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 Status
Claims 1-17 are pending.
No claims are withdrawn.
Claims 1-17 are under consideration.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 12 May 2024, 18 July 2024, 24 February 2025 and 09 October 2025 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 abstract of the disclosure is objected to because the abstract contains the typographical error “with our without heating” (emphasis added).
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
Claim 14 is objected to because of the following informalities: Claim 14 recites “ethylenediaminetetraacetic acid” and “EDTA” which results in double inclusion/recitation of “ethylenediaminetetraacetic acid”. The abbreviation, EDTA, does not need to be defined because it is well known in the biological and chemical arts. Applicant may recite one term or the other, but not both. 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 2-4, 7, 8 and 14 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.
Claim 2 depends for claim 1 and recites “the water”. However, there are two waters present in claim 1 (i.e. the water of premix recited in claim 1a) and the water of the liquid carrier recited by claim 1c)). Since it is unclear which water is heated, the claim is indefinite.
Claim 2 recites the limitation "the water is heated to at least about 74°C." The "at least" portion of the term requires the lower limit for the temperature to be 74°C. However, the "about" portion of the term may be reasonably interpreted as being "+/-." This permits the lower limit for the temperature to vary, which is contradictory to the recitation of “at least.” Therefore, it is unclear what temperature is the lower limit. Thus, the metes and bounds of the claim are unclear and the claim is indefinite.
Claim 3 depends for claim 1 and recites “the water”. However, there are two waters present in claim 1 (i.e. the water of premix recited in claim 1a) and the water of the liquid carrier recited by claim 1c)). Since it is unclear which water is heated, the claim is indefinite.
Claim 3 recites the limitation "wherein fatty alcohol and gel network surfactant are heated to at least about 74°C." The "at least" portion of the term requires the lower limit for the temperature to be 74°C. However, the "about" portion of the term may be reasonably interpreted as being "+/-." This permits the lower limit for the temperature to vary, which is contradictory to the recitation of “at least.” Therefore, it is unclear what temperature is the lower limit. Thus, the metes and bounds of the claim are unclear and the claim is indefinite.
Claim 4 depends for claim 1 and recites “water” which is heated to a temperature of about 75 °C to about 90 °C. However, there are two waters present in claim 1 (i.e. the water of premix recited in claim 1a) and the water of the liquid carrier recited by claim 1c)). Since it is unclear which water is heated, the claim is indefinite.
Claim 4 recites the limitation “the combination” in line 1. There is insufficient antecedent basis for this limitation in the claim.
Claim 7 recites the limitation "the gel network has a melt transition temperature of at least about 38°C." The "at least" portion of the term requires the lower limit for the temperature to be 38°C. However, the "about" portion of the term may be reasonably interpreted as being "+/-." This permits the lower limit for the temperature to vary, which is contradictory to the recitation of “at least.” Therefore, it is unclear what temperature is the lower limit. Thus, the metes and bounds of the claim are unclear and the claim is indefinite.
Claim 8 recites the comparative parameter that the “personal care composition provides a reduction in hair breakage according to the Hair Breakage Reduction via Shampoo Usage method” but fails to recite what control the reduction in hair breakage is compared to.
Claim 14 is indefinite because the claim recites the stabilizing agent is selected from “citric” which is an adjective with no modifier. The citric compound is unclear. Citric what? Citric acid? Citric chloride? Since the claimed citric compound is unclear, the claim is indefinite.
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 1-17 are rejected under 35 U.S.C. 103 as being unpatentable over Wells (US 2006/0024256; Published: 02/02/2006); [as evidenced by Geary (US 2004/0157754; Published: 08/12/2004]; IDS: 05/12/2024), Poletti (WO 2012/052536; IDS: 05/12/2024), and Yuda (US 2017/0013868; Published: 01/19/2017; [as evidenced by Rajendran, 2007; IDS: 05/12/2024; and as evidenced by Ramachandra; Published: 2007; IDS- 05/12/2024]).
With regard to claims 1 & 17, Wells teaches a shampoo comprising a gel network (title). With regard to claim 1 a), Wells in Example 51 teaches a gel network pre-mix that is a combination of water, fatty amphiphile/stearyl alcohol + cetearyl alcohol and secondary surfactant/benhenyltrimonium chloride that are combined (Example 51-pg. 22; abstract). With regard to claim 1 a), Wells in their claim 20 teaches the secondary surfactant/benhenyltrimonium chloride and water partition into the fatty amphiphile/stearyl alcohol + cetearyl alcohol (Example 51-pg. 22; Wells-claim 20). With regard to claim 1 b), the premix is cooled below the chain melt temperature of the fatty amphiphile/stearyl alcohol + cetearyl alcohol (i.e. fatty alcohols) to form a network (Example 51-pg. 22; abstract). With regard to claim 1 c), Wells in Example 51 teaches their gel network premix comprises 88.55% water and teaches 20% of water is heated, the fatty amphiphile and secondary surfactant are added, milled, and cooled to yield a crystalline gel network; as such this crystalline gel network must be added to the remaining 68.55% of water/aqueous carrier (Example 51-pg. 22; [0256]). With regard to claim 1d), Wells in their claim 20 recites adding the gel network to one or more detersive surfactant and an aqueous carrier to form a shampoo composition (i.e. adding a sulfate free detersive surfactant to the liquid carrier); Wells in the shampoo Example 4 teaches the sulfate-free detersive surfactant is cocoamidopropyl betaine (Example 4-pg. 23). With regard to claim 1 e), Wells teaches inclusion of aloe vera as a suitable optional component that can be included in their composition and in shampoo Example 4 teaches the carrier water (Example 4-pg. 23; [0245]). As such Wells teaches adding aloe vera to the liquid carrier (Example 4-pg. 23; [0245]; claim 1e)). With regard to claim 1f), Wells in Shampoo Example 4 teaches the shampoo comprises 0.40% of polyquaternium-10 (i.e. adding a cationic cellulose; Example 4-pg. 23). With regard to claim 1f), more broadly, Wells teaches combining cationic polymers (e.g. polyquaternium-10) with about 0% to about 5% water [0259]. With regard to claim 1 g), Wells teaches adding the gel network to one or more detersive surfactants which include cocoamidopropyl betaine, aqueous carrier, and cationic cellulose/polyquaternium-10 and teaches inclusion of aloe vera (abstract; Example 4-pg. 23; [0259]; [0245]). With regard to claim 1g), more broadly Wells teaches the remainder of the surfactants, perfume, dimethicone, sodium chloride or ammonium xylene sulfonate for viscosity adjustment (i.e. optional components), and the remainder of the water are added with ample agitation to ensure a homogeneous mixture (i.e. mixing the liquid carrier, gel network, detersive surfactant, aloe vera and cationic cellulose; [0260]). Further, selection of any order of performing process steps is prima facie obvious in absence of new or unexpected results (In re Burhans, 154 F.2d 690, 69 USPQ 330 (CCPA 1946)). With regard to claims 2-4 & 16, Wells teaches a “suitable variation” of the method steps of making the gel network pre-mix in which the fatty amphiphile/stearyl alcohol + cetearyl alcohol and secondary surfactant/benhenyltrimonium chloride are first heated and then adding the mixture to water; Wells teaches the heating is in the range of about 75°C to about 90°C ([0055], [0056]; [0069],[0247] & [0248]; Example 51-pg. 22). With regard to claim 2, Wells teaches the water is heated and the heating is in the range of about 75°C to about 90°C ([0055] & [0056]; Wells-claim 20). With regard to claims 5 & 6, Wells teaches “alternative methods of preparing the gel network component include milling” of the fatty amphiphile/stearyl alcohol + cetearyl alcohol, secondary surfactant/benhenyltrimonium chloride and water and the pre-mixture undergoes a cooling step to level of about 27°C to about 35°C to form a solid, crystalline gel network (abstract; [0055],[0247] &[0248]; Example 51-pg. 22). With regard to claim 7, Wells in the Table of paragraph [0265] teaches the Example 51 Gel network has a DSC melt transition temperature of 74°C. With regard to claims 9-11, Wells in the Example 4 shampoo teaches the cationic cellulose polymer, PQ-10, and more broadly teaches the cationic polymer deposition aid has a cationic charge density of more preferably at least about 1.5 meq/g bug more preferably less than about 5 meq/g and a molecular weight of 100,000 to about 3 million [0149]. As evidenced by Geary, with regard to claims 9-11, the PQ-10 used by Wells in Shampoo Example 4 (i.e. KG30M), has a charge density of 1.9 and a molecular weight of ˜1.25 million (Geary-[0060]). With regard to claim 12, the Example 4 shampoo teaches the detersive surfactant of cocoamidopropyl betaine; more broadly Wells teaches the secondary surfactant for the pre-mix includes sodium lauryl sarcosinate, sodium lauroyl sarcosinate, and sodium cocoyl isethionate and the premix may comprise fatty amphiphiles which are esters such as hexyl laurate (Example 4-pg 20; [0103] & [0126]). With regard to claim 13, more broadly Wells teaches betaines to be a preferred zwitterionic detersive surfactant with detersive surfactants comprising about 5% to about 50% of the shampoo composition (Wells claim 1; [0036]). As such, with regard claim 13, Wells teaches the zwitterionic/betaine surfactant may be present in an amount of 3-38.5 % (Example 4-pg. 23; Math: 50-11.5 = 38.5; Wells claim 1; [0036]). With regard to claim 14, Wells in Shampoo Example 4 teaches adding citric acid/sodium citrate to pH the composition and sodium chloride to adjust the viscosity, sodium benzoate and disodium EDTA (Shampoo Example 4-pg. 23). With regard to claim 15, Wells teaches adding conditioning agents which may be silicones, including aminosilicones, polydimethylsiloxane fluid (i.e. dimethicone), to the dispersed gel network phase or the final shampoo composition as a separate component ( [0166], [0167], [0177], [0200], [0260]).
Wells does not teach the amount of aloe vera for inclusion in the shampoo used in the method, that the aloe vera comprises about 100 mg/100g to about 300 mg/100g of a salt selected from “sodium salt, potassium salt,…copper salt and mixtures thereof’.
With regard to claim 1e), in the same field of invention, Poletti teaches a foaming cosmetic composition for cleansing or removing makeup from keratin materials including the hair or eyelashes (i.e. a shampoo; pg. 1, ll. 1-9). With regard to claim 1e), Poletti in Examples 2 & 4 teaches the compositions of their invention comprise 0.2 % aloe vera leaf juice powder and more broadly teach inclusion of aloe vera in an amount of “at least 0.03% by weight…. rang[ing] up to 5% by weight” depending on the desired viscosity of the composition (pg. 3, ll. 5-15). Poletti teaches the aloe vera may be in the form of a powder or an extract, with powders preferred (pg. 2, ll. 30-end). Poletti teaches at least one commercially available aloe vera powder (pg. 2, ll. 30-end).
In the same field of invention of aloe vera, Yuda teaches a method for producing an aloe extract powder having good aqueous dispersibility [0001]. Yuda their powder has improved powder flow and decreased hygroscopicity ([0067]). With regard to claim 1 e), Yuda further teaches “[t]he concentration of the mineral salts contained in the satisfactorily water-dispersible aloe extract according to the present technology is not limited particularly as long as the effect of the present technology is not affected adversely, it is preferably 100 mg/g or less based on the solid content of the aloe extract” for reducing the hygroscopicity thereby improving the flowability of the powder [0088]. Yuda’s aloe is aloe mesophyll (abstract). As evidenced by Rajendran, aloe vera leaf gel (i.e. mesophyll) comprises metal ions of potassium, sodium, magnesium, zinc and copper (Table 1, pg. 1477). As such, the ordinary skilled artisan would recognize the mineral salts present in aloe vera to include those having potassium, sodium, magnesium, zinc and copper ions. As evidenced by Ramachandra, aloe vera leaf gel is a gel matrix (i.e. gel network; pg. 503, col. 2; pg. 504, col. 1). Yuda teaches aloe has recently attracted attention in fields of medicaments and cosmetics [0002].
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 prima facie obvious to the ordinary skilled artisan before the effective filing date to have modified Wells’ method by substituting Wells’ generically taught aloe vera with Yuda’s aloe vera powder having 100 mg/g or less mineral salts in an amount of at least 0.03% by weight to 0.2 % as taught by Poletti in order to provide a hair shampoo/ cleansing composition that is easier to formulate through inclusion of an aloe vera that has improved flowability and aqueous dispersibility. The ordinary skilled artisan would have been motivated to do so, with an expectation of success, in order to provide an aloe vera containing shampoo composition which is more homogenous through use of an aloe vera which has good flowability and water dispersibility.
With regard to the recited amounts of aloe vera, cationic cellulose/polyquaternium-10, detersive surfactant/cocoamidopropyl betaine and the amount of salt present in the aloe vera; the cationic charge density and the weight average molecular weight of the cationic cellulose; the temperature to which the water is heated; the temperature to which the fatty alcohol and gel network are heated; the temperature to which the combination of fatty alcohol, gel network surfactant and water is heated; the temperature to which the pre-mix is cooled; and the melt transition temperature of the gel network, the combined teachings of Wells, Poletti, and Yuda, teach these parameters with values that overlap or fall within the claimed 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).
With regard to the recitation that the “personal care composition provides a reduction in hair breakage according to the Hair Breakage Reduction via Shampoo Usage method”, the method of making the hair cleansing composition suggested by the combined teachings of Wells, Poletti, and Yuda necessarily has the property of hair breakage reduction because the method and composition suggested by the prior art teaches inclusion of aloe vera which increases break strength as evidenced by the instant specification examples, detersive surfactant-cocamidopropyl betaine, cationic cellulose- polyquaternium-10, conditioning agent-dimethicone, stabilizer-sodium citrate and liquid carrier-water. "Products of identical chemical composition can not have mutually exclusive properties." A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). Mere recognition of latent properties in the prior art does not render nonobvious an otherwise known invention. In re Wiseman, 596 F.2d 1019, 201 USPQ 658 (CCPA 1979).
Conclusion
No claims are allowed.
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/LORI K MATTISON/Examiner, Art Unit 1619
/NICOLE P BABSON/Primary Examiner, Art Unit 1619
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