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 .
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.
Claim 26 is 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.
Claim 26 recites wherein the hair cosmetic composition further contains glycerin as a moisturizing agent. The claim is indefinite because the scope of the claim is unclear. It is not clear whether glycerin is the at least one moisturizing agent of claim 25, or an additional moisturizing agent. To obviate this issue, it is suggested to removed “further” in claim 26.
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 19-32 and 34-37 are rejected under 35 U.S.C. 103 as being unpatentable over Schweinsberg et al. (US 2012/0201774 A1, 08/09/2012) (hereinafter Schweinsberg).
Schweinsberg discloses cosmetic products for keratin fibers containing, in a cosmetic carrier in the form of a dispersed system, at least one modified starch (abs); at least one polymeric thickening agents including sclerotium gum and hydroxypropyl starch phosphate ([0290]) in amounts of 0.5-20 wt. % ([0292]); and care-providing substances such as cationic surfactants, including amidoamine types ([0270]).
Schweinsberg discloses a hair cosmetic comprising a mixture of: sclerotium gum (i.e. claimed microbial polysaccharide of claim 31) and hydroxypropyl starch phosphate (i.e. claimed modified starch of claim 32) ([0290]) and a cationic surfactant as a care-providing substance ([0270}) in a cosmetic carrier (abs). Schweinsberg does not disclose wherein the hair cosmetic must comprise silicones or quaternary ammoniums. Together these would provide a hair cosmetic composition as instantly claimed.
The prior art is not anticipatory insofar as this combination must be selected from various lists/locations in the reference. It would have been obvious, however, to make the combination since all the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination yielded nothing more than predictable results to one of ordinary skill in the art. See MPEP § 2143 (I)(A).
Regarding claims 19 and 27 reciting various amounts of the at least one modified starch, the claimed amounts (i.e. 1-5% wt., or 2-4.5% wt., respectively) would have been obvious to one of ordinary skill in the art since they overlap with the ranges of the prior art (i.e. 0.5-20% wt.). In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP § 2144.05(I).
Regarding claim 20, Schweinsberg discloses wherein the carrier includes a water-containing cosmetic carrier (i.e. aqueous) ([0015]). Schweinsberg does not explicitly disclose an amount of water. However, it would have taken no more than the relative skill of one of ordinary skill in the art to have arrived at the claimed amount of water (i.e. at least 60% by weight) through routine experimentation based on the amount of carrier desired. Where 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. See MPEP § 2144.05(II)(A).
Regarding claim 21, Schweinsberg does not wherein the hair cosmetic must comprise additional fatty substances.
Regarding claim 22, Schweinsberg does not explicitly disclose a claimed dynamic viscosity range. However, since the cosmetic product of Schweinsberg comprises substantially the same active ingredients (i.e. sclerotium gum as a microbial polysaccharide; hydroxypropyl starch phosphate as a modified starch; and a cationic surfactant, in a cosmetic carrier) in about the same amounts, one of ordinary skill in the art would reasonably conclude the cosmetic product of Schweinsberg to reasonably possess the same properties as the claimed invention, such as a dynamic viscosity, measured at 22° C. by rotary viscometer at a shear rate of 17.7 s-1, of between 1,200 and 4,000 Pa·s.
Regarding claim 23, Schweinsberg does not disclose wherein the hair cosmetic must comprise anionic or nonionic surfactants.
Regarding claim 24, Schweinsberg further discloses wherein the cosmetic carrier contains active substances ([0015]).
Regarding claims 25 and 26, Schweinsberg further discloses wherein the cosmetic carrier further comprises glycerol ([0171]).
Regarding claims 28-29 reciting various amounts of the at least one microbial polysaccharide, the claimed amounts (i.e. 0.1-0.5% wt., or 2-4.5% wt., respectively) would have been obvious to one of ordinary skill in the art since they overlap with the ranges of the prior art (i.e. 0.5-20% wt.). In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP § 2144.05(I).
Regarding claim 30, Schweinsberg does not explicitly disclose an amount of cationic surfactant. However, since cationic surfactants are care-providing substances, it would have taken no more than the relative skill of one of ordinary skill in the art to have arrived at the claimed amount of cationic surfactant (i.e. 1-4% wt.) through routine experimentation based on the level of care desired. "[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." See MPEP § 2144.05(II)(A).
Regarding claim 34, Schweinsberg does not disclose wherein the hair cosmetic must comprise silanes.
Regarding claim 35, Schweinsberg further discloses an embodiment wherein the cosmetic product comprises an additional oil phase in an amount of 0.05 wt.% to 25 wt. % ([0214]). As such, the claimed amount (i.e. lower than or equal to 1% by weight) of fatty substances would have been obvious to one of ordinary skill in the art since they overlap with the ranges of the prior art (i.e. 0.05-25% wt.). In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP § 2144.05(I).
Regarding claims 36-37, Schweinsberg further discloses wherein the product is applied to hair after the hair strands were washed with a detergent solution (i.e. shampoo) ([0362]).
Claim 33 is rejected under 35 U.S.C. 103 as being unpatentable over Schweinsberg et al. (US 2012/0201774 A1, 08/09/2012) (hereinafter Schweinsberg) in view of Rughani et al. (US 2018/0280267 A1, 10/04/2018) (hereinafter Rughani).
The disclosure of Schweinsberg has been discussed in detail above, and differs from the instant claim insofar as not explicitly disclosing wherein the cationic surfactant of the amidoamine type comprises behenamidopropyl dimethylamine.
However, Rughani discloses one or more hair treatment compositions comprising cationic surfactants ([0138]) including behenamidopropyldimethylamine ([0145]).
Schweinsberg discloses a cosmetic product for treating hair comprising a cationic surfactant. Accordingly, it would have been obvious to one of ordinary skill in the art to have included behenamidopropyldimethylamine in the product of Schweinsberg, since it is a known and effective cationic surfactant suitable for hair treatment products as taught by Rughani.
Citation of Pertinent Prior Art
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Sun et al. (US 2018/0344619 A1, 12/06/2018), directed to compositions comprising an organic compound B) and thickeners.
Bendejacq et al. (US 2012/0021025 A1, 1/26/2016), directed to aqueous compositions as hair treatment comprising cationic surfactant and rheology modifiers.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LUCY TIEN whose telephone number is (571)272-8267. The examiner can normally be reached Monday - Thursday 8:30 AM - 6:30 PM EST.
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/LUCY M TIEN/Examiner, Art Unit 1612
/SAHANA S KAUP/Supervisory Primary Examiner, Art Unit 1612