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
Amendment filed on 01/26/2026 is acknowledged.
Claim 1 is amended. Claims 14 and 17 are cancelled.
Claims 1-13 and 15-16 are pending and being examined on merits herein.
Priority
This instant application 18454579, filed on 08/23/2023, claims foreign priority of European Patent Office 22191865.9, filed on 08/24/2022. However, foreign priority document is not in record.
Information Disclosure Statement
The information disclosure statement (IDS), filed on 01/05/2026, is in compliance with the
provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the
Examiner. However, reference US2021315791A1 as US patent application publication, is misplaced in non-patent literature. Correction is required to list this reference in US patent application publication.
Withdrawn Objections/Rejections
All previous claim Objection(s) / Rejection(s) as set forth in the previous Office action (mailed 11/03/2025) that are not repeated and/or maintained in the instant Office action are withdrawn, in light of applicant’s amendment and remark filed on 01/26/2026.
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.
Claims 1-13 and 15-16 are rejected under 35 U.S.C. 103 as being unpatentable over Botto et al. (US20190365623, 12/05/2019).
Botto directs to a concentrated rinse-off cleansing hair composition (corresponding to instant claim 17) including a high concentration of surfactants and conditioning agents: a) a surfactant system comprising i) one or more non-sulfate (corresponding to free of sulfate species in instant claim 13) anionic surfactants; ii) one or more alkyl polyglucosides; and iii) one or more amphoteric surfactants; b) one or more conditioning agents (corresponding to instant claim 11); and c) water (corresponding to instant claim 10) (e.g. Abstract). Botto teaches the method for cleansing hair, conditioning hair, imparting smoothness, detangling, and/or shine to hair, treating hair including simply applying a cleansing composition to the hair [0287] (corresponding to instant claim 16).
Botto teaches non-limiting examples of non-sulfate anionic surfactants including alkyl sulfonates, acyl isethionates, acyl amino acids such as acyl taurates, acyl glutamates, acyl sarcosinates, and many others [0016], and provides compound formula [0075] and examples of suitable acyl taurate salts including sodium cocoyl taurate and sodium methyl cocoyl taurate [0076], further indicating that the amount of acyl taurate in the cleansing composition can typically from about 0.01 to about 25 wt.%, or about 0.1 to about 5 wt.% along with many proper amount variations [0077], corresponding to taurate surfactants in instant claims 1(a) and 2, with overlapping amount ranges from 1.0 to 8.0 wt.% as recited in instant claim 1(a), and from 1.5 to 5.0 wt.% as recited in instant claim 3.
Botto further teaches formula of useful acyl isethionates [0055] and provides non-limiting examples of acyl isethionates suitable for the composition including sodium cocoyl isethionate, sodium cocoyl methyl isethionate, sodium lauroyl methyl isethionate, sodium isethionate [0056], further indicating proper amount of acyl isethionate in the cleansing composition typically from about 0.01 to about 25 wt.%, which may vary within the typical ranges with many suitable ranges, for instance, from about 0.01 to about 20 wt. %, about 0.01 to about 15 wt.%, about 0.01 to about 10 wt.%, about 0.01 to about 5 wt.%, about 0.1 to about 25 wt.%, about 0.1 to about 20 wt. %, about 0.1 to about 15 wt. %, or about 0.1 to about 10 wt. %, or about 0.1 to about 5 wt.% [0057], corresponding to isethionate surfactants in instant claims 1(b) and 4, with overlapping amount ranges from 1.0 to 10.0 wt.% in instant claims 1(b), and from 2.0 to 8.0 wt.% in instant claim 5.
Botto teaches formula of useful N-acylated amino acid non-sulfate anionic surfactant acyl glutamates [0083], and provides non-limiting examples of acyl glutamates suitable for the composition, including sodium cocoyl glutamate [0084], and also teaches acyl sarcosinates suitable for the composition including sodium lauroyl sarcosinate (e.g., [0087]; Claim 10), with typical amount ranges from about 0.01 wt.% to about 25 wt.%, with many suitable varying amount ranges, such as about 0.1 to about 5 wt. %, about 0.01 to about 5 wt.%, etc. ([0085]; [0088] ), corresponding to N-acylated amino acid surfactant species in instant claim 1(c) and claim 6, with overlapping amount ranges from 0.5 to 5.0 wt.% in instant claims 1(c), from 1.0 to 4.0 wt.% in instant claim 7.
Botto teaches suitable amphoteric surfactants including betaines, alkyl sultaines, alkyl amphoacetates, alkyl amphoproprionates, and mixtures thereof [0099], providing useful betaines formulae [0101] and pointing out particularly preferred betaines as coca betaine, cocamidopropyl betaine among many other available betaines [0103], with typical amount range from about 2 to about 25 wt.% of total weight of the cleansing composition, with many variable suitable amount ranges, e.g., from about 2 to about 10 wt.% [0104], corresponding to betaine in instant claims 1(d) and 8, with overlapping amount ranges from 1.0 to 0.0 wt.% as recited in instant claim 1(d), and from 2.0 to 6.0 wt.% as recited in instant claim 9.
Botto also emphasizes that non-sulfate anionic surfactants are the predominant type of surfactant in the disclosed surfactant system, i.e., there is a higher percentage of non-sulfate anionic surfactant(s) than any other single surfactant type in the cleansing composition. Moreover, in some instances, the total amount of non-sulfate anionic surfactants in the surfactant system is higher than the total amount of all other surfactant types in the surfactant system including the alkyl polyglucosides, amphoteric surfactants, and nonionic surfactants [0037]. When total surfactant amount in the composition is at low end of the amount range, e.g., 1%, it would be inevitable that nonionic surfactant would be substantially free in the composition.
Further, Botto shows composition example C-G in Example 1, concentrated shampoo formulations, comprising anionic surfactants of sodium C14-16 olefin sulfonate 16%, disodium laureth sulfosuccinate 3.1%, sodium lauryl sulfoacetate 1.2%, amphoteric surfactant coco betaine and/or cocamidopropyl betaine 6.8%, conditioning fatty compound 1.4%, optional nonionic surfactant 1.4%, and water [0291], wherein the composition is free of sulfate-containing surfactant, free of nonionic alkyl polyglucoside surfactant, and free of alkanol amide surfactant, corresponding to instant claim 1.
Regarding free of non-ionic surfactant in instant claim 1, Botto points out that the development of cleansing compositions has been driven by a need for certain performance properties that consumers find desirable. For example, consumers seek cleansing compositions that foam and cleanse well, have a certain "thickness" (viscosity), and are mild to the skin and hair [0004]. Botto specifies that conventional cleansing compositions such as shampoos, typically include anionic surfactants because they provide foaming to a composition; on the other hand, nonionic surfactants, however, often exhibit less foaming ability and do not provide any enhancement to viscosity (e.g., often times the composition is thinner and runnier with increased amounts of nonionic surfactants). In some cleansing applications, higher viscosity is desired for the product's handling or ease of application. In addition, higher viscosity personal care products are more aesthetically appealing to many consumers [0003]. As non-ionic surfactant shown in composition C-G is optional, artisans in the field can conveniently choose not to add it in the composition for the above reasons, especially Botto demonstrates that formulation C-G provides benefit of good cleansing and lather, as well as detangling, smoothing, and shine on hair, but not favorable in foam stability traits (Table 2, [0294]), it would naturally flow with logic for artisans in the field not to add non-ionic surfactant into the composition for maximizing the desirable features.
Therefore, in summary, Botto teaches the composition that can be free of sulfate-containing surfactant, free of nonionic surfactant, e.g., alkyl mono or poly-glucoside surfactant, and free of alkanol amide surfactant for good cleansing and lather, foam boosting and viscosity improving, detangling, smoothing, and shine, corresponding to instant claim 1.
Botto indicates that desired pH of use in general be from about 3 to 9 and preferably between 4 and 8 for the composition [0128], and pH adjustors can be added into the composition as miscellaneous ingredients (Example 2, [0292]) (overlapping with pH ranges from 5.0 to 6.0 as recited in instant claim 12).
Botto exemplifies in Example 2 composition [0292] comprising anionic surfactants sodium methyl cocoyl taurate 3% or 4.5% (corresponding to component (a) of claim 1), sodium lauroyl sarcosinate 1.5% or sodium stearoyl glutamate 6% (corresponding to component (c) in instant claim 1). Although anionic isethionate surfactant (component (b) of claim 1) is not included in Example 2 compositions, the total anionic surfactant (i) in Example 2 ranges from 8.1% (derived from total amount of (i) components in formulation 5) to 23.25% (derived from total (i) components in formulation 3) (corresponding to components (a), (b) and (c) together in instant claim 1), while amphoteric surfactant cocamidopropyl betaine and/or coco-betaine in Example 2 shows 3.8%, 6.8%, 5.4%, and 6% in different formulations 2-5 (corresponding to component (d) in claim 1). That results in ratio of anionic surfactants to amphoteric surfactant in the compositions range from minimum as 8.1/6.8 = about 1.2 to maximum 23.25/3.8 = 6.12, in other words, the ratio of anionic surfactants corresponding to instant claimed (a), (b) and (c) components to betaine as component (d) can be in the range of about 1.2 : 1.0 to 6.1 : 1.0 (overlapping with the range from 1.8:1.0 to 3.0:1.0 as recited in instant claim 15).
Botto does not explicitly exemplify an embodiment free of nonionic surfactants.
It would have been prima facie obvious for a person with ordinary skills in art prior to filing date to modify Botto’s composition to arrive at current invention. Although C-G in Example 1 is not the preferred embodiments in Botto’s teaching, as Botto specifies that “the disclosure shows and describes only the preferred embodiments but it should be understood that the invention is capable to use in various other combinations, modifications, and environments and is capable of changes or modifications within the scope of the inventive concepts as expressed herein, commensurate with the above teachings and/or the skill or knowledge of the relevant art. The embodiments described herein above are further intended to explain best modes known by applicant and to enable others skilled in the art to utilize the disclosure in such, or other, embodiments and with the various modifications required by the particular applications or uses thereof. Accordingly, the description is not intended to limit the invention to the form disclosed herein”. Therefore, the teaching of Botto does not limit artisans to modify non-preferred embodiments, e.g., C-G in Example 1, for specific desirable effects. As discussed above, non-ionic surfactant shown in composition C-G is optional, artisans in the field can conveniently choose not to add it in the composition for the main reasons of nonionic surfactants resulting in less foaming ability and viscosity, especially Botto demonstrates that formulation C-G when using optional non-ionic surfactant provides benefit of good cleansing and lather, as well as detangling, smoothing, and shine on hair, but falling short in foam stability (Table 2, [0294]), it would naturally flow with logic for artisans in the field not to add non-ionic surfactant into the composition for maximizing the desirable features. 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).
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 component ranges, ratio, and pH range overlap with those taught by prior art. 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).
Response to Arguments
Applicant’s remarks/arguments filed on 01/26/2026 have been fully considered.
Applicant asserts that Botto does not categorically exclude glycoside and nonionic surfactants, but rather requires polyglucosides, which belong to nonionic surfactants, even though Botto indicates that miscellaneous nonionic surfactants are optional; and Botto’s Example 1 C-G includes optional nonionic surfactant, and other formulations in Example 1 include both polyglucosides and non-ionic surfactant.
Botto teaches preferred embodiments that comprise polyglycoside and miscellaneous optional nonionic surfactants. However, Botto clearly indicates that nonionic surfactants are not desirable for less foaming stability and not enhancing viscosity. “The use of patents as references is not limited to what the patentees describe as their own inventions or to the problems with which they are concerned. They are part of the literature of the art, relevant for all they contain.” In re Heck, 699 F.2d 1331, 1332-33, 216 USPQ 1038, 1039 (Fed. Cir. 1983), and "A reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art, including nonpreferred embodiments." Merck & Co. v.Biocraft Labs., Inc. 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir. 1989), and "Disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments." In re Susi, 440 F.2d 442, 169 USPQ 423 (CCPA 1971).
As presented in this updated office action in light of claim amendments and remarks, an artisan would logically choose not to add non-ionic surfactant based on Botto’s teaching, not only based upon the general teaching of free of miscellaneous non-ionic surfactants, but also based on specific examples, e.g., C-G in Example 1. The most relevant paragraphs are copied below regarding free of nonionic surfactants for reference:
Regarding free of non-ionic surfactant in instant claim 1, Botto points out that the development of cleansing compositions has been driven by a need for certain performance properties that consumers find desirable. For example, consumers seek cleansing compositions that foam and cleanse well, have a certain "thickness" (viscosity), and are mild to the skin and hair [0004]. Botto specifies that conventional cleansing compositions such as shampoos, typically include anionic surfactants because they provide foaming to a composition; on the other hand, nonionic surfactants, however, often exhibit less foaming ability and do not provide any enhancement to viscosity (e.g., often times the composition is thinner and runnier with increased amounts of nonionic surfactants). In some cleansing applications, higher viscosity is desired for the product's handling or ease of application. In addition, higher viscosity personal care products are more aesthetically appealing to many consumers [0003]. As non-ionic surfactant shown in composition C-G is optional, artisans in the field can conveniently choose not to add it in the composition for the above reasons, especially Botto demonstrates that formulation C-G provides benefit of good cleansing and lather, as well as detangling, smoothing, and shine on hair, but not favorable in foam stability traits (Table 2, [0294]), it would naturally flow with logic for artisans in the field not to add non-ionic surfactant into the composition for maximizing the desirable features.
It would have been prima facie obvious for a person with ordinary skills in art prior to filing date to modify Botto’s composition to arrive at current invention. Although C-G in Example 1 is not the preferred embodiments in Botto’s teaching, as Botto specifies that “the disclosure shows and describes only the preferred embodiments but it should be understood that the invention is capable to use in various other combinations, modifications, and environments and is capable of changes or modifications within the scope of the inventive concepts as expressed herein, commensurate with the above teachings and/or the skill or knowledge of the relevant art. The embodiments described herein above are further intended to explain best modes known by applicant and to enable others skilled in the art to utilize the disclosure in such, or other, embodiments and with the various modifications required by the particular applications or uses thereof. Accordingly, the description is not intended to limit the invention to the form disclosed herein”. Therefore, the teaching of Botto does not limit artisans to modify non-preferred embodiments, e.g., C-G in Example 1, for specific desirable effects. As discussed above, non-ionic surfactant shown in composition C-G is optional, artisans in the field can conveniently choose not to add it in the composition for the main reasons of nonionic surfactants resulting in less foaming ability and viscosity, especially Botto demonstrates that formulation C-G when using optional non-ionic surfactant provides benefit of good cleansing and lather, as well as detangling, smoothing, and shine on hair, but falling short in foam stability (Table 2, [0294]), it would naturally flow with logic for artisans in the field not to add non-ionic surfactant into the composition for maximizing the desirable features. 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).
In conclusion, the argument is not persuasive. Botto teaches the instant invention.
Please refer to the entire office action as a complete response to remarks/arguments.
Conclusion
No claim is allowed.
THIS ACTION IS MADE FINAL. 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 DONGXIU ZHANG SPIERING whose telephone number is (703)756-4796. The examiner can normally be reached 7:30am-5:00pm (Except for Fridays).
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/DX.Z./ Examiner, Art Unit 1616
/SUE X LIU/ Supervisory Patent Examiner, Art Unit 1616
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