DETAILED ACTION
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 . 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 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.
Election/Restrictions
Applicant’s election without traverse of the species of polyquaternium silicone nanoemulsion (silicone with one or more quaternary ammonium groups, at least one polyalkylene oxide structural unit, and at least one terminal ester group) and species of silicone oil (dimethicone) in the reply filed on 27 April 2026 is acknowledged. Claim 5 is withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected species of silicone oil, there being no allowable generic or linking claim.
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.
Claims 1-4 and 6-16 are rejected under 35 U.S.C. 103 as being unpatentable over Murray et al. (US Patent Application Publication 2013/0095056) in view of Momentive (“Silsoft Q/Silsoft Q PMF,” 2016, pages 1-8).
Murray et al. discloses personal care compositions comprising an aqueous conditioning gel network (abstract). The gel network has a fatty material and a cationic surfactant in addition to water (id.). The fatty material is preferably a fatty alcohol (paragraph [63]). These ingredients and their use to make a gel network reads upon elements (b-d) of independent instant claim 1.
Murray et al. further suggests including silicones in the hair care composition (paragraph [104]), and such silicones include dimethicone (paragraph [111]), which is the elected species of silicone. The silicone is taught by Murray et al. to have a particle size of preferably from 0.5 to 2.5 microns (paragraph [116]). This range does not read upon the size range recited by independent instant claim 1, but it does overlap. And in cases involving overlapping ranges, where the instantly claimed ranges “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists. See MPEP 2144.05. Thus, this silicone reads upon instantly recited element (a)(ii).
Murray et al. does not suggest the inclusion of the polyquaternium silicone emulsion (element (a)(i) of instant claim 1), such as the elected species of silicone with one or more quaternary ammonium groups, at least one polyalkylene oxide structural unit, and at least one terminal ester group. Murray et al. suggests the inclusion of other ingredients to enhance performance (paragraph [166]), but not this type of ingredient.
The instant specification discusses the elected species of silicone with one or more quaternary ammonium groups (page 16, lines 23-25 & table 1). The instant specification states that a particularly suitable such product is the product having the commercial name “Momentive Waro® Y20875, Silsoft Q® (emulsion).” Thus, a product with the name Silsoft Q is taken to read upon this instantly claimed element. It is also noted that the trade name “Waro® Y20875” appears to not be disclosed in the prior art, as the only search results ion the CAS registry database and via Google are publications in the instant patent family (see search transcripts). Thus, the second name “Silsoft® Q” is taken to be exemplary of the elected species.
Momentive discloses a product sold under the trade name Silsoft Q, and teaches that is useful in hair care compositions in order to provide superior conditioning during wet combing, and increased volume (page 1).
Therefore, it would have been prima facie obvious to one of ordinary skill in the art at the time of filing to have used the conditioning silicone sold under the trade name Silsoft Q in the hair care composition disclosed by Murray et al. Generally, it is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use. See MPEP 2144.07. Additionally, doing so would provide superior conditioning during wet combing, and increased volume
Instant claim 1 also recites a limitation ((a)(iii) to the relative amount of the silicone with one or more quaternary ammonium groups to the silicone oil. Murray et al. suggests the silicone is present in from 0.1 to 10 wt% of the hair care composition (paragraph [119]). Murray et al. also suggests the additional ingredients to add to enhance performance can be present in up to 5 wt% (paragraph [166]). Thus, the relative amounts suggest provide for a range of relative amounts which overlap the instantly recited range. Thus, independent instant claim 1 is rendered prima facie obvious.
Instant claims 2-4, 8-9, and 16 further limit the silicone with one or more quaternary ammonium groups, and are read upon by the elected species taught by Momentive. Instant claim 6 further limits the silicone oil, and the taught species of oil by Murray et al. reads upon this limitation. And instant claims 7 and 10-12 further limit the amounts of these two ingredients, and the ranges taught by Murray et al. overlap these ranges.
Instant claims 13-15 further limit the amounts of elements (b-d). Murray et al. teaches that the cationic surfactant is present in from 0.01 to 10 wt% (paragraph [55]), the fatty material which is preferably a fatty alcohol is present in from 0.01 to 10 wt% (paragraph [66]), and the water is present in from 30 to 95 wt% (paragraph [123]). These amounts overlap the instantly recited amounts.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Brian Gulledge whose telephone number is (571) 270-5756. The examiner can normally be reached Monday - Friday 7am - 4pm.
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/Brian Gulledge/Primary Examiner, Art Unit 1699
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