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 .
DETAILED ACTION
Claim Status
The claim set of 23 Feb 2024 has been entered and reviewed.
Claims 1-12 are pending.
Election/Restrictions
Applicant’s election of Group I, claims 1-10, directed to a dry shampoo spray foam product, in the reply filed on 11 Mar 2026 is acknowledged. Applicants also elected that the foaming surfactant is cocamidopropyl betaine, the fatty alcohol is cetearyl alcohol, the solubilizer is PEG-40 hydrogenated castor oil, and the cationic surfactant is cetrimonium chloride in response to the species election requirement. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
The requirement is still deemed proper and is therefore made FINAL.
Claims 11 and 12 are withdrawn from further consideration by the examiner, pursuant to 37 CFR 1.142(b), as being drawn to a non-elected invention / species.
Claims 1-10 are under consideration to the extent of the elected species, i.e., that the foaming surfactant is cocamidopropyl betaine, the fatty alcohol is cetearyl alcohol, the solubilizer is PEG-40 hydrogenated castor oil, and the cationic surfactant is cetrimonium chloride.
Information Disclosure Statement
The information disclosure statements (IDS) submitted on 23 Feb 2024 and 27 Sep 2024 are in compliance with the provisions of 37 CFR 1.97, except where noted. Accordingly, the information disclosure statement is being considered by the examiner.
Claim Objections
Claims 2-7 and 10 are objected to because of the following informalities:
In claims 2-7 and 10, the word “Claim” is unnecessarily capitalized.
In claim 7, “the” should be inserted between “wherein” and “valve.”
In claim 7, “comprising” should be “comprises.”
Appropriate correction is required.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 9 and 10 are rejected under 35 U.S.C. 103 as being unpatentable over Mustafa et al. (US 2019/0008751, published 10 Jan 2019).
Mustafa teaches aerosol dry shampoo mousse compositions for hair ([0002], title). Mustafa teaches that mousse refers to an aerosolized creamy foam ([0014]), rendering obvious the form of a dry shampoo spray foam product. Mustafa teaches that it is desirable for dry shampoo products to have a satisfactory capacity to absorb oil, without a heavy feel or a tendency to form clumps of particles ([0004]). Mustafa teaches the compositions comprise a propellant ([0010]) in amounts such as from about 4 to about 15 wt% ([0013]), rendering obvious the propellant of claims 9 and 10. Mustafa teaches that the compositions comprise sebum-absorbing powder that is a starch which absorbs the oily, waxy substance called sebum ([0015], [0016]), rendering obvious the inclusion of an oil absorbent. Mustafa teaches the sebum absorbing powder may be from about 10% to about 50 wt% ([0019]), rendering obvious the amount of oil absorbent of claim 9. Further, the limitation of “about” 10% is understood to allow for percentages less than 10% and the claimed amount of “about 9 wt%” in claim 10 is understood to allow for amounts greater than 9%. Thus, “about 10%” is understood to render obvious “about 9%” as claimed. Mustafa taches the compositions may include about 30 to about 70% water ([0053]), rendering obvious the water of claims 9 and 10. Mustafa teaches the composition may include up to about 45 wt% of one or more volatile alcohols ([0055]), rendering obvious the alcohol of claims 9 and 10. Mustafa teaches that the compositions may include optional ingredients such as cetearyl alcohol (the elected fatty alcohol), perfumes (rendering obvious a fragrance) ([0060]), and cetrimonium chloride (the elected cationic surfactant) ([0061]). Mustafa teaches optional ingredients are from about 0.01% to about 10% ([0063]), rendering obvious the amount of fatty alcohol, fragrance and cationic surfactant. Mustafa teaches the inclusion of surfactants such as cocamidopropyl betaine ([0044]) from about 0.1 to about 10wt% ([0045]), rendering obvious the elected species foaming surfactant of claims 9 and 10.
Mustafa does not expressly teach selecting the propellant, sebum-absorbing powder, volatile alcohol, water, cetearyl alcohol, perfume, cetrimonium chloride, and cocamidopropyl betaine and the amounts discussed above as part of the aerosol dry shampoo mousse composition with sufficient specificity to rise to the level of anticipation.
However, it would have been prima facie obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention to have formed an aerosol dry shampoo mousse composition comprising propellant, sebum-absorbing powder, volatile alcohol, water, cetearyl alcohol, perfume, cetrimonium chloride, and cocamidopropyl betaine in the amounts discussed above. One of ordinary skill in the art would have been motivated to do so as each of these components are taught by Mustafa as suitable for aerosol dry shampoo mousse compositions, rendering these components and their amounts as obvious for such compositions. One of ordinary skill in the art would have a reasonable expectation of successfully forming an aerosol dry shampoo mousse composition comprising propellant, sebum-absorbing powder, volatile alcohol, water, cetearyl alcohol, perfume, cetrimonium chloride, and cocamidopropyl betaine since the modification of the prior art represents nothing more than the predictable use of prior art elements according to their established functions.
Accordingly, the instant claims are rendered prima facie obvious over the teachings of Mustafa.
Claims 1-6 and 8 are rejected under 35 U.S.C. 103 as being unpatentable over Mustafa et al. (US 2019/0008751, published 10 Jan 2019) as applied to claims 9 and 10 above and in view of Paul et al. (CA 2,268,467, published 04/08/1999) and Tae (KR 20100104257A, published 29 Sep 2010).
The teachings of Mustafa are described supra.
The aerosol dry shampoo mousse compositions and the components for the compositions described above render obvious the dry shampoo spray foam composition of claims 9 and 10 above and the dry shampoo spray foam composition of claims 1-5 and 8. Mustafa further teaches that the composition is dispensed with an aerosol dispensing system that is not unduly limited and may generally be described as having a container that includes an outlet and is capable of being pressurized, a valve system and an actuator ([0077]).
Mustafa does not teach the valve body orifice size, the vapor tap orifice size and the stem orifice size of the aerosol container. These deficiencies are made up for in the teachings of Paul and Tae.
Paul teaches low volatile organic compound aerosol hair cosmetic compositions comprising starches (abstract). Paul teaches components for the compositions including starch, propellants, water and solvents (page 4 lines 10-13) such as lower alcohols (page 14 lines 20-22). Paul teaches an aerosol container for dispensing the compositions with a 0.013” vapor tap and a 0.013” stem orifice. These sizes render obvious the orifice sizes for the vapor tap orifice and stem orifice of the instant claims.
Tae teaches shampoo for cleaning hair and that can be easily cleaned without rinsing with water (page 1 lines 13-15) and that is an aerosol formulation (page 3 lines 13). Tae teaches the aerosol valve system for delivery has a body orifice diameter of 0.8-1.5 mm (i.e. 0.031” – 0.059”).
Therefore, it would have been prima facie obvious to one of ordinary skill in the
art, before the effective filing date of the claimed invention to have used the aerosol dry shampoo mousse of Mustafa with an aerosol container having a 0.013” vapor tap and a 0.013” stem orifice and a body orifice of 0.8-1.5 mm (i.e. 0.031” – 0.059”). The aerosol compositions of Mustafa are to be dispensed from aerosol dispensing systems that have a valve system, as known from Mustafa. Aerosol hair compositions are additionally known from Paul and Tae and it is known from their teachings that such systems may have a 0.013” vapor tap and a 0.013” stem orifice and a body orifice of 0.8-1.5 mm (i.e. 0.031” – 0.059”). Paul teaches hair compositions with similar components as those of Mustafa, namely a starch, propellants, water and solvents and Tae similarly teaches shampoo that is used without rinsing, providing further connection to the composition type and use of the aerosols of Mustafa. Mustafa does not limit the aerosol dispensing system. As the dimensions described are known orifice sizes for hair related aerosols, one of ordinary skill would have a reasonable expectation of success in dispensing the aerosol composition from an aerosol can with such orifice dimensions.
Therefore, the invention as a whole was prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, as evidenced by the references.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Mustafa et al. (US 2019/0008751, published 10 Jan 2019) in view of Paul et al. (CA 2,268,467, published 04/08/1999) and Tae (KR 20100104257A, published 29 Sep 2010) as applied to claims 1-6, and 8-10 above and further in view of Marcon (US 3,967,760, published 06 Jul 1976).
The teachings of Mustafa, Paul and Tae are described supra.
Mustafa, Paul and Tae do not teach a slide lock. This deficiency is made up for in the teachings of Marcon.
Marcon teaches an actuator cap assembly for an aerosol dispenser having a slide surface formed thereon (abstract). Marcon teaches that button actuators are easy to press but may be operated accidentally and Marcon teaches a locking means to reduce the risk of accidental operation of the aerosol, such as by a child (col 1 lines 7-16). Marcon teaches an actuator cap assembly for an aerosol can comprising a body formed with a slide that can be moved between a first position and second position whereby operation of the valve is not possible when the carriage is in the second position (col 1 lines 17-29).
Therefore, it would have been prima facie obvious to one of ordinary skill in the
art, before the effective filing date of the claimed invention to have incorporated a slide mechanism for the aerosol can as a means of locking and preventing accidental spray. Slide mechanisms for locking the can are known from Macron, providing a reasonable expectation of success for incorporating such a mechanism and it would be desirable to one of ordinary skill to have a sliding mechanism for locking the spray so as to avoid accidental spray, such as by a child.
Therefore, the invention as a whole was prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, as evidenced by the references.
Conclusion
No claim is allowed.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to EDWIN C MITCHELL whose telephone number is (571)272-7007. The examiner can normally be reached Mon-Fri 8:00-5:00.
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/E.C.M./Examiner, Art Unit 1619
/DAVID J BLANCHARD/Supervisory Patent Examiner, Art Unit 1619