DETAILED ACTION
Status of the Application
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claims 22-42 are pending and represent all claims currently under consideration.
Response to Amendment
The amendment filed 05/08/2026 has been entered.
Claims 22, 25, 33-38, and 40-41 were amended. No new material was added.
Applicant’s amendments have overcome the previous objections to the claims, and the previous rejections under 35 U.S.C. 112(b).
The objection to the specification has been modified to address the amendment and maintained.
The rejection of claims 22-42 under 35 U.S.C. 103 has been modified to address the amendment and maintained.
Response to Arguments
Applicant's arguments filed 05/08/2026 have been fully considered but they are not persuasive.
Applicant states that the specification as filed includes headings as required for the content of the specification (Remarks, page 8). This argument is not persuasive, because the specification filed 05/08/2026 is missing a “Cross-References to Related Applications” section.
Applicant states that Kleinen teaches structured formulations which are designed to be single-phase or dispersed-phase so that all components of the composition integrate into a liquid-crystalline matrix, and are therefore not multiphasic as required by the amended clam (Remarks, pages 11-12). This argument is not persuasive, because Kleinen teaches structured formulations are compositions in which surfactants are present in the form of planar and/or spherolithic lamellar phases, and that the surfactant phases are present in dispersed form as spheroliths, i.e., as lamellar droplets in the aqueous phase (Kleinen, page 1, paragraph 0002), which suggests multiple phases are present, and thereby reading on “multiphasic” as claimed.
Applicant states that the recitation of “preferentially, the compositions according to the invention… are different from the structured compositions as described in US 9,320, 697,” which uses the same definition of structured compositions as Kleinen (Remarks, pages 11-12). This argument is not persuasive, because although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See MPEP § 2145 (VI). Further, disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments. See MPEP § 2123(II).
Applicant argues that the increasing deposition of an active ingredient is unexpected in view of Kleinen, and states that the increased rinseability of Kleinen is counter to the desired increase in deposition (Remarks, pages 12-13). This argument is not persuasive, because Kleinen specifically states an advantage of the present invention as deposition of active ingredients to a high degree (Kleinen, page 1, paragraph 0029). Further, there is no evidence provided to support the assertion that an increased rinseability is counter to an increase in deposition.
Information Disclosure Statement
The information disclosure statement filed 05/08/2026 has been considered.
Specification
Content of Specification
(a) TITLE OF THE INVENTION: See 37 CFR 1.72(a) and MPEP § 606. The title of the invention should be placed at the top of the first page of the specification unless the title is provided in an application data sheet. The title of the invention should be brief but technically accurate and descriptive, preferably from two to seven words. It may not contain more than 500 characters.
(b) CROSS-REFERENCES TO RELATED APPLICATIONS: See 37 CFR 1.78 and MPEP § 211 et seq.
(c) STATEMENT REGARDING FEDERALLY SPONSORED RESEARCH OR DEVELOPMENT: See MPEP § 310.
(d) THE NAMES OF THE PARTIES TO A JOINT RESEARCH AGREEMENT. See 37 CFR 1.71(g).
(e) INCORPORATION-BY-REFERENCE OF MATERIAL SUBMITTED ON A READ-ONLY OPTICAL DISC, AS A TEXT FILE OR AN XML FILE VIA THE PATENT ELECTRONIC SYSTEM: The specification is required to include an incorporation-by-reference of electronic documents that are to become part of the permanent United States Patent and Trademark Office records in the file of a patent application. See 37 CFR 1.77(b)(5) and MPEP § 608.05. See also the Legal Framework for Patent Electronic System posted on the USPTO website (https://www.uspto.gov/sites/default/files/documents/2019LegalFrameworkPES.pdf) and MPEP § 502.05
(f) STATEMENT REGARDING PRIOR DISCLOSURES BY THE INVENTOR OR A JOINT INVENTOR. See 35 U.S.C. 102(b) and 37 CFR 1.77.
(g) BACKGROUND OF THE INVENTION: See MPEP § 608.01(c). The specification should set forth the Background of the Invention in two parts:
(1) Field of the Invention: A statement of the field of art to which the invention pertains. This statement may include a paraphrasing of the applicable U.S. patent classification definitions of the subject matter of the claimed invention. This item may also be titled “Technical Field.”
(2) Description of the Related Art including information disclosed under 37 CFR 1.97 and 37 CFR 1.98: A description of the related art known to the applicant and including, if applicable, references to specific related art and problems involved in the prior art which are solved by the applicant’s invention. This item may also be titled “Background Art.”
(h) BRIEF SUMMARY OF THE INVENTION: See MPEP § 608.01(d). A brief summary or general statement of the invention as set forth in 37 CFR 1.73. The summary is separate and distinct from the abstract and is directed toward the invention rather than the disclosure as a whole. The summary may point out the advantages of the invention or how it solves problems previously existent in the prior art (and preferably indicated in the Background of the Invention). In chemical cases it should point out in general terms the utility of the invention. If possible, the nature and gist of the invention or the inventive concept should be set forth. Objects of the invention should be treated briefly and only to the extent that they contribute to an understanding of the invention.
(i) BRIEF DESCRIPTION OF THE SEVERAL VIEWS OF THE DRAWING(S): See MPEP § 608.01(f). A reference to and brief description of the drawing(s) as set forth in 37 CFR 1.74.
(j) DETAILED DESCRIPTION OF THE INVENTION: See MPEP § 608.01(g). A description of the preferred embodiment(s) of the invention as required in 37 CFR 1.71. The description should be as short and specific as is necessary to describe the invention adequately and accurately. Where elements or groups of elements, compounds, and processes, which are conventional and generally widely known in the field of the invention described, and their exact nature or type is not necessary for an understanding and use of the invention by a person skilled in the art, they should not be described in detail. However, where particularly complicated subject matter is involved or where the elements, compounds, or processes may not be commonly or widely known in the field, the specification should refer to another patent or readily available publication which adequately describes the subject matter.
(k) CLAIM OR CLAIMS: See 37 CFR 1.75 and MPEP § 608.01(m). The claim or claims must commence on a separate sheet or electronic page (37 CFR 1.52(b)(3)). Where a claim sets forth a plurality of elements or steps, each element or step of the claim should be separated by a line indentation. There may be plural indentations to further segregate subcombinations or related steps. See 37 CFR 1.75 and MPEP 608.01(i) - (p).
(l) ABSTRACT OF THE DISCLOSURE: See 37 CFR 1.72 (b) and MPEP § 608.01(b). The abstract is a brief narrative of the disclosure as a whole, as concise as the disclosure permits, in a single paragraph preferably not exceeding 150 words, commencing on a separate sheet following the claims. In an international application which has entered the national stage (37 CFR 1.491(b)), the applicant need not submit an abstract commencing on a separate sheet if an abstract was published with the international application under PCT Article 21. The abstract that appears on the cover page of the pamphlet published by the International Bureau (IB) of the World Intellectual Property Organization (WIPO) is the abstract that will be used by the USPTO. See MPEP § 1893.03(e).
(m) SEQUENCE LISTING: See 37 CFR 1.821 - 1.825 and MPEP §§ 2421 - 2431. The requirement for a sequence listing applies to all sequences disclosed in a given application, whether the sequences are claimed or not. See MPEP § 2422.01.
Modified/Maintained 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.
Claims 22-42 are rejected under 35 U.S.C. 103 as being unpatentable over Kleinen (US 20180133133 B2), as evidenced by PubChem, Pharmaguideline, Canevari (US 3793218 A), and Special Chem. The references were cited previously by the Examiner.
Regarding claim 22, Kleinen teaches formulations which can be liquid soaps (i.e., a liquid composition; Kleinen, page 8, paragraph 0106), and exemplifies a formulation comprising zinc pyrithione (i.e., a suitable active ingredient as defined by the instant claim 39) in 0.1% by weight (i.e., a suitable amount as defined by the instant claim 37), sodium lauryl sulfate (i.e., a suitable water-soluble amphiphilic surfactant as defined by the instant claim 41) in 3.0% by weight (i.e., a suitable amount as defined by the instant claim 40), and diethylhexyl sodium sulfosuccinate (i.e., dioctyl sodium sulfosuccinate as evidenced by PubChem, which is a suitable amphiphilic compound as defined by the instant claim 34) in 2.0% by weight (i.e., a suitable amount as defined by the instant claim 33; Kleinen, pages 18-19, example 103d). Kleinen further teaches structured formulations are compositions in which surfactants are present in the form of planar and/or spherolithic lamellar phases, and that the surfactant phases are present in dispersed form as spheroliths, i.e., as lamellar droplets in the aqueous phase (Kleinen, page 1, paragraph 0002), which suggests multiple phases are present (i.e., the composition is multiphasic). The recitations of the solubility in water, miscibility, and surface tension are considered to be properties of the ingredients, compounds, or combinations thereof. Products of identical chemical composition cannot have mutually exclusive properties. See MPEP § 2112.01(II). Therefore, the formulation of Kleinen would be expected to have the claimed properties.
Kleinen is considered to be analogous to the claimed invention, because both Kleinen and the instant invention are in the same field of surfactant formulations for personal care. 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 have arrived at the claimed invention based on the teachings of Kleinen under the meaning of 35 U.S.C. 103.
Regarding claim 23, Kleinen teaches all the elements of the current invention as applied to claim 22. As above, Kleinen teaches a formulation comprising zinc pyrithione (i.e., a suitable active ingredient as defined by the instant claim 39) and diethylhexyl sodium sulfosuccinate (i.e., dioctyl sodium sulfosuccinate as evidenced by PubChem, which is a suitable amphiphilic compound as defined by the instant claim 34; Kleinen, pages 18-19, example 103d). As above, the recitation of the surface tension is considered to be a property of the combination of the active ingredient and amphiphilic compound, and products of identical chemical composition cannot have mutually exclusive properties. See MPEP § 2112.01(II). Therefore, the formulation of Kleinen would be expected to have the claimed properties.
Regarding claim 24, Kleinen teaches all the elements of the current invention as applied to claim 22. As above, Kleinen teaches a formulation comprising sodium lauryl sulfate (i.e., a suitable water-soluble amphiphilic surfactant as defined by the instant claim 41) and diethylhexyl sodium sulfosuccinate (i.e., dioctyl sodium sulfosuccinate as evidenced by PubChem, which is a suitable amphiphilic compound as defined by the instant claim 34; Kleinen, pages 18-19, example 103d). As above, the recitation of the formation of a separate phase when combined in water is considered to be a property of the combination of the amphiphilic surfactant and amphiphilic compound, and products of identical chemical composition cannot have mutually exclusive properties. See MPEP § 2112.01(II). Therefore, the formulation of Kleinen would be expected to have the claimed properties.
Regarding claim 25, Kleinen teaches all the elements of the current invention as applied to claim 24. As above, Kleinen teaches a formulation comprising the claimed ingredients and compounds (Kleinen, pages 18-19, example 103d). While Kleinen does not teach a determination of phase separation as claimed, the recitation of the formation of a separate phase when combined in water is considered to be a property of the combination of the amphiphilic surfactant and amphiphilic compound, and products of identical chemical composition cannot have mutually exclusive properties. See MPEP § 2112.01(II). Therefore, the formulation of Kleinen would be expected to have the claimed properties when measured as stated in the claim.
Regarding claim 26, Kleinen teaches all the elements of the current invention as applied to claim 22. As above, Kleinen teaches a formulation comprising zinc pyrithione (i.e., a suitable active ingredient as defined by the instant claim 39) and diethylhexyl sodium sulfosuccinate (i.e., dioctyl sodium sulfosuccinate as evidenced by PubChem, which is a suitable amphiphilic compound as defined by the instant claim 34; Kleinen, pages 18-19, example 103d). As above, the recitation of the formation of a separate phase when combined is considered to be a property of the combination of the active ingredient and amphiphilic compound, and products of identical chemical composition cannot have mutually exclusive properties. See MPEP § 2112.01(II). Therefore, the formulation of Kleinen would be expected to have the claimed properties.
Regarding claim 27, Kleinen teaches all the elements of the current invention as applied to claim 22. As above, Kleinen teaches a formulation comprising sodium lauryl sulfate (i.e., a suitable water-soluble amphiphilic surfactant as defined by the instant claim 41; Kleinen, pages 18-19, example 103d), which has an HLB of 40 (i.e., above 12) as evidenced by Pharmaguideline, which lies within the claimed range.
Regarding claim 28, Kleinen teaches all the elements of the current invention as applied to claim 22. As above, Kleinen teaches a formulation comprising diethylhexyl sodium sulfosuccinate (i.e., dioctyl sodium sulfosuccinate as evidenced by PubChem, which has an HLB value of 10 as evidenced by Canevari (Canevari, column 5, lines 10-12).
Regarding claim 29, Kleinen teaches all the elements of the current invention as applied to claim 22. As above, Kleinen teaches a formulation comprising diethylhexyl sodium sulfosuccinate (i.e., dioctyl sodium sulfosuccinate; Kleinen, pages 18-19, example 103d), which is an anionic compound as evidenced by the structure demonstrated by PubChem.
Regarding claim 30, Kleinen teaches all the elements of the current invention as applied to claim 22. As above, Kleinen teaches formulations which can be liquid soaps (i.e., a personal care composition; Kleinen, page 8, paragraph 0106).
Regarding claim 31, Kleinen teaches all the elements of the current invention as applied to claim 22. As above, Kleinen teaches a formulation comprising diethylhexyl sodium sulfosuccinate (i.e., dioctyl sodium sulfosuccinate; Kleinen, pages 18-19, example 103d), which comprises two branched alkyl chains each comprising 8 carbons (i.e., at least 6) as evidenced by the structure demonstrated by PubChem.
Regarding claim 32, Kleinen teaches all the elements of the current invention as applied to claim 22. As above, Kleinen teaches a formulation comprising diethylhexyl sodium sulfosuccinate (i.e., dioctyl sodium sulfosuccinate, which is a multi-tail surfactant as defined by claim 34; Kleinen, pages 18-19, example 103d), which comprises two branched alkyl chains each comprising 8 carbons (i.e., at least 6) as evidenced by the structure demonstrated by PubChem.
Regarding claim 33, Kleinen teaches all the elements of the current invention as applied to claim 22. As above, Kleinen teaches a formulation comprising diethylhexyl sodium sulfosuccinate (i.e., dioctyl sodium sulfosuccinate as evidenced by PubChem, which is a suitable amphiphilic compound as defined by the instant claim 34) in 2.0% by weight (Kleinen, pages 18-19, example 103d), which lies within the claimed range.
Regarding claim 34, Kleinen teaches all the elements of the current invention as applied to claim 22. As above, Kleinen teaches a formulation comprising diethylhexyl sodium sulfosuccinate (i.e., dioctyl sodium sulfosuccinate as evidenced by PubChem; Kleinen, pages 18-19, example 103d).
Regarding claim 35, Kleinen teaches all the elements of the current invention as applied to claim 22. Kleinen further teaches the formulation comprises hydroxypropyl guar hydroxypropyltrimonium chloride (Kleinen, pages 18-19, example 103d).
Regarding claim 36, Kleinen teaches all the elements of the current invention as applied to claim 35. Kleinen further teaches the formulation comprises hydroxypropyl guar hydroxypropyltrimonium chloride in 0.2% by weight (Kleinen, pages 18-19, example 103d), which lies within the claimed range.
Regarding claim 37, Kleinen teaches all the elements of the current invention as applied to claim 22. As above, Kleinen teaches a formulation comprising zinc pyrithione (i.e., a suitable active ingredient as defined by the instant claim 39) in 0.1% by weight (Kleinen, pages 18-19, example 103d), which lies within the claimed range.
Regarding claim 38, Kleinen teaches all the elements of the current invention as applied to claim 22. As above, Kleinen teaches a formulation comprising zinc pyrithione, specifically Microcare ZP by Thor (Kleinen, page 21, paragraph 0150), which is an anti-dandruff agent as evidenced by Special Chem.
Regarding claim 39, Kleinen teaches all the elements of the current invention as applied to claim 22. As above, Kleinen teaches a formulation comprising zinc pyrithione (Kleinen, pages 18-19, example 103d).
Regarding claim 40, Kleinen teaches all the elements of the current invention as applied to claim 22. As above, Kleinen teaches a formulation comprising sodium lauryl sulfate (i.e., a suitable water-soluble amphiphilic surfactant as defined by the instant claim 41) in 3.0% by weight (Kleinen, pages 18-19, example 103d), which lies within the claimed range.
Regarding claim 41, Kleinen teaches all the elements of the current invention as applied to claim 22. As above, Kleinen teaches a formulation comprising sodium lauryl sulfate (Kleinen, pages 18-19, example 103d).
Regarding claim 42, Kleinen teaches all the elements of the current invention as applied to claim 22. Kleinen teaches the composition can comprise water in preferably from 40-40% by weight (Kleinen, page 7, paragraph 0087), which lies within the claimed range.
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.P.J./Examiner, Art Unit 1613
/JENNIFER A BERRIOS/ Primary Examiner, Art Unit 1613
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