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 .
Status of the Claims
The listing of claims filed 08 March 2024 has been examined.
Claims 1-26 are pending.
Information Disclosure Statement
The Information Disclosure Statements (IDSs) filed on 13 August 2024, 11 March 2025, 20 November 2025, and 26 March 2026 are acknowledged and have been considered.
Benefit of Earlier Filing Date
The instant application, filed 08 March 2024, claims priority to U.S. Provisional Patent Application Serial No. 63/489,057, filed 08 March 2023. Acknowledgment is made of Applicant’s claim.
Specification
Applicant is reminded of the proper language and format for an abstract of the disclosure.
The abstract should be in narrative form and generally limited to a single paragraph on a separate sheet within the range of 50 to 150 words in length. The abstract should describe the disclosure sufficiently to assist readers in deciding whether there is a need for consulting the full patent text for details.
The language should be clear and concise and should not repeat information given in the title. It should avoid using phrases which can be implied, such as, “The disclosure concerns,” “The disclosure defined by this invention,” “The disclosure describes,” etc. In addition, the form and legal phraseology often used in patent claims, such as “means” and “said,” should be avoided.
The abstract of the disclosure is objected to because it contains legal phraseology, specifically the terms “comprising” and “consisting.” A corrected abstract of the disclosure is required and must be presented on a separate sheet, apart from any other text. See MPEP § 608.01(b).
Claim Objections
Claims 2-26 are objected to because of the following informalities:
An independent claim introduces subject matter for the first time and commonly recites the indefinite article “a.” A dependent claim referring back to the subject matter from a prior claim should recite the definite article “the.” Such formal claim drafting avoids ambiguity and provides a proper antecedent basis for the claimed subject matter.
Regarding claims 2-26, each claim recites, “A personal care composition according to Claim [1]…,” referring back to a previously recited claim using the indefinite article “A,” which can cause confusion as to whether a new personal care composition is claimed or whether the claim is referring to and further defining the personal care composition recited in the referenced claims.
Examiner suggests amending “A” to “The” at the beginning of each of claims 2-26.
Appropriate correction is required.
Regarding claims 19 and 24, Applicant is advised that should claim 19 be found allowable, claim 24 will be objected to under 37 CFR 1.75 as being a substantial duplicate thereof. When two claims in an application are duplicates or else are so close in content that they both cover the same thing, despite a slight difference in wording, it is proper after allowing one claim to object to the other as being a substantial duplicate of the allowed claim. See MPEP § 608.01(m).
Regarding claim 20, this claim recites the limitation, “…wherein one or more scalp, facial/body skin or hair health actives…” In subsequent claims (Claims 21-23), Applicant recites, “…wherein the one or more scalp, facial/body skin or hair health active[s]…” (emphasis added). For consistency and to avoid confusion as to whether the same claim element is being referenced, Examiner suggests adding definite article “the” prior to the term “one” in claim 20.
Appropriate correction is requested.
Claim Rejections - 35 USC § 112(b)
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 1–26 are rejected under 35 U.S.C. § 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention.
Claims 1, 5-9, 14–17, 23, and 25-26 recite “about,” which is a relative term that renders the claims indefinite. The term is not defined by the claim or the specification, and the specification does not provide a standard for ascertaining the requisite degree. Therefore one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. Further, the relative term “about” preceding a range renders the endpoints of the range undeterminable.
Claims 2–4, 10–13, 18–22, and 24 depend on rejected claim 1 without curing the defect.
Appropriate correction is required.
Examiner recommends deleting “about” from each claim.
Claim Interpretation
The specification includes a paragraph that attempts to broaden the meaning of a value recited in the claims: “each such dimension is intended to mean both the recited value and a functionally equivalent range.” (Spec., p. 56, Lines 21–24). The statement is not a clear definition (“intended to mean” is not the same as “means”). Accordingly, the statement is not given weight when establishing the scope of the claims, and any numerical value recited in the claims is given its plain and ordinary meaning.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1-4, 6-9, and 17-18 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Kroger Lyons (US 10,653,609 B2; IDS dated 13 August 2024, Cite No. 145).
Regarding claims 1, 4, 6-9, and 17-18, Kroger Lyons teaches hair care compositions, including a composition containing 2.00% citric acid, 0.50% salicylic acid, and 7.69% SLE1S [sodium lauryl sulfate containing one polyethylene oxide group], 0.20% polysorbate 20, and 1.75% polyacrylate crosspolymer-6 and the composition is pH 2.8-3.3 (Col. 11-14, Examples, Example 4). Thus, hydroxy acids (citric acid and salicylic acid) comprise 2.50% of the composition and thickening polymers (polysorbate 20 and polyacrylate crosspolymer-6) comprise 1.95% of the composition.
Regarding claims 2-3, Kroger Lyons does not explicitly teach a personal care composition which exhibits the following properties or intended results:
“a hydroxy acid deposition efficiency on scalp of at least 1.5X” (Claim 2).
“a hydroxy acid deposition efficacy of 6.5X” (Claim 3).
However, a personal care composition meeting all the structural limitations required by claim 1, upon which claims 2-3 depend, would be expected to exhibit the same properties or intended results as recited in claims 2-3.
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 5, 10-16, and 19-26 are rejected under 35 U.S.C. 103 as being unpatentable over Kroger Lyons (US 10,653,609 B2; IDS dated 13 August 2024, Cite No. 145).
Regarding claim 5, Kroger Lyons teaches all of the claimed elements as stated above. Furthermore, Kroger Lyons discloses personal care compositions containing 1.00% cocamide MEA (Col. 11-12, Examples, Comparative Example 1) and 3.33%, 5.00%, 6.67%, or 10.00% cocamidopropyl betaine (Col. 11-12, Examples, Comparative Examples 1-3 and Examples 2-3). Furthermore, Kroger Lyons indicates detersive surfactants, including anionic, amphoteric, nonionic, and zwitterionic surfactants, provide the “cleaning performance to the composition” (Col. 3, Lines 26-30) and possible amounts are about 1-10 wt % (Col. 3, Lines 36-42). Kroger Lyons lists many other surfactants, including anionic surfactants like ammonium lauryl sulfate and ammonium laureth sulfate (Col. 3, Lines 52-54), amphoteric or zwitterionic surfactants like cocoamphoacetate and betaines (Col. 4, Lines 23 and 35), as well as nonionic detersive surfactants like oleamide (Col. 4, Line 44).
Kroger Lyons does not explicitly teach a singular pH 2.5-5.5 personal care composition containing multiple surfactants, one of which is an anionic surfactant, as well as both citric acid and salicylic acid.
Prior to the filing of the instant application, a person having ordinary skill in the art (PHOSITA) following the teachings of Kroger Lyons would have found it prima facie obvious to prepare a personal care composition containing about 0.25%-8% co-surfactants. The instant specification indicates possible co-surfactants include zwitterionic co-surfactants like cocamidopropyl betaine (p. 8, Lines 22), which is also used in a composition described by Kroger Lyons. Thus, a skilled artisan would have known to prepare compositions containing multiple surfactants, as described by Kroger Lyons, to make a personal care composition which exhibits the desired cleansing performance.
Regarding claims 10-16, Kroger Lyons teaches all of the claimed elements as stated above. Furthermore, Kroger Lyons discloses personal care compositions containing 0.15% or 0.23% guar hydroxypropyltrimonium chloride (Col. 11-12, Examples, Comparative Examples 1 and 3). In addition, Kroger Lyons indicates about 0.01-2.0 wt % cationic deposition polymers, such as guar, cellulose, galactomannan tapioca, and synthetic polymers, may be included in the composition (Col. 7, 31-35 and 63-64).
Kroger Lyons does not explicitly teach a singular pH 2.5-5.5 personal care composition containing cationic polymers, anionic surfactants, as well as both citric acid and salicylic acid.
Prior to the filing of the instant application, a PHOSITA following the teachings of Kroger Lyons would have found it prima facie obvious to prepare a personal care composition containing cationic polymers because Kroger Lyons discloses a composition containing 0.15% guar hydroxypropyltrimonium chloride. Thus, a skilled artisan would have been motivated to incorporate cationic polymers in the cleansing personal care composition to achieve the desired deposition of beneficial ingredients on the hair or skin by optimizing the amounts described by Kroger Lyons (MPEP 2144.05(II)(A)).
Regarding claims 19-26, Kroger Lyons teaches all of the claimed elements as stated above. Furthermore, Kroger Lyons discloses a personal care composition containing 2.50% zinc pyrithione (Col. 13-14, Examples, Comparative Example 3). Kroger Lyons indicates various other components, such as anti-dandruff, anti-fungal, and/or anti-microbial ingredients, may also be present in the personal care composition (Col. 9, Lines 41-44). The anti-microbial ingredient may be octopirox (piroctone olamine) and the anti-dandruff ingredient may be the zinc salt of 1-hydroxy-2-pyridinethione (zinc pyridinethione) in amounts of about 0.01-5 wt % (Col. 9, Lines 12-62).
Kroger Lyons does not explicitly teach a pH 2.5-5.5 personal care composition containing one or more scalp, facial/body skin or hair actives, anionic surfactants, as well as both citric acid and salicylic acid.
Prior to the filing of the instant application, a PHOSITA following the teachings of Kroger Lyons would have found it prima facie obvious to prepare a personal care composition containing scalp, facial/body skin or hair actives because Kroger Lyons discloses a composition containing 2.50% zinc pyrithione and indicates other ingredients like piroctone olamine may also be included in the composition. Furthermore, Kroger Lyons teaches such ingredients may provide additional benefit to the composition due to their anti-dandruff and/or anti-microbial properties. Thus. A skilled artisan would have been motivated to optimize the amount of each component in the personal care compositions taught by Kroger Lyons in order to produce a composition having the desired beneficial properties (MPEP 2144.05(II)(A)).
Statutory Double Patenting
A rejection based on double patenting of the “same invention” type finds its support in the language of 35 U.S.C. 101 which states that “whoever invents or discovers any new and useful process... may obtain a patent therefor...” (Emphasis added). Thus, the term “same invention,” in this context, means an invention drawn to identical subject matter. See Miller v. Eagle Mfg. Co., 151 U.S. 186 (1894); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Ockert, 245 F.2d 467, 114 USPQ 330 (CCPA 1957).
A statutory type (35 U.S.C. 101) double patenting rejection can be overcome by canceling or amending the claims that are directed to the same invention so they are no longer coextensive in scope. The filing of a terminal disclaimer cannot overcome a double patenting rejection based upon 35 U.S.C. 101.
Claims 1-26 are provisionally rejected under 35 U.S.C. 101 as claiming the same invention as that of claims 1-25 of copending Application No. 18/599,579. This is a provisional statutory double patenting rejection since the claims directed to the same invention have not in fact been patented.
Patent ‘579 claims a personal care composition comprising about 2-10% of an anionic surfactant and 0.5-5% of a hydroxy acid, wherein the hydroxy acid is a mixture of salicylic acid and citric acid, and the pH is 2.5-5.5 (Claim 1). The composition may also include an anionic, amphoteric, nonionic, and/or zwitterionic surfactant (Claim 6). Furthermore, ‘579 also claims the composition may contain 0.08-3% of a cationic polymer (Claims 10-15) and/or 0.01-10% of a thickening polymer (Claims 16-17) and/or 0.01-10% of a scalp, facial/body skin or hair health active (Claims 18-25).
Non-Statutory 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 1-26 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-2 of U.S. Patent No. U.S. Patent No. 10,653,609 B2 (Kroger Lyons; IDS dated 13 August 2024, Cite No. 145).
Claims 1-5, 11-16, and 19-26 are rejected on the ground of nonstatutory double patenting as being unpatentable over Claim 18 of U.S. Patent No. 6,214,363 B1.
Although the claims at issue are not identical, they are not patentably distinct from each other.
Kroger Lyons claims a method of cleansing hair and scalp using an aqueous composition comprising about 1-9% sodium lauryl ether sulfate, about 0.5-3 wt % polyacrylate crosspolymer-6, about 0.01-5% salicylic acid, about 80-90% water, citric acid, polysorbate polysorbate-20, perfume, and wherein the pH is about 2-4 (Claim 1).
Patent ‘609 claims a rinse-off antimicrobial cleansing composition comprising about 0.0010-5% of an antimicrobial active ingredient, about 5-25% of an anionic surfactant, about 1-12% of a proton donating agent, about 0.1-30% of a lipophilic skin moisturizing agent, about 0.1-10% stabilizer, and about 3-98.8% water wherein the pH is about 3.5-5.0 (Claims 12-13, 17). The proton donating agent can potentially salicylic acid, citric acid, or a mixture thereof.
Patent ‘609 does not explicitly claim a composition containing a specific amount of a hydroxy acid mixture consisting of salicylic acid and citric acid.
Kroger Lyons teaches a hair care compositions, including a composition containing 2.00% citric acid, 0.50% salicylic acid, and 7.69% SLE1S [sodium lauryl sulfate containing one polyethylene oxide group], 0.20% polysorbate 20, and 1.75% polyacrylate crosspolymer-6 and the composition is pH 2.8-3.3 (Col. 11-14, Examples, Example 4). Thus, hydroxy acids (citric acid and salicylic acid) comprise 2.50% of the composition and thickening polymers (polysorbate 20 and polyacrylate crosspolymer-6) comprise 1.95% of the composition.
Kroger Lyons discloses personal care compositions containing 1.00% cocamide MEA (Col. 11-12, Examples, Comparative Example 1) and 3.33%, 5.00%, 6.67%, or 10.00% cocamidopropyl betaine (Col. 11-12, Examples, Comparative Examples 1-3 and Examples 2-3). Furthermore, Kroger Lyons indicates detersive surfactants, including anionic, amphoteric, nonionic, and zwitterionic surfactants, provide the “cleaning performance to the composition” (Col. 3, Lines 26-30) and possible amounts are about 1-10 wt % (Col. 3, Lines 36-42). Kroger Lyons lists many other surfactants, including anionic surfactants like ammonium lauryl sulfate and ammonium laureth sulfate (Col. 3, Lines 52-54), amphoteric or zwitterionic surfactants like cocoamphoacetate and betaines (Col. 4, Lines 23 and 35), as well as nonionic detersive surfactants like oleamide (Col. 4, Line 44).A PHOSITA would have been motivated to prepare a personal care composition containing anionic surfactants, salicylic acid, and citric acid in the claimed amounts having a pH of 2.5-5.5 because Kroger Lyons discloses such a composition and indicates
Kroger Lyons discloses personal care compositions containing 0.15% or 0.23% guar hydroxypropyltrimonium chloride (Col. 11-12, Examples, Comparative Examples 1 and 3). In addition, Kroger Lyons indicates about 0.01-2.0 wt % cationic deposition polymers, such as guar, cellulose, galactomannan tapioca, and synthetic polymers, may be included in the composition (Col. 7, 31-35 and 63-64).
Kroger Lyons discloses a personal care composition containing 2.50% zinc pyrithione (Col. 13-14, Examples, Comparative Example 3). Kroger Lyons indicates various other components, such as anti-dandruff, anti-fungal, and/or anti-microbial ingredients, may also be present in the personal care composition (Col. 9, Lines 41-44). The anti-microbial ingredient may be octopirox (piroctone olamine) and the anti-dandruff ingredient may be the zinc salt of 1-hydroxy-2-pyridinethione (zinc pyridinethione) in amounts of about 0.01-5 wt % (Col. 9, Lines 12-62).
Kroger Lyons does not explicitly teach a pH 2.5-5.5 personal care composition containing multiple surfactants, one of which is an anionic surfactant, cationic polymers, one or more scalp, facial/body skin or hair actives, as well as both citric acid and salicylic acid.
Prior to the filing of the instant application, a PHOSITA following the teachings of Kroger Lyons would have found it prima facie obvious to prepare a personal care composition containing about 0.25%-8% co-surfactants. The instant specification indicates possible co-surfactants include zwitterionic co-surfactants like cocamidopropyl betaine (p. 8, Lines 22), which is also used in a composition described by Kroger Lyons. Thus, a skilled artisan would have known to prepare compositions containing multiple surfactants, as described by Kroger Lyons, to prepare a personal care composition which exhibits the desired cleansing performance.
Prior to the filing of the instant application, a PHOSITA following the teachings of Kroger Lyons would have found it prima facie obvious to prepare a personal care composition containing cationic polymers because Kroger Lyons discloses a composition containing 0.15% guar hydroxypropyltrimonium chloride. Thus, a skilled artisan would have been motivated to incorporate such a cationic polymer in the cleansing personal care composition to achieve the desired deposition of beneficial ingredients on the hair or skin.
Prior to the filing of the instant application, a PHOSITA following the teachings of Kroger Lyons would have found it prima facie obvious to prepare a personal care composition containing scalp, facial/body skin or hair actives because Kroger Lyons discloses a composition containing 2.50% zinc pyrithione and indicates other ingredients like piroctone olamine may also be included in the composition. Furthermore, Kroger Lyons teaches such ingredients may provide additional benefit to the composition due to their anti-dandruff and/or anti-microbial properties.
Because Claims 1-26 in the instant application would have been obvious over Claims 1-2 of Kroger Lyons (US 10,653,609 B2; IDS dated 13 August 2024, Cite No. 145), Claims 1-26 in the instant application are not patentably distinct from Claims 1-2 of Kroger Lyons.
Because Claims 1-5, 11-16, and 19-26 in the instant application would have been obvious over Claim 18 of U.S. Patent No. 6,214,363 B1, Claims 1-5, 11-16, and 19-26 in the instant application are not patentably distinct from Claim 18 of U.S. Patent No. 6,214,363 B1.
Claims 1-26 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over Claim 30 of copending Application No. 16/170,516 and Claim 35 of copending Application No. 15/962,327 in view of by Kroger Lyons (US 10,653,609 B2; IDS dated 13 August 2024, Cite No. 145).
Application ‘516 claims a hair care composition comprising 8-16% anionic surfactants, 0.01-10 wt% antidandruff agents, and 0.01-5wt% cationic polymers, and wherein the pH is adjusted to about 6 using an ingredient such as citric acid (Claim 1). The composition may further comprise a scalp health agent such as salicylic acid (Claim 30).
Application ‘516 does not explicitly claim a composition containing a specific amount of a hydroxy acid mixture consisting of salicylic acid and citric acid.
Application ‘327 claims a hair care composition comprising 10-25% surfactants, 0.01-10% antidandruff agents, 1-5% anionic polymers, 0.01-5% cationic polymers, and wherein the pH is adjusted to about 6 (Claim 1). The composition may further comprise a scalp health agent such as salicylic acid (Claim 35).
Application ‘327 does not explicitly claim a composition containing a specific amount of a hydroxy acid mixture consisting of salicylic acid and citric acid.
Kroger Lyons teaches a hair care compositions, including a composition containing 2.00% citric acid, 0.50% salicylic acid, and 7.69% SLE1S [sodium lauryl sulfate containing one polyethylene oxide group], 0.20% polysorbate 20, and 1.75% polyacrylate crosspolymer-6 and the composition is pH 2.8-3.3 (Col. 11-14, Examples, Example 4). Thus, hydroxy acids (citric acid and salicylic acid) comprise 2.50% of the composition and thickening polymers (polysorbate 20 and polyacrylate crosspolymer-6) comprise 1.95% of the composition.
Kroger Lyons discloses personal care compositions containing 1.00% cocamide MEA (Col. 11-12, Examples, Comparative Example 1) and 3.33%, 5.00%, 6.67%, or 10.00% cocamidopropyl betaine (Col. 11-12, Examples, Comparative Examples 1-3 and Examples 2-3). Furthermore, Kroger Lyons indicates detersive surfactants, including anionic, amphoteric, nonionic, and zwitterionic surfactants, provide the “cleaning performance to the composition” (Col. 3, Lines 26-30) and possible amounts are about 1-10 wt % (Col. 3, Lines 36-42). Kroger Lyons lists many other surfactants, including anionic surfactants like ammonium lauryl sulfate and ammonium laureth sulfate (Col. 3, Lines 52-54), amphoteric or zwitterionic surfactants like cocoamphoacetate and betaines (Col. 4, Lines 23 and 35), as well as nonionic detersive surfactants like oleamide (Col. 4, Line 44).A PHOSITA would have been motivated to prepare a personal care composition containing anionic surfactants, salicylic acid, and citric acid in the claimed amounts having a pH of 2.5-5.5 because Kroger Lyons discloses such a composition and indicates
Kroger Lyons discloses personal care compositions containing 0.15% or 0.23% guar hydroxypropyltrimonium chloride (Col. 11-12, Examples, Comparative Examples 1 and 3). In addition, Kroger Lyons indicates about 0.01-2.0 wt % cationic deposition polymers, such as guar, cellulose, galactomannan tapioca, and synthetic polymers, may be included in the composition (Col. 7, 31-35 and 63-64).
Kroger Lyons discloses a personal care composition containing 2.50% zinc pyrithione (Col. 13-14, Examples, Comparative Example 3). Kroger Lyons indicates various other components, such as anti-dandruff, anti-fungal, and/or anti-microbial ingredients, may also be present in the personal care composition (Col. 9, Lines 41-44). The anti-microbial ingredient may be octopirox (piroctone olamine) and the anti-dandruff ingredient may be the zinc salt of 1-hydroxy-2-pyridinethione (zinc pyridinethione) in amounts of about 0.01-5 wt % (Col. 9, Lines 12-62).
Kroger Lyons does not explicitly teach a pH 2.5-5.5 personal care composition containing multiple surfactants, one of which is an anionic surfactant, cationic polymers, one or more scalp, facial/body skin or hair actives, as well as both citric acid and salicylic acid.
A PHOSITA would have been motivated to prepare a personal care composition as disclosed by Kroger Lyons because, among the compositions studied by Kroger Lyon, the composition containing an anionic surfactant as well as both salicylic acid and citric acid (Example 4) is stated to provide the most shine when applied to hair (Col. 11, Lines 53-55). A PHOSITA would have had a reasonable expectation of success in adjusting the amounts of anionic surfactant, citric acid, and salicylic acid as well as the pH in Applications ‘516 and ‘327 to match the conditions described by Kroger Lyons.
Prior to the filing of the instant application, a PHOSITA following the teachings of Kroger Lyons would have found it prima facie obvious to prepare a personal care composition containing about 0.25%-8% co-surfactants. The instant specification indicates possible co-surfactants include zwitterionic co-surfactants like cocamidopropyl betaine (p. 8, Lines 22), which is also used in a composition described by Kroger Lyons. Thus, a skilled artisan would have known to prepare compositions containing multiple surfactants, as described by Kroger Lyons, to prepare a personal care composition which exhibits the desired cleansing performance.
Prior to the filing of the instant application, a PHOSITA following the teachings of Kroger Lyons would have found it prima facie obvious to prepare a personal care composition containing cationic polymers because Kroger Lyons discloses a composition containing 0.15% guar hydroxypropyltrimonium chloride. Thus, a skilled artisan would have been motivated to incorporate such a cationic polymer in the cleansing personal care composition to achieve the desired deposition of beneficial ingredients on the hair or skin.
Prior to the filing of the instant application, a PHOSITA following the teachings of Kroger Lyons would have found it prima facie obvious to prepare a personal care composition containing scalp, facial/body skin or hair actives because Kroger Lyons discloses a composition containing 2.50% zinc pyrithione and indicates other ingredients like piroctone olamine may also be included in the composition. Furthermore, Kroger Lyons teaches such ingredients may provide additional benefit to the composition due to their anti-dandruff and/or anti-microbial properties.
Because Claims 1-26 in the instant application would have been obvious over Claim 30 of copending Application No. 16/170,516 and Claim 35 of copending Application No. 15/962,327 in view of by Kroger Lyons (US 10,653,609 B2; IDS dated 13 August 2024, Cite No. 145), Claims 1-26 in the instant application are not patentably distinct from Claim 30 of copending Application No. 16/170,516 and Claim 35 of copending Application No. 15/962,327.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Conclusion
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/B.L.B./Examiner, Art Unit 1623
/ADAM C MILLIGAN/Supervisory Patent Examiner, Art Unit 1623
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