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 with traverse of Group I and the species of polyurethane in the reply filed on 26 March 2026 is acknowledged. The traversal is on the ground(s) that the ISA deemed that the claims and species already have unity of invention, and the USPTO is bound by the same standard. This is not found persuasive because the claims do not in fact have unity of invention, for the reasons put forward in the restriction requirement. The requirement is still deemed proper and is therefore made FINAL. Claim 47 is withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim.
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, 3-4, 6-11, 13-17, 19-22, 24-25, 27, 29, 46, 40, and 45-46 are rejected under 35 U.S.C. 103 as being unpatentable over Lubnin et al. (US Patent Application Publication 2013/0316098) in view of Rollat-Corvol et al. (US Patent Application Publication 2006/0005326).
Lubnin et al. discloses aqueous cationic polyurethane dispersions where the polyurethane has a tertiary amino group tethered to the backbone of the polyurethane (abstract). The polyurethanes are useful for personal care applications (paragraph [1]). Further, the polyurethane can form films and can adhere to a variety of substrates such as skin (paragraph [208]).
Example of such a polyurethane (examples, 3, 4, and 6) read upon the instantly recited polyurethane and elected species of polyurethane (which is the polyurethane of example 1 of the instant specification). The instantly disclosed example and examples disclosed by Lubnin et al. all have dicyclohexylmethane diisocyanate, isophorone diisocyanate, and polytetrahydrofuran reacted to form a prepolymer, which is then reacted with Jeffcat DPA tethered amine, before neutralization and reaction with water. Thus, the taught polyurethane reads upon instantly recited element (b) of independent claim 1.
Lubnin et al. does not state that this polyurethane is incorporated into a hair coloring composition, which is a feature recited by independent instant claim 1.
Rollat-Corvol et al. discloses dyeing compositions for hair which comprise at least one dyestuff (claims 1 & 13). Rollat-Corvol et al. also suggests the inclusion of additional agents, such as additional film-forming agents (paragraph [183]).
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 polyurethane dispersion taught by Lubnin et al. in the composition disclosed by Rollat-Corvol 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.
Instant claims 3-4, 6-11, 13-17, 19, and 45 further limit the polyurethane, and the polyurethane disclosed by Lubnin et al. reads upon these limitations. And as for the amount recited by instant claim 45, the amount suggested by Rollat-Corvol et al. (paragraph [184]) overlaps the instantly recited range. 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.
Instant claims 20-22 further limit the coloring agent present. Rollat-Corvol et al. discloses pigments in paragraph [140] which are temporary coloring agents (per the instant specification at paragraph [57]). Pigments listed in paragraphs [90-104] are permanent coloring agents (per the instant specification at paragraph [42]). Pigments listed in paragraphs [73-88] are semi-permanent coloring agents (per the instant specification at paragraph [50]). And as for the amount recited, Rollat-Corvol et al. discloses amounts which overlap the instantly recited range.
Instant claims 24-25 and 27 recite additional limitations to ingredients present, and Rollat-Corvol et al. suggests oxidation bases and couplers conventionally used for oxidation dying (paragraph [168]), and in amounts (paragraph [171]) which overlap the amounts instantly recited.
Instant claim 29 recites the further inclusion of an alkalizing agent, and Rollat-Corvol et al. suggests basifying agents in order to adjust the pH to, for example, from 5 to 11 (paragraphs [186-187]).
Instant claims 36 and 40 recite the further inclusion of additional ingredients and their amounts. Rollat-Corvol et al. suggests such ingredients (paragraph [183]) and amounts in overlapping ranges (paragraph [184]).
Instant claim 46 further limits the form of the composition. And Rollat-Corvol et al. suggests a rinse composition (example 1).
Claims 31, 33, and 42 are rejected (and above rejected claims 1, 3-4, 6-11, 13-17, 19-22, 24-25, 27, 29, 46, 40, and 45-46 are also additionally rejected) under 35 U.S.C. 103 as being unpatentable over Lubnin et al. (US Patent Application Publication 2013/0316098) and Rollat-Corvol et al. (US Patent Application Publication 2006/0005326) as applied to claim 1 above, and further in view of Sun et al. (US Patent Application Publication 2018/0344619).
Instant claim 31 recites the further inclusion of a reducing agent. While Rollat-Corvol et al. suggests convention adjuvants (paragraph [183]), reducing agents are not taught therein.
Instant claim 33 recites the further inclusion of an oxidizing agent and amount thereof. Such an agent is suggested by Rollat-Corvol et al. (paragraph [192]) but no amounts are suggested.
Instant claim 42 recites specific thickeners to include in the composition. While Rollat-Corvol et al. suggests thickeners (paragraph [183]), and in amounts which overlap the instantly recited amount (paragraph [184]), the specific thickeners are not disclosed.
Sun et al. discloses hair treatment compositions (abstract). Useful additives for such compositions include oxidizing agents, reducing agents, and thickeners in the amounts provided (claim 18), And the thickeners can include cellulose derivatives (paragraph [139]).
Therefore, it would have been prima facie obvious to one of ordinary skill in the art at the time of filing to have used additives taught by Sun et al. in the composition disclosed by Rollat-Corvol 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.
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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