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 the Claims
Claims 1-6 and 8-20 are pending and under current examination. Claim 7 is cancelled in the amendments filed 1/29/2026.
Withdrawn Claim Rejections
All rejections pertaining to claim 7 are moot because the claim is cancelled in the amendments to the claims filed 1/29/2026.
All rejections under 35 U.S.C. 102 are withdrawn in view of the amendments to the claims filed 1/29/2026.
All rejections not reiterated have been withdrawn.
Claim Rejections - 35 USC § 103
Applicant’s amendments to the claims filed 1/29/2026 have necessitated the new grounds of rejection.
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.
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 1-6 and 9-19 are rejected under 35 U.S.C. 103 as being unpatentable over Parikh (U.S. Patent Application No. 2018/0243204, publication year: 2018).
Determination of the scope and the content of the prior art
(MPEP §2141.01)
Regarding claim 1, Parikh teaches a leave-on hair styling composition that may include cationic surfactants [0086] and cationic conditioning agents [0120], 0.1 to about 40 wt.% of one or more fatty alcohols selected from the group of cetearyl alcohol, cetyl alcohol, myristyl alcohol, stearyl alcohol, isostearyl alcohol, lauryl alcohol, oleyl alcohol, octyldodecanol and mixtures thereof [0074], about 1 to about 10 wt.% of ester oils including dicaprylyl carbonate [0062 and 0064], and 30 to about 95 wt.% water [0033].
Regarding claims 2 and 3, Parikh teaches that the cationic surfactant may be centrimonium chloride and behentrimonium chloride [0087]. Cationic conditioning agents may include steartrimonium chloride, behentrimonium methosulfate, dicetyldimonium chloride [0120].
Regarding claims 4 and 6, Parikh teaches a leave-on hair styling composition that may include 0.1 to about 40 wt.% of one or more fatty alcohols selected from the group of cetearyl alcohol, cetyl alcohol, myristyl alcohol, stearyl alcohol, isostearyl alcohol, lauryl alcohol, oleyl alcohol, octyldodecanol and mixtures thereof [0074].
Regarding claim 5, Parikh teaches a leave-on hair styling composition that may include 0.1 to about 40 wt.% of one or more fatty alcohols selected from the group of cetearyl alcohol, cetyl alcohol, myristyl alcohol, stearyl alcohol, isostearyl alcohol, lauryl alcohol, oleyl alcohol, octyldodecanol and mixtures thereof [0074].
Regarding claim 9, Parikh teaches that the composition may contain 0.1 to about 50 wt. % [0079] of one or more water-soluble solvents such as glycerin, polyols, and glycols [0078].
Regarding claim 10, Parikh teaches that the composition may be free or essentially free of silicones [0013].
Regarding claim 11, Parikh teaches that the composition may contain a cationic polymer conditioning agent [0122].
Regarding claim 12, Parikh teaches that the composition may be in the form of an oil-in-water emulsion [0080].
Regarding claims 13 and 14, Parikh teaches all of the relevant limitations as described above for claim 1. Parikh also teaches that the composition may be free or essentially free of silicones [0013].
Regarding claims 15 and 16, Parikh teaches a leave-on hair styling composition that may include 0.1 to about 40 wt.% of one or more fatty alcohols selected from the group of cetearyl alcohol, cetyl alcohol, myristyl alcohol, stearyl alcohol, isostearyl alcohol, lauryl alcohol, oleyl alcohol, octyldodecanol and mixtures thereof [0074].
Regarding claim 17, Parikh teaches a leave-on hair styling composition that may include about 1 to about 10 wt.% of ester oils including dicaprylyl carbonate [0062 and 0064].
Regarding claim 18, Parikh teaches all of the relevant limitations as described above for claim 1. Parikh also teaches that the composition may be free or essentially free of silicones [0013].
Regarding claim 19, Parikh teaches that the composition may be applied to the hair [0081].
Ascertainment of the Difference Between Scope of the Prior Art and the Claims
(MPEP §2141.02)
Regarding claims 1, 13, and 18, Parikh does not teach a weight percentage of cationic surfactants present in the composition or a weight ratio of liquid fatty alcohols and low polar oils to cationic surfactants and solid fatty alcohols.
Regarding claims 5 and 14, Parikh does not teach a weight percentage of cationic surfactants present in the composition
Finding of a Prima Facie Obviousness Rationale and Motivation
(MPEP §2142-2143)
Regarding claims 1, 5, 13, 14, and 18, the weight percentage of cationic surfactant or cationic conditioning agent is clearly a result effective parameter that a person of ordinary skill in the art would routinely optimize. Optimization of parameters is a routine practice that would be obvious for a person of ordinary skill in the art to employ and would reasonably expect success. It would have been customary for an artisan of ordinary skill to determine the optimal weight percentage in order to best achieve the desired results as such would provide advantageous hair conditioning effect. It would have been prima facie obvious to one of ordinary skill in the art at the time of the invention to engage in routine experimentation to determine optimal or workable ranges that produce expected results. Where 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, 105 USPQ 233 (CCPA 1955). In the instant case, Parikh teaches that cationic compounds such as behentrimonium chloride act as conditioning agents [0120]. The Examiner considers it prima facie obvious to optimize the weight percentage of conditioning agents in a hair conditioning composition, absent unexpectedly superior properties of the claimed invention. In the instant case, one of ordinary skill in the art would have recognized that the amount of cationic surfactant would have a direct effect on the conditioning properties of the composition and therefore be an optimizable variable.
Furthermore, regarding claims 1, 13, and 18, the weight ratio and percentages of various combinations of components in the composition is clearly a result effective parameter that a person of ordinary skill in the art would routinely optimize. Optimization of parameters is a routine practice that would be obvious for a person of ordinary skill in the art to employ and would reasonably expect success. It would have been customary for an artisan of ordinary skill to determine the optimal weight ratio of ingredients in order to best achieve the desired results as such would provide advantageous hair conditioning effect. It would have been prima facie obvious to one of ordinary skill in the art at the time of the invention to engage in routine experimentation to determine optimal or workable ranges that produce expected results. Where 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, 105 USPQ 233 (CCPA 1955). In the instant case, Parikh teaches that the synergy amongst the ingredients, including ester oil(s) and fatty acids and/or fatty alcohols, results in compositions that provide desirable cosmetic properties to the hair, such as curl definition, hold, frizz control, with a soft, non-crunchy feel [0015]. The Examiner considers it prima facie obvious to optimize the weight ratio of the components of the composition, absent unexpectedly superior properties of the claimed invention. In the instant case, one of ordinary skill in the art would have recognized that the weight ratio would have a direct effect on the conditioning properties of the composition and therefore be an optimizable variable.
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Parikh (U.S. Patent Application No. 2018/0242104, publication year: 2018), as applied to claims 1-6 and 9-19, and further in view of Leroux (Ultrus Prospector Knowledge Center, publication date: 10/20/2017, of record).
Determination of the scope and the content of the prior art
(MPEP §2141.01)
Parikh teaches that the composition may contain about 1 to about 10 wt.% of ester oils including dicaprylyl carbonate [0062 and 0064].
Ascertainment of the Difference Between Scope of the Prior Art and the Claims
(MPEP §2141.02)
Parikh does not teach that the composition may contain dicaprylyl ether. However, this deficiency is cured by Leroux.
Leroux teaches that dicaprylyl ether and dicaprylyl carbonate are light emollients that may may replace silicones in cosmetic compositions (pg. 6, Silicone-free alternatives).
Finding of a Prima Facie Obviousness Rationale and Motivation
(MPEP §2142-2143)
Based on these teachings, it would have been prima facie obvious to one of ordinary skill in the art, at the time the invention was made, to substitute equivalents, each of which is taught by the prior art to be useful for the same purpose (dicaprylyl carbonate and dicaprylyl ether for the purpose of replacing siloxanes as a light emollient in cosmetic compositions). See MPEP 2144.06 (II).
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over Parikh (U.S. Patent Application No. 2018/0242104, publication year: 2018), as applied to claims 1-6 and 9-19 above, and further in view of Marie (CurlSmith, available 1/20/2023, of record).
Determination of the scope and the content of the prior art
(MPEP §2141.01)
Parikh renders obvious the relevant limitations of claims 1 and 19 above. Parikh also teaches that when the composition is a rinse-out product such as a conditioner, it may be applied in a method comprising wetting the hair, subsequently applying the leave-on hair composition to the hair, followed by rinsing the composition from the hair [0083].
Ascertainment of the Difference Between Scope of the Prior Art and the Claims
(MPEP §2141.02)
Parikh does not teach a step of detangling the hair while the hair treatment composition in applied to the hair. However, this deficiency is cured by Marie.
Marie teaches that using a rinse-out conditioner is key when detangling because it helps the brush glide through the hair more easily and minimized breakage and damage (pg. 2 Rinse-out Conditioners).
Finding of a Prima Facie Obviousness Rationale and Motivation
(MPEP §2142-2143)
It would have been prima facie obvious to one of ordinary skill in the art at the time of filing the detangle the hair while applying the hair conditioning composition embraced by Parikh. One would have understood in view of Marie that a hair conditioner may be used when detangling hair (pg. 2 Rinse-out Conditioners). It would have been obvious to one of ordinary skill in the art of filing that the hair conditioner embraced by Parikh may be applied while detangling the hair. One of ordinary skill would have been motivated to apply the hair conditioner while detangling the hair in order help the brush glide through the hair more easily and minimize breakage and damage. The artisan of ordinary skill would have had reasonable expectation of success because Marie teaches that a hair conditioner may be used when detangling hair (pg. 2 Rinse-out Conditioners).
Response to Arguments
Applicant's arguments filed 1/29/2026 have been fully considered but they are not persuasive.
Applicant’s arguments with respect to the rejections over Molenda 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. The teachings of Leroux and Marie relied upon in the new grounds of rejection do not pertain to any teaching specifically challenged in the argument. The new grounds of rejection have addressed the amendments to the claims not disclosed or taught by Leroux and Marie.
On page 16, Applicant argues that the inventive composition surprisingly provides superior detangling and dry-hair aesthetics while exhibiting significantly less or no whitish residue and flaking. This is not found persuasive. In response, please refer to MPEP 716.02 (b) which details the burden on Applicant to establish that results in a side-by-side comparison to the closest prior art are unexpected and significant. Specifically, Applicant must establish that differences in results are in fact unexpected and unobvious and are of both practical and statistical significance. Additionally, evidence of unexpected properties must be commensurate in scope with the claims.
Differences in results are in fact unexpected and unobvious: The evidence of unexpected results pertains to the superior detangling and dry-hair aesthetics while exhibiting significantly less or no whitish residue and flaking of the inventive composition despite the absence of silicone. However, as described in the obviousness rejection of claim 8 above, Leroux teaches that dicaprylyl ether may replace silicones in cosmetic compositions (pg. 6, Silicone-free alternatives). It would have been obvious that the presence of a silicone alternative, dicaprylyl ether, in the inventive composition would render a composition that had similar properties to a composition that did contain silicone and would have superior performance to comparative compositions that do not contain a silicone replacement. Therefore, the evidence of unexpected results is not unexpected or unobvious.
Differences are of both practical and statistical significance: The evidence of unexpected results are of practical and statistical significance.
Evidence of unexpected properties must be in commensurate scope with the claims: The evidence of unexpected results relates to improved hair conditioning performance by a conditioning composition containing brassicamidopropyl dimethylamine. However, the instant claim 1 embraces the any cationic surfactant. While the instant claim 3 does further limit the cationic surfactants suitable for inclusion in the composition, it still embraces a wide variety of suitable species. In order for the evidence of unexpected results to be commensurate in scope with the claims, the evidence of improved performance must be demonstrated for at least every cationic surfactant embraced by the instant claim 3. Therefore, the evidence of unexpected results is not in commensurate scope with the claims.
Thus, the Applicant’s argument is not persuasive and the rejection is maintained.
Conclusion
No claims are allowed.
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.
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ELIZABETH ANNE MEYERSExaminer, Art Unit 1617
/ALI SOROUSH/Supervisory Patent Examiner, Art Unit 1614
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