DETAILED ACTION
Claims 1-4 and 6-15 are pending and under consideration on the merits.
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 .
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 3/3/2026 was filed prior to the mailing date of a Final Office Action. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, it was considered by the Examiner.
Status of the Rejections
The 112(b) rejection is withdrawn in part and maintained in part in view of the amendment as detailed below.
The 103 rejections are revised in view of the amendment.
The double patenting rejections are maintained.
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 12 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as 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 12 refers to “a conditioner gel matrix” in part c, but parts a) and b) already recite a “conditioner gel matrix.” Clarification is required. Part c) should be amended to recite “the conditioner gel matrix” to make it clear that it is the same conditioner gel matrix that is recited by parts a) and b).
Response to Applicant’s Arguments
Applicant argues that claim 12 has been amended to provide further clarity, but while part b) has been amended to recite “the” conditioner gel matrix, part c) continues to recite “a” conditioner matrix. Therefore, the rejection is maintained.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-2 and 6-9 are rejected under 35 U.S.C. 103 as unpatentable over Kasuga et al. (US Pat. No. 6,624,126) in view of CN105902404A (published 8.31.2016) as evidenced by the English translation thereof.
As to claims 1-2 and 6-9, Kasuga discloses personal cleansing compositions such as shampoo (a “hair care composition” of claims 1 and 6)(column 5, last full paragraph). The composition comprises an anionic surfactant (a “detersive surfactant” of claim 1) such as alkyl sulfates or alkyl ether sulfates (claim 7) in the amount of 8-22 wt% which encompasses the range of claim 1 and overlaps the range of claim 6 (column 2, 1st full paragraph), the composition further comprising an antibacterial agent (column 1, lines 40-43) such as piroctone olamine (i.e., “1-hydroxy-4-methyl-6-(2,4,4-treimethylopentyl)-2-pyridone monoethanolamine salt” of claim 1)(column 2, 2nd full paragraph) in the amount of 0.1%-0.4%, which is slightly below the range of claim 1 (column 3, lines 39-45), the composition further comprising a chelating agent such as DTPA (column 4, lines 36-44) in the amount of 0.2 wt%-5 wt%, which overlaps the range of claim 1 (column 5, lines 27-30), and further comprising water to balance (an “aqueous carrier” of claim 1)(see Table and Examples 2-5). The composition further comprises a glyceryl ether in the amount of 1-30 wt% (column 3, last full paragraph). The ranges taught by Kasuga allow for amounts of water within the about 40-95 wt% range recited by claim 1 for the aqueous carrier. For example, the use of 30 wt% glyceryl ether, 5 wt% DTPA, 0.4 wt% piroctone olamine, and 22% anionic surfactant would be within the ranges taught by Kusaga and totals to 57.4%, which implies 42.6% water to balance. Additionally, discovering optimum or working ranges involves only routine skill in the art in cases where the general conditions of a claim are disclosed in the prior art. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Regarding claim 9, the surfactant may be a zwitterionic surfactant such as a quaternary ammonium surfactant wherein each aliphatic substituent comprises 6-14 carbon atoms (which overlaps the about 8 to about 18 carbon atom range recited by the claims), and a phosphate, phosphonate, or sulfonate group (column 2, lines 22-44).
As to claims 1-2 and 6-9, Kusaga does not further expressly disclose that the iron chelator is desferrioxamine as recited by claim 1 and which has the log K1 value of claim 2, nor that the modified fractional inhibitor concentration of the DTPA and piroctone olamine is less than about 50 ppm as recited by claim 1. Additionally, the 0.1%-0.4% range for 1-hydroxy-4-methyl-6-(2,4,4-treimethylopentyl)-2-pyridone monoethanolamine salt taught by Kusaga is slightly below the range of claim 1. Additionally, while Kasuga discloses that the composition may comprise an amphoteric surfactant such as amidopropyl betaine (i.e., a derivative of a tertiary amine having a carboxy anionic group)(column 5, lines 39-40), it does not specify that the number of aliphatic substituents is about 8 to about 18 carbon atoms as recited by claim 8.
CN105902404A discloses hair care compositions for strengthening the hair (paragraph 2), and teaches that the composition may comprise a chelating agent such as deferoxamine (synonym of “desferrioxamine” of claims 1-2) in the amount of 0.1-5 wt% in order to provide protection against UV radiation (paragraph 42).
As to claims 1-2 and 6-9, it would have been prima facie obvious to one of ordinary skill in the art at the effective filing date of the present invention to modify the hair care composition of Kusaga by incorporating desferrioxamine as a chelator, because CN105902404A teaches that it is advantageous for a hair care composition to include a chelator such as desferrioxamine in order to impart protection against UV radiation. The resulting composition will possess a modified fractional inhibitor concentration of the desferrioxamine and piroctone olamine of less than about 50 ppm as recited by claim 1 because it comprises desferrioxamine and the piroctone olamine in the same amounts recited by the claim and a product cannot be separated from its properties. The U.S. Patent Office is not equipped with analytical instruments to test prior art compositions for the countless ways that an Applicant may present previously unmeasured characteristics. When the prior art appears to contain the same ingredients that are disclosed by Applicants' own specification as suitable for use in the invention, a prima facie case of obviousness has been established, and the burden is properly shifted to Applicants to demonstrate otherwise. See MPEP 2112.01.
Regarding the amount of 1-hydroxy-4-methyl-6-(2,4,4-treimethylopentyl)-2-pyridone monoethanolamine salt, the 0.1%-0.4% range taught by Kusaga is viewed as reading on the “about 0.5 weight % to about 2 weight %” range taught by claim 1, because the use of “about” in the claim allows for amounts of this compound that are slightly lower than 0.5 wt%, such as 0.4 wt%. Additionally, differences in concentration generally will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration 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).
As to claim 8, it further would have been prima facie obvious to select a number of carbon atoms in the aliphatic substituent of the amphoteric surfactant that is within the about 8-18 recited range, because compounds differing regularly by the successive addition of the same chemical group, e.g., by -CH2- groups, are generally of sufficiently close structural similarity that there is a presumed expectation that such compounds possess similar properties. In re Wilder, 563 F.2d 457, 195 USPQ 426 (CCPA 1977).
Claims 3-4 are rejected under 35 U.S.C. 103 as unpatentable over Kasuga et al. (US Pat. No. 6,624,126) in view of CN105902404A as evidenced by the English translation thereof as applied to claims 1-2 and 6-9 above, and further in view of Miracle et al. (US Pat. Pub. 2013/0045910; of record in IDS).
The teachings of Kasuga and CN105902404A are relied upon as discussed above, but Kusaga does not further expressly disclose that the iron chelator has a log K1 of greater than about 16 (claim 2) or that the iron chelator further comprises diethylenetriaminepentakis (methylenephosphonic acid) (i.e., “DTPMP”) as recited by claims 3-4, and which is present in an amount within the range of claim 4.
Miracle discloses detergent compositions comprising iron chelating agents such as DTPMP in the amount of about 0.1-50%, which overlaps the range of claim 4 (paragraphs 6, 106, and 112).
As to claims 3-4, it would have been prima facie obvious to one of ordinary skill in the art at the effective filing date of the present invention to modify the cleansing composition of Kusaga and CN105902404A as combined supra by selecting DTPMP as the chelator in amounts within the range of claim 4 instead of, or in addition to, the DTPA chelator disclosed by Kusaga, because Kusaga does not limit the identity of the chelator to those expressly disclosed therein, and Miracle teaches that DTPMP in such amounts is suitable for use as a chelator in a cleansing composition, such that the skilled artisan reasonably would have expected that it successfully could be used as a chelator in the Kasuga composition. Such a modification is merely the simple substitution of one known element for another according to known methods to yield predictable results, which is prima facie obvious. MPEP 2143.
Claims 10-15 are rejected under 35 U.S.C. 103 as unpatentable over Kasuga et al. (US Pat. No. 6,624,126; of record in IDS) in view of CN105902404A as evidenced by the English translation thereof as applied to claims 1 and 6-9 above, and further in view of Johnson et al. (US Pat. Pub. 2014/0348886).
The teachings of Kasuga and CN105902404A are relied upon as discussed above. Kusaga further disclose that the composition may comprise a cationic surfactant such as quaternary ammonium salts having an aliphatic long chain alkyl substituent having 6-14 carbon atoms (column 2, third full paragraph), but Kusaga does not further expressly disclose that the composition is a rinse off or leave on treatment (claims 10 and 12) such as a hair conditioner comprising a gel matrix comprising a high melting point fatty compound, cationic surfactant system, (such as mono-long alkyl quaternized ammonium salts of claim 11) and second aqueous carrier within the ranges recited by claims 10 and 12, nor the presence of a rheology modifier in the range of claim 13 such as a polyacrylamide of claim 14. Additionally, while Kasuga teaches that the composition may comprise an anti-dandruff agent (column 5, line 47), it does not teach that said agent is selected from one of the species recited by claim 15, such as ketoconazole, econazole, or elubiol.
Johnson discloses shampoos and conditioner compositions having improved rheology resulting in the creaminess desired by consumers while maintaining increased deposition of conditioning agents (paragraphs 1-4 and 6-7). The composition comprises a chelating agent, a surfactant, a cationic polymer, an associative thickener such as a polyacrylamide in the amount of 0.5-3 wt% which is within the range of claim 13, an anti-dandruff active such as ketoconazole, econazole, or elubiol, and an aqueous carrier (a “second aqueous carrier” of claim 10)(Abstract and paragraphs 105, 118, 132, 134, 149-151). The shampoo further may comprise fatty alcohol gel networks formed by combining fatty alcohols (a “high melting point fatty compound” of claim 10) and surfactants, and Johnson teaches that the gel network provides a stabilizing benefit and conditioned feel benefits to hair conditioners (paragraph 153). The fatty alcohol is present in the amount of about 1-10 wt%, which is within the range of claims 10 and 12, (paragraph 154), the second aqueous carrier is present in the amount of 60-85 wt% which is within the “at least 20%” range of claims 10 and 12 (paragraph 118), and the surfactant is present in the amount of about 8-30 wt%, which overlaps the range of claims 10 and 12 (paragraph 119). The composition may be rinsed off (paragraph 168).
As to claims 10-15, it would have been prima facie obvious to one of ordinary skill in the art at the effective filing date of the present invention to modify the modify the cleansing composition of Kusaga and CN105902404A as combined supra by incorporating a conditioning gel matrix comprising a fatty alcohol, cationic surfactant, and second aqueous carrier in amounts within the ranges of claims 10 and 12, along with a polyacrylamide rheology modifier in an amount within the range of claim 14 to form a rinse off hair conditioner, because Johnson teaches that shampoos and conditioner compositions having improved rheology resulting in the creaminess desired by consumers while maintaining increased deposition of conditioning agents can be formulated by incorporating the foregoing ingredients in amounts within the presently claimed ranges. The recitation of claim 12 that the composition is a “leave-on” treatment is an intended use of the composition and is not granted additional patentable weight, as the Johnson compositions are capable of being left on the hair. MPEP 2111.02.
As to claim 11, it further would have been prima facie obvious to select a mono-long alkyl quaternized ammonium salt as the surfactant, because Kusaga itself teaches that such compounds are useful as surfactants in the hair care compositions taught therein, such that the skilled artisan reasonably would have expected that they also could be used as the surfactant in the gel matrix of the composition. Such a modification is merely substitution of one known element for another according to known methods to yield predictable results, which is prima facie obvious. MPEP 2143.
Regarding claim 15, it further would have been prima facie obvious to select ketoconazole, econazole, or elubiol as the anti-dandruff agent, because Kusaga does not limit the identity of the anti-dandruff agent and Johnson teaches that these compounds are effective as anti-dandruff agents in hair care compositions such that the skilled artisan reasonably would have expected that they could be used as the anti-dandruff active in the Kusaga hair care composition. Such a modification is merely the simple substitution of one known element for another according to known methods to yield predictable results, which is prima facie obvious. MPEP 2143.
Response to Applicant’s Arguments
Applicant argues that claim 1 has been amended to recite a range for the monoethanolamine salt that distinguishes from the amount taught by Kusaga.
In response, the range recited by the amended claim is nevertheless prima facie obvious over Kusaga due to the use of “about” language in the claim as well as the lack of any evidence of an unexpected criticality of the recited range as discussed in the revised rejection.
Applicant states that a lower modified fractional inhibitor concentration (MFIC) indicates a higher level of efficacy for a combination of materials, and claims to have surprisingly found that the combination of 1-hydroxy-4-methyl-6-(2,4,4-treimethylopentyl)-2-pyridone monoethanolamine with desferrioxamine as recited by the claims had a higher level of efficacy (MFIC of 5 ppm) relative to combinations with other chelators such as EDTA MFIC greater than 100 ppm) as shown in Table 2. Applicant argues that the cited art does not teach or suggest that selecting this combination would have higher efficacy, and provides no motivation to select this combination.
In response, whether unexpected results are the result of unexpectedly improved results or a property not taught by the prior art, the "objective evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support." In other words, the showing of unexpected results must be reviewed to see if the results occur over the entire claimed range. In re Clemens, 622 F.2d 1029, 1036, 206 USPQ 289, 296 (CCPA 1980) (Claims were directed to a process for removing corrosion at "elevated temperatures" using a certain ion exchange resin (with the exception of claim 8 which recited a temperature in excess of 100C). Appellant demonstrated unexpected results via comparative tests with the prior art ion exchange resin at 110C and 130C. The court affirmed the rejection of claims 1-7 and 9-10 because the term "elevated temperatures" encompassed temperatures as low as 60C where the prior art ion exchange resin was known to perform well. The rejection of claim 8, directed to a temperature in excess of 100C, was reversed.). See also In re Peterson, 315 F.3d 1325, 1329-31, 65 USPQ2d 1379, 1382-85 (Fed. Cir. 2003) (data showing improved alloy strength with the addition of 2% rhenium did not evidence unexpected results for the entire claimed range of about 1-3% rhenium); In re Grasselli, 713 F.2d 731, 741, 218 USPQ 769, 777 (Fed. Cir. 1983) (Claims were directed to certain catalysts containing an alkali metal. Evidence presented to rebut an obviousness rejection compared catalysts containing sodium with the prior art. The court held this evidence insufficient to rebut the prima facie case because experiments limited to sodium were not commensurate in scope with the claims.). MPEP 70602(d).
Here, claim 1 is drawn to a composition comprising specified ranges for amounts of a detersive surfactant, 1-hydroxy-4-methyl-6-(2,4,4-treimethylopentyl)-2-pyridone, desferrioxamine, and aqueous carrier. Table 2 shows the MFIC for combinations of four different chelators (“Material #2”) with 1-hydroxy-4-methyl-6-(2,4,4-treimethylopentyl)-2-pyridone monoethanolamine, but discloses no amounts for these ingredients, nor is it stated that a detersive surfactant of the claims was part of the tested composition. Therefore, it is not clear from the evidence of record that the tested composition was commensurate in scope with the claims, or even within the scope of the claims. Unexpected results of a claimed invention can only be established by testing a composition that is within the scope of the claims against compositions that are not within the scope of the claims.
Additionally, the Office notes that Table 2 and the text accompanying Table 2 at paragraphs 50-62 of the specification is written in the present tense and further is not located in the Examples section (which starts at paragraph 135). Therefore, it is unclear whether the testing described here was actually performed and with the actual results shown in Table 2, or rather whether this portion of the specification is merely prophetic in nature. See MPEP 2164.02. Consequently, Applicant’s argument is not persuasive for this additional reason because data regarding alleged unexpected effects is valid only if the data was obtained from testing that was actually carried out.
Applicant argues in response, however, that the data presented in Table 2 was generated through an actual experimental protocol described in detail at pages 9-10 of the specification.
In response, a prophetic example describes an embodiment of the invention based on predicted results rather than work actually conducted or results actually achieved. The claims should be drafted in a manner that assists readers in differentiating between actual working examples and prophetic examples (i.e., prophetic examples should not be described using the past tense, but rather in future or present tense). MPEP 2164.02. Here, the protocol described at pages 9-10 is written in the present tense, and is therefore viewed as a prophetic example based upon the evidence that is presently of record. Applicant’s argument to the contrary is attorney argument that cannot take the place of actual evidence of record. MPEP 716.01(c).
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-4 and 6-8 are rejected on the ground of nonstatutory double patenting as unpatentable over all claims 1-5 of U.S. Pat. No. 11,801,213 and in view of Johnson et al. (US Pat. Pub. 2014/0348886), and/or Kasuga et al. (US Pat. No. 6,624,126) where indicated below.
The teachings of the cited secondary references are relied upon as discussed above.
The reference claims recite a shampoo composition comprising 10-20% detersive surfactant, and 0.1-10% 1-hydroxy-4-methyl-6-(2,4,4-treimethylopentyl)-2-pyridone monoethanolamine salt combined with 0.3-6% DTPA to have a modified fractional inhibitor concentration of less than about 50 ppm, and 40-95% aqueous carrier, and further comprising desferrioxamine as an iron chelator, and further comprising a gel matrix comprising 0.1-20% fatty alcohol, 0.1-10% cationic surfactant, and 20-95% aqueous carrier, the composition further comprising an anti-dandruff agent such as ketoconazole. Regarding claim 2, the metes and bounds of this claim are unclear as discussed in the 112(b) rejection, supra. Regarding claim 2, since claim 3 (which recites DTPMP as the chelator) depends from claim 2, DTPMP is considered to possess a log K1 within the scope of claim 2.
Although the reference claims do not recite that the surfactant comprises an anionic surfactant, or an amphoteric or zwitterionic surfactant with aliphatic substituents of 8-18 carbon atoms and an anionic group such as a carboxy group, or that the cationic surfactant comprises a mono-long alkyl quaternized ammonium salt, it would have been prima facie obvious to select these surfactants for inclusion because Kusaga teaches that these surfactants are suitable for use in hair care compositions, and because compounds differing regularly by the successive addition of the same chemical group, e.g., by -CH2- groups, are generally of sufficiently close structural similarity that there is a presumed expectation that such compounds possess similar properties. In re Wilder, 563 F.2d 457, 195 USPQ 426 (CCPA 1977).
Although the reference claims do not recite that the composition comprises a polyacrylamide rheology modifier in an amount within the range of claim 14, it would have been prima facie obvious to incorporate same because Johnson teaches that shampoos and conditioner compositions having improved rheology resulting in the creaminess desired by consumers can be formulated by incorporating polyacrylamide in such amounts.
The recitation of claims 10 and 12 that the composition is a “leave-on” or “rinse-off” treatment is an intended use of the composition and is not granted additional patentable weight, as the reference compositions are capable of being left on the hair or rinsed off.
Claims 1-4 and 6-8 are rejected on the ground of nonstatutory double patenting as unpatentable over all claims 1-4 of U.S. Pat. No. 11,529,299 and in view of Johnson et al. (US Pat. Pub. 2014/0348886) and/or Kasuga et al. (US Pat. No. 6,624,126) where indicated below.
The teachings of the cited secondary references are relied upon as discussed above.
The reference claims recite a shampoo composition comprising 10-20% detersive surfactant, and 0.1-10% 1-hydroxy-4-methyl-6-(2,4,4-treimethylopentyl)-2-pyridone monoethanolamine salt combined with 0.3-6% DTPA to have a modified fractional inhibitor concentration of less than about 50 ppm, and 40-95% aqueous carrier, and further comprising desferrioxamine as an iron chelator, the composition further comprising an anti-dandruff agent such as ketoconazole. Regarding claim 2, the metes and bounds of this claim are unclear as discussed in the 112(b) rejection, supra. Since claim 3 (which recites dexferrioxamine as the chelator, depends from claim 2) depends from claim 2, however, dexferrioxamine is considered to possess a log K1 within the scope of claim 2.
Although the reference claims do not recite that the surfactant comprises an anionic surfactant, or an amphoteric or zwitterionic surfactant with aliphatic substituents of 8-18 carbon atoms and an anionic group such as a carboxy group, or that the cationic surfactant comprises a mono-long alkyl quaternized ammonium salt, it would have been prima facie obvious to select these surfactants for inclusion because Kusaga teaches that these surfactants are suitable for use in hair care compositions, and because compounds differing regularly by the successive addition of the same chemical group, e.g., by -CH2- groups, are generally of sufficiently close structural similarity that there is a presumed expectation that such compounds possess similar properties. In re Wilder, 563 F.2d 457, 195 USPQ 426 (CCPA 1977).
Although the reference claims do not recite that the composition comprises a polyacrylamide rheology modifier in an amount within the range of claim 14, it would have been prima facie obvious to incorporate same because Johnson teaches that shampoos and conditioner compositions having improved rheology resulting in the creaminess desired by consumers can be formulated by incorporating polyacrylamide in such amounts.
The recitation of claims 10 and 12 that the composition is a “leave-on” or “rinse-off” treatment is an intended use of the composition and is not granted additional patentable weight, as the reference compositions are capable of being left on the hair or rinsed off.
Although the reference claims do not recite that the composition further comprises a gel matrix comprising 0.1-20% fatty alcohol, 0.1-10% cationic surfactant, and 20-95% aqueous carrier, it would have been prima facie obvious to incorporate same because Johnson teaches that shampoos and conditioner compositions having improved rheology resulting in the creaminess desired by consumers while maintaining increased deposition of conditioning agents can be formulated by incorporating the foregoing ingredients in amounts within the presently claimed ranges.
The recitation of claim 12 hat the composition is a “leave-on” treatment is an intended use of the composition and is not granted additional patentable weight, as the Johnson compositions are capable of being left on the hair.
As to claim 11, it further would have been prima facie obvious to select a mono-long alkyl quaternized ammonium salt as the surfactant, because Kusaga itself teaches that such compounds are useful as surfactants in the hair care compositions taught therein, such that the skilled artisan reasonably would have expected that they also could be used as the surfactant in the gel matrix of the composition. Such a modification is merely substitution of one known element for another according to known methods to yield predictable results, which is prima facie obvious. MPEP 2143.
Response to Applicant’s Arguments
Applicant has not provided any substantive arguments against the rejections, which are therefore maintained.
Conclusion
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.
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/GAREN GOTFREDSON/Examiner, Art Unit 1619
/ANNA R FALKOWITZ/ Primary Examiner, Art Unit 1600
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