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 .
Formal Matters
Receipt of Applicant’s response dated 02/02/2026 is acknowledged.
The Examiner notes that in Remarks dated 02/02/2026, Applicant states that claims 4-5 have been canceled, however claim 4 is pending in the Claim set dated 02/02/2026.
Claims 1-4 and 6-10 are pending.
Claim 5 is canceled.
Claim 7 is amended.
Claim 10 remains withdrawn from consideration as being drawn to a nonelected invention.
Claims 1-4 and 6-9 are under consideration in the instant Office action to the extent of the elected species, i.e., the tertiary amine groups are of formula (A) wherein
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is a pendant oxygen on the branched chain dextran polymer, X is CH2CH2, z is 1, and each of R2 and R3 is an ethyl group.
REJECTIONS WITHDRAWN
Claim Rejections - 35 USC § 112(b)
The indefiniteness rejection set forth in the Office action dated 11/06/2025 is hereby withdrawn in light of Applicant’s amendments to the claims.
REJECTIONS MAINTAINED AND MADE AGAIN
Claim Rejections - 35 USC § 112(d)
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 4 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 4 recites “wherein the hair conditioning formulation is selected from the group consisting of a leave on conditioner, a rinse off conditioner and a conditioning shampoo”, however base claim 1 recites “wherein the hair conditioning formulation is a rinse off conditioner”. Because claim 4 broadens the hair conditioning formulation being limited to a rinse off conditioner in claim 1 to being selected from the group consisting of a leave on conditioner, a rinse off conditioner and a conditioning shampoo and because claim 4 fails to add a further limitation to claim 1, claim 4 remains rejected for failing to further limit the subject matter of claim 1.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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.
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 1-4 and 6-9 are rejected under 35 U.S.C. 103 as being unpatentable over Rathjens et al (DE 10018158 A1, published 10/18/2001, cited in IDS dated 07/17/2023, English translation cited in Notice of References Cited dated 08/19/2025) in view of Nambiar et al (US 2016/0122445 A1, published 05/05/2016, cited in Notice of References Cited dated 11/06/2025).
Rathjens et al teach preparations, especially for hair treatment, comprising diethylaminoethyl-dextran (DEAE-Dextran) as a biocompatible film-forming polymer (See entire document, e.g., Title).
Rathjens et al teach that natural and synthetic polymers have good washability due to hydrophilic groups and that common film-forming polymers are able to provide desired firmness when applied to hair, however, can damage hair and result in a loss of hair styling effect (e.g., Par. 1-2 of ‘State of the art’ on Page 1 of English translation). Rathjens et al provide an alternative biopolymer, i.e., DEAE-Dextran, having good film-forming properties, good compatibility with surfactants, salts, and other auxiliaries, are in a wide concentration range, and provide formulations with these biopolymers either alone or in combination with other film-forming polymers in an economically and environmentally friendly manner with good biological compatibility while maintaining advantages of known film-forming polymers of hardness and elasticity (e.g., Last Par. of ‘State of the art’ on Page 2 of English translation).
The preparations of Rathjens et al contain DEAE-Dextran, a water-soluble biopolymer, as film-forming polymer with an average molecular weight of 50,000 to 800,000, as DEAE-Dextran of this molecular weight range results in increased flexural strength of the hair without the film hardness being adversely affected and allows for the amount of required polymer to be drastically reduced in order to achieve the same position effects to the hair (e.g., Par. 1-3 of ‘Description of the invention’ on Page 2 of English translation).
The preparations of Rathjens et al containing DEAE-Dextran can be used as a cream or lotion serving as a hair treatment (e.g., Par. 1 of ‘Industrial applicability’ on Page 2 of English translation). The preparations comprise water (e.g., English translation of Table 4 cited as NPL dated 08/19/2025). The preparations can comprise, i.e., but do not have to comprise, thickeners, preservatives, essential oils, perfume oils, and silicone compounds (e.g., Par. 2 of ‘Industrial applicability’ on Page 2 of English translation, ‘Thickener’, ‘Silicone Compounds’, ‘Biogenic agents’, ‘Preservative’, ‘Perfume oils and fragrances’ on Page 4 of English translation).
Rathjens et al do not teach the preparations formulated as a rinse off conditioner.
This deficiency is made up for in the teachings of Nambiar et al.
Nambiar et al teach the formulation of an aqueous composition comprising a dextran polymer in personal care products including a rinse-out hair conditioner wherein the product can be in the form of lotions or creams, wherein the dextran polymer is believed to be useful for providing one or more of the physical properties of thickening, freeze/thaw stability, lubricity, moisture retention and release, texture, consistency, shape retention, emulsification, binding, suspension, dispersion, gelation, and reduced mineral hardness (See entire document, e.g., [0147]-[0149], [0152]).
It would have been prima facie obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to formulate the preparations of Rathjens et al in personal care products for the hair such as rinse-out hair conditioner. One of ordinary skill in the art would have been motivated to do so because Rathjens et al teach that synthetic polymers have good washability due to their hydrophilic groups and Nambiar et al teach that dextran polymers provide the useful physical properties to these personal care products of thickening, freeze/thaw stability, lubricity, moisture retention and release, texture, consistency, shape retention, emulsification, binding, suspension, dispersion, gelation, and reduced mineral hardness. There would have been a reasonable expectation of success in combining the teachings of Rathjens et al and Nambiar et al because of their similar teachings of ingredients, form, and use, i.e., both the compositions of Nambiar et al and the preparations of Rathjens et al comprise a dextran polymer and water, can be formulated as lotions or creams, and can be used in hair products.
The preparation of Rathjens et al in view of Nambiar et al comprising DEAE-Dextran having an average molecular weight of 50,000 to 800,000, water, a thickener, and a preservative formulated as a rinse-out hair conditioner renders obvious the hair conditioning formulation of instant claims 1-4 and 6-9. DEAE-Dextran having an average molecular weight of 50,000 to 800,000 in the preparation of Rathjens et al in view of Nambiar et al renders obvious the conditioning polymer of the instant claims being a dextran polymer functionalized with tertiary amine groups of formula (A) bound to a pendent oxygen on the branched chain dextran polymer (See instant claim 7), wherein
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is a pendant oxygen on the branched chain dextran polymer, X is CH2CH2, z is 1, and each of R2 and R3 is an ethyl group (i.e., the elected species of the tertiary amine groups of formula (A)); wherein the dextran polymer has a weight average molecular weight of 50,000 to 3,000,000 Daltons.
Regarding the recited ranges of the instant claims, a prima facie case of obviousness typically exists when the ranges of a claimed composition overlap the ranges disclosed in the prior art (In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003)).
The preparation of Rathjens et al in view of Nambiar et al not comprising essential oils or perfume oils renders obvious instant claim 2.
The preparation of Rathjens et al in view of Nambiar et al not comprising silicone compounds renders obvious instant claim 3.
Regarding instant claim 6, because the polymer in the preparation of Rathjens et al in view of Nambiar et al is the same as the conditioning polymer of the instant claims, i.e., dextran polymer functionalized with tertiary amine groups of formula (A) bound to a pendent oxygen on the branched chain dextran polymer (See instant claim 7), wherein
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is a pendant oxygen on the branched chain dextran polymer, X is CH2CH2, z is 1, and each of R2 and R3 is an ethyl group (i.e., the elected species of the tertiary amine groups of formula (A)); wherein the dextran polymer has a weight average molecular weight of 50,000 to 3,000,000 Daltons, the polymer in the preparation of Rathjens et al in view of Nambiar et al necessarily has a Kjeldahl nitrogen content corrected for ash and volatiles, TKN, of 0.5 to 5.0 wt%. See, Persion Pharms. LLC v. Alvogen Malta Operations LTD., 945 F.3d 1184, 1191, 2019 USPQ2d 494084 (Fed. Cir. 2019), where the court stated that a proper finding of inherency does not require that all limitations are taught in a single reference, and that inherency may meet a missing claim limitation when the limitation is "the natural result of the combination of prior art elements." (emphasis in original). A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present (In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).
NEW GROUNDS OF OBJECTION
Claim Objections
Claim 7 is objected to because “the dextran polymer” spanning the third-to-last and second-to-last lines should be amended to “the branched chain dextran polymer” in order to improve claim consistency and readability.
Appropriate correction is required.
Response to Applicant’s Arguments
Applicant arguments filed on 02/02/2026 have been considered.
Regarding the claim rejections under 35 USC 112, Applicant states that claim 4 has been canceled and therefore the rejection made under 35 USC 112(d) set forth in the Office action dated 11/06/2025 should be withdrawn.
Because claim 4 has not been canceled, the rejection of claim 4 under 35 USC 112(d) is hereby maintained (see maintained rejection above).
Regarding the claim rejections under 35 USC 103, Applicant argues that Nambiar does not cure the deficiency in Rathjens, i.e., a preparation formulated as a rinse off conditioner, because the Nambiar dextran polymers do not contain tertiary amine groups, Nambiar teaches that high solubility in water can negatively affect the utility of its dextran as a thickening agent, and Nambiar teaches that its dextran has a weight average molecular weight of 50,000,000 to 200,000,000 Daltons, and thus, there is no teaching or suggestion in the art of record that would have caused a person of ordinary skill in the art to selectively pick and choose only certain aspects of the teaching of Nambiar in modifying the teaching of Rathjens as asserted by the Office action to arrive at the invention as claimed.
The above arguments have been fully considered by the Examiner but are not found persuasive because the teachings of Rathjens et al and Nambiar et al are analogous art and, as can be seen in the maintained rejection under 35 USC 103 above, based on the teachings of Rathjens et al and Nambiar et al, it would have been obvious to one of ordinary skill in the art to modify the teaching of Rathjens et al with the teaching of Nambiar et al and arrive at the preparations of Rathjens et al formulated as personal care products for the hair such as rinse-out hair conditioner because Rathjens et al teach that synthetic polymers have good washability due to their hydrophilic groups and Nambiar et al teach that dextran polymers provide the useful physical properties to these personal care products of thickening, freeze/thaw stability, lubricity, moisture retention and release, texture, consistency, shape retention, emulsification, binding, suspension, dispersion, gelation, and reduced mineral hardness, and there would have been a reasonable expectation of success in combining the teachings of Rathjens et al and Nambiar et al because of their similar teachings of ingredients, form, and use, i.e., both the compositions of Nambiar et al and the preparations of Rathjens et al comprise a dextran polymer and water, can be formulated as lotions or creams, and can be used in hair products. The strongest rationale for combining references is a recognition, expressly or impliedly in the prior art or drawn from a convincing line of reasoning based on established scientific principles or legal precedent, that some advantage or expected beneficial result would have been produced by their combination (In re Sernaker, 702 F.2d 989, 994-95 (Fed. Cir. 1983)).
Conclusion
No claims are allowable.
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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/K.E.O./Examiner, Art Unit 1619
/DAVID J BLANCHARD/Supervisory Patent Examiner, Art Unit 1619