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 with traverse of:
A) Hair straightened or curled: curl;
B) If curling, how is the curling effectuated: curlers -and-
C) How hair is dried: ambient drying in the reply filed on 24 June 2026 is acknowledged. The traversal is on the ground(s) that no serious search or examination burden was provided by the Examiner (reply, pg. 6). This is not found persuasive because the species or groupings of patentably indistinct species requires a different field of search (see Election Requirement mailed on 29 April 2026).
The requirement is still deemed proper and is therefore made FINAL.
Claim 16 & 18-20 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected species, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 24 June 2026.
Claim Status
Applicant’s claim amendments in the response filed 24 June 2026 are acknowledged.
Claims 1-20 are pending.
Claims 4, 9 & 10 are amended.
Claims 16 & 18-20 withdrawn.
Claims 1-15 & 17 are under consideration.
Drawings
The drawings were received on 14 December 2023. These drawings are accepted.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 14 December 2023, 25 June 2024, 15 October 2024, 03 February 2026 and 10 August 2026 have been fully considered by the examiner. A signed and initialed copy of each IDS is included with the instant Office Action.
Objections/Rejections
Specification
The disclosure is objected to because of the following informalities: the specification contains undefined trademarks/tradenames throughout the disclosure (e.g. CAVAMAX, pg. 6). Language such as "the product X (a descriptive name) sold under the trademark Y" is permissible language for inclusion in the specification (See MPEP 608.01(v)). Also the tradename should be capitalized (all capitals) wherever it appears and be accompanied by the generic terminology. The trademark must also be denoted with "TM" (superscript) or "®" (superscript) where it appears. For example, TWEEN® 20 (polysorbate 20).
Applicant is reminded to check the entire disclosure to ensure that all undefined trademarks/-tradenames have been defined in accordance with MPEP 608.01(v).
Claim Objections
Claims 5, 6 & 13 are objected to because of the following informalities:
Claims 5 and 6 depend from claim 1 which recites “one or more cyclodextrins, derivatives thereof, or a combination thereof” (emphasis added). However, claims 5 and 6 recite “the one or more cyclodextrins, derivatives thereof, or a mixture thereof” (emphasis added). Claim 13 depends from claim 10 which recites “one or more cyclodextrins, derivatives thereof, or a combination thereof” (emphasis added). However, claim 13 recites “the one or more cyclodextrins, derivatives thereof, or a mixture thereof” (emphasis added).
Applicant may wish to consider whether claim 5, 6 & 13 amendments to recite “a combination thereof” would obviate the objection.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-15 & 17 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
The term “desired shape” in claim 1 is a relative term which renders the claim indefinite. The term “ desired shape” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. “Desired” shape is a relative term because a shape that is desired by one person may be considered undesirable by another.
Claims 2-15 & 17 are rejected under 35 USC 112(b) because they ultimately depend from indefinite claim 1 and do not clarify the issue.
Applicant may wish to consider whether an amendment to merely recite “applied into a shape” would obviate the rejection.
Claim 12 ultimately depends from claim 1. Claim 1 recites “one or more cyclodextrins” which encompasses multiple cyclodextrins. However, claim 12 recites “the cyclodextrin”; thereby, it is unclear whether just one, more than one, or all of the cyclodextrins be dissolved in the citric acid.
Applicant may wish to consider whether a claim 12 amendment to recite “the one or more cyclodextrins” would obviate the rejection.
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.
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.
Claims 1-3, 7-11, 14, 15 & 17 are rejected under 35 U.S.C. 103 as being unpatentable over Chaumontet [(FR 3083110; Published: 01/03/2020); as evidenced by Herrwerth (US 2013/0171087; Published: 07/04/2013)] and Fukuhara (US 2005/0214238; Published: 09/29/2005).
*All references refer to the English translation.
** The examiner notes that pg. 32 of the specification states “all numbers expressing quantities of ingredients and/or reaction conditions may be modified in all instances by the term "about," meaning within +/- 5% of the indicated number”.
With regard to method steps of claims 1 (i), 1 (ii), 14, & 15, Chaumontet teaches the step of mechanical tensioning of hair with curlers after application of the composition to hair to curl the hair and the composition is left on hair which is subjected to mechanical stress “for at least four hours…better between eight hours and ten hours” (i.e. the hair is wrapped around curlers and dried while wrapped around the curlers; pg. 45). With regard to claims 1(iii), 15 & 17, Chaumontet teaches the step that “the step of tensioning the hair using a tensioning means is carried out without the application of heat by a heating means. After the pause time defined above, the mechanical tensioning means are removed. You can also adjust the hairstyle with your fingers. Preferably, the method according to the invention does not include a step of rinsing the hair after the step of removing the tensioning means” (i.e. the hair is allowed to dry naturally under ambient conditions; without removing the shaping composition from hair, drying the hair; pg. 45). With regard to claims 2 & 10, Chaumontet teaches “the pH of the composition is preferably greater than or equal to 2… better still from 3 to 5” (pg. 44). With regard to the composition and claims 1 (iii) (a) & 10 (a), the composition used in the process can comprise organic acids which may preferably be citric acid (pg. 43). With regard to claims 1 (b) & 10 (b), Chaumontet teaches the composition comprises cyclodextrins as the sugar in an amount better from 1 to 10% by weight (pg. 5 & 13). With regard to claims 1 (c) & 10 (c), Chaumontet teaches the composition comprises an organic solvent which may be propylene glycol (pg. 44). With regard to claims 1 (d) & 10 (d), Chaumontet teaches the composition comprises conditioning agents which may be cationic polymers including Jaguar C162 in an amount ranging from “0.01 to 5% by weight…preferably from 0.1 to 2.5 % by weight (pg. 14 & 20). As evidenced by Herrwerth, Jaguar C-162 has the INCI name hydroxypropyl guar hydroxypropyltrimonium chloride (Table 5-12: pg. 9). With regard to claims 1 (iii) (e) & 10 (e), Chaumontet teaches the composition is preferably aqueous “and more preferably from 65 to 95% by weight” (pg. 43). With regard to claim 7, Chaumontet teaches “preferably, the composition does not comprise a fixing polymer” (i.e. does not comprise a film-forming/fixing polymer; pg. 3 & 43). With regard to claims 8 (f), 9, & 10 (f), Chaumontet teaches the composition comprises 0.01 to 80% of “usual cosmetic ingredients” which may be chelating agents and sunscreens (i.e. UV filtering agents; pg. 44).
Chaumontet does not teach the amount of citric acid/organic acid or organic solvent or the weight ratio of (a) : (b).
In the same field of invention, Fukuhara teaches a leave-on hair cosmetic comprising citric acid or a salt thereof and at least one or more organic solvent which includes polypropylene glycols (abstract). With regard to claims 1 (iii)(a) & 10 (a), Fukuhara teaches the composition comprises citric acid in an amount “preferably from 0.01 to 30 wt. %, more preferably from 0.1 to 20 wt. %, even more preferably from 0.5 to 10 wt. % in consideration of internal hair-quality improving effect (pore repairing effects, and the like), set retention improving effect and manageability improving effect” [0012]. With regard to claims 2 & 10, the pH of the composition is from to 2 to 5 when diluted 20 times the weight with water (abstract). With regard to claims 1 (c ) & 10 ( c), Fukuhara teaches the composition comprises a polyhydric alcohol to solubilize and contribute a stable dispersion of component (B) (i.e. one or more organic solvent which includes polypropylene glycol; [0049]). With regard to claims 1 (c ) & 10 ( c), Fukuhara teaches the polyhydric alcohol may be propylene glycol and the polyhydric alcohol is present in an amount “more preferably from 0.5 to 5 wt. %” [0049]. With regard to the method as set forth in claims 1 (i), 1 (ii), 1(iii), 14 & 15, Fukuhara teaches applying the treating agent to hair, winding the hair around a rod (aka curler) and drying the hair [0067].
The Supreme Court in KSR International Co. v. Teleflex Inc., 550 U.S. 398, 127 S. Ct. 1727, 82 USPQ2d 1385, 1395-97 (2007) identified a number of rationales to support a conclusion of obviousness which are consistent with the proper “functional approach” to the determination of obviousness as laid down in Graham. The key to supporting any rejection under 35 U.S.C. 103 is the clear articulation of the reason(s) why the claimed invention would have been obvious. The Supreme Court in KSR noted that the analysis supporting a rejection under 35 U.S.C. 103 should be made explicit.
Exemplary rationales that may support a conclusion of obviousness include:
(A) Combining prior art elements according to known methods to yield predictable results;
(B) Simple substitution of one known element for another to obtain predictable results;
(C) Use of known technique to improve similar devices (methods, or products) in the same way;
(D) Applying a known technique to a known device (method, or product) ready for improvement to yield predictable results;
(E) “Obvious to try” – choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success;
(F) Known work in one field of endeavor may prompt variations of it for use in either the same field or a different one based on design incentives or other market forces if the variations are predictable to one of ordinary skill in the art;
(G) Some teaching, suggestion, or motivation in the prior art that would have led one of ordinary skill to modify the prior art reference or to combine prior art reference teachings to arrive at the claimed invention.
Note that the list of rationales provided is not intended to be an all-inclusive list. Other rationales to support a conclusion of obviousness may be relied upon by Office personnel.
Here, at least rationale (G) may be employed in which it would have been prima facie obvious before the effective filing date to have modified the composition used in Chaumontet’s method by adjusting the amount of Chaumontet’s citric acid to be from 0.5 to 10 wt% [yielding an (a) : (b) weight ratio of 10:1 to 1:20, including 1:1; Math: 0.5 to 10 % citric acid : 1 to 10% cyclodextrin = 10:1 to 1:20; claims 3 & 11; and a combined amount of citric acid being 1.5 to 20% as set forth by claim 10 (b)] and Chaumontet’s propylene glycol to be from 0.5 to 5 wt. % as suggested by Fukuhara because Chaumontet and Fukuhara are drawn to methods of curling hair with curlers/rods using citric acid and propylene glycol and it is obvious to modify similar methods and compositions in the same way. The ordinary skilled artisan would have been motivated to do so, with an expectation of success, in order to include citric acid and propylene glycol in amounts preferred and most preferred in methods and compositions which curl/set hair with curlers/rods.
With regard to the recited amount of citric acid, one or more cyclodextrins, one or more water soluble solvents, one or more cationic guar derivatives/ hydroxypropyl guar hydroxypropyltrimonium chloride, water and miscellaneous ingredients; the pH of the hair shaping composition; the weight ratio of (a) : (b); and the combined total amount of (a) and (b), the combined teachings of Chaumontet and Fukuhara teach these parameters with values which overlap or fall within the recited ranges. 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). Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here 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, 456, 105 USPQ 233, 235 (CCPA 1955).
Claims 4-6, 12 & 13 are rejected under 35 U.S.C. 103 as being unpatentable over Chaumontet (as evidenced by Herrwerth) and Fukuhara as applied to claims 1-3, 7-11, 14, 15 & 17 above, and further in view of Khine (US 2022/0354761; Published: 11/10/2022; IDS: 12/14/2023).
*All references refer to the English translation.
** The examiner notes that pg. 32 of the specification states “all numbers expressing quantities of ingredients and/or reaction conditions may be modified in all instances by the term "about," meaning within +/- 5% of the indicated number”.
***The applied Khine reference is available as prior art under 35 U.S.C. 102(a)(1) and 35 U.S.C. 102(a)(2).
The teachings of Chaumontet and Fukuhara are addressed above. Chaumontet teaches the carbohydrates may be cyclodextrins (pg. 4 & 5).
Neither Chaumontet nor Fukuhara teach the cyclodextrins are β-cyclodextrin or that (a) and (b) are individually combined with each other to form a mixture in which (b) is dissolved in (a); and the mixture is subsequently combined with additional components of the composition.
In the same field of invention, Khine teaches compositions can be used for providing lasting
curl definition (abstract). With regard to claims 5, 6 & 13, the composition comprises at least one carboxylic acid which may be citric acid, at least one cyclodextrin which may be β-cyclodextrin and at least one solvent (abstract; Table 1-1-pg.7; Table 1-2-pg. 7). Khine teaches the solvent may be water and at least one additional solvent which may be propylene glycol (Khine’s claim 74; Table 1-1-pg. 7; Table 1-2-pg. 7). With regard to claims 4 & 12, Khine teaches a premixture of citric acid, β-cyclodextrin, and water diluted with additional water and that this pre-mixture of citric acid and β-cyclodextrin “demonstrated better curl definition and frizz control as compared to the C4 admixture ([0088]-[0090] & [0095]). With regard to claims 4 & 12, Khine further teaches “after the pre-mixture is prepared, it may then be diluted with additional solvent and other additives to the desired concentration of the final composition according to the disclosure. The additional solvent may be the same as the solvent in the pre-mixture, may be different from the solvent in the pre-mixture, or may be a combination of the solvent in the pre-mixture with one or more solvents other than that in the pre-mixture” (i.e. wherein (a) and (b) are individually combined with each other to form a mixture in which the cyclodextrin is dissolved in the citric acid; and the mixture is subsequently combined with additional components of the composition; [0055]).
With regard to method steps recited by claims 4 & 12, it would have been prima facie obvious to the ordinary skilled artisan before the effective filing date to have modified the method suggested by the combined teachings of Chaumontet and Fukuhara by individually combining citric acid and cyclodextrin so that the cyclodextrin is dissolved in the citric acid and the mixture is subsequently combined with additional components as taught by Khine because Chaumontet, Fukuhara and Khine are all directed to curling hair with citric acid and it is obvious to modify similar compositions and methods in the same way. The ordinary skilled artisan would have been motivated to do so, with an expectation of success, because premixtures of citric acid and β-cyclodextrin yielded better curl definition and frizz control as compared to the admixture as taught by Khine.
With regard to claims 5, 6 & 13, it would have been prima facie obvious to the ordinary skilled artisan before the effective filing date to have modified the composition used in the method suggested by the combined teachings of Chaumontet and Fukuhara by substituting Chaumontet’s generically taught cyclodextrins with β-cyclodextrin as taught by Kline because Chaumontet and Khine are directed to curling hair with citric acid and cyclodextrin and β-cyclodextrin is a preferred cyclodextrin for curls leading to better curl definition and frizz control as taught by Khine.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-13 & 16 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-17, 21 & 22 of copending Application No. 18/539865 (hereinafter the ‘865; claims filed 03/24/2026). Although the claims at issue are not identical, they are not patentably distinct from each other because both the instant application the ‘865 recite a method of applying a composition to hair, physically manipulating the hair into a shape and without removing the shaping composition, drying the hair. The two compositions used in the method are recited both recited to comprise citric acid, one or more cyclodextrins, one or more water soluble solvents, hydroxypropyl guar hydroxypropyltrimonium chloride, water and one or more miscellaneous ingredients. The species of the cyclodextrins recited by the claims of the two applications are the same. The compositions recited by the two applications have the same pH range, weight ratio and molar ratio of reagents. It would have been prima facie obvious to the ordinary skilled artisan before the effective filing date to have looked to the ‘865 application to perform a method of shaping hair.
With regard to the recited amount of citric acid, one or more cyclodextrins, one or more water soluble solvents, one or more cationic guar derivatives/ hydroxypropyl guar hydroxypropyltrimonium chloride, water and miscellaneous ingredients; the pH of the hair shaping composition; the weight ratio of (a) : (b); and the combined total amount of (a) and (b), the ‘865 teaches these parameters with values which overlap or fall within the recited ranges. 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). The instant claims are therefore an obvious variant of the conflicting, copending claims. This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1-15 & 17 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of copending Application No. 19/361,242 (hereinafter the ‘242; claims filed 10/17/2025) in view of Khine (US 2022/0354761; Published: 11/10/2022) and Fukuhara (US 2005/0214238; Published: 09/29/2005). Although the claims at issue are not identical, they are not patentably distinct from each other because both the instant application and the ‘242 recite a method of styling hair comprising applying the styling composition to hair. The hair is necessarily physically manipulated because the composition is a styling composition. The composition is necessarily not removed because the ‘242 does not teach a rinsing step and the composition is necessarily going to dry because it is not removed from hair. The drying is necessarily under ambient conditions because the ‘242 does not recite application of heat. The hair styling composition would reasonably have a pH of about 5 because the pH of hair is about 5. With regard to composition, the ‘242 recites the composition comprises about 1.0 to about 3.0 % citric acid, about 0.1 to about 5.0 % one or more cyclodextrins which may be β-cyclodextrin [yielding a combined amount of (a) and (b) of 1.1 to about 8.0%], about 1 to about 15% sorbitol (i.e. water soluble solvent) and about 0.1 to about 2 wt.% guar hydroxypropyltrimonium chloride (i.e. hydroxypropyl guar hydroxypropyltrimonium chloride) and 33 to 94.8% water. The ratio is (a) to (b) is 30:1 to 1:5. The hair styling composition is not recited as comprising film forming polymers. The ‘242 recites the composition comprises about 2 to about 30 wt.% glycerin (an emollient/miscellaneous ingredient). The ’242 does not teach the cyclodextrin is dissolved in the citric acid with additional ingredients combined with additional ingredients or physically manipulating the composition into the shape of curls or wrapping the hair around curlers while it is dried. The teachings of Khine are described above. The teachings of Fukuhara are described above. With regard to the method step of manipulating hair into the shape of curls. It would have been prima facie obvious before the effective filing date to have modified the method of the ‘242 by manipulating the hair into a shape of curls as taught by Khine because the ‘242 and Khine are both directed to styling hair with citric acid and β-cyclodextrin and it is obvious to modify similar methods in the same way. The ordinary skilled artisan would have been motivated to do so, with an expectation of success, in order to style the hair into curls and waves. With regard to the method step of drying the hair while wrapped around curlers, it would have been prima facie obvious to the ordinary skilled artisan before the effective filing date to have modified to the method suggested by the combined teachings of ‘242 and Khine by wrapping the hair around a rod/curler for the hair to dry as taught by Fukuhara because the ‘242, Khine and Fukuhara are directed to styling hair with citric acid and it is obvious to modify similar composition in the same way. The ordinary skilled artisan would have been motivated to do so, with an expectation of success, in order to style the hair in a curl shape. With regard to the method step of dissolving the β-cyclodextrin into citric acid, the ordinary skilled artisan would have been motivated modify the method of the ‘242 by dissolving the β-cyclodextrin into citric acid as taught by Khine because the ‘242 and Khine are drawn to styling the hair with citric acid and β-cyclodextrin and it is obvious to modify similar methods in the same way. The ordinary skilled artisan would have been motivated to do so, with an expectation of success, in order to have better curl definition and less frizz as taught by Khine.
With regard to the recited amount of citric acid, one or more cyclodextrins, one or more water soluble solvents, one or more cationic guar derivatives/ hydroxypropyl guar hydroxypropyltrimonium chloride, water and miscellaneous ingredients; the pH of the hair shaping composition; the weight ratio of (a) : (b); and the combined total amount of (a) and (b), the combined teachings of the ‘242 and Khine teach these parameters with values which overlap or fall within the recited ranges. 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). The instant claims are therefore an obvious variant of the conflicting, copending claims. This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
The instant claims are therefore an obvious variant of the conflicting, copending claims in view of the prior art. This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LORI K MATTISON whose telephone number is (571)270-5866. The examiner can normally be reached 9-7 (M-F).
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/LORI K MATTISON/Examiner, Art Unit 1619
/NICOLE P BABSON/Primary Examiner, Art Unit 1619
Prosecution Insights