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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 7/20/2026 has been entered.
Status of the Claims
Claims 13-17 and 19-32 are pending and under current examination. Claims 1-12 and 18 are cancelled.
Withdrawn Claim Rejections
All rejections pertaining to claims 1-6, 8-12, and 18 are moot because the claims are cancelled in the amendments to the claims filed 7/20/2026.
All rejections not reiterated have been withdrawn.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 13-17 and 19-32 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement.
This is a new matter rejection. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. Claim 13 recites the limitation “a weight ratio of a combination of (c) and (d) to a combination of (a) and (b) is from about 0.3:1 to about 2:1”. The instant specification recites that the weight ratio of ((c)+(d)) to ((a)+(b)) is from about 0.5:1 to about 2:1 (pg. 18 line 13). There is no support in the specification for a lower limit of 0.3:1. Therefore, the limitation recited in claim 13 constitutes new matter.
Regarding claims 14-17 and 19-32, claims depending from rejected claims have also been rejected because the incorporate all of the limitations of the claims from which they depend, but fail to resolve the written description concerns outlined above.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 26 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 26 recites the limitation “wherein the composition is free from silicones”. However, the independent claim 13 from which claim 26 depends also recites the limitation “wherein the composition is free from silicones”. Therefore claim 26 fails to further limit the subject matter of claim 13.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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.
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 13-17 and 19-32 are rejected under 35 U.S.C. 103 as being unpatentable over Agbley (U.S. Patent Application Publication No. 2022/0202673, publication year: 2022).
Determination of the scope and the content of the prior art
(MPEP §2141.01)
Regarding claims 13 and 29, Agbley teaches a hair care product or hair care composition [0028] that may contain one or more cationic conditioning agents such as polyquaternium-10 and behentrimonium chloride [0037]. The one or more conditioning agents may be present in an amount of 0.1 wt.% to about 5 wt.% [0038]. The composition may also contain nonionic surfactants such as stearyl alcohol, cetyl alcohol [0048] and linoleyl alcohol [0045]. The amount of any one or more surfactants may be from 0 to 20 wt.% [0049]. The composition may also contain an emollient such as isostearyl alcohol, oleyl alcohol, 2-octyl-dodecanyl alcohol and lauryl alcohol [0050]. The emollients may also include isopropyl palmitate and isopropyl myristate [0050]. The emollients may be present in an amount of 0 to 5 wt.% [0051]. The composition may also include a cosmetically acceptable solvent such as water [0035] and may be free or substantially free of silicone [0030]. The instant specification defines cationic surfactants to include behentrimonium chloride (pg. 3 line 23 of the instant specification), therefore the Examiner considers the behentrimonium chloride taught by Agbley to read on the “cationic surfactant” limitation of the instant claim 13. The instant specification defines that non-polar oils having a Polarity Index of about 23 mN/m to about 40 mN/m includes isopropyl palmitate and isopropyl myristate (pg. 16 lines 5-16 of the instant specification), therefore the Examiner considers the emollients of Agbley to read on the low-polar oils of the instant claim 13.
Regarding claim 14, Agbley teaches that the one or more conditioning agents may be present in an amount of 0.1 wt.% to about 5 wt.% [0038].
Regarding claim 15, Agbley teaches that the composition may also contain nonionic surfactants such as stearyl alcohol, cetyl alcohol [0048] and linoleyl alcohol [0045]. The amount of any one or more surfactants may be from 0 to 20 wt.% [0049].
Regarding claims 16 and 17, Agbley teaches that the composition may also contain an emollient such as isostearyl alcohol, oleyl alcohol, 2-octyl-dodecanyl alcohol and lauryl alcohol [0050]. The emollients may also include isopropyl palmitate and isopropyl myristate [0050]. The emollients may be present in an amount of 0 to 5 wt.% [0051].
Regarding claim 19, Agbley teaches that the methods for using the hair care composition include applying the composition to the hair [0055].
Regarding claim 20, Agbley teaches that the composition may be for use in facilitating detangling of the hair [0056].
Regarding claim 21 and 22, Agbley teaches that the composition may contain one or more cationic conditioning agents such as behentrimonium chloride [0037].
Regarding claim 23, Agbley teaches that the composition may contain nonionic surfactants such as stearyl alcohol and cetyl alcohol [0048].
Regarding claim 24, Agbley teaches that the composition may also contain an emollient such as isostearyl alcohol, oleyl alcohol, 2-octyl-dodecanyl alcohol and lauryl alcohol [0050].
Regarding claim 25, Agbley teaches that the composition may contain an emollient such as propylene glycol [0050]. The emollients may be present in an amount of 0 to 5 wt.% [0051].
Regarding claim 26, Agbley teaches that the composition may be free or substantially free of silicone [0030].
Regarding claim 27, Agbley teaches that the composition may contain one or more cationic conditioning agents such as polyquaternium-10 and behentrimonium chloride [0037].
Regarding claim 28, Agbley teaches that the emulsifying system the emollients, and/or the conditioning agents may be dispersed or otherwise contained in a vehicle or carrier such as water [0035] and may be in the form of an emulsion [0032].
Regarding claim 30, Agbley teaches the relevant limitations of claim 13 and 25 above. Agbley also teaches that the vehicle may be present in an amount of up to 90% based on the total weight of the personal care composition [0036]. The composition may also include one or more additional optional ingredients such as dyes, fragrances, preservatives, thickeners, viscosity modifiers, antioxidants, chelating agents, opacifiers, hydric solvents, hydrotropes, and antimicrobials [0052]. In exemplary composition, fragrance is present at 0.460% by weight [0058, Table 1].
Regarding claims 31 and 32, it is noted that Agbley is silent with regards to beeswax and therefore reads on the “substantially free from beeswax” limitations of instant claims number 31 and 32.
Ascertainment of the Difference Between Scope of the Prior Art and the Claims
(MPEP §2141.02)
Agbley does not teach a single embodiment or example meeting all limitation of the invention of claims 13-17 and 19-32.
Finding of a Prima Facie Obviousness Rationale and Motivation
(MPEP §2142-2143)
Within the broader scope of Agbley all of the limitations of the invention of claims 13-17 and 19-32 are met. It would have been prima facie obvious for one having ordinary skill in the art to choose the limitations in the instant claims from those disclosed by Agbley and arrive at this conclusion because such was contemplated by Agbley.
Response to Arguments
Applicant's arguments filed 7/20/2026 have been fully considered but they are not persuasive.
Applicant’s arguments with respect to the rejections over Parikh, Lebreux, and Marie 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.
On page 13, Applicant argues that the specification includes evidence illustrating the significance of the individual claim components (a), (b), (c), and (d), in the claimed amount. 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 amounts to emulsion stability and minimal whitish, flaky residue rendered by the inventive composition. The evidence of unexpected results also amounts to improved dry-hair results rendered by the inventive composition to a benchmark commercial composition. Regarding the stability of the emulsion, the lack of stability of comparative compositions C1 and C2 does not sufficiently demonstrate the criticality of the ratio of (c+d):(a+b) to the emulsion stability because C2 lacks the fatty alcohols present in the inventive composition and C1 lacks the cationic surfactant. Agbley teaches that solid fatty alcohols such as cetyl alcohol act as nonionic surfactants [0048]. Therefore, one of ordinary skill in the art would have reasonably concluded that an emulsion that contains less surfactant that than the inventive composition would have rendered an emulsion with reduced stability. There is no data that compares all of the claimed surfactants outside of the claimed ratio. Regarding the whitish residue rendered by compositions C3 and C4, the ratio of (c+d):(a+b) in compositions C3 and C4 are within the claimed range of the amended claim 13. Therefore, the applicant has provided no data demonstrating the criticality of the ratio of (c+d):(a+b) in either the stabilization of the emulsion or the reduction in unwanted residue. Regarding the improved conditioning performance of the inventive composition, Agbley teaches that the personal care composition exhibits substantially similar or greater properties as compared to a conventional personal care composition (Claim 14), including ease of application in wet hair, ease of distribution in wet hair, ease of finger detangling while rinsing, ease of detangling wet hair, ease of combing wet hair, ease of combing dry hair, softness of dry hair, softness, shine, fly-aways, and alignment [0031].
The reduction in white residue rendered by the inventive composition is unexpected and unobvious over the prior art.
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 instant claim 13 embraces any cationic surfactant, any solid fatty alcohol, any liquid fatty alcohol, and any non-silicone low polar oil within the range of the recited Polarity Index. In order to be in commensurate scope with the claims, the evidence of unexpected results must demonstrate those results for each and every species of cationic surfactant, solid fatty alcohol, liquid fatty alcohol, and non-silicone low polar oil. However, the evidence of unexpected results is limited to a single species of cationic surfactant, three solid fatty alcohols, a single liquid fatty alcohol, and a single low-polarity oil. 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.
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ELIZABETH ANNE MEYERSExaminer, Art Unit 1617
/ALI SOROUSH/Supervisory Patent Examiner, Art Unit 1614
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