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 claims foreign priority to FR2105048 filed 05/12/2021. The instant application is a 371 of PCT/EP2022/062974 filed 05/12/2022.
Information Disclosure Statement
The information disclosure statements (IDS) dated 02/20/2024 and 11/22/2023 both comply with provisions of 37 CFR 1.97, 1.98 and MPEP §609. Accordingly, they have been placed in the application file and the information therein has been considered as to the merits.
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.
A) Claims 16, 19-31, and 34-35 are rejected under 35 U.S.C. 103 as being unpatentable over Thomas et al. (US Patent Application Publication 20190282481A1).
Thomas recites a cosmetic composition comprising: one or more anionic surfactants, one or more amphoteric surfactants, one or more cationic polymers with a cationic charge density of greater than or equal to 4 meq./g, one or more liquid fatty substances chosen from non-oxyalkylenated alcohols comprising at least 8 carbon atoms, monocarboxylic acid esters comprising at least 8 carbon atoms, and mixtures thereof (Thomas at claim 1). Thomas recites wherein the one or more anionic surfactants are chosen, alone or as a mixture, from: C6-C30 alkyl sulfates; C6-C30 alkyl ether sulfates; comprising from 2 to 20 ethylene oxide units, C6-C30 alkylsulfosuccinates; C6-C30 alkyl ether sulfosuccinates; comprising from 2 to 20 ethylene oxide units, C6-C30 alkylsulfoacetates; polyoxyalkylenated C6-C24alkyl ether carboxylic acids, comprising from 2 to 15 alkylene oxide groups; polyoxyalkylenated C6-C24alkylamido ether carboxylic acids, comprising from 2 to 15 alkylene oxide groups; and also the salts of all these compounds (Thomas at claim 2). Thomas recites , comprising: at least one anionic surfactant chosen from C6-C30 alkyl ether sulfates, comprising from 2 to 20 ethylene oxide units, at least one anionic surfactant chosen from C6-C30 alkyl ether sulfosuccinates, comprising from 2 to 20 ethylene oxide units, and optionally, at least one anionic surfactant chosen from C6-C30 alkylsulfoacetates (Thomas at claim 3). Thomas recites comprising said anionic surfactant(s) in a total amount ranging from 2% to 40% by weight relative to the total weight of the composition (Thomas at claim 4). Thomas recites wherein the one or more amphoteric surfactants is chosen from:
(C8-C20)alkylbetaines, sulfobetaines, alkyl(C8-C20)sulfobetaines, (C8-C20)alkylamido(C1-C6)alkylbetaines and (C8-C20)alkylamido(C1-C6)alkylsulfobetaines;
optionally quaternized secondary or tertiary aliphatic amine derivatives of formulae (A1) and (A2) below:
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in which:
Ra″ represents a C10-C30 alkyl or alkenyl group derived from an acid Ra″—C(O)OH, which is present in hydrolysed linseed oil or coconut oil; Y″ represents the group —C(O)OH, —C(O)OZ″, —CH2—CH(OH)—SO3H or the group —CH2—CH(OH)—SO3—Z″, with Z″ representing a cationic counterion derived from an alkali metal or alkaline-earth metal, such as sodium, an ammonium ion or an ion derived from an organic amine; Rd and Re, independently of each other, represent a C1-C4 alkyl or hydroxyalkyl radical; and n and n′, independently of each other, denote an integer ranging from 1 to 3 (Thomas at claim 5). Thomas recites , wherein the one or more amphoteric surfactants is chosen from (C8-C20)alkylbetaines, (C8-C20)alkylamido(C1-C6)alkylbetaines and (C8-C20)alkylamphodiacetates, and mixtures thereof (Thomas at claim 6). Thomas recites comprising said amphoteric surfactant(s) in an amount ranging from 1% to 25% by weight relative to the total weight of the composition (Thomas at claim 7). Thomas recites comprising the anionic surfactant(s) and the amphoteric surfactant(s) in a total amount such that the weight ratio between anionic surfactant(s) and amphoteric surfactant(s) is less than or equal to 1 (Thomas at claim 8). Thomas recites wherein the cationic charge density of the one or more cationic polymer is greater than or equal to 5 meq./g (Thomas at claim 9). Thomas recites wherein the one or more cationic polymers with a charge density of greater than or equal to 4 meq./g, is chosen from:
(1) Homopolymers or copolymers derived from acrylic or methacrylic esters or amides and comprising at least one of the units of the following formulae:
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in which:
R3, which may be identical or different, denote a hydrogen atom or a CH3 radical;
A, which may be identical or different, represent a linear or branched divalent alkyl group of 1 to 6 carbon atoms, or a hydroxyalkyl group of 1 to 4 carbon atoms;
R4, R5 and R6, which may be identical or different, represent an alkyl group containing from 1 to 18 carbon atoms or a benzyl radical;
R1 and R2, which may be identical or different, represent a hydrogen atom or an alkyl group containing from 1 to 6 carbon atoms;
X denotes an anion derived from a mineral or organic acid;
(2) Cationic polysaccharides;
(3) Polymers formed from piperazinyl units and divalent alkylene or hydroxyalkylene radicals containing linear or branched chains, optionally interrupted with oxygen, sulfur or nitrogen atoms or with aromatic or heterocyclic rings, and the oxidation and/or quaternization products of these polymers
(4) Water-soluble polyaminoamides prepared by polycondensation of an acidic compound with a polyamine; optionally crosslinked with an epihalohydrin, a diepoxide, a dianhydride, an unsaturated dianhydride, a bis-unsaturated derivative, a bis-halohydrin, a bis-azetidinium, a bis-haloacyldiamine, a his-alkyl halide or alternatively with an oligomer resulting from the reaction of a difunctional compound which is reactive with a bis-halohydrin, a bis-azetidinium, a bis-haloacyldiamine, a bis-alkyl halide, an epihalohydrin, a diepoxide or a bis-unsaturated derivative; the crosslinking agent being used in proportions ranging from 0.025 to 0.35 mol per amine group of the polyaminoamide; optionally the polyaminoamides can be alkylated or, if they comprise one or more tertiary amine functions, they can be quaternized;
(5) Polyaminoamide derivatives resulting from the condensation of polyalkylene polyamines with polycarboxylic acids followed by alkylation with difunctional agents;
(6) Polymers obtained by reacting a polyalkylene polyamine comprising two primary amine groups and at least one secondary amine group with a dicarboxylic acid chosen from diglycolic acid and saturated aliphatic dicarboxylic acids containing from 3 to 8 carbon atoms; the mole ratio between the polyalkylene polyamine and the dicarboxylic acid being between 0.8:1 and 1.4:1; the resulting polyaminoamide being reacted with epichlorohydrin in a mole ratio of epichlorohydrin relative to the secondary amine group of the polyaminoamide of between 0.5:1 and 1.8:1.
(7) Cyclopolymers of alkyldiallylamine or of dialkyldiallylammonium, containing, as main constituent of the chain, units corresponding to formula (I) or (II):
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in which
k and t are equal to 0 or 1, the sum k t being equal to 1;
R12 denotes a hydrogen atom or a methyl radical;
R10 and R11, independently of each other, denote a C1-C6 alkyl group, a C1-C5 hydroxyalkyl group, a C1-C4 amidoalkyl group; or alternatively R10 and R11 may denote, together with the nitrogen atom to which they are attached, a heterocyclic group such as piperidyl or morpholinyl; R10 and R11, independently of each other, denote a C1-C4 alkyl group;
Y− is an anion such as bromide, chloride, acetate, borate, citrate, tartrate, bisulfate, bisulfate, sulfate or phosphate;
(8) Quaternary diammonium polymers comprising repeating units of formula:
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in which:
R13, R14, R15 and R16, which may be identical or different, represent aliphatic, alicyclic or arylaliphatic radicals comprising from 1 to 20 carbon atoms or C1-C12 hydroxyalkyl aliphatic radicals,
or else R13, R14, R15 and R16, together or separately, form, with the nitrogen atoms to which they are attached, heterocycles optionally comprising a second non-nitrogen heteroatom;
or else R13, R14, R15 and R16 represent a linear or branched C1-C6 alkyl radical substituted with a nitrile, ester, acyl, amide or —CO—O—R17-D or —CO—NH—R17-D group, where R17 is an alkylene and D is a quaternary ammonium group;
A1 and B1 represent linear or branched, saturated or unsaturated, divalent polymethylene groups comprising from 2 to 20 carbon atoms, which may contain, linked to or intercalated in the main chain, one or more aromatic rings or one or more oxygen or sulfur atoms or sulfoxide, sulfone, disulfide, amino, alkylamino, hydroxyl, quaternary ammonium, ureido, amide or ester groups, and
X− denotes an anion derived from a mineral or organic acid;
it being understood that A1, R13 and R15 can form, with the two nitrogen atoms to which they are attached, a piperazine ring;
in addition, if A1 denotes a linear or branched, saturated or unsaturated alkylene or hydroxyalkylene radical, B1 may also denote a group (CH2)n-CO-D-OC—(CH2)p- with n and p, which may be identical or different, being integers ranging from 2 to 20, and D denoting:
a) a glycol residue of formula —O—Z—O—, in which Z denotes a linear or branched hydrocarbon-based radical, or a group corresponding to one of the following formulae: —(CH2CH2O)x-CH2CH2- and —[CH2CH(CH3)O]y-CH2CH(CH3)-, in which x and y denote an integer from 1 to 4, representing a defined and unique degree of polymerization or any number from 1 to 4 representing an average degree of polymerization;
b) a bis-secondary diamine residue, such as a piperazine derivative;
c) a bis-primary diamine residue of formula —NH—Y—NH—, in which Y denotes a linear or branched hydrocarbon-based radical, or else the divalent radical —CH2-CH2-S—S—CH2-CH2-;
d) a ureylene group of formula —NH—CO—NH—;
(9) Polyquaternary ammonium polymers comprising units of formula (V):
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in which:
R18, R19, R20 and R21, which may be identical or different, represent a hydrogen atom or a methyl, ethyl, propyl, 3-hydroxyethyl, 3-hydroxypropyl or —CH2CH2(OCH2CH2)pOH radical, in which p is equal to 0 or to an integer between 1 and 6, with the proviso that R18, R19, R20 and R21 do not simultaneously represent a hydrogen atom,
r and s, which may be identical or different, are integers between 1 and 6,
q is equal to 0 or to an integer between 1 and 34,
X− denotes an anion,
A denotes a divalent dihalide radical or represents —CH2-CH2-O—CH2-CH2-;
(10) Quaternary polymers of vinylpyrrolidone and of vinylimidazole;
(11) Polyamines;
(12) Polymers comprising in their structure:
(a) one or more units corresponding to formula (A) below:
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comprising one or more cationic polymers with a cationic charge density of greater than or equal to 4 meq./g, chosen from those of families (1), (7) and (10) mentioned above (Thomas at claim 10). Thomas recites wherein the one or more cationic polymers with a charge density of greater than or equal to 4 meq./g, is chosen from: crosslinked polymers of methacryloyloxy(C1-C4)alkyltri(C1-C4)alkylammonium salts, obtained by homopolymerization of dimethylaminoethyl methacrylate quaternized with methyl chloride, or by copolymerization of acrylamide with dimethylaminoethyl methacrylate quaternized with methyl chloride, the homopolymerization or copolymerization being followed by crosslinking with an olefinically unsaturated compound; homopolymers of dimethyldiallylammonium salts, and copolymers of diallyldimethylammonium salts and of acrylamide; quaternary polymers of vinylpyrrolidone and of vinylimidazole; optionally crosslinked homopolymers or copolymers of methacryloyloxy(C1-C4)alkyltri(C1-C4)alkylammonium salts; and mixtures thereof (Thomas at claim 11). Thomas recites wherein the weight % of the cationic polymer(s) with a cationic charge density of greater than or equal to 4 meq./g is from 0.01% to 10% by weight relative to the total weight of the composition (Thomas at claim 12). Thomas recites further comprising at least one non-oxyalkylenated liquid alcohol of structure R—OH in which R denotes a linear or branched alkyl or alkenyl group comprising at least 8 carbon atoms optionally substituted with one or more hydroxyl groups;
R denoting a saturated, branched C8-C30, alkyl group, or a linear or branched, C8-C30 alkenyl group comprising 1 to 3 double bonds (C═C) (Thomas at claim 13). Thomas recites wherein the at least one liquid ester of monoalcohols or of polyols with monocarboxylic acids comprises from 8 to 32 carbon atoms in total and the acid from which the esters are obtained are branched (Thomas at claim 14). Thomas recites wherein the at least one monocarboxylic acid ester is chosen from esters of a C6-C24 monocarboxylic acid and of a C2-C20 alcohol, at least one from among the acid and the alcohol being branched or unsaturated (Thomas at claim 15). Thomas recites wherein a weight % of the liquid fatty substances chosen from non-oxyalkylenated alcohols comprising at least 8 carbon atoms, monocarboxylic acid esters comprising at least 8 carbon atoms, and mixtures thereof, is from 0.01% to 20% by weight relative to the total weight of the composition (Thomas at claim 16). Thomas recites wherein
said liquid non-oxyalkylenated alcohol(s) comprising at least 8 carbon atoms is present in an amount ranging from 0.01% to 10% by weight relative to the total weight of the composition;
said liquid monocarboxylic acid ester(s) comprising at least 8 carbon atoms is present in an amount ranging from 0.01% to 10% by weight, or even from 0.1% to 5% by weight, better still from 0.5% to 3% by weight, and even better still from 0.7% to 2% by weight, relative to the total weight of the composition (Thomas at claim 17). Thomas recites further comprising water in a content ranging from 40% to 95% by weight relative to the total weight of the composition (Thomas at claim 18). Thomas recites further comprising one or more polyols comprising from 1 to 7 carbon atoms in an amount ranging from 0.1 to 20% by weight relative to the total weight of the composition (Thomas at claim 19). Thomas recites further comprising one or more nonionic surfactants in an amount ranging from 0.01% to 10% by weight relative to the total weight of the composition (Thomas at claim 20). Thomas recites a cosmetic process for washing and/or conditioning, keratin materials, comprising the application to said materials of a composition according to claim 1, optionally followed by a leave-on time and/or a rinsing step and/or a drying step (Thomas at claim 21).
Thomas teaches that cationic polysaccharides, especially cationic celluloses and galactomannan gums. Among the cationic polysaccharides, mention may be made more particularly of cellulose ether derivatives comprising quaternary ammonium groups, cationic cellulose copolymers or cellulose derivatives grafted with a water-soluble quaternary ammonium monomer and cationic galactomannan gums. The cellulose ether derivatives comprising quaternary ammonium groups are defined especially in the CTFA dictionary as hydroxyethylcellulose quaternary ammoniums that have reacted with an epoxide substituted with a trimethylammonium group. Among the cationic cellulose copolymers or cellulose derivatives grafted with a water-soluble quaternary ammonium monomer, mention may be made of hydroxyalkylcelluloses grafted especially with a methacryloylethyltrimethylammonium, methacrylamidopropyltrimethylammonium or dimethyldiallylammonium salt. Among the cationic galactomannan gums, mention may be made of guar gums comprising trialkylammonium cationic groups. (Thomas at [0108-0109]). Thomas teaches that the composition according to the invention may comprise the cationic polymer(s) with a cationic charge density of greater than or equal to 4 meq./g in an amount ranging from 0.01% to 10% by weight (Thomas at [0154]). Thomas teaches the composition according to the invention may also comprise one or more polyols comprising from 1 to 7 carbon atoms, especially from 2 to 6 carbon atoms, and preferably comprising 2 or 3 hydroxyl groups; mention may be made in particular of glycerol, propylene glycol and hexylene glycol, and also mixtures thereof (Thomas at [0185]).Thomas teaches polyol(s), the composition comprises it (them) in an amount preferably ranging from 0.1% to 20% by weight (Thomas at [0186]).Thomas teaches the nonionic surfactants are chosen from (C6-24 alkyl)(poly)glycosides, and more particularly (C8-18 alkyl)(poly)glycosides, ethoxylated C8-C30 fatty acid esters of sorbitan, polyethoxylated C8-C30 fatty alcohols and polyoxyethylenated C8-C30 fatty acid esters, these compounds preferably containing from 2 to 150 mol of ethylene oxide, and mixtures thereof (Thomas at [0204]).
Thomas differs from the instant claims in this rejection insofar as it does not teach the combination of the instantly recited components with sufficient specificity for anticipation. Thomas teaches the components of the instant recited composition and uses each component of their established function in the art but does not explicitly combine the components together into a single embodiment or a preferred composition. However, given the disclosure of each component individually, it would have been prima facie obvious to a person having ordinary skill in the art at a time prior to the filing of the present patent application and following the teachings of Thomas to have selected and combined known components for their established functions with predictable results. MPEP §2143 and §2144.06(I).
Regarding instant claim 16, Thomas recites a cosmetic composition comprising: one or more anionic surfactants, one or more amphoteric surfactants, one or more cationic polymers (Thomas at claim 1).
Regarding instant claim 16a, Thomas recites a cosmetic composition comprising: one or more anionic surfactants, one or more amphoteric surfactants, one or more cationic polymers (Thomas at claim 1). Thomas recites wherein the one or more anionic surfactants are chosen, alone or as a mixture, from: C6-C30 alkyl sulfates; C6-C30 alkyl ether sulfates; comprising from 2 to 20 ethylene oxide units, C6-C30 alkylsulfosuccinates; C6-C30 alkyl ether sulfosuccinates; comprising from 2 to 20 ethylene oxide units, C6-C30 alkylsulfoacetates; polyoxyalkylenated C6-C24alkyl ether carboxylic acids, comprising from 2 to 15 alkylene oxide groups; polyoxyalkylenated C6-C24alkylamido ether carboxylic acids, comprising from 2 to 15 alkylene oxide groups; and also the salts of all these compounds (Thomas at claim 2).
Regarding instant claim 16b, Thomas recites a cosmetic composition comprising: one or more anionic surfactants, one or more amphoteric surfactants, one or more cationic polymers (Thomas at claim 1).
Regarding instant claim 16c, Thomas recites a cosmetic composition comprising: one or more anionic surfactants, one or more amphoteric surfactants, one or more cationic polymers (Thomas at claim 1).
Regarding instant claim 16d, Thomas recites further comprising one or more polyols comprising from 1 to 7 carbon atoms in an amount ranging from 0.1 to 20% by weight relative to the total weight of the composition (Thomas at claim 19), which overlaps the instantly claimed range of at least 2%. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP§2144.05(I).
Regarding instant claim 19, Thomas recites comprising said anionic surfactant(s) in a total amount ranging from 2% to 40% by weight relative to the total weight of the composition (Thomas at claim 4), which overlaps the instantly claimed range of from 0.1% to 30%. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP§2144.05(I).
Regarding instant claim 20, Thomas recites wherein the one or more amphoteric surfactants is chosen from: (C8-C20)alkylbetaines, sulfobetaines, alkyl(C8-C20)sulfobetaines, (C8-C20)alkylamido(C1-C6)alkylbetaines and (C8-C20)alkylamido(C1-C6)alkylsulfobetaines (Thomas at claim 5).
Regarding instant claim 21, Thomas recites comprising said amphoteric surfactant(s) in an amount ranging from 1% to 25% by weight relative to the total weight of the composition (Thomas at claim 7), which overlaps the instantly claimed range of from 0.1% to 30%. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP§2144.05(I).
Regarding instant claim 22, Thomas recites a cosmetic composition comprising: one or more anionic surfactants, one or more amphoteric surfactants, one or more cationic polymers (Thomas at claim 1).
Regarding instant claim 23, Thomas teaches that cationic polysaccharides, especially cationic celluloses and galactomannan gums. Among the cationic polysaccharides, mention may be made more particularly of cellulose ether derivatives comprising quaternary ammonium groups, cationic cellulose copolymers or cellulose derivatives grafted with a water-soluble quaternary ammonium monomer and cationic galactomannan gums. The cellulose ether derivatives comprising quaternary ammonium groups are defined especially in the CTFA dictionary as hydroxyethylcellulose quaternary ammoniums that have reacted with an epoxide substituted with a trimethylammonium group. Among the cationic cellulose copolymers or cellulose derivatives grafted with a water-soluble quaternary ammonium monomer, mention may be made of hydroxyalkylcelluloses grafted especially with a methacryloylethyltrimethylammonium, methacrylamidopropyltrimethylammonium or dimethyldiallylammonium salt. Among the cationic galactomannan gums, mention may be made of guar gums comprising trialkylammonium cationic groups. (Thomas at [0108-0109]).
Regarding instant claim 24, Thomas teaches that the composition according to the invention may comprise the cationic polymer(s) with a cationic charge density of greater than or equal to 4 meq./g in an amount ranging from 0.01% to 10% by weight (Thomas at [0154]), which overlaps the instantly claimed range of from 0.01 to 10%. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP§2144.05(I).
Regarding instant claim 25, Thomas teaches the composition according to the invention may also comprise one or more polyols comprising from 1 to 7 carbon atoms, especially from 2 to 6 carbon atoms, and preferably comprising 2 or 3 hydroxyl groups; mention may be made in particular of glycerol, propylene glycol and hexylene glycol, and also mixtures thereof (Thomas at [0185]).
Regarding instant claim 26, Thomas teaches the composition according to the invention may also comprise one or more polyols comprising from 1 to 7 carbon atoms, especially from 2 to 6 carbon atoms, and preferably comprising 2 or 3 hydroxyl groups; mention may be made in particular of glycerol, propylene glycol and hexylene glycol, and also mixtures thereof (Thomas at [0185]).
Regarding instant claim 27, Thomas teaches polyol(s), the composition comprises it (them) in an amount preferably ranging from 0.1% to 20% by weight (Thomas at [0186]), which overlaps the instantly claimed range of from 2% to 30%. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP§2144.05(I).
Regarding instant claim 28, Thomas recites further comprising one or more nonionic surfactants in an amount ranging from 0.01% to 10% by weight relative to the total weight of the composition (Thomas at claim 20).
Regarding instant claim 29, Thomas teaches the nonionic surfactants are chosen from (C6-24 alkyl)(poly)glycosides, and more particularly (C8-18 alkyl)(poly)glycosides, ethoxylated C8-C30 fatty acid esters of sorbitan, polyethoxylated C8-C30 fatty alcohols and polyoxyethylenated C8-C30 fatty acid esters, these compounds preferably containing from 2 to 150 mol of ethylene oxide, and mixtures thereof (Thomas at [0204]).
Regarding instant claim 30, Thomas recites further comprising one or more nonionic surfactants in an amount ranging from 0.01% to 10% by weight relative to the total weight of the composition (Thomas at claim 20), which overlaps the instantly claimed range of from 0.1% to 15%. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP§2144.05(I).
Regarding instant claim 31, Thomas recites a cosmetic process for washing and/or conditioning, keratin materials, comprising the application to said materials of a composition according to claim 1, optionally followed by a leave-on time and/or a rinsing step and/or a drying step (Thomas at claim 21). Thomas recites a cosmetic composition comprising: one or more anionic surfactants, one or more amphoteric surfactants, one or more cationic polymers (Thomas at claim 1). Thomas recites wherein the one or more anionic surfactants are chosen, alone or as a mixture, from: C6-C30 alkyl sulfates; C6-C30 alkyl ether sulfates; comprising from 2 to 20 ethylene oxide units, C6-C30 alkylsulfosuccinates; C6-C30 alkyl ether sulfosuccinates; comprising from 2 to 20 ethylene oxide units, C6-C30 alkylsulfoacetates; polyoxyalkylenated C6-C24alkyl ether carboxylic acids, comprising from 2 to 15 alkylene oxide groups; polyoxyalkylenated C6-C24alkylamido ether carboxylic acids, comprising from 2 to 15 alkylene oxide groups; and also the salts of all these compounds (Thomas at claim 2). Thomas recites further comprising one or more polyols comprising from 1 to 7 carbon atoms in an amount ranging from 0.1 to 20% by weight relative to the total weight of the composition (Thomas at claim 19), which overlaps the instantly claimed range of at least 2%. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP§2144.05(I).
Regarding instant claim 34, Thomas recites comprising said anionic surfactant(s) in a total amount ranging from 2% to 40% by weight relative to the total weight of the composition (Thomas at claim 4), which overlaps the instantly claimed range of from 0.1% to 30%. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP§2144.05(I).
Regarding instant claim 35, Thomas recites a cosmetic process for washing and/or conditioning, keratin materials, comprising the application to said materials of a composition according to claim 1, optionally followed by a leave-on time and/or a rinsing step and/or a drying step (Thomas at claim 21). Thomas recites a cosmetic composition comprising: one or more anionic surfactants, one or more amphoteric surfactants, one or more cationic polymers (Thomas at claim 1). Thomas recites wherein the one or more anionic surfactants are chosen, alone or as a mixture, from: C6-C30 alkyl sulfates; C6-C30 alkyl ether sulfates; comprising from 2 to 20 ethylene oxide units, C6-C30 alkylsulfosuccinates; C6-C30 alkyl ether sulfosuccinates; comprising from 2 to 20 ethylene oxide units, C6-C30 alkylsulfoacetates; polyoxyalkylenated C6-C24alkyl ether carboxylic acids, comprising from 2 to 15 alkylene oxide groups; polyoxyalkylenated C6-C24alkylamido ether carboxylic acids, comprising from 2 to 15 alkylene oxide groups; and also the salts of all these compounds (Thomas at claim 2). Thomas recites further comprising one or more polyols comprising from 1 to 7 carbon atoms in an amount ranging from 0.1 to 20% by weight relative to the total weight of the composition (Thomas at claim 19), which overlaps the instantly claimed range of at least 2%. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP§2144.05(I).
B) Claims 17-18 and 32-33 are rejected under 35 U.S.C. 103 as being unpatentable over Thomas et al. (US Patent Application Publication 20190282481A1) as applied to claims 16, 19-31, and 34-35 above, and further in view of Le Chaux (FR3083112A1 provided by the IDS filed 11/22/2023).
The teachings of Thomas are discussed above.
The teachings of Thomas differ from the instant claim 17 insofar as it does not specifically teach the use of Laureth-5 carboxylic acid. The teachings of Le Chaux cure this deficit.
Le Chaux recites cosmetic composition, preferably a hair composition, comprising: (i) one or more anionic surfactants chosen from polyoxyalkylenated alkyl (amido) ether carboxylic acids and their salts; (ii) one or more non-sulfated anionic surfactants, different from the polyoxyalkylenated alkyl (amido) ether carboxylic anionic surfactant (s) (i); (iii) one or more nonionic surfactants; (iv) one or more amphoteric surfactants; (v) one or more polymers chosen from amphoteric polymers and cationic polymers (Le Chaux at claim 1). Le Chaux further teaches Laureth-5 carboxylic acid. LeChaux teaches the commercial products, it is possible to use preferably the products sold by the company KAO under the names: ΑΚΥΡΟ® NP 70 (Ri = nonylphenyl, n = 7, A = H) ΑΚΥΡΟ® NP 40 (Ri = nonylphenyl, n = 4, A = H) AKYPO®OP 40 (Ri = octylphenyl, n = 4, A = H) ΑΚΥΡΟ® OP 80 (Ri = octylphenyl, n = 8, A = H) ΑΚΥΡΟ® OP 190 (Ri = octylphenyl, n = 19, A = H) ΑΚΥΡΟ® RLM 38 (Ri = C12-C14 alkyl, n = 4, A = H) ΑΚΥΡΟ® RLM 38 NV (Ri = C12-C14 alkyl, n = 4, A = Na) ΑΚΥΡΟ® RLM 45 CA (Ri = C12-C14 alkyl, n = 4.5, A = H) ΑΚΥΡΟ® RLM 45 NV (Ri = C12-C14 alkyl, n = 4.5, A = Na) ΑΚΥΡΟ® RLM 100 (Ri = C12-C14 alkyl, n = 10, A = H) ΑΚΥΡΟ® RLM 100 NV (Ri = C12-C14 alkyl, n = 10, A = Na) ΑΚΥΡΟ® RLM 130 (Ri = C12-C14 alkyl, n = 13, A = H) ΑΚΥΡΟ® RLM 160 NV (Ri = C12-C14 alkyl, n = 16, A = Na), or by the company SANDOZ under the names: SANDOPAN DTC-Acid (Ri = C13 alkyl, n = 6, A = H) SANDOPAN DTC (Ri = C13 alkyl, n = 6, A = Na) SANDOPAN LS 24 (Ri = C12-C14 alkyl, n = 12, A = Na) SANDOPAN JA 36 (Ri = C13 alkyl, n = 18, A = H), and more particularly, the products sold under the following names: ΑΚΥΡΟ® RLM 45 (INCI: Laureth-5 carboxylic acid) AKYPO®RLM100 ΑΚΥΡΟ® RLM 38.
The teachings of Le Chaux differ from instant claim 1 insofar as they do not teach an amount of polyol. The teachings of Thomas cure this deficit.
It would have been prima facie obvious to one of ordinary skill in the art to have used the Laureth-5 carboxylic acid as the polyoxyalkylenated alkyl (amido) ether carboxylic acid of Thomas as taught by Le Chaux to be a polyoxyalkylenated alkyl (amido) ether carboxylic acid used in a cosmetic with amphoteric surfactants, nonionic surfactants, and polymers. See MPEP 2144.07. See MPEP 2144.06(I).
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
A) Claims 16-35 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-47 of U.S. Patent No. 6,488,780 B2 in view of Thomas et al. (US Patent Application Publication 20190282481A1) and Le Chaux (FR3083112A1 provided by the IDS filed 11/22/2023). Although the claims at issue are not identical, they are not patentably distinct from each other because the reference patent requires an oil-in-water emulsion which is not required by the instant application. The instant application recites a cosmetic composition comprising: a) at least one anionic surfactant chosen from polyoxyalkylenated alkyl(amido)ether carboxylic acids, or salts thereof; b) at least one amphoteric or zwitterionic surfactant; c) at least one associative polymer; and d) at least 2% by weight, relative to the total weight of the composition, of at least one polyol.
The reference patent recites a detergent and conditioning composition comprising: (A) a washing base, wherein said washing base comprises at least one surfactant chosen from anionic surfactants chosen fromthe salts of alkyl sulphates, alkyl ether sulphates, alkylamido ether sulphates, alkylarylpolyether sulphates, monoglyceride sulphates, alkylsulphonates, alkyl phosphates, alkylamidesulphonates, alkylarylsulphonates, α-olefinsulphonates, paraffinsulphonates, alkyl sulphosuccinates, alkyl ether sulphosuccinates, alkylamidesulphosuccinates, alkyl sulphosuccinamates, alkyl sulphoacetates, alkyl ether phosphates, acylsarcosinates, acylisethionates and N-acyltaurates; alkyl-D-galactosideuronic acids, polyoxyalkylenated (C6-C24)alkyl ether carboxylic acids, polyoxyalkylenated (C6-C24)alkylaryl ether carboxylic acids, polyoxyalkylenated (C6-C24)alkylamido ether carboxylic acids and salts thereof; the salts of fatty acids chosen from oleic, ricinoleic, palmitic and stearic acids, the acids of copra oil, the acids of hydrogenated copra oil, and the salts of acyllactylates in which the acyl radical contains 8 to 20 carbon atoms; nonionic surfactants chosen from polyethoxylated, polypropoxylated and polyglycerolated fatty alcohols, alphadiols, alkylphenols and acids, having a fatty chain; copolymers of ethylene and propylene oxide and the condensates of ethylene and propylene oxide with fatty alcohols; polyethoxylated fatty amides, polyglycerolated fatty amides, oxyethylenated esters of sorbitan fatty acids, sucrose esters of fatty acids, alkylpolyglycosides, polyethylene glycol esters of fatty acids, N-alkylglucamine derivatives, and amine oxides; amphoteric surfactants chosen from derivatives of aliphatic secondary or tertiary amines containing at least one water-solubizing anionic group and further wherein said aliphatic radical contains 8 to 22 carbon atoms; (C8-C20)alkylbetaines, sulphobetaines, (C8-C20)alkylamido(C1-C6)alkylbetaines, and (C8-C20)alkylamido(C1-C6)alkylsulphobetaines; and cationic surfactants chosen from the salts of optionally polyoxyalkylenated primary, secondary and tertiary fatty amines, quaternary ammonium salts, imidazoline derivatives, and amine oxides of cationic nature; and (B) a conditioning system comprising at least one oil-in-water emulsion having oil globules with a mean size of less than 150 nm and comprising an amphiphilic lipid phase, said amphiphilic lipid phase comprising at least one non-ionic amphiphilic lipid which is liquid at a temperature of less than 45° C (‘780 at claim 1). The reference patent recites wherein said washing base represents from 4% to 50% by weight of the total weight of the composition (‘780 at claim 3). The reference patent recites wherein said washing base represents from 10% to 35% by weight of the total weight of the composition (‘780 at claim 4). The reference patent recites wherein said washing base represents from 12% to 25% by weight of the total weight of the composition (‘780 at claim 5). The reference patent recites wherein said at least one non-ionic amphiphilic lipid is chosen from silicone surfactants and esters of: at least one polyol chosen from polyethylene glycols containing from 1 to 60 ethylene oxide units, sorbitan, glycerols containing from 2 to 30 ethylene oxide units, and polyglycerols containing from 2 to 15 glycerol units, and at least one fatty acid containing at least one saturated or unsaturated, linear or branched, C8-C22 alkyl chain (‘780 at claim 11). The reference patent recites wherein said composition further comprises at least one ingredient chosen from cationic surface-active agents, anionic, non-ionic, cationic and amphoteric polymers, proteins, protein hydrolysates, ceramides, pseudoceramides, fatty acids containing linear and branched C16-C40 chains, hydroxy acids, vitamins, panthenol, and volatile and non-volatile silicones (‘780 at claim 42). The reference patent recites wherein said composition is in the form of a thickened liquid, a cream or a gel (‘780 at claim 43). The reference patent recites method of cleaning a keratinous substance comprising the step of applying to said keratinous substance a composition (‘780 at claim 45).
The teachings of Thomas and Le Chaux are discussed above.
Therefore the reference patent ‘780, Thomas, and Le Chaux all disclose collections of cosmetics comprising anionic surfactants, amphoteric surfactants, cationic polymers, and polyol, it would have been prima facie obvious to a person of ordinary skill in the art before the effective filling date to modify the reference patent ‘780 and to include the teachings of Thomas and Le Chaux as discussed in the obviousness rejections above because a person of ordinary skill in the art would recognize that these claim elements were known in the art and one of skill in the art could have combined these elements by known methods with no change in their respective functions, and the combination would have yielded the predicable outcome of a composition as recited by the claimed invention.
B) Claims 16-35 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-86 of U.S. Patent No. 6,635,262 B2 in view of Thomas et al. (US Patent Application Publication 20190282481A1) and Le Chaux (FR3083112A1 provided by the IDS filed 11/22/2023). Although the claims at issue are not identical, they are not patentably distinct from each other because the reference patent requires the use of a hair dye which is not required by the instant applciation. The instant application recites a cosmetic composition comprising: a) at least one anionic surfactant chosen from polyoxyalkylenated alkyl(amido)ether carboxylic acids, or salts thereof; b) at least one amphoteric or zwitterionic surfactant; c) at least one associative polymer; and d) at least 2% by weight, relative to the total weight of the composition, of at least one polyol.
The reference patent recites roll-on applicator comprising a container and a rotatable application member on the container, the container containing a hair composition devoid of carboxylic surfactant, said hair composition comprising, in a cosmetically acceptable medium, at least one component chosen from: (i) anionic, amphoteric, and nonionic fixing polymers; (ii) beneficial agents; and (iii) hair dyes; wherein the roll-on applicator is capable of directly depositing on the hair said at least one component (‘262 at claim 1). The reference patent recites wherein the at least one beneficial agent is chosen from synthetic oils, mineral oils, vegetable oils, fluorinated oils, perfluorinated oils, natural waxes, synthetic waxes, silicones, cationic polymers, ceramide compounds, cationic surfactants, fatty amines, fatty acids, fatty acid derivatives, fatty alcohols, and fatty alcohol derivatives (‘262 at claim 25). The reference patent recites further comprising at least one additive chosen from anionic surfactants, nonionic surfactants, amphoteric surfactants, polyols, pigments, dyes, fragrances, screening agents, preservatives, proteins, vitamins, provitamins, and polymers (‘262 at claim 83).
The teachings of Thomas and Le Chaux are discussed above.
Therefore the reference patent ‘262, Thomas, and Le Chaux all disclose collections of cosmetics comprising anionic surfactants, amphoteric surfactants, cationic polymers, and polyol, it would have been prima facie obvious to a person of ordinary skill in the art before the effective filling date to modify the reference patent ‘262 and to include the teachings of Thomas and Le Chaux as discussed in the obviousness rejections above because a person of ordinary skill in the art would recognize that these claim elements were known in the art and one of skill in the art could have combined these elements by known methods with no change in their respective functions, and the combination would have yielded the predicable outcome of a composition as recited by the claimed invention.
Reference claims and prior art combine to produce a prima facie case of obviousness type non-statutory double patenting.
C) Claims 16-35 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-21 of U.S. Patent No. 11,376,204 B2 in view of Thomas et al. (US Patent Application Publication 20190282481A1) and Le Chaux (FR3083112A1 provided by the IDS filed 11/22/2023). Although the claims at issue are not identical, they are not patentably distinct from each other because the reference patent is transparent which is not requried. The instant application recites a cosmetic composition comprising: a) at least one anionic surfactant chosen from polyoxyalkylenated alkyl(amido)ether carboxylic acids, or salts thereof; b) at least one amphoteric or zwitterionic surfactant; c) at least one associative polymer; and d) at least 2% by weight, relative to the total weight of the composition, of at least one polyol.
The reference patent recites a cosmetic composition comprising: one or more anionic surfactants present in a total amount ranging from 7% to 15% by weight relative to the total weight of the composition, one or more amphoteric surfactants, one or more cationic polymers with a cationic charge density of greater than or equal to 4 meq./g chosen from cyclopolymers of alkyldiallylamine or of dialkyldiallylammonium, containing, as main constituent of the chain, units corresponding to formula (I) or (II):
PNG
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631
825
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Greyscale
in which
k and t are equal to 0 or 1, the sum k+t being equal to 1; R12 denotes a hydrogen atom or a methyl radical; R10 and R11, independently of each other, denote a C1-C6 alkyl group, a C1-C5 hydroxyalkyl group, a C1-C4 amidoalkyl group; or alternatively R10 and R11 may denote, together with the nitrogen atom to which they are attached, a heterocyclic group; R10 and R11, independently of each other, denote a C1-C4 alkyl group; and Y− is an anion, and one or more liquid fatty substances chosen from non-oxyalkylenated alcohols comprising at least 8 carbon atoms, monocarboxylic acid esters comprising at least 8 carbon atoms, and mixtures thereof (‘204 at claim 1). The reference patent recites wherein the one or more anionic surfactants is chosen, alone or as a mixture, from: C6-C30 alkyl sulfates; C6-C30 alkyl ether sulfates; comprising from 2 to 20 ethylene oxide units, C6-C30 alkylsulfosuccinates; C6-C30 alkyl ether sulfosuccinates; comprising from 2 to 20 ethylene oxide units, C6-C30 alkylsulfoacetates; polyoxyalkylenated C6-C24 alkyl ether carboxylic acids, comprising from 2 to 15 alkylene oxide groups; polyoxyalkylenated C6-C24 alkylamido ether carboxylic acids, comprising from 2 to 15 alkylene oxide groups; and salts thereof (‘204 at claim 2). The reference patent recites wherein the one or more amphoteric surfactants is chosen from: (C8-C20)alkylbetaines, sulfobetaines, alkyl(C8-C20)sulfobetaines, (C8-C20)alkylamido(C1-C6)alkylbetaines and (C8-C20)alkylamido(C1-C6)alkylsulfobetaines; optionally quaternized secondary or tertiary aliphatic amine derivatives of formulae (A1) and (A2) below:
Ra—CON(Z)CH2—(CH2)m—N+(Rb)(Rc)(CH2COO−) (A1)
in which: Ra represents a C10-C30 alkyl or alkenyl group derived from an acid Ra—COOH, Rb represents a β-hydroxyethyl group, Rc represents a carboxymethyl group; m is equal to 0, 1 or 2, Z represents a hydrogen atom or a hydroxyethyl group or a carboxymethyl group,
Ra—CON(Z)CH2—(CH2)m—N(B)(B′) (A2)
in which: B represents —CH2CH2OX′, with X′ representing —CH2—COOH, CH2—COOZ′, —CH2CH2—COOH, —CH2CH2—COOZ′, or a hydrogen atom,
B′ represents —(CH2)z—Y′, with z=1 or 2, and Y′ representing —COOH, —COOZ′, —CH2—CHOH—SO3H or —CH2—CHOH—SO3Z′,
m′ is equal to 0, 1 or 2, Z represents a hydrogen atom or a hydroxyethyl group or a carboxymethyl group, Z′ represents an ion derived from an alkali metal or alkaline-earth metal, or an ion derived from an organic amine; and Ra′ represents a C10-C30 alkyl or alkenyl group of an acid Ra′COOH; compounds of formula (A3):
Ra′—NH—CH(Y″)—(CH2)n-C(O)—NH—(CH2)n′-N(Rd)(Re) (A3) in which: Ra″ represents a C10-C30 alkyl or alkenyl group derived from an acid Ra″—C(O)OH, which is present in hydrolysed linseed oil or coconut oil; Y″ represents the group —C(O)OH, —C(O)OZ″, —CH2—CH(OH)—SO3H or the group —CH2—CH(OH)—SO3—Z″, with Z″ representing a cationic counterion derived from an alkali metal or alkaline-earth metal, or an ion derived from an organic amine; Rd and Re, independently of each other, represent a C1-C4 alkyl or hydroxyalkyl radical; and n and n′, independently of each other, denote an integer ranging from 1 to 3 (‘204 at claim 4). The reference patent recites wherein the one or more amphoteric surfactants is chosen from (C8-C20)alkylbetaines, (C8-C20)alkylamido(C1-C6)alkylbetaines, (C8-C20)alkylamphodiacetates, and mixtures thereof (‘204 at claim 5). The reference patent recites comprising said amphoteric surfactant(s) in an amount ranging from 1% to 25% by weight relative to the total weight of the composition (‘204 at claim 6). The reference patent recites comprising the anionic surfactant(s) and the amphoteric surfactant(s) in a total amount such that the weight ratio between anionic surfactant(s) and amphoteric surfactant(s) is less than or equal to 1 (‘204 at claim 7). The reference patent recites further comprising one or more polyols comprising from 1 to 7 carbon atoms in an amount ranging from 0.1 to 20% by weight relative to the total weight of the composition (‘204 at claim 18). The reference patent recites cosmetic process for washing and/or conditioning keratin materials comprising applying to said materials (‘204 at claim 21). The reference patent recites wherein the one or more cationic polymers with a charge density of greater than or equal to 4 meq./g, is chosen from:
homopolymers of dimethyldiallylammonium salts, and copolymers of diallyldimethylammonium salts and of acrylamide; mixtures thereof (‘204 at claim 10). The reference patent recites wherein the weight % of the cationic polymer(s) with a cationic charge density of greater than or equal to 4 meq./g is from 0.01% to 10% by weight relative to the total weight of the composition (‘204 at claim 11). The reference patent recites further comprising one or more nonionic surfactants in an amount ranging from 0.01% to 10% by weight relative to the total weight of the composition (‘204 at claim 19).
The teachings of Thomas and Le Chaux are discussed above.
Therefore the reference patent ‘204, Thomas, and Le Chaux all disclose collections of cosmetics comprising anionic surfactants, amphoteric surfactants, cationic polymers, and polyol, it would have been prima facie obvious to a person of ordinary skill in the art before the effective filling date to modify the reference patent ‘204 and to include the teachings of Thomas and Le Chaux as discussed in the obviousness rejections above because a person of ordinary skill in the art would recognize that these claim elements were known in the art and one of skill in the art could have combined these elements by known methods with no change in their respective functions, and the combination would have yielded the predicable outcome of a composition as recited by the claimed invention.
Reference claims and prior art combine to produce a prima facie case of obviousness type non-statutory double patenting.
D) Claims 16-35 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-32 of U.S. Patent No. 7,867,969 B2 in view of Thomas et al. (US Patent Application Publication 20190282481A1) and Le Chaux (FR3083112A1 provided by the IDS filed 11/22/2023). Although the claims at issue are not identical, they are not patentably distinct from each other because the reference patent requires an aqueous medium which is not required by the instant application. The instant application recites a cosmetic composition comprising: a) at least one anionic surfactant chosen from polyoxyalkylenated alkyl(amido)ether carboxylic acids, or salts thereof; b) at least one amphoteric or zwitterionic surfactant; c) at least one associative polymer; and d) at least 2% by weight, relative to the total weight of the composition, of at least one polyol.
The reference patent recites cosmetic composition for washing keratin materials, comprising, in an aqueous medium: (a) at least 0.1% by weight relative to the total weight of the composition of at least a first anionic surfactant in the form of a magnesium salt selected from the group consisting of magnesium (C12-24) alkyl ether sulphates comprising from 1 to 16 ethylene oxide units, (b) from 0.5% to 20% by weight relative to the total weight of the composition of at least a second anionic surfactant different from the first, selected from the group consisting of the sodium salts of polyoxyalkylenated (C6-24 alkyl) ether carboxylic acids comprising from 2 to 50 ethylene oxide, units, the sodium salts of polyoxyalkylenated (C6-24 alkyl)(C6-24 aryl) ether carboxylic acids comprising from 2 to 50 ethylene oxide units, the sodium salts of polyoxyalkylenated (C6-24 alkyl) amido ether carboxylic acids comprising from 2 to 50 ethylene oxide units, the sodium salts of alkyl sulphates, and the sodium salts of alkylether sulphates, (c) from 0.5% to 8% by weight relative to the total weight of the composition of at least one amphoteric or zwitterionic surfactant selected from the group consisting of: (i) derivatives of secondary aliphatic amines and derivatives of tertiary aliphatic amines, in which the aliphatic groups are chosen from linear and branched chains comprising from 8 to 22 carbon atoms and containing at least one anionic carboxvlate group; and (d) from 0.5% to 10% by weight relative to the total weight of the composition of at least one oxyethylenated sorbitan ester, and (e) from 0.1% to 5% by weight relative to the total weight of the composition of at least one polymer chosen from cationic polymers and amphoteric or zwitterionic polymers (‘969 at claim 1). The reference patent recites wherein the at least one second anionic surfactant is selected from the group consisting of the sodium salts of polyoxyalkylenated (C6-24 alkyl) ether carboxylic acids comprising from 2 to 50 ethylene oxide units, the sodium salts of polyoxyalkylenated (C6-24 alkyl)(C6-24 aryl) ether carboxylic acids comprising from 2 to 50 ethylene oxide units, and the sodium salts of polyoxyalkylenated (C6-24 alkyl) amido ether carboxylic acids comprising from 2 to 50 ethylene oxide units (‘969 at claim 5). The reference patent recites wherein the at least one second anionic surfactant is present in the composition in an amount ranging from 1% to 20% by weight relative to the total weight of the composition (‘969 at claim 7). The reference patent recites wherein the at least one second anionic surfactant is present in the composition in an amount ranging from 3% to 15% by weight relative to the total weight of the composition (‘969 at claim 8). The reference patent recites wherein the at least one amphoteric or zwitterionic surfactant is present in the composition in an amount ranging from 1% to 8% by weight relative to the total weight of the composition (‘969 at claim 9). The reference patent recites wherein cationic polymers are selected from the group consisting of cellulose ether derivatives comprising quaternary ammonium groups, cationic cyclopolymers, guar gums modified with a 2,3-epoxypropyltrimethylammonium salt, and quaternary polymers of vinylpyrrolidone and of vinylimidazole (‘969 at claim 16). The reference patent recites wherein the cationic cyclopolymers are chosen from dimethyldiallylammonium chloride homopolymers and copolymers wherein the at least one amphoteric or zwitterionic polymer is selected from the group consisting of polymers comprising K and M units distributed randomly in the polymer chain, wherein: K is chosen from units derived from a monomer comprising at least one basic nitrogen atom and M is selected from the group consisting of units derived from an acidic monomer comprising at least one group selected from the group consisting of carboxylic and sulphonic groups, or K and M are selected from the group consisting of groups derived from zwitterionic monomers of carboxybetaines or of sulphobetaines, or K and M are selected from the group consisting of cationic polymer chains comprising at least one group selected from the group consisting of primary, secondary, tertiary, and quaternary amine groups, wherein at least one of the amine groups bears a selected from the group consisting of carboxylic and sulphonic groups connected via a hydrocarbon-based radical, or K and M are part of a chain of a polymer comprising an α,β-dicarboxylic ethylene unit in which one of the carboxylic groups has been reacted with a polyamine comprising at least one group selected from the group consisting of primary and secondary amine groups (‘969 at claim 18). The reference patent recites further comprising at least one additive selected from the group consisting of anti-hairloss agents, oxidizing agents, ceramides, pseudoceramides, vitamins, provitamins, panthenol, plant, animal, mineral, or synthetic oils, waxes, sunscreens, coloured or non-coloured, inorganic or organic pigments, dyes, pearlescent agents, opacifiers, sequestrants, plasticizers, solubilizing agents, acidifying agents, basifying agents, inorganic or organic thickeners, antioxidants, hydroxy acids, fragrances, and preserving agents (‘969 at claim 29). The reference patent recites wherein the at least one solvent is selected from the group consisting of C1-C4 lower alcohols and polyols (‘969 at claim 28).
The teachings of Thomas and Le Chaux are discussed above.
Therefore the reference patent ‘969, Thomas, and Le Chaux all disclose collections of cosmetics comprising anionic surfactants, amphoteric surfactants, cationic polymers, and polyols, it would have been prima facie obvious to a person of ordinary skill in the art before the effective filling date to modify the reference patent ‘969 and to include the teachings of Thomas and Le Chaux as discussed in the obviousness rejections above because a person of ordinary skill in the art would recognize that these claim elements were known in the art and one of skill in the art could have combined these elements by known methods with no change in their respective functions, and the combination would have yielded the predicable outcome of a composition as recited by the claimed invention.
Reference claims and prior art combine to produce a prima facie case of obviousness type non-statutory double patenting.
Conclusion
No claims are presently allowable.
Correspondence
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/AMANDA MICHELLE PETRITSCH/Examiner, Art Unit 1612
/SAHANA S KAUP/Supervisory Primary Examiner, Art Unit 1612
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