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 .
Priority
The instant application was filed 13 October 2023 and is the national stage entry of PCT/EP2022/059861 filed 13 April 2022. The Applicant claims priority to foreign application DK2021 070171 filed 13 April 2021. An English copy of the foreign document has been provided. Therefore, the effective filing date of the instant application is 13 April 2021.
Examiner’s Note
The Applicant's amendments and arguments filed 03 August 2026 are acknowledged and have been fully considered. The Examiner has re-weighed all the evidence of record. Rejections
and/or objections not reiterated from previous office actions are hereby withdrawn. The
following rejections and/or objections are either reiterated or newly applied. They constitute the
complete set presently being applied to the instant application. In the Applicant’s response, filed
03 August 2026, it is noted that claims 63, 66, and 67 have been amended, claim 64 has been canceled, and no new claims have been added. Support for the amendments can be found from the canceled claim. No new matter has been added.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
Claim(s) 63, 65-71, 84-87 is/are rejected under 35 U.S.C. 103 as being unpatentable over Karaca (TR 201612319 A2), Martinez et al. (WO 2016153347 A1), and Yu et al. (WO 2008134712 A2), as evidenced by dynamicextractions.com.
Karaca teaches a topical hair composition to help hair loss comprising Capixyl and Redensyl (abs; entire teaching), partially addressing claim 63. The composition comprising Capixyl and Redensyl are interpreted as addressing the components in claim 63.
Karaca does not teach CBD in crystalline form, C2-C4 alcohols, or a C3-C8 diol in claim 63.
Martinez teaches a hair composition (pg. 16, ln. 21; entire teaching) that is used for conditioning or protecting the integrity or appearance of the hair (pg. 15, lns. 11-14). The composition may comprise CBD isolate (abs) and an excipient, such as propylene glycol (pg. 15, lns. 24-27). Martinez teaches that using CBD isolate is useful and beneficial in order to “fully exploit the pharmacological potential of CBD” (pg. 2, lns. 1-5). The composition may comprise 1-50% of CBD isolate (pg. 15, lns. 28-29) and may be substantially or entirely free of THC (pg. 13, lns. 7-10). The composition free of THC is interpreted as in an amount below 0.1%, as well as a THC:CBD ratio of less than 1:5 in claims 69-71. CBD isolate has a purity of over 99% and has needle-like crystalline structure (evidenced by dynamicextractions.com, pg. 1), where it is interpreted that CBD isolate is mainly structure A, addressing claims 84-86.
Yu teaches a serum composition that may be used to impart a desired characteristic on hair (paras. 41, 54; entire teaching). The composition may comprise menthol as a vehicle (para. 90), hyaluronic acid as a humectant (para. 102), caffeine as another active ingredient (para. 69), propylene glycol or panthenol as a vehicle (paras. 86, 87), arginine as a component to nourish or impart desired characteristics (para. 100), an emollient to lubricate or hydrate (para. 69) the hair (para. 104), triethanolamine as a solubilizer (para. 13), ethanol, 1,5-pentanediol (para. 113) or water as a solvent (para. 93), vitamin b7 to replenish and nourish (para. 98), citric acid monohydrate as a chelating agent (para. 134), and xanthan gum as a thickening agent (para. 92), addressing claims 63 and 66. The amount of solvent may be from 1-99% (para. 113), addressing claims 65, 67, and 68. Claims 66 and 67 are interpreted as only requiring one component or any combination of the ingredients. The composition from all of the teachings do not require oils or fats, addressing claim 87.
Since Karaca does not teach CBD in crystalline form, C2-C4 alcohols, or a C3-C8 diol in claim 63, one of ordinary skill in the art would have been motivated to use the hair compositions from Martinez and Yu with a reasonable expectation of success. A skilled artisan would have been led to combine the teachings since Martinez’s hair composition comprises CBD isolate, which has beneficial pharmacological potential in this specific form, and Yu’s hair composition comprises common excipients with specific purposes that are useful in enhancing the cosmetic formulation. Generally, it is prima facie obvious to combine or substitute one equivalent component or process for another, each of which is taught by the prior art to be useful for the same purpose (see MPEP 2144.06).
Response to Arguments
Applicant's arguments filed 03 August 2026 have been fully considered but they are not persuasive.
The Applicant argues that the cited references do not teach the claimed invention (Remarks, pgs. 10-11).
Applicant’s argument is not found persuasive. As mentioned above, Karaca teaches a topical hair composition to help hair loss comprising Capixyl and Redensyl (abs; entire teaching), but does not teach CBD in crystalline form, C2-C4 alcohols, or a C3-C8 diol. A skilled artisan would have been led to combine the teachings of Martinez and Yu with a reasonable expectation of success since Martinez’s hair composition comprises CBD isolate, which has beneficial pharmacological potential in this specific form, and Yu’s hair composition comprises common excipients with specific purposes that are useful in enhancing the cosmetic formulation. Generally, it is prima facie obvious to combine or substitute one equivalent component or process for another, each of which is taught by the prior art to be useful for the same purpose (see MPEP 2144.06).
The Applicant argues that a skilled artisan would not have been motivated to select the different ingredients from the different teachings to arrive at the presently claimed composition (Remarks, pgs. 12-13).
Applicant’s argument is not found persuasive. Martinez teaches a hair composition (pg. 16, ln. 21; entire teaching) that is used for conditioning or protecting the integrity or appearance of the hair (pg. 15, lns. 11-14). The composition may comprise CBD isolate (abs) and an excipient, such as propylene glycol (pg. 15, lns. 24-27). Martinez teaches that using CBD isolate is useful and beneficial in order to “fully exploit the pharmacological potential of CBD” (pg. 2, lns. 1-5).
Additionally, Yu teaches a serum composition that may be used to impart a desired characteristic on hair (paras. 41, 54; entire teaching). The composition may comprise menthol as a vehicle (para. 90), hyaluronic acid as a humectant (para. 102), caffeine as another active ingredient (para. 69), propylene glycol or panthenol as a vehicle (paras. 86, 87), arginine as a component to nourish or impart desired characteristics (para. 100), an emollient to lubricate or hydrate (para. 69) the hair (para. 104), triethanolamine as a solubilizer (para. 13), ethanol, 1,5-pentanediol (para. 113) or water as a solvent (para. 93), vitamin b7 to replenish and nourish (para. 98), citric acid monohydrate as a chelating agent (para. 134), and xanthan gum as a thickening agent (para. 92).
Since Karaca does not teach CBD in crystalline form, C2-C4 alcohols, or a C3-C8 diol in claim 63, one of ordinary skill in the art would have been motivated to use the hair compositions from Martinez and Yu with a reasonable expectation of success. A skilled artisan would have been led to combine the teachings since Martinez’s hair composition comprises CBD isolate, which has beneficial pharmacological potential in this specific form, and Yu’s hair composition comprises common excipients with specific purposes that are useful in enhancing the cosmetic formulation. Furthermore, the teachings provide functionality to the components (i.e. replenish and nourish, thickening agent, humectant, impart desired characteristics, etc.). Generally, it is prima facie obvious to combine or substitute one equivalent component or process for another, each of which is taught by the prior art to be useful for the same purpose (see MPEP 2144.06).
The Applicant argues that hindsight analysis was used to arrive at the claimed invention (Remarks, pgs. 12-13).
Applicant’s argument is not found persuasive. In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 Danielle Kim whose telephone number is (571)272-2035. The examiner can normally be reached M-F: 9-5 p.m. PST.
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/D.A.K./Examiner, Art Unit 1613
/ANDREW S ROSENTHAL/Primary Examiner, Art Unit 1613
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