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 .
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.
Claim 13 is 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.
Claim 13 depends from claim 12, which was canceled. For purposes of this action, it will be assumed that claim 13 depends from claim 1.
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.
Claims 1-10,13,17,18 are rejected under 35 U.S.C. 103 as being unpatentable over Nasr 10071849 in view of Lueschen et al 9492363 and Brown et al 20160347536 .
With regard to claims 1,10 and 13, Nasr discloses an aerosol hairspray product comprising: a) a pressurizable container 2 comprising a container wall that encloses a reservoir 6 for (capable of) storing a compressed gas propellant and a hairspray composition, b) a spraying device 1 clinched onto the container 2 for dispensing the hairspray composition from the reservoir 6 of the container 2, wherein the spraying device comprises: i) a valve assembly 200 (see fig. 4A) comprising a housing 202 with internal walls defining a valve chamber 204, wherein the valve chamber 204 comprises a liquid inlet (see fig. 4A/4B) in fluid communication with the hairspray composition in the reservoir 6, and a gas inlet (see fig. 4A/4B) in fluid communication with the compressed gas propellant in the reservoir 6, ii) a valve stem 220 comprising a proximal end and a distal end, wherein the proximal end is received in the valve chamber 204 and the distal end projects through a sealed opening in the valve chamber 204, the valve stem 220 further comprising an outlet flow conduit 280 with an outlet aperture at the distal end, a first stem inlet 284 for receiving liquid and a second stem inlet 286 for receiving gas, wherein the housing 202 includes a lip 226 around a perimeter of the valve stem 220 to form a seal around the perimeter of the valve stem 220, wherein the valve chamber 204 liquid inlet 284 is proximal of the lip 226 and the valve chamber 204 gas inlet 286 is distal of the lip 226, and wherein the valve stem 220 is moveable between: a closed position (see fig. 4A), wherein the first stem inlet 284 is distal of the lip 226 and the second stem inlet 286 is distal of the sealed opening in the valve chamber 204, such that the first stem inlet 284 is not in fluid communication with the valve chamber liquid inlet and the second stem inlet 286 is not in fluid communication with the valve chamber 204 gas inlet, and an open position (fig. 4B), wherein the first stem inlet 284 is proximal of the lip 226 and in fluid communication with the valve chamber 204 liquid inlet, and the second stem inlet 286 is proximal of the sealed opening in the valve chamber 204 and at least partially distal of the lip 226 and in fluid communication with the valve chamber 204 gas inlet, whereby a bubble laden flow is created in the outlet flow conduit 280; c) an actuator (the neck portion having conduit 12a) joined to the spraying device 1; and d) an overcap 10 that covers the actuator and a top portion of the container 2.
Nasr does not disclose wherein the hairspray product has a spray rate of 0.3 g/sec to 1.0 g/sec according to the Spray Rate test, nor that the spray rate of the hair spray product varies by no more than 30% from when the container contains 100% of the hairspray composition to when the container contains 25% of the hairspray composition.
Lueschen et al discloses a spray device, and discloses that the combination of the valve/propellant/solvent of the device can be chosen in order to adjust the spray rate. See col. 8, lines 5-8.
It would have been obvious to one skilled in the art as a matter of routine optimization, to choose the combination of the valve/propellant/solvent of the device of Nasr et al to achieve a spray rate of 0.3 g/sec to 1.0 g/sec according to the Spray Rate test, such that the spray rate varies by no more than 30% from when the container contains 100% of the hairspray composition to when the container contains 25% of the hairspray composition, in view of the teaching of Lueschen et al that various elements of a spray device can be adjusted to obtain a particular spray rate.
Nasr/Lueschen et al does not disclose wherein the hairspray product has a Dv50 of 40 um to 90 um, according to the Particle Size Distribution test, nor wherein the Dv50 varies by no more than 20 um from when the container contains 100% of the hairspray composition to when the container contains 25% of the hairspray composition.
Brown et al discloses a similar spray device in which the Dv50 may be from 40 um to 100 um, which includes applicant’s claimed range.
It would have been obvious to one skilled in the art as a matter of routine optimization, to form the device of Nasr such that the Dv50 ranges from 40 um to 90 um, in view of the teaching of Brown et al that the Dv50 of a spray device may vary anywhere from 40 um to 100 um. It also would have been obvious to one skilled in the art to have the Dv50 vary by no more than 20 um from when the container contains 100% of the hairspray composition to when the container contains 25% of the hairspray composition, if one wished for the Nasr device to have a more uniform spray rate as the level of composition decreases.
With regard to claims 1,5-9 and 18, Nasr/Lueschen et al/Brown et al do not specifically disclose the % solvent, type of solvent, % and type of polymer, alcohol content, or ethanol content.
However, based on a reading of the instant specification, applicant has not demonstrated a showing of criticality for any of these limitations as recited in these claims. Similarly, one skilled in the art would recognize that these limitations are not critical to the operation of the claimed spray device, and that the device of Nasr/Lueschen et al/Brown et al would perform equally well with any spray product stored in the reservoir of the claimed spray device. Therefore, it would have been obvious to one skilled in the art to include a spray product as recited in claims 1,5-9 and 18, as a matter of routine optimization, since there is no showing of criticality for the limitations recited.
With regard to claim 17, note that Nasr/Lueschen et al/Brown et al discloses a method of styling hair, comprising: a) providing the aerosol hairspray product of claim 1; and b) applying a hairspray composition to a target portion of hair wherein a styling benefit is desired.
With regard to claims 2 and 3, note that the actuator 10 comprises an outlet orifice 12a having an outlet orifice area (see fig. 1)) and the valve stem 220 comprises an orifice 280 having a valve stem orifice area (see figs. 4A and 4B), and wherein a ratio of the valve stem orifice area to the actuator outlet orifice area is less than about 5. Since these orifices appear to be equal in size, the ratio appears to be less than 5. See table in column 11.
With regard to claim 4, note that the valve assembly 200 is vertically oriented, and the actuator 10 is seated on a vertically oriented valve system.
Claims 14 and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Nasr 10071849 in view of Lueschen et al 9492363 and Brown et al 20160347536, and further in view of Hershey et al 6158617.
With regard to claims 14 and 15, Nasr/Lueschen et al/Brown et al does not disclose wherein the hairspray product has a spray diameter of 5 cm to 15.25 cm, nor that the spray diameter varies by no more than 30% from when the container contains 100% of the hairspray composition to when the container contains 25% of the hairspray composition.
Hershey et al discloses a spray device in which the spray diameter can be varied to meet certain applications. See col. 6, lines 32-35.
It would have been obvious to one skilled in the art as a matter of routine optimization to form the spray device of Nasr/Lueschen et al/Brown et al to have a spray diameter of 5 cm to 15.25 cm, as well as the spray diameter to vary by no more than 30% from when the container contains 100% of the hairspray composition to when the container contains 25% of the hairspray composition, in view of the teaching of Hershey et al that the spray diameter of a spray device can be varied to meet certain applications.
Claim 16 is rejected under 35 U.S.C. 103 as being unpatentable over Nasr 10071849 in view of Lueschen et al 9492363 and Brown et al 20160347536, and further in view of Bilani et al 5657891.
With regard to claim 16, Nasr/Lueschen et al/Brown et al does not disclose wherein at least one of the container, the spraying device, the actuator and the overcap comprise 10% or more of a material selected from recycled materials, bio-based plastics and combinations of these.
Bilani et al disclose a spray device wherein the container may be formed of recycled materials. See col. 4, lines 57-67.
It would have been obvious to one skilled in the art to form the container of Nasr/Lueschen et al/Brown et al out of recycled materials, in view of the teaching of Bilani et al that a spray device container may be formed out of recycled materials.
Response to Arguments
Applicant’s arguments with respect to claims 1-10,13-18 have been considered but are moot in view of the newly applied grounds of rejection. The newly applied grounds of rejection were necessitated by applicant’s amendment.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to NICHOLAS D LUCCHESI whose telephone number is (571)272-4977. The examiner can normally be reached M-F 800-430.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Eric Rosen can be reached at 571-270-7855. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/NICHOLAS D LUCCHESI/Primary Examiner, Art Unit 3772