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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 4/27/2026 has been entered.
Election/Restriction
Claims 19-20 are withdrawn from further consideration by the examiner, 37 CFR 1.142(b), as being drawn to a non-elected invention.
Response to Arguments
All of Applicant’s arguments filed 4/27/2026 have been fully considered. In view of the amendments to the claims, all prior art rejection presented in the office action mailed 2/2/2026 are withdrawn and new rejections are presented below addressing the claims as newly amended.
New 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.
Claim(s) 1-5, 7-8, 11-13, 15-18 and 21-22 is/are rejected under 35 U.S.C. 103 as being unpatentable over Linares (US 2019/0358136), Josso (US 5,985,925) and Gupta (US 2006/0110415), as evidenced by Schiffmann (US 2011/0112041). Linares and Schiffmann are newly cited.
Linares teaches hair care compositions (reading on cosmetics) which are substantially anhydrous and optically clear (Abs). The composition can be formulated as shampoos, body washes, etc. indicating they are suitable for skin [0010 and 0041] and mentioned the compositions being skin cleansing compositions [0041].
Regarding claim 1, 1(b), 1(e), 4, 7-8, 17, 17(b) and 18: Linares teaches the composition to comprise 40-70% of an anhydrous alcohol, these include monoalcohols such as ethanol and polyols including 1,2-propanediol (i.e. propylene glycol with two hydroxyl groups), thus the selection of either is prima facie obvious as they are both taught to be suitable for use. However, Sommer teaches topical compositions (abs) and teaches that ethanol in topical compositions can cause dryness and/or peeling of the skin, particularly in patients with sensitive skin [0330], as such it would have been prima facie obvious to formulate the composition of Linares to be ethanol free and instead use propylene glycol to formulate a composition that is better suitable for a wider variety of subject, including those with sensitive skin. Linares teaches the composition to be substantially anhydrous which means the composition may include up to 5% water, even more preferably 0% [0039].
Regarding claims 1-3 and 17: Linares teaches the compositions to initially be liquid compositions and teaches that during use water is added to the composition and a thick and rich cream (i.e. an emulsion) is formed via mechanical manipulation, this suggested that the initial liquid formulation is in a non-emulsified form. Linares also teaches the composition to be transparent and optically clear which means that the particles in the composition are reduced to a size where they are not observable via visual means, which reads on solubilized.
Regarding claim 1(c) and 17(c): Linares teaches the inclusion of cationic surfactant, such as quaternary ammonium compounds like cetrimonium chloride, in amounts 0.005-15% [0035].
Regarding claim 1(d), 11-12 and 17(d): Linares teaches the inclusion of fatty alcohols, these include fatty alcohols, fatty alcohol derivatives, fatty acid derivatives and mixture. Suitable fatty alcohols include cetyl alcohol (i.e. C16 linear fatty alcohol), these can be used in amounts ranging from about 10-40% [0034]. It would have been prima facie obvious to use about 10-40% of one or more fatty alcohols including pure fatty alcohols, such as cetyl alcohol.
Regarding claim 15: Linares teaches humectants such as glycerin can be added in amounts of 0.005-20% [0031-0032]. As evidenced by Schiffmann, glycerin is an emollient (Schiffmann – claim 8 and 18).
Regarding claims 16 and 17(g): Linares teaches that antioxidants (i.e. miscellaneous ingredient) can be added in amounts ranging from .0005-5% [0037].
Regarding claim 21: Linares teaches that silicones can be added in amounts ranging from 0.005-15%, which overlaps with the claimed ranges of less than 0.01% of silicones.
Regarding claim 22: While Linares teaches that fatty acid derivatives can be included these are not taught to be critical, as such it would have been prima facie obvious to formulate the composition of Linares to be free of fatty acids.
However, Lee does not teach the inclusion of 5-95% of one or more alpha hydroxy acid esters as required by instant claim 1(a), 5 and 17(a).
Josso teaches cosmetic UV photoprotective compositions for skin and hair which comprise a sunscreening agent and PF-enhancing amount of at least one dialkyl tartrate (Abs). Josso teaches the cosmetics to have improved sun protection factor to protect the hair from the damaging effects if UV radiation, in particular solar radiation (col. 1, lines 15-25).
Regarding claims 1(a), 5 and 17(a): A preferred dialkyl tartrate is diethyl tartrate and this can be used in amounts ranging from 0.1-10% (col. 3, lines 10-45).
Gupta teaches topical compositions which can comprise diethyl tartrate as a skin penetration agent and can be formulated as anhydrous compositions (Gupta – claims 5 and 35).
It would have been prima facie obvious to modify the teachings of Linares with those of Josso and Gupta. One of skill in the art would have been motivated to add 0.01-10% of diethyl tartrate and a sunscreening agent as taught by Josso into the hair and skin composition of Linares as this is taught to be effective at protecting the hair from damaging effect of UV radiation. One of skill in the art would have a reasonable expectation of success Josso teaches that its known in the art to include sun protection agents in hair cosmetics and Gupta shows that diethyl tartrate can be used in anhydrous compositions and its prima facie obvious to pursue the known options within the technical grasp of a skilled artisan to formulate a hair cosmetic comprising sunscreen agents.
Regarding claims 13 and 17(b): As discussed above, the prior art makes obvious a composition comprising 0.01-10% of diethyl tartrate (a) and 40-70wt% of propylene glycol (b), this provides a ratio of (a) : (b), for example 10% diethyl tartrate and 40% propylene glycol have a weight ratio of 1:4, that overlaps with the claimed ranges.
Claim(s) 1-5, 7-8, 9-10, 11-13, 14, 15-18 and 21-22 is/are rejected under 35 U.S.C. 103 as being unpatentable over Linares (US 2019/0358136), Josso (US 5,985,925) and Gupta (US 2006/0110415), as evidenced by Schiffmann (US 2011/0112041), as applied to claims 1-5, 7-8, 11-13, 15-18 and 21-22, and further in view of Lee (US 2020/0206111).
As discussed above, the prior art makes obvious the limitations of 1-5, 7-8, 11-13, 15-18 and 21-22, however, they do not teach the inclusion of a fatty acid as required by instant claims 14 and do not teach the cationic surfactant to be an amidoamine as required by instant claims 9-10.
Lee discloses a hair care and conditioning composition (reading on cosmetic) which is substantially anhydrous and comprises propylene glycol, cationic surfactant(s) and fatty compound(s). Lee teaches the compositions to be solubilized and non-emulsified (Abs) and transparent [0007].
Regarding claim 14: Lee teaches the inclusion of one or more thickening agents. Suitable agents include C8-24 hydroxyl substituted aliphatic acid and C8-24 conjugated aliphatic acid such as linoleic acid, oleic acid, etc. [0077], these can be used in amounts ranging from 0.01-20% [0079] and these are included to increase the viscosity of the composition [0066].
Regarding claims 9-10: Lee teaches that suitable cationic surfactants preferably quaternary ammonium compounds, such as cetrimonium chloride, and amidoamines, such as arachidamidoethyidimethylamine, stearamidopropyldimethylamine, etc.
It would have been prima facie obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify the teachings of the above reference with those of Lee. One of skill in the art would have been motivated to add .001-20% of a thickening agent such as linoleic acid as these are taught to be used to increase the viscosity of the composition. One of skill in the art would have also been motivated to use as a cationic surfactant an amidoamine such as those taught by Lee in the composition of Linares as Lee teaches cationic quaternary ammonium compound such as cetrimonium chloride to be functionally equivalent to amidoames such as stearamidopropyldimethylamine and Linares teaches that cationic surfactants such as cetrimonium chloride are suitable for use and its prima facie obvious to substitute one art recognized surfactant for another. One of skill in the art would have a reasonable expectation of success as Linares teaches that conventional cosmetic ingredients can be added and Lee teaches that thickening agents are known to be used in hair conditioning compositions.
Conclusion
No claims are allowable.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Jennifer A Berrios whose telephone number is (571)270-7679. The examiner can normally be reached Monday-Thursday from 9am-4pm and Friday 9am-3:30pm.
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/JENNIFER A BERRIOS/Primary Examiner, Art Unit 1613
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