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 .
Election/Restrictions
Applicant's election with traverse of Group I (Claims 1-9, 12-16 and 22-24) in the reply filed on 12/04/2025 is acknowledged. The traversal is on the grounds that claims are so linked by a special technical feature (the relaxer formulation set forth in claim 1) so as to have the requisite unity of invention to be considered in their entirety, and the claimed formulation provides unexpectedly improved results as shown in the instant specification.
Group I and Group III are rejoined, because applicant’s argument is found persuasive for Group I and Group III. Based upon close examination, Group III (Claim 20) constitutes 1-pack of exactly the same hair relaxer formulation of claim 1, therefore Claim 20 is rejoined with Group I, drawn to a hair relaxer formulation.
Regarding Group I, drawn to a hair relaxer formulation, and Group II, drawn to a method for producing a hair relaxer formulation, the traversal is not found persuasive. As presented in office action filed on 10/07/2025, the technical feature “a hair relaxer formulation” is not a special technical feature as it does not make a contribution over the prior art in view of Cassier et al. (US20080025939, 01/31/2008, IDS of 10/25/2023). Cassier teaches a hair relaxer formulation that can comprise a) about 0.1 to 15% metal hydroxides, b) 1-5% guanidine carbonate, c) emollients i.e. mineral oil, myristyl compounds, block copolymer like castor oil ethoxylated with 35 moles of ethylene oxide, d) C8-C18 fatty alcohols alkoxylated with ethylene oxide and propylene oxide, e) 0.2-30% emulsifier, and f) 5% wax throughout the reference and examples. Therefore, the shared technical feature of groups I and II lacks novelty or inventive steps.
Claims 17-19 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to nonelected groups, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 12/04/2025.
Status of Claims
Preliminary amendment filed on 10/25/2023 is acknowledged.
Claims 10-11 and 21 are cancelled.
Claims 17-20 are withdrawn with traverse to nonelected groups.
Claims 1-9, 12-16 are amended. Claims 22-24 are new.
Claims 1-9, 12-16, 20, and 22-24 are pending and being examined herein on merits.
Priority
This instant application 18288205, filed on 10/25/2023, is a 371 of PCT/EP2022/060812, filed on 04/25/2022, which claims foreign priority of European Patent Office (EPO) 21171559.4, filed on 04/30/2021.
Information Disclosure Statement
The information disclosure statement (IDS), filed on 10/25/2023, 11/27/2023, and 06/17/2025, each is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the Examiner.
Specification
The use of the term Lanette, Cremophor, Cetiol, Eumulgin, Dehymuls, Lameform TGI, Emulgade, Gluadin, Nutrilan, which is a trade name or a mark used in commerce, has been noted in this application. The term should be accompanied by the generic terminology; furthermore the term should be capitalized wherever it appears or, where appropriate, include a proper symbol indicating use in commerce such as ™, SM , or ® following the term.
Although the use of trade names and marks used in commerce (i.e., trademarks, service marks, certification marks, and collective marks) are permissible in patent applications, the proprietary nature of the marks should be respected and every effort made to prevent their use in any manner which might adversely affect their validity as commercial marks.
Claim Objections
Claims 1, 12, 20 and 22-24 are objected to because of the following informalities:
Claims 1, 12 and 20 each recites “structurant” in f). Since it is not a standard English word, it is recommended to revise to an English word for expressing its true meaning, e.g., stabilizing, gelling, shaping, etc.
Claim 22 recites “of a C8 18 fatty alcohol”, there is a hyphen missing between C8 and 18.
Claims 23 and 24 each recites “C12-18”. To keep the whole claim set description consistent of carbon numbers, it is recommended to revise as “C12-C18”.
Claim 24 recites “a hair relaxer formulation according to claim 1”, the article “a” should be changed to “The” since claim 24 is a dependent claim of claim 1.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
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 1-9, 12-16, 20 and 22-24 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.
Claims 1, 5-6, 13-15, 20, 22 and 24 recites ingredient amount weight “wt%” without indication of what foundation is calculation based upon. It is unclear whether it is based upon the total amount of the formulation or it is based upon each component category, for instance, 5 to 10% guanidine carbonate is based on total weight of the formulation, or based upon total weight of component b).
Claims 2-4, 7-9, 12, 16 and 23 are rejected accordingly because they are directly depending on instant claim 1 without further clarifying the issue in claim 1 as addressed above.
Claim 3 recites “a combination … selected from the group consisting of mineral oil, liquid mono- and/or di- and/or triglyceride esters based on …, and Butyrospermum Parki (Shea) Butter”. The phrases “mono- and/or di- and/or triglyceride esters” make the alternatives unclear whether in total they are supposed to be three equal alternatives including mineral oil, glyceride esters, and shea butter; or five alternatives including mineral oil, monoglyceride esters, diglyceride esters, triglyceride esters, and shea butter; or more than five alternatives such as mineral oil, monoglyceride esters, diglyceride esters, triglyceride esters, monoglyceride and diglyceride esters, monoglyceride and triglyceride esters, diglyceride and triglyceride esters, mono-, di-, and triglyceride esters, and shea butter. Thus, the claim scope is indefinite.
Claim 7 recites “C12/C18” and “C16/C18”. Whether it means “C12 to C18” including carbon numbers from 12-18 and “C16 to C18” including carbon numbers 16-18, or means only “C12 or C18” and “C16 or C18” as two options for each, or means “C12 and/or C18” and “C16 and/or C18” as three options for each is unclear. The terms are indefinite because the specification does not clearly redefine the term. Where applicant acts as his or her own lexicographer to specifically define a term of a claim contrary to its ordinary meaning, the written description must clearly redefine the claim term and set forth the uncommon definition so as to put one reasonably skilled in the art on notice that the applicant intended to so redefine that claim term. Process Control Corp. v. HydReclaim Corp., 190 F.3d 1350, 1357, 52 USPQ2d 1029, 1033 (Fed. Cir. 1999).
Claim 7 recites multiple times of “optional” and parentheses “(…)” throughout the claim. 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, the terms led by “optional” and between parentheses result in narrower statement of the range/limitation in the claim. The claim is 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.
Claim 7 recites “; mixed esters of pentaerythritol, fatty acids, citric acid, fatty alcohol and/or mixed esters of fatty acids containing 6 to 22 carbon atoms”. It is unclear whether the first “mixed esters of “ defines all the following terms: pentaetythritol, fatty acids, citric acid, fatty alcohol. If it does, then at least it results in a component as “mixed esters of fatty acids”, which is a broader scope of the same component as defined in “mixed esters of fatty acids containing 6 to 22 carbon atoms” shown as narrower scope in the claim. A broad range or limitation together with a narrow range or limitation makes this claim indefinite because it fails to clearly set forth the metes and bounds of the claim scope. Moreover, it is unclear how “ pentaetythritol, fatty acids, citric acid, fatty alcohol” can be mixed esters.
Claim 7 recites “alkyl glucosides, methyl glucoside, butyl glucoside, lauryl glucoside”. Alkyl glucosides are broader than the species. 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). The broad range or limitation together with a narrow range or limitation makes this claim indefinite because it fails to clearly set forth the metes and bounds of the claim scope.
Claim 7 recites “hardened castor oil” and “partial esters”, the terms “hardened” and “partial” are relative terms which render the claim indefinite. The term “hardened” or “partial” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is unclear how hard is considered hardened castor oil, and at what proportion or degree is considered partial esters.
Claims 13, 14, and 15 recites “according to claim 1, comprising less than 5 wt% water”, “according to claim 1, wherein the formulation comprises less than 5 wt% sulfur containing compounds, or “according to claim 1, wherein the formulation comprises less than 5 wt% polymers” respectively. It is unclear whether this component belong to a group in claim 1 a) to f), or it is an additional component. If it is the latter, it needs to specify as “wherein the formulation further comprises”. The phrase “less than” also makes the claim scope unclear whether 0%, which is less than 5 wt%, is a valid option, resulting in the formulation does not contain this additional component.
Claim 15 recites “(meth)acrylic acid”. The claim is considered indefinite because there is a question or doubt as to whether the term between the parentheses defining a narrower scope is merely exemplary of the remainder of the claim, and therefore not required, or it is a required feature of the claim.
Claims 23 and 24 recites “according to claim 1, wherein the relaxer formulation comprises …” “a mixture of …”. It is unclear whether this mixture further defines the complete relaxer formulation or the mixture of agents herein belong to components in claims 1a)-1f), or the mixture of agents are additional agents in addition to Claim 1a)-1f). Further clarification is required to make the claims definite, that is, if the mixture of agents belong to a component of 1a)-1f), please indicate that; if they are additional agents, the language has to read “the relaxer formulation further comprises …”.
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.
Claims 5-6 and 22 are 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.
Claims 5-6 and 22 are directly or indirectly depending on instant claim 1, which is supposed to further define component d) “0.01 to 2.0 wt% of a block copolymer of C8-C18 fatty alcohol alkoxylated with ethylene oxide and propylene oxide”. However, claim 5, 6 and 22 each introduces new species of components other than the defined block copolymer in claim 1d): claim 5 adds a polyethoxylated hydrogenated castor oil exthoxylated with ethylene oxide; claim 6 adds a similar component as claim 5 plus a C12-C18 fatty alcohol with ethylene oxide; claim 22 also adds polyethoxylated castor oil ethoxylated with ethylene oxide. Therefore, these claims fail to further narrow the limitation scope of claim 1d) upon which it depends.
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 Interpretation
Claims 1, 3, 5-7, 13-15, 20 and 22-24 are interpreted as following.
Claim 1 is interpreted as a formulation for hair care comprising
5-10 wt% of a metal hydroxide,
5 to 10 wt% guanidine carbonate,
50 to 70 wt% of an emollient,
0.01 to 2.0 wt% of a block copolymer of C8-C18 fatty alcohol alkoxylated with ethylene oxide and propylene oxide,
0.5 to 20 wt% of an O/W emulsifier,
5 to 15 wt% of a wax,
wherein all amounts are based on the total weight of the formulation.
The phrases of “concentrated … relaxer” and “which is ready to use after mixing with water” are interpreted as formulation properties or intended use of the formulation, which do not contribute to the structure of the formulation. The phrase of “a structurant” is interpreted as “intended use” or property of the wax agent, and it does not contribute the structural formulation.
Claim 3 is interpreted as the emollient c) according to claim 1 is a combination of at least two of the emollients selected from the group consisting of mineral oil, glyceride ester based on C6-C18 fatty acids and ethoxylated with 1 to 10 mol ethylene oxide, and Butyrospermum parkii (Shea) butter.
Claim 5 is interpreted as in addition to copolymer component d) according to claim 1, the formulation further comprise a polymer as 0.01 to 1.5 wt% polyethoxylated hydrogenated castor oil ethoxylated with 20 to 100 mol ethylene oxide.
Claim 6 is interpreted as in addition to copolymer component d) according to claim 1, the formulation further comprise polymers of 0.01 to 1.5 wt% polyethoxylated castor oil ethoxylated with 20 to 100 mol ethylene oxide, and 0.01 to 2.0 wt% of a C12-C18 fatty alcohol ethoxylated with 1 to 10 mol ethylene oxide.
Claim 7 is interpreted as the emulsifier e) in the formulation according to claim 1 is selected from the group consisting of C12-C18 fatty alcohols, C12-C18 fatty alcohols ethoxylated with 15 to 40 mol ethylene oxide, C 12-C18 fatty alcohol ethoxylated with 2 to 30 mol ethylene oxide and 1 to 5 mol propylene oxide, C16-C18 fatty acids, C16-C18 fatty acids ethoxylated with 40 to 150 mol ethylene
oxide, castor oil, esters of glycerol esterfied with fatty acids with 12 to 22 carbon atoms, esters of glycerol esterfied with hydroxycarboxylic acids with 3 to 18 carbon atoms, esters of sorbitan esterfied with fatty acids with 12 to 22 carbon atoms, esters of sorbitan esterfied with hydroxycarboxylic acids with 3 to 18 carbon atoms, esters of polyglycerol, polyethylene glycol, trimethylolpropane, pentaerythritol, sugar alcohols, alkyl glucosides, polyglucosides with fatty acids containing 12 to 22 carbon atoms, esters of polyglycerol, polyethylene glycol, trimethylolpropane, pentaerythritol, sugar alcohols, alkyl glucosides, polyglucosides with hydroxycarboxylic acids containing 3 to 18 carbon atoms, esters of fatty acids containing 6 to 22 carbon atoms, methylglucose, polyols, glyceryl monostearate, polyethoxylated stearate with 70 to 120 mol ethylene oxide, C12-C18 fatty alcohol, and polyethoxylated C12-C18 fatty alcohol with 15 to 40 mol ethylene oxide.
Claims 13-15 are interpreted as the formulation further comprising the ingredients as specified in each claim at less than 5 wt% of the total formulation, and 0 wt% of the specific ingredient is interpreted as an allowable option.
Claim 20 is interpreted as a 1-pack containing the hair formulation according to claim 1 as interpreted above.
Claim 22 is interpreted as according to the formulation of claim 1, d) is 0.01 to 2 wt% block copolymer of a C8-C18 fatty alcohol alkoxylated with 5 to 15 mol ethylene oxide and 1 to 3 mol propylene oxide, and the formulation further comprises 0.01 to 1.5 wt% polyethoxylated castor oil ethoxylated with 30 to 50 mol ethylene oxide.
Claims 23 and 24 are interpreted as according to claim 1, the formulation comprises a mixture of the specific ingredients belong to claim 1 c), 1e), and 1f), since they clearly do not belong to components a), b) and d).
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.
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 1-9, 12-16, 20 and 22-24 are rejected under 35 U.S.C. 103 as being unpatentable over Guardia et al. (US4605018, 08/12/1986, IDS of 11/27/2023), in view of Markus et al. (CN101677921, 03/24/2010, Machine translation attached is relied upon for the below rejection; PTO-892).
Guardia throughout the reference teaches hair relaxer compositions comprising guanidine hydroxide (e.g., Col. 1, Lines 18-24).
Regarding instant claims 1-2 and 7, Guardia teaches to use components corresponding to instant claim a) calcium hydroxide (corresponding to metal hydroxide in instant claim 1a) and calcium hydroxide in instant claim 2) with b) guanidine carbonate in the composition to obtain guanidine hydroxide for hair treatment, e.g., relaxation (Col. 1, Lines 19-25), and include c) emollient, such as lanolin products, petrolatum, mineral oil, cocoa butter, and the like (Col. 3, Lines 18-21), e) emulsifiers (e.g., Col. 3, Lines 45-53) that can be self-emulsifying emollients including glycerol stearate and PEG-100 stearate (known as esters of C18 fatty acid) (corresponding to O/W emulsifier in instant claim 7), also can be d) ethoxylated ethers and esters, propoxylated ethers and esters (wherein a combination of ethylene and propylene oxide is used seriatim), having laural (C12 as known in field of art) and cetyl (C16) derivatives, with stearate (C18) compounds (e.g., polymers such as polyethylene glycol ether of stearyl alcohol Brij 78, Brij 72, Col. 8, Lines 15; 24) being particularly preferred (corresponding to polymers of C8-C18 fatty alcohol alkoxylated with ethylene oxide and propylene oxide in instant clam 1d), and f) waxes especially having from 2 to 60 moles of ethylene oxide per mole of monofunctional alcohol or acid (e.g., Col. 3, Lines 45-64), corresponding to components a)-f) in instant claim 1.
Guardia exemplifies using 8.0% calcium hydroxide (resulted from 8.0 parts out of 100 parts total) in the composition (Example 1, Col. 9, lines 20-24), and 6.67% calcium hydroxide and 8.83 % guanidine carbonate (Example 3, Col. 10, Lines 22-34), corresponding to components a) metal hydroxide and b) guanidine carbonate, amounts falling within ranges 5 to 10 wt% of metal hydroxide and 5 to 10 wt% guanidine carbonate based on total weight of the formulation as recited amounts in instant claim 1a) and 1b) respectively. Guardia teaches c) emollient amount can be from 15% to 97.26% (e.g., Col. 4, Lines 45-47), and exemplifies mineral oil amount range 0.05-95% with preferred 56.80% in the general breakdown of components in the formulation (e.g., Col. 5-6, Table), overlapping with 50-70 wt% of an emollient as recited amount in instant claim 1c). Guardia teaches e) emulsifiers from 0.5 to 30 wt%, preferably from 10 to 20 wt% in the formulation (e.g., Col. 3, Lines 65-67), overlapping with 0.5 to 20 wt% amount in instant claim 1e), meanwhile, since Guardia teaches propoxylated ester or ethers containing laural, cetyl, and stearate derivatives (corresponding to copolymer of C8-C18 fatty alcohol alkoxylated with ethylene oxide and propylene oxide in instant claim 1d as discussed above), and waxes are specific emulsifiers (Col. 3, line 62), these emulsifier amount ranges can apply to d) copolymer and f) wax, of which 0.5-30 wt% overlapping with 0.01 to 2.0 wt% of a block copolymer amount in instant claim 1d), and both ranges overlapping with 5-15 wt% of a wax as recited amount in instant claim 1f). Guardia exemplifies in breakdown component table using polyoxyethylene (20) stearyl ether (or stearth-20) 1.94- 17.56 % or polyoxyethylene stearyl ether (steareth-2) 1.87-12.44% (Col. 5-6, Table, Lines 23-58), overlapping with block copolymer 0.01 to 2.0 wt% amount in instant claim 1d). Guardia exemplifies using Syncrowax HRS-C present at 7 wt% or 6.5 wt% or 5 wt% in formulations (Examples 2-5, Col. 9-10), falling within amount range of wax 5-15% in instant claim 1f).
Regarding instant claim 3, Guardia teaches c) emollient can be those known to the art, such as lanolin products, petrolatum, mineral oil, cocoa butter, and the like (Col. 3, Lines 18-20), and Cyclochem NI (polyethylene glycol ether of cetyl alcohol), Arlacel 165 (ICI), a mixture of glycerol stearate and PEG-100 stearate (Col. 3, Lines 41-44; Col. 9, Example 1). It would be obvious and convenient for artisans in the field to swap cocoa butter with shea butter. “The use of patents as references is not limited to what the patentees describe as their own inventions or to the problems with which they are concerned. They are part of the literature of the art, relevant for all they contain.” In re Heck, 699 F.2d 1331, 1332-33, 216 USPQ 1038, 1039 (Fed. Cir. 1983), and "A reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art, including nonpreferred embodiments." Merck & Co. v.Biocraft Labs., Inc. 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir. 1989), and "Disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments." In re Susi, 440 F.2d 442, 169 USPQ 423 (CCPA 1971).
Regarding instant claims 8-9 and 23-24, Guardia teaches self-emulsifying emollient as a mixture of glycerol stearate and PEG-100 stearate (e.g., Col. 3, Line 43), the latter known in the art as polyethoxylated of C18 stearic acid containing 100 mols of ethylene oxide, corresponding to instant claims 8 and 23-24. Guardia teaches emulsifiers laural (C12 as known in field of art) and cetyl (C16) derivatives, stearate (C18) compounds ethoxylated with ethylene oxide, e.g., 2 to 60 moles of ethylene oxide per mole for monofunctional alcohols or acids (Col. 3, lines 59-64), overlapping with carbon numbers of C12-C18 fatty alcohol, and C12-18 fatty alcohol ethoxylated with overlapping 15 to 40 mol ethylene oxide in instant claims 9 and 23-24. As discussed above, Guardia teaches emollient, e.g., mineral oil, amount can be at range 0.05-95% (e.g., Col. 5-6, Table), and emulsifiers can range from 0.5 to 30 wt% in the formulation (e.g., Col. 3, Lines 65-67). Therefore, the agents in instant claim 24, in light of claim interpretation, can be as emollients or emulsifiers, with the instantly claimed amount ranges 0.1 to 5 wt% and 0.4 to 15 wt% overlapping with those taught by Guardia.
Regarding instant claims 13-15, Guardia exemplifies anhydrous formulations with 0% water, 0% sulfur containing compounds, and 0% polymers based on methacrylic acid or their derivatives, e.g., Examples 4 and 5 (Col. 10), overlapping with range of less than 5% in instant claims.
Regarding instant claims 16 and 20, Guardia teaches that the composition can be packaged in a single container (e.g., Col. 1, lines 40-41), corresponding to 1-pack in instant claims.
Guardia does not explicitly teach block copolymer as C8-C18 fatty alcohol alkoxylated with ethylene oxide and propylene oxide as recited in instant claim 1d), although Guardia exemplifies polymer of polyethylene glycol ether of C18 stearyl alcohol, and teaches both polyethylene and propoxylated ethers and esters with C12, C16 and C18 fatty acid are suitable for the composition as discussed above. Guardia does not explicitly teach emulsifier as O/W type as recited in instant claim 1e). In light of claim interpretation as presented above, Guardia does not teach the block copolymer of C8-C18 fatty alcohol is alkoxylated with 5 to 15 mol ethylene oxide and 1 to 3 mol propylene oxide as recited in instant claims 4 and 22, or 0.01 to 2.0% of a C12-C18 fatty alcohol ethoxylated with 1 to 10 mol ethylene oxide as in instant claim 6. Guardia does not teach the formulation further comprises 0.01 to 1.5% polyethoxylated hydrogenated castor oil ethoxylated with 20 to 100 mol ethylene oxide as recited in instant claims 5 and 6, or 0.01 to 1.5% polyethoxylated castor oil ethoxylated with 30 to 50 mol ethylene oxide in instant claim 22. Guardia does not teach natural wax as recited in instant claim 12. Guardia teaches using glyceryl stearate, but does not explicitly teach glyceryl mono stearate as recited in instant claims 8 and 23-24.
Markus throughout the reference teaches cosmetic preparations and compositions containing light-feeling oils or so-called light emollients such as hydrocarbons (e.g., [0002]; [0004]) used for caring for skin and/or hair (e.g., [0027]; [0030]).
Markus teaches that various nonionic emulsifiers are suitable for the composition, such as, sorbitan monoesters [0116], alkyl monoglycosides [0117], polyol esters [0119], esters based on fatty acids with glycols including polyglycerol or sugar alcohol or alkyl glucosides or polyol (e.g., [0121]; [0123]), fatty alcohols alkoxylated with ethylene oxide and/or propylene oxide [0124] (corresponding to O/W emulsifiers in instant claim 7). Markus teaches that depending on the formulation, it may be advantageous to additionally use at least one emulsifier selected from nonionic O/W emulsifiers (HLB value: 8-18), such as the ethylene oxide adducts mentioned above with a relatively high degree of ethoxylation, e.g., 10 to 20 ethylene oxide units for O/W emulsifiers (e.g., [0129]), corresponding to O/W emulsifier in instant claim 1e).
Markus teaches proper emulsifier species, for instance, 2 to 50 mol of ethylene oxide and/or 1 to 20 mol of propylene oxide onto straight-chain C8-C40 fatty alcohols, or onto C12-C40 fatty acids (e.g., [0114]), corresponding to block copolymer of C8-C18 fatty alcohol alkoxylated with ethylene oxide and propylene oxide in instant claim 1d), 4 and 22 with overlapping carbon ranges of C8-C18, oxide ranges of 5 to 15 mol of ethylene oxide and 1 to 3 mol propylene oxide as instantly recited; also corresponding to instant claim 6 with overlapping C12-C18 carbon numbers of fatty alcohol and 1 to 10 mol ethylene oxide.
Markus teaches other suitable emulsifiers such as, 7 to 60 mol of ethylene oxide onto castor oil [0118], and products of ethylene oxide onto castor oil and/or hydrogenated castor oil (e.g., [0120]), corresponding to polyethoxylated hydrogenated castor oil ethoxylated with 20 to 100 mol ethylene oxide as recited in instant claims 5 and 6, and polyethoxylated castor oil ethoxylated with 30 to 50 mol ethylene oxide in instant claim 22. Markus also teaches using fatty acid monoesters of products of 1 to 50 mol of ethylene oxide onto glycol (e.g., [0115]), or suitable fatty acid partial glycerides i.e. industrial mono- and/or diesters of glycerol and fatty acids having 12 to 18 carbon atoms including glyceryl mono stearate corresponding to glyceryl mono stearate (e.g., [0163]) in the formulation, corresponding to glyceryl mono stearate in instant claims 8 and 23-24.
Markus specifies that formulations generally contain one or more emulsifiers in an amount of 0 to 40% by weight, preferably 0.1 to 20% by weight, more preferably 0.1 to 15% by weight, and especially 0.1 to 10% by weight, based on the total weight of the formulation (e.g., [0109]), overlapping with the block copolymer amount of 0.01 to 2.0 wt% in instant claim 1d), and overlapping with amount range of 0.01 to 2.0% of C12-C18 fatty alcohol ethoxylated with ethylene oxide as in instant claim 6, with amount range of 0.01 to 1.5% polyethoxy-lated hydrogenated castor oil in instant claim 22.
Markus indicates that suitable waxes can be used in the formulation, for example, natural vegetable waxes, mineral waxes (e.g., [0162]), corresponding to instant claim 12.
It would have been prima facie obvious for one person with ordinary skills in the art to implement the agents taught by Markus into the hair relaxer formulation taught by Guardia to arrive at current invention. Because Guardia already specifies the general suitable components for the formulation including emollient, polymers of alkoxylated fatty alcohols, emulsifier, and wax, in addition to active ingredients metal hydroxide and guanidine, while Markus teaches various suitable agents that match the functional roles Guardia desires. It is well settled that it is a matter of obviousness for one of ordinary skill in the art to select a particular component from among many disclosed by the prior art as long as it is taught that the selection will result in the disclosed effect. Merck & Co., Inc. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989); In re Corkill, 771 F.2d 1496, 1500 (Fed. Cir. 1985). It is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use (MPEP §2144.07). See Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945).
Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). MPEP §2144.05(I) states that “A prima facie case of obviousness typically exists when the ranges of a claimed composition overlap the ranges disclosed in the prior art.” See In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003). For this instance, all the carbon numbers, weight amount ranges overlap with those taught by prior art. Furthermore, “[i]t would have been prima facie obvious for one of ordinary skill in the art to optimize additive amount through nothing more than “routine experimentation,” because of a reasonable expectation of success resulting from the optimization for desirable features of intended use of the composition (MPEP §2144.05 (II)). See Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382; In re Hoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969).
Conclusion
No claim is allowed.
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/DX.Z./Examiner, Art Unit 1616
/SUE X LIU/Supervisory Patent Examiner, Art Unit 1616