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
Claims 1-15 are pending.
Election/Restriction
Applicant’s election of the following species in the reply filed on 12/24/2025 is acknowledged:
Disodium cocoyl glutamate as the species of the one or more amino acid-based anionic surfactants;
Coco glucoside as the species of the one or more alkyl glucoside non-ionic surfactants;
Cocoamphoacetate sodium as the species of the one or more amphoteric surfactants different from betaine amphoteric surfactants;
Water as the species of the one or more physiologically acceptable carriers and/or adjuvants;
Sodium shale oil sulfonate as the species of the anti-dandruff agent;
A solution as the species of the form of the composition; and
A shampoo as the species of the type of topical composition.
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)).
“Cocoamphoacetate sodium”, which is not contained in the instant disclosure, is being interpreted by the Examiner as a typographical error of “sodium cocoamphoacetate” (See instant claim 11 and Page 10 Lines 18-19 and Lines 29-30 of the Specification).
Upon further search and consideration, the election of species requirement for the type of topical composition set forth in the Office action dated 10/27/2025 is hereby withdrawn.
Claim 7 is withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected species (i.e., the one or more physiologically acceptable carriers and/or adjuvants was elected as water), there being no allowable generic or linking claim.
Claims 1-6 and 8-15 are under consideration in the instant Office action to the extent of the elected species, i.e., the one or more amino acid-based anionic surfactants is disodium cocoyl glutamate, the one or more alkyl glucoside non-ionic surfactants is coco glucoside, the one or more amphoteric surfactants different from betaine amphoteric surfactants is sodium cocoamphoacetate, the one or more physiologically acceptable carriers and/or adjuvants is water, the anti-dandruff agent is sodium shale oil sulfonate, and the composition is in the form of a solution.
Priority
This application is a 371 of PCT/EP2022/056689 filed 03/15/2022, claiming priority to EPO 21162677.5 filed 03/15/2021.
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Information Disclosure Statement
The information disclosure statements (IDS) filed 04/26/2024 and 10/23/2025 have been considered by the Examiner. A signed copy of each IDS is included with the present Office Action.
Drawings
The drawings are objected to because Figure 1 is missing an x-axis label. Based on the table at the bottom of Page 19 of the specification, the Examiner suggests adding “Study Code” as the x-axis label.
The drawings are also objected to because there is only one figure and the drawing refers to it as “Figure 1”. 37 CFR 1.84(u)(1) indicates when there is only one drawing, it must not be numbered and the abbreviation “FIG.” must not appear. Therefore, “Figure 1” must be referred to as “The Figure”.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Specification
The disclosure is objected to because of the following:
Page 1 Line 11, “affect” should be amended to “affects”;
Page 3 Line 15 and Page 20 Line 23 refer to “Figure 1” should be amended to “The Figure” because there is only one figure (See Drawings section of the Office action above);
Page 8 Line 30, “surfactants system” should be amended to “surfactant system”;
Page 9 Line 14, “8 %” should be amended to “8%”;
Page 12 Line 20, "0.0001 %" should be amended to "0.0001%";
Page 16 Line 6, “tableau” should be amended to “table”;
Page 19 in table 4, “diSodium” should be amended to “disodium”;
Page 19 Line 8, “float Test” should be amended to “float test”;
Page 20 Line 12, “Natural Group” should be underlined to be consistent with the other groups, i.e., Control Group and Treatment Groups;
For each of Page 20 Line 29 and Page 22 Line 12, “p<0,05” should be amended to “p<0.05”;
For each of Page 22 Line 25, Page 25 Line 5, and Page 27 Line 24, "p<0,001" should be amended to "p<0.001";
On Page 25, the line break between Lines 12 and 13 should be removed;
Page 27 Lines 2, 5, and 10, each of "29,1", "14,5", and "13,1" should be amended to "29.1", "14.5", and "13.1", respectively;
The entries in the table on Page 27 in Section 3.1 should be amended so that the decimals are recited with periods and not commas; and
Throughout the examples, each table title appearing below a table should be moved to above the table (table headers belong above a table).
Appropriate correction is required. Applicant’s cooperation is requested in checking the rest of the disclosure for informality errors and making changes accordingly.
Claim Objections
Claims 3-6 and 12-14 are objected to because of the following:
In each of claims 3-6, each recitation of “the weight ratio total amount” should be amended to “the weight ratio of the total amount” for grammatical correctness;
In each of claims 3 and 5-6, each recitation of “is equal or superior to” should be amended to “is equal to or greater than” in order to improve the readability of the claims;
In line 2 of each of claims 12-14, each recitation of “the composition” should be amended to “the topical composition” in order to improve the consistency and readability of the claims (See claim 15); and
In the last line of claim 12, the recitation of “Sodium Shale Oil Sulfonate” should be amended to lowercase to be consistent with the recitation of “sodium shale oil sulfonate” in line 3 of claim 12.
Appropriate correction is required.
Claim Rejections - 35 USC § 112(b)
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-6, 8, and 9-12 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
(a) A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, each of claims 1-2 and 9-12 recite a broad recitation and also a narrower statement of the range/limitation using ‘preferably’ and in some cases also ‘more preferably’. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
(b) Claim 2 is indefinite in the recitation of “a total amount of amphoteric surfactants” in line 9 because it is unclear whether the ‘amphoteric surfactants’ are limited to the one or more amphoteric surfactants different from betaine amphoteric surfactants of claim 1, whether ‘amphoteric surfactants’ is inclusive to amphoteric surfactants other than the one or more amphoteric surfactants different from betaine amphoteric surfactants of claim 1, or whether something else is meant by this phrase. As written, one skilled in the art would not be reasonably apprised of the metes and bounds of the claims.
(c) Each of claims 3, 4, and 6 are indefinite in the recitation of “total amount of anionic surfactant/total amount of non-ionic surfactant” because, in each of claims 3, 4, and 6, it is unclear whether “total amount of anionic surfactant” is limited to the one or more amino acid-based anionic surfactants of claim 1, whether it is inclusive to anionic surfactants other than the one or more amino acid-based anionic surfactants of claim 1, or whether something else is meant by the phrase and it is unclear whether “total amount of non-ionic surfactant” is limited to the one or more alkyl glucoside non-ionic surfactants of claim 1, whether it is inclusive to non-ionic surfactants other than the one or more alkyl glucoside non-ionic surfactants of claim 1, or whether something else is meant by the phrase. As written, one skilled in the art would not be reasonably apprised of the metes and bounds of the claims.
(d) Claim 5 is indefinite in the recitation of “total amount of anionic surfactant/total amount of amphoteric surfactant” because it is unclear whether “total amount of anionic surfactant” is limited to the one or more amino acid-based anionic surfactants of claim 1, whether it is inclusive to anionic surfactants other than the one or more amino acid-based anionic surfactants of claim 1, or whether something else is meant by the phrase and it is unclear whether “total amount of amphoteric surfactant” is limited to the one or more amphoteric surfactants different from betaine amphoteric surfactants of claim 1, whether it is inclusive to amphoteric surfactants other than the one or more amphoteric surfactants different from betaine amphoteric surfactants of claim 1, or whether something else is meant by the phrase. As written, one skilled in the art would not be reasonably apprised of the metes and bounds of the claims.
(e) Claim 6 is indefinite in the recitation of “total amount of non-ionic surfactant/total amount of amphoteric surfactant” because it is unclear whether “total amount of non-ionic surfactant” is limited to the one or more alkyl glucoside non-ionic surfactants of claim 1, whether it is inclusive to non-ionic surfactants other than the one or more alkyl glucoside non-ionic surfactants of claim 1, or whether something else is meant by the phrase and it is unclear whether “total amount of amphoteric surfactant” is limited to the one or more amphoteric surfactants different from betaine amphoteric surfactants of claim 1, whether it is inclusive to amphoteric surfactants other than the one or more amphoteric surfactants different from betaine amphoteric surfactants of claim 1, or whether something else is meant by the phrase. As written, one skilled in the art would not be reasonably apprised of the metes and bounds of the claims.
(f) Claim 8 recites the limitation "the carrier" in line 2. There is insufficient antecedent basis for this limitation in the claim because neither claim 8 nor claim 1 earlier recite “a carrier”, however claim 1 recites “one or more physiologically acceptable carriers and/or adjuvants”. Thus, it is unclear whether “the carrier” in claim 8 refers to just one of the one or more physiologically acceptable carriers and/or adjuvants of claim 1, at least one of the one or more physiologically acceptable carriers and/or adjuvants of claim 1, all of the one or more physiologically acceptable carriers and/or adjuvants of claim 1, or whether something else is meant by this phrase. As written, one skilled in the art would not be reasonably apprised of the metes and bounds of the claims. The Examiner suggests amending “the carrier” in claim 8 to “the one or more physiologically acceptable carriers and/or adjuvants” in order to overcome this rejection.
(g) Claim 9 recites the limitation "the amino acid-based anionic surfactant". There is insufficient antecedent basis for this limitation in the claim because neither claim 9 nor claim 1 earlier recite “an amino acid-based anionic surfactant”, however claim 1 recites “one or more amino acid-based anionic surfactants”. Thus, it is unclear whether "the amino acid-based anionic surfactant" in claim 9 refers to just one of the one or more amino acid-based anionic surfactants of claim 1, at least one of the one or more amino acid-based anionic surfactants of claim 1, all of the one or more amino acid-based anionic surfactants of claim 1, or whether something else is meant by this phrase. As written, one skilled in the art would not be reasonably apprised of the metes and bounds of the claims. The Examiner suggests amending “the amino acid-based anionic surfactant” in claim 9 to “the one or more amino acid-based anionic surfactants” in order to overcome this rejection.
(h) Claim 10 recites the limitation "the alkyl glucoside non-ionic surfactant". There is insufficient antecedent basis for this limitation in the claim because neither claim 10 nor claim 1 earlier recite “an alkyl glucoside non-ionic surfactant”, however claim 1 recites “one or more alkyl glucoside non-ionic surfactants”. Thus, it is unclear whether " the alkyl glucoside non-ionic surfactant" in claim 10 refers to just one of the one or more alkyl glucoside non-ionic surfactants of claim 1, at least one of the one or more alkyl glucoside non-ionic surfactants of claim 1, all of the one or more alkyl glucoside non-ionic surfactants of claim 1, or whether something else is meant by this phrase. As written, one skilled in the art would not be reasonably apprised of the metes and bounds of the claims. The Examiner suggests amending “the alkyl glucoside non-ionic surfactant” in claim 10 to “the one or more alkyl glucoside non-ionic surfactants” in order to overcome this rejection.
(i) Claim 11 recites the limitation "the amphoteric surfactant". There is insufficient antecedent basis for this limitation in the claim because neither claim 11 nor claim 1 earlier recite “an amphoteric surfactant”, however claim 1 recites ”one or more amphoteric surfactants different from betaine amphoteric surfactants”. Thus, it is unclear whether " the amphoteric surfactant " in claim 11 refers to just one of the one or more amphoteric surfactants different from betaine amphoteric surfactants of claim 1, at least one of the one or more amphoteric surfactants different from betaine amphoteric surfactants of claim 1, all of the one or more amphoteric surfactants different from betaine amphoteric surfactants of claim 1, or whether something else is meant by this phrase. As written, one skilled in the art would not be reasonably apprised of the metes and bounds of the claims. The Examiner suggests amending “the amphoteric surfactant” in claim 11 to “the one or more amphoteric surfactants different from betaine amphoteric surfactants” in order to overcome this rejection.
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 1-6, 8-11, and 14-15 are rejected under 35 U.S.C. 103 as being unpatentable over Rowney et al (EP 3369415 A1, published 09/05/2018) in view of Minguet et al ("Ethyl Lauroyl Arginate HCl for Natural Preservation", Cosmetics & Toiletries, published 12/02/2011).
Rowney et al teach a cosmetic cleansing composition for topical application to the skin and/or hair that effectively cleanses the skin and/or hair while maintaining mildness (See entire document, e.g. [0001], [0007], [0055]). The composition comprises a cosmetically acceptable carrier, a surfactant system consisting of an anionic surfactant, an amphoteric surfactant, and a non-ionic surfactant, and may comprise one or more preservatives (e.g., [0008], [0062]). Rowney et al teach that the specific combination of an anionic, an amphoteric and a non-ionic surfactant at defined levels, provides an improved cleansing experience for the user in that adequate cleansing can be achieved whilst preventing or reducing harshness, damage or irritation to the skin and/or hair, and that despite the overall surfactant level being low, adequate cleansing can still be achieved (e.g., [0009]).
The composition may be formulated as a liquid and the cosmetically acceptable carrier may be water (e.g., [0052], [0054]-[0055]).The anionic surfactant is selected from a group including disodium cocoyl glutamate (e.g., [0016]-[0017]). The amphoteric surfactant is selected from a group including sodium cocoamphoacetate (e.g., [0024]-[0026]). The non-ionic surfactant is selected from a group including coco glucoside (e.g., [0032]-[0034]). The one or more preservatives may be selected from, but is not limited to, a group including isothiazolone (e.g., [0062]).
The anionic surfactant may be present in an amount of from about 0.01% to about 6% by weight relative to the total weight of the composition (e.g., [0021]). The amphoteric surfactant may be present in an amount of from about 0.01% to about 12% by weight relative to the total weight of the composition (e.g., [0029]). The non-ionic surfactant may be present in an amount of from about 0.01% to about 8% by weight relative to the total weight of the composition (e.g., [0037]). The anionic surfactant, amphoteric surfactant and non-ionic surfactant making up the surfactant system add up to 100% (e.g., [0042]). The one or more preservatives may be present in an amount of about 0.001% to about 10% by weight of the composition (e.g., [0062]).
The amphoteric surfactant may be present in an amount of at least the same amount as the anionic surfactant, e.g., the amphoteric surfactant is present in an amount of about 2.3 times or less the amount of the anionic surfactant, the non-ionic surfactant may be present in an amount of at least the same amount as the anionic surfactant, and the amphoteric surfactant may be present in an amount of at least the same amount as the non-ionic surfactant (e.g., [0038]-[0040]).
In addition to the carrier and the surfactant system, the cosmetic composition will generally comprise other ingredients or excipients which will be well known to those skilled in the art (e.g., [0058]).
Rowney et al do not teach N-ethyl-lauroyl-arginate as a suitable preservative.
This deficiency is made up for in the teachings of Minguet et al.
Minguet et al teach that several preservatives, including isothiazolinones, either have been banned or their use strongly limited (See entire document, e.g., Par. 1 on Page 1). Minguet et al teach ethyl lauroyl arginate HCl (LAE; synonymous with N-ethyl-lauroyl-arginate) as an alternative that has high antimicrobial/antibacterial activity against the microorganisms Malassezia furfur, involved in the proliferation of dandruff, and Propionibacterium acnes, involved in acne formation, yet is safe for human use and for the environment (e.g., Par. 2 on Page 1). Minguet et al teach that LAE is a food-grade cationic surfactant with antimicrobial properties that is derived from the natural building blocks lauric acid and L-arginine, is deemed Generally Recognized as Safe by the US FDA, is readily biodegradable with low aquatic toxicity, does not irritate the eyes or skin at recommended use levels, and is non-sensitizing (e.g., Par. 3 on Page 1). Minguet et al teach that an EU Directive has included LAE as an accepted preservative for cosmetic formulations with a maximum allowed dosage of 0.4% active and as an allowable active for anti-dandruff shampoos, antibacterial soaps and deodorants at an upper limit of 0.8% (e.g., Par. 4 of Page 1 – Par. 1 of Page 2).
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 use LAE as preservative up to 0.4% or 0.8% in the composition of Rowney et al, and arrive at a liquid cosmetic cleansing composition for topical application to the skin and/or hair that effectively cleanses the skin and/or hair while maintaining mildness and having anti-dandruff and/or anti-acne properties comprising a cosmetically acceptable carrier being water, a surfactant system consisting of an anionic surfactant being disodium cocoyl glutamate from about 0.01% to about 6% by weight, an amphoteric surfactant being sodium cocoamphoacetate from about 0.01% to about 12% by weight, and a non-ionic surfactant being coco glucoside from about 0.01% to about 8% by weight, and a preservative being LAE from about 0.001% to about 0.4%, or to about 0.8%, by weight, wherein percent by weight is relative to the total weight of the composition, and wherein the amphoteric surfactant may be present in an amount of at least the same amount as the anionic surfactant, e.g., the amphoteric surfactant is present in an amount of about 2.3 times or less the amount of the anionic surfactant, the non-ionic surfactant may be present in an amount of at least the same amount as the anionic surfactant, and the amphoteric surfactant may be present in an amount of at least the same amount as the non-ionic surfactant.
One of ordinary skill in the art would have been motivated to use LAE as a preservative in the composition of Rowney et al because Minguet et al teach advantages of using LAE as an alternative preservative to isothiazolone (see supra) including being safer for human use, being better for the environment, and being effective against the microorganisms Malassezia furfur, involved in the proliferation of dandruff, and Propionibacterium acnes, involved in acne formation. There would have been a reasonable expectation of success in using LAE as a preservative in the composition of Rowney et al because Rowney et al teach the compatibility of the composition with preservatives such as isothiazolone. One of ordinary skill in the art would have been motivated to use LAE up to 0.4% or 0.8% in the composition of Rowney et al because Minguet et al teach safe use of LAE in amounts with these upper limits in cosmetic formulations and for anti-dandruff shampoos, antibacterial soaps and deodorants, respectively. There would have been a reasonable expectation of success in using LAE up to 0.4% or 0.8% in the composition of Rowney et al because Rowney et al teach the compatibility of the composition with preservatives from about 0.001% to about 10% by weight of the composition, and the amounts taught by Minguet et al, i.e., up to 0.4% or 0.8%, fall within the range taught by Rowney et al.
Generally, it is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use (Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945)). The rationale to support a conclusion that the claim would have been obvious is that all the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination yielded nothing more than predictable results to one of ordinary skill in the art (KSR, 550 U.S. at 416, 82 USPQ2d at 1395; B/E Aerospace, Inc. v. C&D Zodiac, Inc., 962 F.3d 1373, 1379, 2020 USPQ2d 10706 (Fed. Cir. 2020); Sakraida v. AG Pro, Inc., 425 U.S. 273, 282, 189 USPQ 449, 453 (1976); Anderson’s-Black Rock, Inc. v. Pavement Salvage Co., 396 U.S. 57, 62-63, 163 USPQ 673, 675 (1969); Great Atl. & P. Tea Co. v. Supermarket Equip. Corp., 340 U.S. 147, 152, 87 USPQ 303, 306 (1950)).
The aforementioned modified composition of Rowney et al in view of Minguet et al renders obvious the composition of instant claims 1-6, 8-11, and 14-15.
The weight percentages of each of the anionic surfactant, amphoteric surfactant, and non-ionic surfactant in the modified composition of Rowney et al in view of Minguet et al as well as the ratios of the surfactants in the modified composition of Rowney et al in view of Minguet et al render obvious the ranges required by 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)).
Specifically regarding the requirement of instant claim 14 that the composition be in the form of a solution (the elected species of the form of the composition), the modified composition of Rowney et al in view of Minguet et al being formulated as a liquid renders obvious this limitation.
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over Rowney et al (as cited above) in view of Minguet et al (as cited above) as applied to claims 1-6, 8-11, and 14-15 above, and further in view of Personal Care Magazine (“Dealing with dandruff needs integrated approach”, published 04/30/2009).
The modified composition of Rowney et al in view of Minguet et al has been discussed supra.
Although Rowney et al teach the composition comprising other ingredients or excipients which will be well known to those skilled in the art (see supra), Rowney et al do not teach sodium shale oil sulfonate as a suitable other ingredient or excipient.
This deficiency is made up for in the teaching of Personal Care Magazine (hereafter PCM).
PCM teaches sodium shale oil sulfonate (SSOS) as an active substance for treatment of scaling skin disorders such as dandruff and psoriasis of the scalp on account of its multifunctionality together with natural origin and good tolerance (See entire document, e.g., Last Par. of Page 4, Conclusion on Page 12). PCM teaches that SSOS treats symptoms occurring together with dandruff or as a result of its aggressive treatment, i.e., skin redness, inflammation and agonizing itching (e.g., Conclusion on Page 12). PCM teaches use of and tolerance of SSOS in cosmetics and shampoos (e.g., e.g., Last Par. of Page 4).
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 use SSOS as one of the other ingredients or excipients in the modified composition of Rowney et al in view of Minguet et al. One of ordinary skill in the art would have been motivated to do so in order to further enhance the anti-dandruff properties of the composition and to further treat symptoms occurring together with dandruff or as a result of its aggressive treatment, i.e., skin redness, inflammation and agonizing itching, and there would have been a reasonable expectation of success because the modified composition of Rowney et al in view of Minguet et al is a liquid cosmetic cleansing composition for topical application to the skin and/or hair that effectively cleanses the skin and/or hair while maintaining mildness and having anti-dandruff and/or anti-acne properties and PCM teaches the compatibility of SSOS in cosmetics and shampoos.
Generally, it is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use (Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945)). The rationale to support a conclusion that the claim would have been obvious is that all the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination yielded nothing more than predictable results to one of ordinary skill in the art (KSR, 550 U.S. at 416, 82 USPQ2d at 1395; B/E Aerospace, Inc. v. C&D Zodiac, Inc., 962 F.3d 1373, 1379, 2020 USPQ2d 10706 (Fed. Cir. 2020); Sakraida v. AG Pro, Inc., 425 U.S. 273, 282, 189 USPQ 449, 453 (1976); Anderson’s-Black Rock, Inc. v. Pavement Salvage Co., 396 U.S. 57, 62-63, 163 USPQ 673, 675 (1969); Great Atl. & P. Tea Co. v. Supermarket Equip. Corp., 340 U.S. 147, 152, 87 USPQ 303, 306 (1950)).
Thus, the modified composition of Rowney et al in view of Minguet et al further comprising SSOS as one of the other ingredients or excipients in view of PCM renders obvious the composition of instant claim 12.
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over Rowney et al (as cited above) in view of Minguet et al (as cited above) as applied to claims 1-6, 8-11, and 14-15 above, and further in view of Tian et al (“Nanoemulsification of Ceramide-2 by Sodium Dilauramidoglutamide Lysine, a Novel Peptide-Based Gemini Surfactant”, J. Surfact. Deterg., (2016), 19, 653-661, published 05/18/2016).
The modified composition of Rowney et al in view of Minguet et al has been discussed supra.
Although Rowney et al teach the composition comprising other ingredients or excipients which will be well known to those skilled in the art (see supra), Rowney et al do not teach sodium dilauramidoglutamide lysine as a suitable other ingredient or excipient.
This deficiency is made up for in the teaching of Tian et al.
Tian et al teach a study regarding sodium dilauramidoglutamide lysine (DLGL) (See entire document), and in their introduction regarding background information about DLGL, Tian et al teach that DLGL is similar to ceramides, however DLGL possesses repair qualities for skin and hair damage, and unlike ceramides, DLGL does not significantly irritate the skin (e.g., Page 653 Col. 2 Par. 2 – Page 654 Col. 1 Par. 1). Tian et al teach that DLGL is biodegradable and is known to remarkably improve ecological compatibility by lowering the potential toxicity, which makes it more widely applicable for pharmaceutical and cosmetic applications (e.g., Page 653 Col. 2 Par. 2 – Page 654 Col. 1 Par. 1).
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 use DLGL as one of the other ingredients or excipients in the modified composition of Rowney et al in view of Minguet et al. One of ordinary skill in the art would have been motivated to do so in order to introduce a skin and/or hair repairing property to the composition without significant skin irritation and there would have been a reasonable expectation of success because the modified composition of Rowney et al in view of Minguet et al is a liquid cosmetic cleansing composition for topical application to the skin and/or hair that effectively cleanses the skin and/or hair while maintaining mildness and having anti-dandruff and/or anti-acne properties and Tian et al teach the compatibility of DLGL in cosmetics.
Generally, it is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use (Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945)). The rationale to support a conclusion that the claim would have been obvious is that all the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination yielded nothing more than predictable results to one of ordinary skill in the art (KSR, 550 U.S. at 416, 82 USPQ2d at 1395; B/E Aerospace, Inc. v. C&D Zodiac, Inc., 962 F.3d 1373, 1379, 2020 USPQ2d 10706 (Fed. Cir. 2020); Sakraida v. AG Pro, Inc., 425 U.S. 273, 282, 189 USPQ 449, 453 (1976); Anderson’s-Black Rock, Inc. v. Pavement Salvage Co., 396 U.S. 57, 62-63, 163 USPQ 673, 675 (1969); Great Atl. & P. Tea Co. v. Supermarket Equip. Corp., 340 U.S. 147, 152, 87 USPQ 303, 306 (1950)).
Thus, the modified composition of Rowney et al in view of Minguet et al further comprising DLGL as one of the other ingredients or excipients in view of Tian et al renders obvious the composition of instant claim 13.
Conclusion
No claims are allowable.
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/K.E.O./Examiner, Art Unit 1619
/NICOLE P BABSON/Primary Examiner, Art Unit 1619