 0.0001% to 20% by weight relative to the total weight of the composition (Pg. 5 lines 28-31), overlapping with the instantly claimed range and indicating that the amount of hydroxyethyl-3,4-methylenedioxyaniline would necessarily fall into the instantly claimed range.
Based on all of the foregoing, claims 1-4 and 6-7 are rejected as prima facie obvious.
Claim 5 is drawn to the composition of claim 1, further comprising one or more additional oxidation couplers, more specifically a mixture of heterocyclic coupling agents and m-aminophenol (Applicant’s elected species).
Claim 21 is drawn to the composition of claim 1, additionally comprising one or more oxidation couplers chosen from meta-phenylenediamines, meta-aminophenols, meta-diphenols, naphthalene-based coupling agents, heterocyclic coupling agents, and their corresponding addition salts, their solvates, and/or the solvates of their salts.
Nicou et al. further teach formula 1 comprising additional oxidation couplers including m-aminophenol, resorcinol, 4-amino-m-cresol, and p-aminophenol (pg. 26). Nicou et al. do not teach the formula 1 comprising heterocyclic coupling agents.
However, Nicou et al. further teach the use of oxidation couplers including hydroxyindole, 2-amino-3-hydroxypyridine, and 3-methyl-1-phenyl 5-pyrazolone (Pg. 5 lines 7-22), i.e., heterocyclic coupling agents.
Therefore, it would have been prima facie obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have modified the composition of Nicou et al. to include a heterocyclic coupling agent. It would have been obvious to substitute one oxidation coupling agent suitable for use in a hair dye for another to obtain the predictable result of a hair dye composition, with a reasonable expectation of success.
As such, claims 5 and 21 are rejected as prima facie obvious.
Claim 8 is drawn to the composition of claim 1, further comprising an oxidation base, more specifically a para-phenyldiamine (Applicant’s elected species).
Claim 9 is drawn to the composition of claim 8, wherein the oxidation base is present in an amount ranging from 0.001% to 20% by weight, relative to the weight of the composition.
Nicou et al. further teach formula 1 comprising 0.6% 3-(2,5-diaminophenyl)-1-propanol (pg. 27), i.e., a para-phenyldiamine compound. Nicou et al. additionally teach 3-(2,5-diaminophenyl)-1-propanol as an oxidation base (Pg. 4 lines 17-20).
As such, claims 8-9 are rejected as prima facie obvious.
Claim 10 is drawn to the composition of claim 1, further comprising at least one fatty substance.
Claim 11 is drawn to the composition of claim 1, comprising at least one liquid fatty substance, more specifically mixtures of liquid hydrocarbons containing more than 16 carbon atoms, plant oils, and fatty alcohols (Applicant’s elected species).
Nicou et al. further teach formula 1 comprising mineral oil (pg. 27) i.e., a liquid fatty substance. Nicou et al. further teach liquid fatty substances including liquid hydrocarbons comprising more than 16 carbon atoms, plant oils, and liquid fatty alcohols (pg. 19 lines 21-25).
As such, claims 10-11 are rejected as prima facie obvious.
Claim 13 is drawn to the composition of claim 1, further comprising an additional surfactant, more specifically the nonionic surfactant steareth-20 (Applicant’s elected species).
Nicou et al. further teach formula 1 comprising steareth-20 (Pg. 27).
As such, claim 13 is rejected as prima facie obvious.
Claim 14 is drawn to the composition of claim 1, further comprising one or more sequestrants, more specifically EDTA (Applicant’s elected species).
Nicou et al. further teach formula 1 comprising EDTA (pg. 26).
As such, claim 14 is rejected as prima facie obvious.
Claim 15 is drawn to the composition of claim 1, further comprising at least one alkaline agent, more specifically an alkanolamine (Applicant’s elected species).
Nicou et al. further teach formula 1 comprising ethanolamine (Pg. 26).
As such, claim 15 is rejected as prima facie obvious.
Claim 16 is drawn to the composition of claim 1, further comprising one or more chemical oxidizing agents, more specifically hydrogen peroxide (Applicant’s elected species).
Nicou et al. further teach combining formula 1 with oxidizing formula Ox1, which comprises hydrogen peroxide (pg. 27).
As such, claim 16 is rejected as prima facie obvious.
Double Patenting
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 1-11, 13-16, and 21 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-5, 9-10, and 12-15 of U.S. Patent No. 12,290,586. Although the claims at issue are not identical, they are not patentably distinct from each other.
Claim 1 of Patent No. ‘586 recites cosmetic compositions comprising an oxidation coupler chosen from 6-hydroxybenzomorpholine, its addition salts, its solvates, and/or solvates of its salts; and at least one oxidation coupler chosen from hydroxyethyl-3,4-methylenedioxyaniline, its addition salts, its solvates, and/or solvates of its salts. Claim 12 of Patent No. ‘586 recites the composition of claim 1 further comprising a surfactant. Claim 2 of Patent No. ‘586 recites the composition of claim 1, wherein the 6-hydroxybenzomorpholine is present from 0.001% to 20% by weight. Claim 3 of Patent No. ‘586 recites the composition of claim 1, wherein the hydroxyethyl-3,4-methylenedioxyaniline is present from 0.001% to 20% by weight. Claim 4 of Patent No. ‘586 recites the composition of claim 1, wherein the total amount of 6-hydroxybenzomorpholine and hydroxyethyl-3,4-methylenedioxyaniline is from 0.001% to 20% by weight. Claims 1-4 and 12 of Patent No. ‘586 render instant claims 1-4, 6-7, and 13 prima facie obvious.
Claim 5 of Patent No. ‘586 recites the composition of claim 1, further comprising an additional oxidation coupler, rendering instant claims 5 and 21 prima facie obvious.
Claims 6-7 of Patent No. ‘586 recite the composition of claim 1, comprising 0.0001% to 20% by weight of oxidation bases, rendering instant claims 8-9 prima facie obvious.
Claims 9-10 of Patent No. ‘586 recite the composition of claim 1, further comprising at least one liquid fatty substance, rendering instant claims 10-11 prima facie obvious.
Claim 13 of Patent No. ‘586 recites the composition of claim 1, further comprising a sequestrant, rendering instant claim 14 prima facie obvious.
Claim 14 of Patent No. ‘586 recites the composition of claim 1, comprising at least one alkaline agent, rendering instant claim 15 prima facie obvious.
Claim 15 of Patent No. ‘586 recites the composition of claim 1, further comprising a chemical oxidizing agent, rendering instant claim 16 prima facie obvious.
Claims 1-11, 13-16, and 21 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-2, 6-7, 10-12, 15, and 17 of U.S. Patent No. 12,296,035. Although the claims at issue are not identical, they are not patentably distinct from each other.
Claim 1 of Patent No. ‘035 recites a composition comprising 2-(methoxymethyl) benzene-1,4-diamine (i.e., an oxidation base); at least one coupler chosen from the group including 6-hydroxybenzomorpholine, hydroxyethyl-3,4,-methylenedioxyaniline, 2-amino-5-ethylphenol, and mixtures thereof; and a fatty substance. Claim 7 of Patent No. ‘035 recites the composition of claim 1, wherein the total amount of couplers ranges from 0.001% to 20% by weight. Claims 11-12 of Patent No. ‘035 recite the composition of claim 1 further comprising a nonionic surfactant. Claims 1, 7 and 11-12 of Patent No. ‘035 render instant claims 1-8, 10, 13, and 21 prima facie obvious.
Claim 2 of Patent No. ‘035 recites the composition of claim 1 wherein the fatty substance is a liquid fatty substance, rendering instant claim 11 prima facie obvious.
Claim 6 of Patent No. ‘035 recites the composition of claim 1, wherein the total amount of 2-(methoxymethyl)benzene-1,4-diamine is from 0.001% to 20% by weight, rendering instant claim 9 prima facie obvious.
Claim 10 of Patent No. ‘035 recites the composition of claim 1, further comprising a sequestrant, rendering instant claim 14 prima facie obvious.
Claim 15 of Patent No. ‘035 recites the composition of claim 1, further comprising at least one alkaline agent, rendering instant claim 15 prima facie obvious.
Claim 17 of Patent No. ‘035 recites the composition of claim 1, further comprising at least one chemical oxidizing agent, rendering instant claim 16 prima facie obvious.
Claims 1-11, 13-16, and 21 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-2, 4, 6, 10-11, 14-16, and 18 of U.S. Patent No. 12,409,124. Although the claims at issue are not identical, they are not patentably distinct from each other.
Claim 1 of Patent No. ‘124 recites a composition comprising at least one oxidation coupler chosen from 6-hydroxybenzomorpholine, hydroxyethyl-3,4-methylenedioxyaniline, 2-amino-5-ethylphenol, and mixtures thereof; and N,N-dicarboxymethyl glutamic acid (i.e., a sequestering agent). Claim 2 of Patent No. ‘124 recites the composition of claim 1 wherein the total amount of oxidation couplers ranges from 0.001% to 20% by weight. Claims 14-15 of Patent No. ‘124 recite the composition of claim 1 further comprising a non-ionic surfactant. Claims 1 and 14-15 of Patent No. ‘124 render instant claims 1-7, 13-14, and 21 prima facie obvious.
Claims 4 and 6 of Patent No. ‘124 recite the composition of claim 1, further comprising 0.001% to 20% by weight of an oxidation base, rendering instant claims 8-9 prima facie obvious.
Claims 10-11 of Patent No. ‘124 recite the composition of claim 1, further comprising a liquid fatty substance, rendering instant claims 10-11 prima facie obvious.
Claim 16 of Patent No. ‘124 recites the composition of claim 1, further comprising an alkaline agent, rendering instant claim 15 prima facie obvious.
Claim 18 of Patent No. ‘124 recites the composition of claim 1, further comprising a chemical oxidizing agent, rendering instant claim 16 prima facie obvious.
Claims 1-11, 13-16, and 21 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-2, 6-7, 10-12, 15, and 17 of U.S. Patent No. 12,642,755 (matured from Application No. 18/574,814). Although the claims at issue are not identical, they are not patentably distinct from each other.
Claim 1 of Patent No. ‘755 recites a composition comprising an oxidation dye comprising at least one coupler chosen from 6-hydroxybenzomorpholine, hydroxyethyl-3,4-methylenedioxyaniline, 2-amino-5-ethylphenol, and mixtures thereof; and an oxidation base; an alkaline agent, and at least one fatty substance. Claim 3 of Patent No. ‘755 recites the composition of claim 1, wherein the total amount of the couplers ranges from 0.001% to 20% by weight. Claims 13-14 of Patent No. ‘755 recite the composition of claim 24, further comprising a nonionic surfactant. Claims 1, 3, and 13-14 of Patent No. ‘755 render instant claims 1-8, 10, 13, 15, and 21 prima facie obvious.
Claim 7 of Patent No. ‘755 recites the composition of claim 1, comprising a liquid fatty substance, rendering instant claim 11 prima facie obvious.
Claim 15 of Patent No. ‘755 recites the composition of claim 1, further comprising a sequestrant, rendering instant claim 14 prima facie obvious.
Claim 18 of Patent No. ‘755 recites the composition of claim 1, further comprising a chemical oxidizing agent, rendering instant claim 16 prima facie obvious.
Claims 1-11, 13-16, and 21 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 4, 6, 9-12, 14, and 16-17 of copending Application No. 18/257,841 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other.
Claim 1 of Application No. ‘841 recites a cosmetic composition comprising 6-hydroxybenzomorpholine in a content ranging from 0.001% to 3% by weight, hydroxyethyl-3,4-methylenedioxyaniline in a content ranging from 0.001% to 3% by weight, and N,N-dicarboxymethyl glutamic acid (i.e., a sequestrant). Claim 14 of Application No. ‘841 recites the composition of claim 1 further comprising a surfactant. Claims 1 and 14 of Application No. ‘841 render instant claims 1-3, 6-7, and 13-14 prima facie obvious.
Claim 4 of Application No. ‘841 recites the composition of claim 1, wherein the total amount of 6-hydroxybenzomorpholine and hydroxyethyl-3,4,-methylenedioxyaniline are between 0.1% and 3% by weight, rendering instant claim 4 prima facie obvious.
Claim 6 of Application No. ‘841 recites the composition of claim 1, further comprising an additional oxidation coupler, rendering instant claims 5 and 21 prima facie obvious.
Claims 9-10 of Application No. ‘841 recite the composition of claim 1, further comprising 0.001% to 20% by weight of an oxidation base, rendering instant claims 8-9 prima facie obvious.
Claims 11-12 of Application No. ‘841 recite the composition of claim 1, further comprising a liquid fatty substance, rendering instant claims 10-11 prima facie obvious.
Claim 16 of Application No. ‘841 recites the composition of claim 1, further comprising at least one alkaline agent, rendering instant claim 15 prima facie obvious.
Claim 17 of Application No. ‘841 recites the composition of claim 1, further comprising a chemical oxidizing agent, rendering instant claim 16 prima facie obvious.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Response to Arguments
Applicant's arguments filed 10 June 2026 have been fully considered but they are not persuasive.
Applicant argues on pgs. 13-14 that the instantly claimed invention provides the unexpected result of superior color intensity, which could not have been predicted by the prior art.
It is well settled that a showing of unexpected results is generally sufficient to overcome a prima facie case of obviousness. In re Albrecht, 514 F.2d 1389 (CCPA 1975). However, as recognized by the court in In re Schulze, 346 F.2d 600 (CCPA 1965), mere arguments are not sufficient to demonstrate unexpected results. Rather, unexpected results must be established by factual evidence by comparing the claimed invention with that of the closest prior art. In re Burckel, 592 F.2d 1175 (CCPA 1979). As discussed by the court in In re De Blauwe, 736 F.2d 699 (Fed. Cir. 1994), “the absence of tests comparing [Applicant’s claimed invention] with those of the closest prior art… constitute mere argument”. In the instant case, Applicant has appropriately compared the claimed invention with that of the closest prior art (i.e., Nicou et al.) and provided factual evidence which Applicant asserts establishes unexpected results of the claimed invention. In particular, Applicant asserts the claimed invention: provides a greater than expected result over the prior art.
A greater than expected result is evidence of nonobviousness. However, as discussed by the Court in In re Merck & Co., 800 F.2d 1091 (Fed. Cir. 1986), any differences between the claimed invention and the prior art may be expected to result in some differences in properties. The issue is whether the properties differ to such an extent that the difference is really unexpected. As recognized by the court in Ex parte The NutraSweet Co., 19 USPQ2d 1586 (Bd. Pat. App. & Inter. 1991), the differences must be greater than those which would have been expected from the prior art to an unobvious extent. In the instant case the color intensity provided by the instantly claimed invention when compared to the compositions comprising just 6-hydroxybenzomorpholine and just hydroxyethyle-3,4-methylenedioxyaniline as oxidation couplers would not have been expected in view of the prior art.
However, although the evidence establishes unexpected results, Applicant is reminded that “the objective evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support”. In re Clemens, 622 F.2d 1029 (CCPA 1980). Thus, in In re Peterson, 315 F.3d 1325 (Fed. Cir. 2003), factual evidence demonstrating a greater than expected result from the addition of 2% of an ingredient did not evidence unexpected results for the entire claimed range of about 1-3% of the ingredient. Rather, the nonobviousness of a broader range or genus can only be established by evidence based on unexpected results of a narrower range or genus when one of ordinary skill in the art would be able to determine a trend in the exemplified data allowing said artisan to reasonably extend the probative value thereof. In re Kollman, 595 F.2d 48 (CCPA 1979). In the instant case, the claims are not drafted commensurate in scope with the unexpected results to overcome the prima facie case of obviousness.
In particular, the instant claims recite compositions comprising 0.001% to 20% by weight of each 6-hydroxybenzomorpholine and hydroxyethyl-3,4-methylenedioxyaniline, and 0.05% to 15% by weight of any nonionic alkylpolyglycoside surfactant. However, Applicant has only demonstrated an unexpected result for a single composition having 2.1mmol of each 7-hydroxybenzomorpholine and hydroxyethyl-3,4-methylenedioxyaniline, 2.4% by weight of the alkylpolyglycoside surfactant, and a single species of surfactant (caprylyl/capryl glucoside).
As such, the instant claims are not drafted commensurate in scope with the unexpected results, and the argument of unexpected results is insufficient to overcome the prima facie case of obviousness.
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 Paul Hoerner whose telephone number is (571)270-0259. The examiner can normally be reached Monday - Friday 9:00am - 5:00pm eastern.
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, Bethany Barham can be reached at (571)272-6175. 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.
/BETHANY P BARHAM/Supervisory Patent Examiner, Art Unit 1611
/PAUL HOERNER/Examiner, Art Unit 1611
Prosecution Insights