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 invention group I, claims 19-37, in the reply filed on 05/27/2026 is acknowledged. The traversal is on the ground(s) that there is unity of invention and no burden to search and examine all invention groups together. This is not found persuasive because there is no unity of invention because Ellis et al. teaches cysteine and coconut oil (column 4, line 49) at 0.1% to 10% (column 5, line 3-8) and coconut oil at 0.05% to 10% (column 7, line 4-20), and there is indeed burden to search and examine all invention groups together. Furthermore, Schettiget et al. (US20160271035) also teaches applicant’s technical feature in claim 19 as discussed in the following 103 rejection.
The requirement is still deemed proper and is therefore made FINAL.
Claim 38 is withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 05/27/2026.
Applicants further elected coconut oil as specific fatty acid triglyceride and behenyltrimethylammonium chloride as specific cationic surfactant. Claims 19-37 read on the elected species and are under examination.
Claims 19-38 are pending, claims 19-37 are under examination.
Priority
Acknowledge is made that This is a National Stage of International Application No. PCT/EP2022/070863, filed on July 26, 2022, which claims priority to South African Application No. 2021/05298, filed on July 27, 2021, French Application No. 2109991, filed on September 22, 2021, South African Application No. 2021/08808, filed on November 9, 2021, and French Application No. 2113266, filed on December 10, 2021,
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 06/07/2024 is being considered by the examiner.
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 19-37 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 19 and 21 recite fatty acid triglyceride comprising 6 to 16 (14) carbon atoms. The structure of fatty acid triglyceride is R-C(=O)-OCH2-CH(O-C(=O)-R)-CH2O-C(=O)-R, the glycerol moiety OCH2-CH(O-)-CH2O has three carbon atoms. When the fatty acid triglyceride has only 6 carbon atoms, there is no carbon atom left for substituent R, then R can only be H, the chemical structure would be formic acid triglyceride, which is not fatty acid triglyceride any more. Thus, the scope and boundary of claims are unclear, this is indefinite. In applicant’s specification, in one embodiment, applicants recite fatty acid triglyceride comprising 6 to 16 (14) carbon atoms (page 2, line 25-30); in another embodiment, applicants recite Acyl group (R-C(=O)-) is C6-C16 (page 4, line 1 to 5). These two recitations are contradicted each other. Actually, the recitation of Acyl group (R-C(=O)-) being C6-C16 would lead to generally acceptable fatty acid triglyceride in the art. For compact prosecution purpose, fatty acid triglyceride (ii) is examined without considering number of carbon atoms.
Claims 20 and 22-37 are rejected for depending on rejected claim 19.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102 of this title, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 19-33 and 37 are rejected under 35 U.S.C. 103 as being unpatentable over Schettiget et al. (US20160271035).
Determination of the scope and content of the prior art
(MPEP 2141.01)
Schettiget et al. teaches An agent for straightening, permanently shaping, or depilation of keratinous fibers, comprising water at 50-80% and at least one keratin-reducing compound selected from the group consisting of thioglycolic acid and the salts thereof, thiolactic acid and the salts thereof, cysteine and salts thereof, acetylcysteine and salts thereof, cysteamine and the salts thereof, and also mixtures of these keratin-reducing compounds at 0.1 to 20% (claims 1-2 and 17). The agent further comprises fatty alcohol having 12-18 carbon atoms such as cetyl alcohol at 0.1 to 10% (claims 13-16). Further anionic, cationic, or amphoteric surfactants may likewise be included in the agents according to the invention. Examples of additionally included preferred cationic surfactants are ammonium halides, in particular chlorides and bromides, such as alkyltrimethylammonium chlorides, dialkyldimethylammonium chlorides, and trialkylmethylammonium chlorides, for example cetyltrimethylammonium chloride, stearyltrimethylammonium chloride, distearyldimethylammonium chloride, lauryldimethylammonium chloride, lauryldimethylbenzylammonium chloride, and tricetylmethylammonium chloride, as well as the imidazolium compounds known by the INCI designations Quaternium-27 and Quaternium-83 ([0536-0537]). In addition, the agents according to the invention may include further active substances, auxiliary substances, and additives, for example nonionic polymers, silicones, cationic polymers, structurizers, solvents, and mediators, fiber structure-improving active substances, defoamers such as silicones, anti-dandruff active substances, protein hydrolysates, plant oils, for example macadamia nut oil, kukui nut oil, palm oil, amaranth seed oil, peach kernel oil, avocado oil, olive oil, coconut oil, rapeseed oil, sesame oil, jojoba oil, soybean oil, peanut oil, evening primrose oil, and tea tree oil, light protection agents, substances for adjusting the pH, for example common acids, in particular edible acids, vitamins, provitamins, and vitamin precursors, plant extracts, consistency enhancers, waxes, further swelling and penetration substances, pearlescence agents such as ethylene glycol mono- and distearate and PEG-3-distearate, propellants such as propane-butane mixtures, N2O, dimethyl ether, CO2, and air, and antioxidants ([0538]). The additional active substances and auxiliary substances are preferably included in the agents according to the invention in each case in quantities of 0.0001 to 10% by weight, in particular 0.0005 to 5% by weight, based on the weight of the agent ([0540]). Particularly preferred straightening and wave setting agents have a pH in the range of 7 to 9.5 ([0541]).
Ascertainment of the difference between the prior art and the claims
(MPEP 2141.02)
The difference between the instant application and Schettiget et al. is that Schettiget et al. is not specific enough for anticipation.
Finding of prima facie obviousness
Rational and Motivation (MPEP 2142-2143)
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to produce the instant invention.
Regarding claims 19-23 and 37, Schettiget et al. teaches a hair agent (composition) comprising cysteine (item i) at 0.1% to 20%, coconut oil (item ii) at 0.0001 to 10% by weight, and water 50-80% at pH 7 to 9.5.
Regarding claim 24, when coconut oil is 2% and cysteine is 0.5%, their ratio is 2:0.5=4:1, more than 1.
Regarding claims 25-27, item iii is not required because optional ingredient can always be omitted.
Regarding claim 28, no additional reducing agent is required.
Regarding claims 29-32, Schettiget et al. teaches fatty alcohol (iv) having 12-18 carbon atoms such as cetyl alcohol at 0.1 to 10%, together with coconut oil (item ii) at 0.0001 to 10%, the total amount of iv and ii is 0.1% to 20%. When each of fatty alcohol and coconut oil is 2%, their ratio is 1.
Regarding claim 33, Schettiget et al. teaches cationic surfactant.
In light of the forgoing discussion, the Examiner concludes that the subject matter defined by the instant claims would have been obvious within the meaning of 35 USC 103.
From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole was prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, as evidenced by the references, especially in the absence of evidence to the contrary.
Claims 34-36 are rejected under 35 U.S.C. 103 as being unpatentable over Schettiget et al. (US20160271035), as applied for the above 103 rejection for claims 19-33 and 37, in view of Sun et al. (US10617617).
Determination of the scope and content of the prior art
(MPEP 2141.01)
Schettiget et al. teaching has already been discussed in the above 103 rejection and is incorporated herein by reference.
Sun et al. teaches hair treatment composition (abstract) for hair strengthening (claims 17-18) comprising cysteine (column 22, line 19-22). The composition further comprises cationic surfactant such as behenyl trimethyl ammonium chloride and stearyl trimethyl ammonium chloride at amount of 0.05% to about 15% by weight (column 13, line 30-35; column 14, line 29-56).
Ascertainment of the difference between the prior art and the claims
(MPEP 2141.02)
The difference between the instant application and Schettiget et al. is that Schettiget et al. do not expressly teach behenyl trimethyl ammonium chloride and its amount. This deficiency in Schettiget et al. is cured by the teachings of Sun et al.
Finding of prima facie obviousness
Rational and Motivation (MPEP 2142-2143)
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the invention of Schettiget et al., as suggested by Sun et al., and produce the instant invention.
One of ordinary skill in the art would have been motivated to include behenyl trimethyl ammonium chloride as cationic surfactant in the composition of Schettiget et al. because it is a suitable ingredient in hair treatment composition. MPEP 2144.07. Under guidance from Schettiget et al. teaching cationic surfactant alkyltrimethylammonium chlorides, Sun et al. teaching cationic surfactant behenyl trimethyl ammonium chloride in hair care composition, it is obvious for one of ordinary skill in the art to include behenyl trimethyl ammonium chloride as cationic surfactant in the composition of Schettiget et al. and produce instant claimed invention with reasonable expectation of success.
Regarding claim 35, under guidance from Sun et al. teaching cationic surfactant behenyl trimethyl ammonium chloride at 0.05% to about 15% by weight, it is obvious for one of ordinary skill in the art to optimize the amount of cationic surfactant behenyl trimethyl ammonium chloride and have 0.005% to 15% of cationic surfactant and produce instant claimed invention with reasonable expectation of success.
Regarding claim 36, when coconut oil is 2% and cationic surfactant is 1%, the ratio is 2, mor e than 1.
In light of the forgoing discussion, the Examiner concludes that the subject matter defined by the instant claims would have been obvious within the meaning of 35 USC 103.
From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole was prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, as evidenced by the references, especially in the absence of evidence to the contrary.
Conclusion
No claim is allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JIANFENG SONG. Ph.D. whose telephone number is (571)270-1978. The examiner can normally be reached M-F 8-5.
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/JIANFENG SONG/Primary Examiner, Art Unit 1613
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