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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 06 August 2025 has been entered.
Claim Status
Applicant’s claim amendments in the response filed 06 August 2025 are acknowledged.
Claims 1, 4, 10, 12, 14, 15, 17, 18, 23-25, 27, 28 & 30-36 are pending.
Claims 31-36 are new.
Claims 2, 3, 5-9, 11, 13, 16, 19-22, 26 & 29 are cancelled.
Claim 1 is amended.
No claims are withdrawn.
Claims 1, 4, 10, 12, 14, 15, 17, 18, 23-25, 27, 28 & 30-36 are under consideration.
Rejections and/or objections not reiterated from previous office actions are hereby withdrawn. The following rejections and/or objections are either reiterated or newly applied and constitute the complete set presently being applied to the instant application.
Examination on the merits is to the extent of the following species:
One or more hair conditioners – panthenol;
One or more skin conditioners -guar hydroxypropyltrimonium chloride;
Cleansing agent/surfactant-cocamidopropyl hydroxysultaine; -and-
One or more cosmetically or dermatologically acceptable excipients-a buffering agent comprising citric acid and (ii) a preservative comprising phenoxyethanol.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 07 August 2025 has been fully considered by the examiner. A signed and initialed copy of each IDS is included with the instant Office Action.
New Objections/ Rejections
Claim Objections
Claims 1, 17, 18, 23-25, 27, 28, 30, 31, & 33-35 are objected to because of the following informalities:
Claims 1, 17, 18, 23, 24, 25, 27, 28, 30, 31 & 33-35 recite “% (w/w)” making the “w/w” a parenthetical expression. Applicant may wish to use more formal claims language and recite “w/w %” instead, with no parenthesis. For example, claim 30 would read “the concentration of the salicylic acid in the composition is 0.4 w/w% to about 8 w/w%; and the total concentration of panthenol…or combination thereof in the composition is about 0.80 w/w% to about 2 w/w%.
Appropriate correction is required.
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, 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.
Claims 1, 10, 12, 14, 23, 27, 28, 31 & 32 are rejected under 35 U.S.C. 103 as being unpatentable over Scianna (https://www.gcimagazine.com/brands-products/hair-care/news/22105868/briogeo-adds-mega-strength-scalp-revival-shampoo; Published: 03/08/2022) and Dippa (DE202014010286; Published: 05/27/2015).
*Please note that in the process of searching for the elected embodiment, the examiner found art which reads on the broader recitation of the claims (i.e. cocoamidopropyl betaine a species in the genera of amphoteric/zwitterionic surfactants to which the elected species of cocamidopropyl hydroxysultaine; and lactic acid which is a species in the genera of hydroxy acids to which the elected species of citric acid belongs) and in an effort to expedite prosecution, this art has been applied.
** All references refer to the English language translation.
With regard to claims 1 (i), 23 & 28, Scianna teaches a dandruff shampoo comprising 3% salicylic acid (pg. 1). With regard to claims 1 (ii), 1 (iii), 1 (iv), 10, 12, 14 & 32, Scianna teaches the shampoo comprises panthenol, charcoal, cocoamidopropyl betaine, glycerin, lactic acid, and water (pg. 1). With regard to claim 1, Scianna teaches the shampoo is intended to detoxify and clean the hair and scalp while using charcoal to draw out impurities that cause buildup on the scalp (i.e. releases build up; pg. 1).
Scianna does not teach the amount of charcoal or water.
With regard to claims 1(iii), 27, & 31, Dippa in the Examples 1-6 teaches shampoo formulations comprising CI 77266 in an amount from 0.001-0.05% and teaches CI 77266 as an activated charcoal (pg. 13 & 14). With regard to claims 1(iii) & 31, more broadly, Dippa teaches an activated carbon used in their invention is CI 77266 Carbon black or charcoal powder (pg. 5). With regard to claims 1(iii) & 31, Dippa teaches the activated carbon achieves deep cleaning while still showing mildness (pg. 3). With regard to claim 1 (iv), Dippa teaches in the Examples 1-6 shampoos inclusion of water in an amount of 83.9-87.49 % (pg. 13).
The Supreme Court in KSR International Co. v. Teleflex Inc., 550 U.S. 398, 127 S. Ct. 1727, 82 USPQ2d 1385, 1395-97 (2007) identified a number of rationales to support a conclusion of obviousness which are consistent with the proper “functional approach” to the determination of obviousness as laid down in Graham. The key to supporting any rejection under 35 U.S.C. 103 is the clear articulation of the reason(s) why the claimed invention would have been obvious. The Supreme Court in KSR noted that the analysis supporting a rejection under 35 U.S.C. 103 should be made explicit.
Exemplary rationales that may support a conclusion of obviousness include:
(A) Combining prior art elements according to known methods to yield predictable results;
(B) Simple substitution of one known element for another to obtain predictable results;
(C) Use of known technique to improve similar devices (methods, or products) in the same way;
(D) Applying a known technique to a known device (method, or product) ready for improvement to yield predictable results;
(E) “Obvious to try” – choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success;
(F) Known work in one field of endeavor may prompt variations of it for use in either the same field or a different one based on design incentives or other market forces if the variations are predictable to one of ordinary skill in the art;
(G) Some teaching, suggestion, or motivation in the prior art that would have led one of ordinary skill to modify the prior art reference or to combine prior art reference teachings to arrive at the claimed invention.
Note that the list of rationales provided is not intended to be an all-inclusive list. Other rationales to support a conclusion of obviousness may be relied upon by Office personnel.
Here, at least rationale (G) may be employed in which it would have been prima facie obvious to the ordinary skilled artisan before the effective filing date to have modified Scianna’s shampoo composition by adjusting the amount of charcoal powder to be 0.001-0.05% and water to be 83.9-87.49% because Scianna and Dippa are all to shampoos containing charcoal powder and it is obvious to modify similar compositions in the same way. The ordinary skilled artisan would have been motivated to do so, with an expectation of success, in order to provide the charcoal powder and water in amounts art recognized as suitable for shampoos.
With regard to the recited amount of charcoal, water, and salicylic acid, the combined teachings of Scianna and Dippa suggest these parameters with values that overlap with the claimed range. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). 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. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Claims 4, 10 & 18 are rejected under 35 U.S.C. 103 as being unpatentable over Scianna and Dippa as applied to claims 1, 10, 12, 14, 23, 27, 28, 31 & 32 above, and further in view of Ceballos (US 2019/0365619).
*Please note that in the process of searching for the elected embodiment, the examiner found art which reads on the broader recitation of the claims (i.e. lactic acid which is a species in the genera of hydroxy acids to which the elected species of citric acid belongs) and in an effort to expedite prosecution, this art has been applied.
** All references refer to the English language translation.
***The rejection also addresses the elected species of amphoteric/zwitterionic surfactant, cocoamidopropyl hydroxysultaine.
The teachings of Scianna and Dippa are described above. In brief, Scianna ‘s antidandruff shampoo comprises hyaluronic acid, sodium methyl cocoyl taurate (non-sulfate anionic surfactant) and cocoamidopropyl betaine (Scianna-pg. 1).
None of Scianna nor Dippa teach inclusion of guar hydroxypropyltrimonium chloride.
With regard to claim 4, in the same field of invention of anti-dandruff cleaning compositions which may be designated as a shampoo, Cebellos teaches guar hydroxypropyltrimonium chloride and hyaluronic acid are gelling agents (title; [0229], [0274]). With regard to claims 4 & 18, Cebellos teaches guar hydroxypropyltrimonium chloride also functions as a cationic conditioning polymer which may be included in an amount of about 0.01 to about 10 wt.% ([0163], [0165], Cebellos’-claim 14). With regard claim 10, Cebellos teaches inclusion of betaines which include cocamidopropyl hydroxylsultaine and cocamidopropyl betaine and mixtures thereof [0096]. Cebellos teaches the non-sulfate anionic surfactant for use in their invention may be sodium methyl cocoyl taurate [0081].
With regard to claims 4 & 18, at least rationale (A) may be employed in which it would have been prima facie obvious to the ordinary skilled artisan before the effective filing date to have modified the anti-dandruff shampoo suggested by the combined teachings of Scianna and Dippa by adding about 0.01 to about 10 wt.% guar hydroxypropyltrimonium chloride as suggested by Cebellos because Scianna and Cebellos are both directed to anti-dandruff shampoos which comprise thickening agents including hyaluronic acid and guar hydroxypropylammonium chloride and it is obvious to modify similar compositions in the same way. The ordinary skilled artisan would have been motivated to do so to further thicken the shampoo while also providing the added benefits of hair conditioning through use of the cationic conditioning polymer, guar hydroxypropylammonium chloride which is art recognized for use in anti-dandruff shampoos.
With regard to the recited amount of the total concentration of one or more skin conditioners/guar hydroxypropyltrimonium chloride, the combined teachings of Scianna, Dippa and Cebellos suggest these parameters with values that overlap with the claimed range. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). 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. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
With regard to claim 10, at least rationale (B) may be employed in which it would have been prima facie obvious to the ordinary skilled artisan before the effective filing date to have modified the anti-dandruff shampoo suggested by the combined teachings of Scianna and Dippa by substituting Scianna’s cocamidopropyl betaine with cocoamidopropyl hydroxysultaine as taught by Cebellos because cocamidopropyl betaine surfactant and cocoamidopropyl hydroxysultaine are both suitable amphoteric surfactants taught for use with sodium methyl cocoyl taurate in anti-dandruff shampoos comprising hyaluronic acid. The ordinary skilled artisan would have been motivated to do so, with an expectation of success, in order to stabilize the anti-dandruff shampoo.
Claims 14 & 36 are rejected under 35 U.S.C. 103 as being unpatentable over Scianna and Dippa as applied to claims 1, 10, 12, 14, 23, 27, 28, 31 & 32 above, and further in view of Hoelzel (WO 98/51264; Published: 11/19/1998).
*Please note that in the process of searching for the elected embodiment, the examiner found art which reads on the broader recitation of the claims (i.e. cocoamidopropyl betaine a species in the genera of amphoteric/zwitterionic surfactants to which the elected species of cocamidopropyl hydroxysultaine belongs) and in an effort to expedite prosecution, this art has been applied.
** All references refer to the English language translation.
*** This rejection addresses the elected species of citric acid.
****The Examiner notes the as-filed specification defines the term “about” in “respect to biological systems or processes, the term can mean within an order of magnitude, up to 5-fold…of a value” [0039].
The teachings of Scianna and Dippa are described above. In brief, the combined teachings of Scianna and Dippa suggest an anti-dandruff shampoo comprising lactic acid and panthenol (Scianna-pg. 1).
In the same field of invention of shampoos, Hoelzel teaches shampoo having gloss enhancing properties (title). Hoelzel teaches the gloss enhancement is achieved through a preferred mixture of citric acid and lactic acid which is also used in combination with panthenol (pg. 3). Hoelzel teaches the pH of the composition is between 4 and 7 and preferably between 4.5 and 5.6 (pg. 3; Hoelzel-claims 3-5). Hoelzel teaches the pH of the composition is linked to the amount of fruit acids (i.e. lactic acid and citric acid) with the at least 2% fruit acids needed show visible improvement with gloss but if large amounts are used the pH needs to be adjusted (pg. 3).
Here, at least rationale (A) may be employed in which it would have been prima facie obvious to the ordinary skilled artisan before the effective filing date to have modified the anti-dandruff shampoo suggested by the combined teachings of Scianna and Dippa by adding citric acid as suggested by Hoelzel because Scianna, Dippa and Hoelzel are directed to shampoos and Hoelzel teaches a combination of citric acid, lactic acid and panthenol achieves gloss enhancement. The ordinary skilled artisan would have been motivated to do so, with an expectation of success, in order to provide hair with enhanced gloss.
With regard to the pH of the composition, at least rationale (G) may be employed in which it would have been prima facie obvious to the ordinary skilled artisan before the effective filing date to have modified the anti-dandruff shampoo suggested by the combined teachings of Scianna and Dippa by adjusting the pH to a range of 4.0-4.5 (i.e. about 4) as suggested by Hoelzel because this pH range is taught as acceptable by Hoelzel, with a pH of 4.5 preferred. The ordinary skilled artisan would have been motivated to do so, with an expectation of success, in order to supply the shampoo at a pH range that is art recognized as suitable for topical use.
Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over Scianna and Dippa as applied to claims 1, 10, 12, 14, 23, 27, 28, 31 & 32 above, and further in view of Iwakawa (JP 2013155168; Published: 08/15/2013) and Lubin (GB 2149302; Published: 06/12/1985).
*Please note that in the process of searching for the elected embodiment, the examiner found art which reads on the broader recitation of the claims (i.e. cocoamidopropyl betaine a species in the genera of amphoteric/zwitterionic surfactants to which the elected species of cocamidopropyl hydroxysultaine; and lactic acid which is a species in the genera of hydroxy acids to which the elected species of citric acid belongs) and in an effort to expedite prosecution, this art has been applied.
** All references refer to the English language translation.
The teachings of Scianna and Dippa are described above. In brief, the combined teachings of Scianna and Dippa suggest an anti-dandruff shampoo comprising biotin (Scianna-pg. 1).
Neither Scianna nor Dippa teach inclusion of phenoxyethanol.
Iwakawa teaches a shampoo having hair-loss-preventive and hair-growing effects comprising zinc pyrithione as the anti-dandruff component and biotin (abstract). Iwakawa teaches biotin is necessary for growth and promotes the treatment of alopecia and dandruff and is included in the shampoo base (pg. 2 & 3). Phenoxyethanol is taught as a preservative for the base (pg. 2).
In the same field of invention of haircare, Lubin teaches hair loss can be combatted with 2-phenoxyethanol (title). The 2-phenoxyethanol may be formulated into a shampoo to prevent hair fall (abstract).
Here, at least rationale (A) may be employed in which it would have been prima facie obvious to the ordinary skilled artisan before the effective filing date to have modified the anti-dandruff shampoo suggested by the combined teachings of Scianna and Dippa by adding phenoxyethanol to the composition because the shampoo suggested by the combined teachings of Scianna and Dippa comprise biotin which promotes hair growth/treatment of alopecia and phenoxyethanol is used in shampoos to prevent alopecia and provide a preservative effect as suggested by the combined teachings of Iwakawa and Lubin. The ordinary skilled artisan would have been motivated to do so, with an expectation of success, in order to increase the shelf life of the shampoo through inclusion of the preservative, phenoxyethanol, which also provides the additional benefit of preventing hair loss as suggested by the combined teachings of Iwakawa and Lubin.
Claims 17, 24, 25, 30 & 33-35 are rejected under 35 U.S.C. 103 as being unpatentable over Scianna and Dippa as applied to claims 1, 10, 12, 14, 23, 27, 28, 31 & 32 above, and further in view of Meng (CN 104940071; Published: 2015-09-30; previously cited).
*Please note that in the process of searching for the elected embodiment, the examiner found art which reads on the broader recitation of the claims (i.e. cocoamidopropyl betaine a species in the genera of amphoteric/zwitterionic surfactants to which the elected species of cocamidopropyl hydroxysultaine; and lactic acid which is a species in the genera of hydroxy acids to which the elected species of citric acid belongs) and in an effort to expedite prosecution, this art has been applied.
** All references refer to the English language translation.
The teachings of Scianna and Dippa are described above. In brief, with regard to claims 17, 25, 30, 34 & 35, the combined teachings of Scianna and Dippa suggest an anti-dandruff shampoo comprising 3.0% salicylic acid, panthenol, 0.001-0.05% charcoal powder and water.
Neither Scianna nor Dippa teach the amount of panthenol in the composition and the total concentration of salicylic acid and panthenol.
In the same field of invention, Meng teaches a mild antidandruff shampoo comprising panthenol (pg. 2). With regard to claims 17, 24, 25, 30 & 33, Meng teaches the amount of D-panthenol comprises 0.1-1% (Meng’s claim 1).
Here, at least rationale (G) may be employed in which it would have been prima facie obvious to the ordinary skilled artisan before the effective filing date to have modified the shampoo composition suggested by the combined teachings of Scianna and Dippa by adjusting the amount of panthenol to be 0.1-1% by weight as suggested by Meng [yielding a composition comprising salicylic acid and panthenol in a total concentration of 3.1 -4.0%] because Scianna and Meng are all drawn to shampoos to treat dandruff which comprise panthenol, and Meng teaches the amount of panthenol suitable for topical use in an antidandruff shampoo is 0.1 to 1.0% by weight. The ordinary skilled artisan would have been motivated to do so, with an expectation of success, in order to use panthenol in the hair shampoo in art accepted quantities for anti-dandruff shampoos.
With regard to the recited amount of panthenol, amount of salicylic acid, the total concentration of salicylic acid and panthenol, and the amount of charcoal, the combined teachings of Scianna, Dippa and Meng suggest these parameters with values that overlap with the claimed range. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). 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. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Response to Arguments
In the traverse of the rejection of claims 1, 4, 10, 12, 14, 15, 17, 18 & 27 under 35 U.S.C. 103 over Bendejacq, Tokunaga, PH of Hair and Park, Applicant argues the present claims require 75% to 90% water and compositions of Bendejacq contain significantly lower amounts of water (i.e. about 28% to 35%; reply, pg. 7). Applicant argues to adjust the amount of water would frustrate the purpose of the Bendejacq (reply, pg. 7). Applicant argues the teachings of Hehner and Meng do not address these deficiencies (reply, pg. 6-8).
Applicant’s arguments have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LORI K MATTISON whose telephone number is (571)270-5866. The examiner can normally be reached 9-7 (M-F).
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/LORI K MATTISON/ Examiner, Art Unit 1619
/NICOLE P BABSON/Primary Examiner, Art Unit 1619