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 .
DETAILED ACTION
Claims 1-4 and 6-21 are pending.
Election/Restrictions
Applicant’s election without traverse of the species of a) rinse-off conditioner, b) the ingredients recited in claims 10 and 21, and c) bleached hair in the reply filed on 6/24/26 is acknowledged.
Claims 6, 11 and 16 are withdrawn as not being directed to the elected species.
Claims 1-4, 7-10, 12-15 and 17-21 are under consideration to the extent that the method comprises the elected species.
Information Disclosure Statement
Acknowledgement is made of Applicant’s information disclosure statements (IDS) submitted on 2/24/24 and 2/6/25. The submissions are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement has been considered by the examiner.
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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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 1-4, 7-9, 12-15, and 17-20 are rejected under 35 U.S.C. 103 as being unpatentable over Restart PRO (ulprospector.com; 2021), as evidenced by Chemyunion SDS (ulprospector.com; 2021).
Restart PRO teaches a composition comprising itaconic acid for repair, protection, and treatment of chemically damaged hair, which does not comprise an oxidizing agent (e.g. page 1). Restart PRO teaches a method comprising applying the composition to hair which has been bleached (e.g. page 6-7). Restart PRO teaches that the composition may be part of a conditioner (e.g. page 10). As evidenced by Chemyunion SDS, the composition comprises 5-20 wt% of itaconic acid, which overlaps with the claimed range (e.g. page 2).
Regarding Claims 1-3 and 7, while the amount of itaconic acid in Restart PRO does not anticipate the amount claimed, it does render it obvious. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP 2144.05.I).
Regarding Claim 4, while the amount of itaconic acid in Restart PRO does not anticipate the amount claimed, it does render it obvious. A prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have the same properties. In the instant case, 5% itaconic acid and “about 4%” are expected to have the hair repair qualities. In addition, in formulating the composition as a conditioner, it would have been obvious to one of ordinary skill in the art at the time of the instant invention to vary the itaconic acid concentration through routine experimentation to arrive at the range of about 1.5% to about 4% in order to optimize the resulting product. It is obvious to optimize within prior art conditions or through routine experimentation.
Regarding Claims 8 and 9, Restart Pro teach the inclusion of the amino acid, arginine and the conditioning agent, panthenol (e.g. page 1).
Regarding Claims 12, 13, 17, and 20, Restart PRO teaches that the composition comprising itaconic acid increased hair strength (e.g. page 7), improved combability (e.g. page 9), and increased hair shine (e.g. page 10) after bleaching, compared to untreated hair, but they did not measure reduction in flyaway. However, as Restart PRO teaches applying the claimed composition comprising the itaconic acid in the claimed amount to a user population which anticipated the claimed population, the outcome of at least about 10% or at least about 20% reduction in flyaway would necessarily occur from following the same method steps.
Regarding Claim 14, while the amount of itaconic acid in Restart PRO does not anticipate the amount claimed, it does render it obvious. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP 2144.05.I).
Regarding Claim 15, while the amount of itaconic acid in Restart PRO does not anticipate the amount claimed, it does render it obvious. A prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have the same properties. In the instant case, 5% itaconic acid and “about 4%” are expected to have the hair repair qualities. In addition, in formulating the composition as a conditioner, it would have been obvious to one of ordinary skill in the art at the time of the instant invention to vary the itaconic acid concentration through routine experimentation to arrive at the range of about 1.5% to about 4% in order to optimize the resulting product. It is obvious to optimize within prior art conditions or through routine experimentation.
Regarding Claims 18 and 19, Restart Pro teach the inclusion of the amino acid, arginine and the conditioning agent, panthenol (e.g. page 1).
Claims 10 and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Restart PRO (ulprospector.com; 2021), as evidenced by Chemyunion SDS (ulprospector.com; 2021), as applied to claims 1-4, 7-9, 12-15, and 17-20, and further in view of Liang et al. (US 2021/0299006) and Zolotarsky et al. (US 2024/0099955; priority 2/5/21).
Regarding Claims 1-4, 7-9, 12-15, and 17-20, the teachings of Restart PRO are described supra. Restart PRO teaches that the composition may be part of a conditioner, but do not provide details as to the composition of conditioner (e.g. page 10). They do not teach the inclusion of the additional ingredients as elected in claims 10 and 21. This is made up for by the teachings of Liang et al. and Khine et al.
Liang et al. teach compositions for treating hair and providing improved hair manageability, for example, improved hair alignment, reduced unwanted volume (especially reduced frizz), and increased shine (e.g. paragraph 0006). Liang et al. teach that the composition may be mixed with a conditioner (e.g. paragraph 0038 and 0212). Liang et al. teach that the composition may comprise cetyl alcohol (e.g. paragraph 0022; claim 11, Examples), behentrimonium methosulfate (e.g. paragraph 0021, claim 10), polyquaternium-37 (e.g. paragraph 0020, claim 8), glycerin (e.g. paragraph 0018; claim 5; examples), and propanediol (e.g. paragraph 0018; claim 5, examples). Liang et al. teach that the composition is applied to bleached hair (e.g. paragraph 0250).
Zolotarsky et al. teach hair conditioner which may be used on bleached hair (e.g. paragraph 0167, 0168 and 0302; Table 22). Zolotarsky et al. teach the compositions may comprise cetyl alcohol (e.g. paragraph 0098), behentrimonium methosulfate (e.g. paragraph 0127, Table 22), glycerin (e.g. paragraph 0139; Table 22), and propanediol (e.g. paragraph 0057, 0111), argan oil (e.g. paragraph 0094), rose hip oil (e.g. paragraph 0094), hydroxyethylcellulose (e.g. paragraph 0135, 0174, 0302), and caprylyl glyceryl ether (e.g. paragraph 0056, Table 20), and caprylhydroxamic acid (e.g. paragraph 0079; Table 22).
Regarding Claims 10 and 21, it would have been obvious to one of ordinary skill in the art at the time of filing to select the conditioner ingredients of Liang et al. and Zolotarsky et al. for use with the composition of Restart PRO. It would have been obvious to one of ordinary skill in the art to combine the elements as claimed by known methods with no change in their respective functions, and the combination yielding nothing more than predictable results. One of ordinary skill in the art would have predicted success as all of the compositions are useful for use as or with hair conditioners, and one of ordinary skill would have been motivated in order to provide the benefits of improved hair manageability, reduced frizz, increased shine and increased conditioning, as disclosed by Liang and Zolotarsky.
Conclusion
No claim is allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to NICOLE PLOURDE BABSON whose telephone number is (571)272-3055. The examiner can normally be reached M-Th 8-4:30; F 8-12:30.
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/NICOLE P BABSON/ Primary Examiner, Art Unit 1619
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