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 .
DETAILED ACTION
Claims 1-16 are pending.
Election/Restrictions
Applicant’s election of the invention of Group I, claims 1-14 and 16 in the reply filed on 10/29/25 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
The requirement is still deemed proper and is therefore made FINAL.
Claim 15 is withdrawn as being drawn to a nonelected invention.
Claims 1-14 and 16 are under consideration.
Information Disclosure Statement
Acknowledgement is made of Applicant’s information disclosure statements (IDS) submitted on 6/6/23. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement has been considered by the examiner.
Priority
Receipt is acknowledged of papers submitted under 35 U.S.C. 119(a)-(d), which papers have been placed of record in the file.
Claim Objections
Claim 2 is objected to because of the following informalities:
In Claim 2, lines 2-3 “sum” should be “the sum”.
Appropriate correction is required.
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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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 1-14 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Yin (CN 109431860 A; 2019) in view of Piérard-Franchimont et al. (International Journal of Cosmetic Science; 2002).
Yin teaches cosmetic-grade sodium aspartate and daily goods containing the component (e.g. abstract). Yin teaches a shampoo composition comprising
6-15 wt% sodium lauryl ether sulfate (i.e. anionic surfactant),
1-4 wt% cocamidopropyl betaine (i.e. amphoteric surfactant),
0.05-4 wt% sodium polyaspartate (i.e. a polyaspartate); and
water (i.e. cosmetic carrier) (e.g. page 8).
Yin does not teach the inclusion of (iii) piroctone olamine. This is made up for by the teachings of Piérard-Franchimont et al.
Piérard-Franchimont et al. teach that hair shedding and hair thinning have been reported to be affected by dandruff and seborrhoeic dermatitis (e.g. abstract). Piérard-Franchimont et al. teach a shampoo comprising 1% piroctone olamine cleared pruritus and dandruff rapidly and increased the mean hair shaft thickness while discretely decreasing the sebum output at the skin surface (e.g. abstract; Table 1; “Conclusion” page 255).
Regarding Claims 1, 3-12, 14, and 16, it would have been obvious to one of ordinary skill in the art at the time of filing to include 1% piroctone olamine in the shampoo compositions of Yin in order to obtain the benefits of cleared pruritus and dandruff, increases hair shaft thickness, and decreased sebum output, as disclosed by Piérard-Franchimont et al., resulting in a weight ratio of sodium polyaspartate to piroctone olamine of 0.05:1 to 4:1 which overlaps the claimed range. It would have been obvious to one of ordinary skill in the art to combine the elements as claimed by known methods with no change in their respective functions, and the combination yielding nothing more than predictable results.
Regarding the concentrations of (i)-(v), the ranges taught by Yin Piérard-Franchimont et al. are within or overlap the claimed ranged. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP 2144.05.I).
Regarding Claims 1-3, Yin discloses that the poly-aspartate has the structure, C4H6NO3(C4H5NO3)mC4H6NO4, molecular weight 2000-100000, and further that it may be sodium polyaspartate (e.g. page 2; Example on page 8).
Regarding Claim 13, Yin exemplify the shampoo composition further comprising polyquaternium-7, which as evidenced by the instant Specification on page 10, is a cationic polymer (e.g. Example on page 8).
Conclusion
No claim is allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to NICOLE PLOURDE BABSON whose telephone number is (571)272-3055. The examiner can normally be reached M-Th 8-4:30; F 8-12:30.
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/NICOLE P BABSON/ Primary Examiner, Art Unit 1619