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 .
Election/Restrictions
Applicant’s election without traverse of Group I, claims 1-12 in the reply filed on 02/25/2026 is acknowledged.
Claims 13-20 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 02/25/2026.
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.
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.
Claim(s) 1-7, 10 and 11 are rejected under 35 U.S.C. 103 as being unpatentable over Zhao et al. (WO2018075832, disclosed by applicant).
Zhao et al. disclose a compact hair care composition comprising about 20 weight % to about 45 weight % total surfactant (Abstract); from about 5% to about 30% by weight anionic surfactant including sodium C12-14 olefin sulfonate and sodium C14-16 olefin sulfonate (p. 6, lines 8-10); from about 0.5% to about 10% by weight co-surfactant, including amphoteric surfactant, including lauroamphoacetate and betaines (p. 7, line 33 to p. 8, line 24), and water, which can be clear. Zhao et al. disclose compositions having viscosity of about 3000 cP and about 20 to 20000 cp, which would meet the limitation of instant claim 1 (p. 40, lines 5-8). Zhoa et al. disclose the composition comprises cationic polymers having a weight average molecular weight of from about 100,000 to about 2,000,000 g/m and a charge density of rom about 0.2 to about 2.2 meg/g; which meets the limitation of instant claim 7 (reference claim 10). Zhoa et al. disclose the composition comprises one or more anti-dandruff active, including piroctone (reference claim 8). The composition of Zhoa et al. can be clear of hydrotropes, water miscible solvents, fatty acids and acrylic polymers. Zhoa et al. disclose the composition may have 2% sulfated surfactants, which meets the limitation of “substantially free” as defined in the instant disclosure.
The prior art discloses the use of 20 to about 45% total surfactant, 5 to about 30% anionic surfactant and 0.5 to about 10% amphoteric surfactant. Thus, the prior art differs from the instant claims insofar as it does not disclose the particular endpoints recited therein, i.e. more than 50 et% of anionic surfactant based on the weight of surfactant and 10 to about 40 et% of an amphoteric surfactant , by weight of the surfactant. It is well-settled, however, that even a slight overlap in range establishes a prima facie case of obviousness. In re Peterson, 65 USPQ2d 1379, 1382 (Fed. Cir. 2003). Accordingly, since an overlap plainly exists here, it would have been obvious to have selected values within the overlap, consistent with the reasoning of the Peterson decision.
Claim(s) 8, 9 and 12 are rejected under 35 U.S.C. 103 as being unpatentable over Zhao et al. (WO2018075832, disclosed by applicant) as applied to claims 1-7, 10 and 11 above, in view of Bentley et al. (BR112020003402, disclosed by applicant).
Zhao et al. is discussed above and differs from the instant claims insofar as they do not disclose an electrolytic viscosity modifier of a % T of less than about 50.
Bentley et al. teaches haircare compositions comprising and amidoamine surfactant, cleaning surfactant, water, protonating agent and thickening agents, such as sodium chloride (Abstract, [0036]-[0037], examples and reference claims). Bentley further teaches a %T of >20 ([0039]-[0040]).
It is prima facie obviousness to select a known material based on its suitability for its intended use. Also, established precedent holds that it is generally obvious to add known ingredients to known compositions with the expectation of obtaining their known function. MPEP 2144.07. Therefore, it would have been obvious to have used the electrolyte viscosity agent in the composition of the primary reference since they are known for shampoo formulations with the expectation of obtaining a composition having a translucency or transparency level desired, i.e. %T.
Conclusion
No claim is allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to NANNETTE HOLLOMAN whose telephone number is (571)270-5231. The examiner can normally be reached Monday-Friday 9am-6pm.
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/NANNETTE HOLLOMAN/Primary Examiner, Art Unit 1612
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