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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 07/10/2026 has been entered.
Status of Claims
Amendment filed on 07/10/2026 is acknowledged.
Claims 2, 4, 6, 8, 10, 12 and 15 are cancelled. Claims 1 and 3 are amended.
Claims 1, 3 and 16 are pending and being examined on the merits herein.
Information Disclosure Statement
The information disclosure statement (IDS), filed on 06/29/2026, 07/10/2026, is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the Examiner.
Priority
This instant application 18454579, filed on 08/23/2023, claims foreign priority of European Patent Office 22191865.9, filed on 08/24/2022. Foreign priority document is not made of record.
Claim Objections
Claim 1 is objected to because of the following informalities:
Claim 1 recites words, e.g., “Water”, “A mixture”, “Combined”, “With”, and “Optionally” in uppercase letters. Within the claim description, these words should be in lowercase.
Claim 1 recites “cocoamidopropyl” which should be “cocamidopropyl”.
Appropriate correction is required.
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, 3 and 16 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.
Claim 1 recites “composition consisting of water ..., A) and B) ..., C) ..., D) ..., Optionally including ...”. The transitional phrase “consisting of” excludes any element or ingredient not specified in the claim. Therefore, the following “optionally” renders the claim indefinite because the limitations led by “optionally” is not a possibility to the “consisting of” limitation scope, and therefore the claim scope is unclear. See MPEP 2111.03.II: The transitional phrase "consisting of" excludes any element, step, or ingredient not specified in the claim. In re Gray, 53 F.2d 520, 11 USPQ 255 (CCPA 1931); Ex parte Davis, 80 USPQ 448, 450 (Bd. App. 1948) ("consisting of" defined as "closing the claim to the inclusion of materials other than those recited except for impurities ordinarily associated therewith"). But see Norian Corp. v. Stryker Corp., 363 F.3d 1321, 1331-32, 70 USPQ2d 1508, 1516 (Fed. Cir. 2004) (holding that a bone repair kit "consisting of" claimed chemicals was infringed by a bone repair kit including a spatula in addition to the claimed chemicals because the presence of the spatula was unrelated to the claimed invention). A claim which depends from a claim which "consists of" the recited elements or steps cannot add an element or step.
For the purpose of compact prosecution, the phrase “consisting of” is interpreted as comprising of, and the ingredients led by “optionally including” are not required for the composition.
Claim 1, the cleansing composition comprises, e.g., 96.5% of water, and at the minimum 1.5% A, 3% B, 1% C and 3% of D with optional other components. The total 96.5+1.5+3+1+3 is 105%; the total is 105.7% when the minimum of the optional components are added, resulting in total amounts being not possible. These ingredient numbers therefore render the claim indefinite.
Claim 3, the maximum water amount 96.5% adds up with the minimum amounts of 2.0% A), 4.0% B), 1.0% C) and 4.0% D) to total amount 107.5%, which is an impossible amount of the composition. Therefore, the claim is indefinite.
Claim 16 is rejected accordingly because it is dependent claims of claim 1 and it does not further clarify the issues addressed above of 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.
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, 3 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Johnson et al. (US20210401707, 12/30/2021).
Johnson throughout the reference teaches anti-dandruff shampoo composition comprising from about 6% to about 505 of one or more sulfate free surfactants (e.g., Abstract; [0002]; Claim 1) and the method for cleansing hair comprising application of the composition onto hair (e.g., [0008], [0193], corresponding to instant claim 16.
Johnson teaches the composition can comprise surfactants corresponding to those in instant claims, including anionic surfactants, which can be acyl taurates such as A) sodium methyl cocoyl taurate and sodium methyl oleyl taurate [0043], isethionate surfactants such as B) sodium cocoyl isethionate and sodium cocoyl methyl isethionate [0037], a glutamate such as C) sodium cocoyl glutamate [0030-0031], sarcosinate such as C) sodium lauryl sarcosinate [0033]; and amphoteric surfactants, which can be betaines such as coco dimethyl carboxymethyl betaine, D) cocamidopropyl betaine ([0046-0047]). Johnson teaches that the cleansing composition can comprise an amphoteric surfactant level from about 0.25 wt % to about 20 wt%, from about 0.5 wt% to about 15 wt%, from about 2 wt% to about 13 wt%, from about 3 wt% to about 15 wt% [0051], thus cocamidopropyl betaine amounts overlapping with instantly claimed 3.0-5.0% in claim 1D and 4.0-5.0% in claim 3D.
Johnson indicates that compositions will typically comprise an aqueous carrier, e.g., water, which is present at a level of from about 20 wt.% to about 95 wt.%, or from about 60 wt. % to about 85 wt. %. [0059] (overlapping with instant claimed water range 80-96.5%). Johnson states that the composition pH can be from about 4 to about 7; from about 5 to about 6.5; from about 5 to about 6; from about 5.5 to about 6; or from about 4.7 to about 5.5 [0058], overlapping with pH range 5-6 as in instant claim 1.
Johnson exemplifies in composition A ([0210] Table, composition A) comprising: sulfonate anionic surfactants 6.0% sodium cocoyl isethionate (corresponding to instant claims 1B and 3B, falling within range 3-7% in instant claim 1B), carboxylate anionic surfactant 4.0% sodium lauroyl sarcosinate (corresponding to instant claims 1C and 3C), amphoteric surfactant 9.75% lauramidopropyl betaine (or 2.0% cocamidopropyl betaine in composition B) (corresponding to instant claims 1D and 3D), 0.6% polyquaternium-10 ( or 0.25% guar hydroxypropyltrimonium in composition B, corresponding to instant claim 1 i), anti-dandruff agent azoxystrobin 1.0% (falling within 0.5-4.0% in instant claim 1 ii), pH 5.7 (falling within pH 5-6 in instant claim 1), water (q.s. to 100%) is calculated as close to 80%.
Johnson also exemplifies in Example 1 ([0215] Table, Example 1) composition comprising corresponding ingredients as instantly claimed, B) 3.0% sodium cocoyl isethionate, C) 5.0% sodium lauroyl sarcosinate, D) 4.0% cocamidopropyl betaine (falling within instant range), total anionic surfactants to amphoteric surfactant is 2 : 1 (falling within ratio range 1.8 :1.0 to 3.0 : 1.0 in instant claim 1); with 0.5% guar hydroxypropyltrimonium chloride, sodium benzoate or methylchloroiso-thiazolinon/ methlisothiazo-linone (as preservative), citric acid up to 2% (which can be pH adjusting agent), up to 3% sodium chloride (which is an electrolyte), anti-dandruff agent azoxystrobin (corresponding to ingredients in instant claim 1i) and 1ii) with overlapping ranges), pH 6.0 (falling within instant range), water amount is calculated at up to 80-85.9% (overlapping with water range 80-90% in instant claim 1) based upon the adjustable amounts, e.g., citric acid or sodium chloride. Johnson exemplifies in composition Example 8 ([0215], Table, Example 8) comprising A) 4.0% sodium methyl cocoyl taurate (falling within 1.5-4.0% in instant claim 1A, corresponding to instant claim 3A), 4.0% disodium cocoyl glutamate, amphoteric surfactant 8.0% lauramidopropyl betaine, polyquaternium-10, sodium benzoate, sodium salicylate, citric acid, sodium chloride. Suitable amounts based on Johnson’s teaching of Examples 1 and 8, e.g., anionic surfactants A) 4.0% + B) 3.0% +C) 5.0% (total 12%), amphoteric surfactant D) 4.0%, , result in A)+B)+C) to D) ratio as 3.0 : 1.0, corresponding to the ratio in instant claim 1.
The formulations in Johnson, e.g., Composition A, Example 1, and Example 8, as discussed above, are sulfate free, free of sulfate-containing surfactant, free of non-ionic surfactant, free of alkanol amide surfactant, free of alkyl mono and poly-glycoside surfactant, corresponding to instant claim 1.
Johnson does not teach all ingredients in one embodiment as instantly claimed. Johnson does not teach exactly the same amount ranges of ingredients in the formulation.
It would be prima facie obvious for a person with ordinary skills in the art prior to filing date to implement the teaching of Johnson to select proper ingredients and arrive at current invention. Because Johnson already teaches sulfate-free hair care compositions using various anionic surfactants along with amphoteric surfactants, and exemplifies compositions without nonionic surfactants, and indicates that “particular descriptions of the present invention have been illustrated and described, it would be obvious to those skilled in the art that various other changes and modifications can be made without departing from the spirit and scope of the invention”, it would have motivated artisans in the field to select and combine suitable ingredients to make a composition with reasonable expectation of success. 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, most ingredient amounts overlap with those taught by prior art; Johnson also provides guidance that the cleansing composition can comprise a total surfactant level of from as low as about 5% to as high as about 50% [0028] and amphoteric surfactant amount from as low as about 0.25% to as high as about 20% [0051], artisans can adjust anionic surfactants in the composition with routine practice of optimization. “It 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 arguments filed on 07/10/2026 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 DONGXIU ZHANG SPIERING whose telephone number is (703)756-4796. The examiner can normally be reached 7:30am-5:00pm (Except for Fridays).
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, SUE X. LIU can be reached at (571)272-5539. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/DX.Z./ Examiner, Art Unit 1616
/Mina Haghighatian/ Primary Examiner, Art Unit 1616
Prosecution Insights