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 .
Status of Claims
Preliminary amendment filed on 02/02/2024 is acknowledged.
Claims 1-17 are amended. Claims 18-20 are new.
Claims 1-20 are pending and being examined on merits herein.
Priority
The instant application 18294992, filed on 02/02/2024, is a 371 of PCT/EP2022/066692, filed on 06/20/2022, which claims foreign priority of Germany 10 2021 208 460.5, filed on 08/04/2021.
Information Disclosure Statement
The information disclosure statement (IDS), filed on 02/02/2024, is in compliance with the
provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the
Examiner.
Claim Interpretation
Claims 1 and 2 are interpreted below:
Claim 1 is interpreted as an agent comprising at least one silicone polymer and at least one metallic pigment, wherein the silicone polymer is amino-functionalized with at least one amino group. The phrase “platelet-type” is not defined by instant claim or specification, and it is interpreted as property of the metallic pigment.
Claim 2 is interpreted as the agent of claim 1, wherein the silicone polymer is functionalized with at least two amino groups.
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 1-20 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, 6-7, 9-10, 13 and 19 recites “platelet-type” which is not defined in instant claim or specification. 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). The term “platelet-type” in claim 1 is used by the claim to mean perhaps a shape of pigment particle appearing like a “platelet”, while the accepted meaning is “thrombocytes” or “tiny cell fragments in the blood” (i.e. biological blood components). The instant usage of the term appears to be contradicting to the ordinary and customary meaning of the term “Platelet” in the art, and creates confusion if the term adds any additional structural limitation to the claimed pigments. Thus, the claim is indefinite because one of skilled in the art would not be able to define the metes and bounds of the claimed agent.
Claims 2-5, 8, 12, 14-18 and 20 are rejected accordingly because they are directly or indirectly depending on claim 1 and do not further clarify the issue addressed above in claim 1.
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1-7 and 9-20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Neuba et al. (DE102018222022, 06/18/2020, Machine translation relied upon below; Copy attached; PTO-892).
Neuba throughout the reference teaches a method for coloring keratinous material comprising a coloring agent (e.g., Abstract).
Regarding instant claims 1, 4, 6, and 18, Neuba teaches a method for coloring (or dyeing) keratin material, in particular human hair, comprising application of coloring agent comprising a1) at least one amino-functionalized silicone polymer, a2) at least one coloring compound, and a3) at least one non-ionic surfactant (e.g., Abstract) (corresponding to instant claims 1 and 18).
Neuba exemplifies in a formulation of the dyeing agent comprising Dow Corning 2-8566 (Siloxanes and Silicones, 3-[(2-Aminoethyl)amino]-2-methylpropyl Me, Di-Me-Siloxane) and Colorona Bronze (Mica, CI77491 iron oxides) [0199]. As evidenced by instant specification Dow Corning 2-8566 is amino-functionalized silicone polymer with the structural unites Si-I and Si-II (see Neuba DE original copy [0039]). Neuba presents Si-I and Si-II structural units of the amino-functionalized silicone polymer [0037], which is identical to the structures Si-I and Si-II in instant claim 4. Therefore, Neuba formulation teaches the amino-functionalized silicone polymer in instant claims 1 and 4. Neuba teaches that the CI77491 in the formulation is mica-based pigment coated with metal oxide [0075], and this mica-based iron oxide CI77491 is a platelet-type metallic pigment as evidenced by instant specification [0123], corresponding to the platelet-type metallic pigment in instant claim 1, of which the metal is iron out of many other pigments with various metal types taught by Neuba (e.g., [0077]-[0078]) (corresponding to instant claim 6).
Regarding instant claim 2-3, Neuba teaches the at least one amino-functionalized silicone polymer comprises at least one structural unit of the formula (Si-Amino) (see Neuba DE original [0027]; [0029]) with ALK1 and ALK2 independently representing a linear or branched, divalent C1-C20 alkylene group [0029] (corresponding to structural formula Si-amino in instant claim 3), indicating the secondary amino group can be located at different positions of the amino-functionalized silicone polymer [0027] (corresponding to more than one amino groups in instant claim 2 in light of claim interpretation).
Regarding instant claim 5, Neuba presents in the formulation discussed above, the agent comprising 2.0% Dow Corning 2-8566 amino-functionalized polymer (falling within the range 0.1 to 8.0% in instant claim 5), 2.0% CI77491 iron oxides ([0199], see original Neuba DE [0199] table). MPEP 2131.03.I states that "If the prior art discloses a point within the claimed range, the prior art anticipates the claim." UCB, Inc. v. Actavis Labs. UT, Inc., 65 F.4th 679, 687, 2023 USPQ2d 448 (Fed. Cir. 2023).
Regarding instant claim 7, Neuba teaches that the pigment has a mean particle size D50 of 1.0 to 50 um, preferably of 5.0 to 45 um, preferably of 10 to 40 um, in particular of 14 to 30 um (e.g., [0086]), ranges falling within 0.5 um to 1 mm in instant claim 7. MPEP 2131.03.I states that "If the prior art discloses a point within the claimed range, the prior art anticipates the claim." UCB, Inc. v. Actavis Labs. UT, Inc., 65 F.4th 679, 687, 2023 USPQ2d 448 (Fed. Cir. 2023).
Regarding instant claim 9, Neuba specifies that the platelet-type metallic pigments, e.g., colored metal oxides, metal hydroxides, metal oxide hydrates, bronze pigments, and/or colored pigments based on mica or micaceous oxide, which are coated with at least one metal oxide and/or one metal oxychloride (e.g., Claim 7; [0071]). Direct dyes are used in the form of their salts, carboxylic acid groups or sulfonic acid groups [0098], such as aluminum salts of acid dyes [0100], which is apparently uncoated aluminum pigment.
Regarding instant claim 10, Neuba indicates that the pigments can present in a total amount preferably 0.1 to 8 wt.%, more preferably 0.3 to 6 wt.% and most preferably 0.5 to 4.5 wt.% of the total weight of the agent (e.g., Claim 9), ranges falling within 0.01 to 10 wt.% of instant claim 10.
Regarding instant claim 11, Neuba specifies that at least one inorganic pigment, preferably selected from the group of colored metal oxides, metal hydroxides, metal oxide hydrates, silicates, metal sulfides, complex metal cyanides, metal sulfates, bronze pigments and/or colored pigments based on mica or micaceous oxide, which are coated with at least one metal oxide and/or one metal oxychloride.
Regarding instant claim 12, Neuba teaches at least one organic pigment in the agent can be selected from the group consisting of carmine, quinacridone, phthalocyanine, sorghum, blue pigments with the color index numbers CI 42090, CI 69800, CI 69825, CI 73000, CI 74100, CI 74160, yellow pigments with the color index numbers CI 11680, CI 11710, CI 15985, CI 19140, CI 20040, CI 21100, CI 21108, CI 47000, CI 47005, green pigments with the color index numbers CI 61565, CI 61570, CI 74260, and orange pigments with the color index numbers CI 11725, CI 15510, CI 45370, CI 71105, red pigments with the color index numbers CI 12085, CI 12120, CI 12370, CI 12420, CI 12490, CI 14700, CI 15525, CI 15580, CI 15620, CI 15630, CI 15800, CI 15850, CI 15865, CI 15880, CI 17200, CI 26100, CI 45380, CI 45410, CI 58000, CI 73360, CI 73915 and/or CI 75470 [0083].
Regarding instant claim 13, Neuba teaches the agent can contain pigments at preferably an amount of 0.001 to 20 wt.%, more preferably 0.1 to 8 wt.%, even more preferably 0.6 to 6 wt.% and most preferably 1.0 to 4.5 wt.% of the total weight of the agent (e.g., [0087]), while an inorganic and/or organic dye different from the at least one platelet-type metallic pigment can be one or more direct dyes (e.g., [0090], [0093], [0106]), at an amount of 0.01 to 10.0 wt.%, preferably 0.1 to 8.0 wt.%, more preferably 0.2 to 6.0 wt.% and most preferably 0.5 to 4.5 wt.% (e.g., [0106]). It is obvious that the ratio of platelet-type metallic pigment to the other pigment in the formulation can be within the range of 5.0 to 0.1 based on the various amount options to choose from Neuba.
MPEP 2131.03.I states “[W]hen, as by a recitation of ranges or otherwise, a claim covers several compositions, the claim is ‘anticipated' if one of them is in the prior art." Titanium Metals Corp. v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed. Cir. 1985) (citing In re Petering, 301 F.2d 676, 682, 133 USPQ 275, 280 (CCPA 1962)). For this instance, pigment weight amounts are taught in prior art, therefore, the claim of ratio is “anticipated”. Moreover, MPEP 2144.01 points out "[I]n considering the disclosure of a reference, it is proper to take into account not only specific teachings of the reference but also the inferences which one skilled in the art would reasonably be expected to draw therefrom." In re Preda, 401 F.2d 825, 826, 159 USPQ 342, 344 (CCPA 1968).
Regarding instant claim 14, Neuba exemplifies water amount in a formulation at 61% (calculated as 100-15-10-2.5-1.5-1.5-6.0-2.0-0.5 =61) [0139], falling within 0-70 wt.% amount range in instant claim 14.
Regarding instant claim 15, Neuba teaches using ethanol as non-ionic solvent in formulation example [0138], and specifies that the agent can contain solvents including glycerin, propylene glycol, fatty alcohol, and others (e.g., [0172]).
Regarding instant claim 16, Neuba teaches the agent can contain at least one non-ionic surfactant (e.g., [0112]), the non-ionic surfactant can comprise a polyol group, a polyalkylene glycol ether group, or a combination of polyol and polyglycol ether groups, for example, addition of products of 2 to 50 mol of ethylene oxide to linear and branched fatty alcohols with 6 to 30 carbon atoms (e.g., [0113]), and Neuba further presents ethoxylated polyalkylene fatty alcohol formula T1 and T2 (see Neuba original DE copy, [0121]; [0127]). For one person with ordinary skills of art, the polyalkylene glycol comprising 6 to 30 carbon atoms in the polyethylene oxide would obviously result in the formula AG as shown in instant claim, wherein x in prior art representing 3-15 integer resulted from each unit containing two carbon atoms in the formula. Neuba further teaches the non-ionic components can present at 80 wt.%, preferably 85 wt.%, further preferably 90 wt.% and most preferably 99 wt.% of the agent (e.g., [0135]), falling within the range of 10 to 99 wt.% in instant claim.
Regarding instant claims 17 and 20, Neuba teaches the method of applying the agent to keratin materials, e.g., human hair [0182-0183], for especially preferably 30 seconds to 2 minutes on the hair being proven to be particularly advantageous (e.g., [0183]), time falling within 30 seconds to 45 minutes in instant claim.
Regarding instant claim 19, Neuba teaches that the agent can contain ultramarine, which is sodium aluminum sulfosilicates, CI 77007, Pigment Blue 29 (e.g., Claim 8), comprising aluminum in the platelet-type metallic pigment.
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 1-20 are rejected under 35 U.S.C. 103 as being unpatentable over Neuba et al. (DE102018222022, 06/18/2020, English copy uploaded, PTO-892) as applied to claims 1-7 and 9-20 above, in view of Huber et al. (CN107567484, 01/09/2018, English copy uploaded, PTO-892).
Neuba teaches an agent for dyeing keratin material, e.g., human hair, the agent comprising at least one silicone polymer that is functionalized by at least one amino group, and at least one platelet-type metallic pigment as described above in great detail and incorporated herein.
Neuba does not teach the platelet-type metallic pigment can comprise at least one vacuum-metalized pigment as recited in instant claim 8.
Huber throughout the reference teaches pearlescent pigments and methods for producing same and use of such pearlescent pigments (e.g., Abstract; title; Claim 1).
Huber teaches pearlescent pigments are monolithically constructed substrate platelets composed of a metal oxide (e.g., Abstract; Claim 5), and glossy pigments especially metallic pigments are widely used in many fields including decorative cosmetic formulations (e.g., [0004]), while pigment based on flakes can be used for soft-focus effect in cosmetic formulations (e.g., [0010]). Huber teaches that vacuum metallized pigments (VMP) is preferably used in the formulation and VMP can be obtained by releasing aluminum from the metallized film (e.g., [0047]), having low substrate thickness ranging from 1 to 40 nm and exceptionally smooth surfaces with enhanced reflectivity [0047].
It would have been prima facie obvious for one person with ordinary skills of art prior to filing date to incorporate Huber’s teaching of vacuum-metallized pigment into the agent taught by Neuba to arrive at current invention. Because Neuba teaches using metallic and pearlescent pigments for the hair-dyeing agent, while Huber teaches that vacuum-metallized pigments can have exceptionally smooth surface with enhanced reflectivity, that would have motivated scientists in the field to implement this ingredient into the formulation for reasonable expectation of success. 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). Moreover, 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).
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.
Claims 1-20 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over at least claims 1, 4-14 and 17 of copending Application No. 18290546 (hereafter App’546) in view of Neuba et al. (DE102018222022, 06/18/2020, English copy uploaded, PTO-892) and Huber et al. (CN107567484, 01/09/2018, English copy uploaded, PTO-892).
App’546 recites an agent for dyeing keratin material, in particular human hair, containing at least one pigment, and at least one amino-functionalized silicone polymer (Claim 1) wherein the pigment can be metallic pigments selected from the group including metal oxides and others (Claim 4) (corresponding to instant claims 1, 11 and 18), or platelet-type metal pigments comprising metals like aluminum, copper, silver, and others (Claim 5) (corresponding to instant claim 6), or organic pigment selected from the group consisting of carmine, quinacridone, blue pigments, yellow pigments, and others with shown CI index numbers (Claim 6) (corresponding to instant claim 12), total pigment present at an amount from 0.01 to 10 wt.% and other amount ranges as specified (Claim 7) (corresponding to instant claim 10); the amino-functionalized silicone polymer having at least one secondary amino group (Claim 8) (corresponding to instant claim 2) with the structural unit of formula (Si-amino, Claim 9) (corresponding to instant claim 3), structural units of formula Si-I and Si-II (Claim 10) (corresponding to instant claim 4), amino-functionalized polymer in an amount from 0.1 to 8.0 wt.% of total weight of the composition (Claim 11) (corresponding to instant claim 5), comprising at least on alkylene glycol of formula (AG-1) with integer of polyalkylene units from 1 to 100, and other ranges (Claim 12) in an amount from 10 to 99 wt.% and other ranges in the composition (Claim 13) (corresponding to instant claim 16 with overlapping integer numbers and weight amount), water amount in the formulation from 0.1 to 70 wt.% (Claim 14) (overlapping with instant claim 14). App’546 recites the method for dyeing human hair by applying the agent to the keratin material for 30 seconds to 45 minutes of time (Claim 17) (corresponding to instant claims 17 and 20).
App’546 does not recite metallic pigment diameter as recited in instant claim 7, the metallic pigment comprising at least one vacuum-metalized pigment as recited in instant claim 8, at least one uncoated aluminum pigment as recited in instant claim 9, the weight ratio of the metallic pigment to the other different pigment in the formulation as recited in instant claim 13, the solvent selected from the group as recited in instant claim 15, the metallic pigment comprising aluminum as recited in instant claim 19.
As discussed above in great detail and incorporated herein, combined teachings of Neuba and Huber teach the metallic pigment diameter, at least one uncoated aluminum pigment, one aluminum metallic pigment, the solvent, and weight ratio of the metallic pigment to the other different pigment can be achieved, and vacuum-metalized pigment can be included in the formulation for enhanced appearance and properties.
It would be obvious for a person with ordinary skills of art to incorporate teachings to Neuba and Huber into the formulation of App’546 to arrive at current invention. Because all compositions share common intended use for cosmetic coloring, and Neuba and Huber share the general ingredients with App’546 with more details regarding the pigments and solvents, it would have motivated for scientists to select the additional components for maximizing the benefits and achieving the properties of the formulation. It would have provided reasonable expectation of success to combine the prior art teachings with App’546. 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 weight ranges and integer overlap with those taught by prior art and App’546. 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).
This is a provisional nonstatutory double patenting rejection.
Conclusion
No claim is allowed.
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/DX.Z./Examiner, Art Unit 1616
/SUE X LIU/Supervisory Patent Examiner, Art Unit 1616