DETAILED ACTION
Status of Claims
Claims 1-20 are currently pending and are the subject of this Office Action. This is the first Office Action on the merits of the claims. 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 Office Action: Non-Final
Claim Objections
The following claims are objected to because of the following informalities:
A. Claims 1 and 9 are objected to because the terms, “polyacrylic acid thickening agent]” AND “polyacrylic acid, salt thereof, or mixture thereof,” are used without any apparent consistency.
B. Claim 14 is objected to because the claim should read:
14. The hair treatment serum of claim 1, wherein:
the polyglutamic acid, salt thereof, or mixture thereof is sodium polyglutamate;
the one or more hydrocarbon oils include squalane; and
the one or more
C. Claim 18 is objected to because the claim should read:
18. The hair treatment serum of claim 15, wherein:
the polyglutamic acid, salt thereof, or mixture thereof is sodium polyglutamate;
the one or more hydrocarbon oils include squalane; and
the one or more
Appropriate correction is required.
Claim Rejections – 35 U.S.C. § 112 - Indefiniteness
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.
Claims 2-3 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 pre-AIA , that applicant regards as the invention.
A. Claim 2 is indefinite in the recitation, “(b)(i).” There is insufficient antecedent basis for this limitation in the claim as no “(b)(i)” is recited in claim 1 from which claim 2 depends. See MPEP § 2173.05(e).
B. Claim 3 is indefinite in the recitation, “(c)(i).” There is insufficient antecedent basis for this limitation in the claim as no “(c)(i)” is recited in claim 1 from which claim 3 depends. See MPEP § 2173.05(e).
Further clarification is required.
Claim Rejections – 35 U.S.C. § 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under pre-AIA 35 U.S.C. § 103(a) 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 C.F.R. § 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 1-11, 14 and 19-20 are rejected under 35 U.S.C. § 103 as being unpatentable over HASEBE (US 2006/0165636 A1, Publ. Jul. 27, 2006; on 02/14/2025 IDS; hereinafter, “Hasebe”), in view of SPRINGER (US 2011/0117219 A1, Publ. May 19, 2011; hereinafter, “Springer”).
Hasebe is directed to:
HAIR TREATMENT COMPOSITION AND HAIR COSMETIC FOR DAMAGED HAIR
The present invention intends to provide a composition for hair treatment containing γ-polyglutamic acid or a salt thereof, a hair cosmetic for damaged hair containing such a composition, and their uses. The composition for hair treatment containing γ-polyglutamic acid or a salt thereof and the hair cosmetic for damaged hair of the present invention have excellent improvement effects on the strength and frictional force of hair, so that they can provide tension, elasticity, or the like to damage hair to prevent or alleviate split hair and broken hair as well as improvements in combing and touch. Furthermore, they also exert effects of moisture retention inherent to γ-polyglutamic acid or a salt thereof, preventing or improving effects on the generation of dandruff on the basis of such effects, preventing effects on the feeling of stickiness or creak, and various effectiveness including appropriate residual tendency to hair in a simultaneous manner, respectively.
Hasebe, title & abstract. In this regard, Hasebe exemplifies a “Permanent Pre-Treatment Agent” containing “y-Sodium polyglutamate”:
PRESCRIPTION EXAMPLE 28
Permanent Pre-Treatment Agent
[0120]
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Hasebe, par. [0120], Ex. 28.
Regarding independent claim 1 and the requirements:
1. A hair treatment serum comprising:
(a) about 0.05 to about 2 wt. % of polyglutamic acid, a salt thereof, or a mixture thereof;
(b) about 2 to about 10 wt. % of one or more oils, wherein at least one of the one or more oils is a hydrocarbon oil;
(c) about 0.1 to about 3 wt. % of one or more thickening agents, wherein at least one of the one or more thickening agents is a polyacrylic acid thickening agent; and
(d) water;
wherein the hair treatment serum is an oil-in-water emulsion or oil-in-water dispersion, and
all percentages by weight are based on a total weight of the hair treatment serum.
Hasebe clearly teaches a “Permanent Pre-Treatment Agent” containing “y-Sodium polyglutamate” (Hasebe, par. [0120], Ex. 28), WHEREBY it is noted:
(a) “γ-Sodium polyglutamate (MW about 260,000)” (Hasebe, par. [0120], Ex. 28) is “polyglutamic acid” of claim 1, as well as “γ-polyglutamic acid” of claim 5 and “sodium γ-polyglutamate” of claims 6:
5. The hair treatment serum of claim 1, wherein the polyglutamic acid, salt thereof, or mixture thereof is selected from α-polyglutamic acid, γ-polyglutamic acid, salts thereof, or mixture thereof.
6. The hair treatment serum of claim 1, wherein the polyglutamic acid, salt thereof, or mixture thereof is selected from γ-polyglutamic acid, sodium γ-polyglutamate, potassium γ-polyglutamate, calcium γ-polyglutamate, magnesium γ-polyglutamate, zinc γ-polyglutamate, or mixtures thereof.
(b) “Methylpolysiloxane” and “Liquid paraffin” (Hasebe, par. [0120], Ex. 28) are encompassed by “one or more oils, wherein at least one of the one or more oils is a hydrocarbon oil” of claim 1;
(c) “Alkyl denaturated carboxyvinyl polymer” (Hasebe, par. [0120], Ex. 28) is “one or more thickening agents, wherein at least one of the one or more thickening agents is a polyacrylic acid thickening agent” of claim 1, as well as a “crosslinked polyacrylic acid homopolymer” of claim 9:
9. The hair treatment serum of claim 1, wherein the polyacrylic acid, salt thereof, or mixture thereof is a crosslinked polyacrylic acid homopolymer.
(as well as par. [0092] of the instant published application, US 2025/0302716 A1, wherein “[s]uitable thickeners include the crosslinked polyacrylic acid products sold under the tradenames CARBOPOL ®1342, Carbopol®,” and “The Japanese Pharmaceutical Excipients list Carbopol® homopolymers as ‘carboxyvinyl polymer’ and ‘carboxy polymethylene’”); and
(d) “Purified water” (Hasebe, par. [0120], Ex. 28) is “water” of claim 1.
However, it is noted that:
(i) although Hasebe teaches an exemplary composition with:
(a) 3.0 Mass % “γ-Sodium polyglutamate (MW about 260,000)” (Hasebe, par. [0120], Ex. 28), wherein “the content of γ-polyglutamic acid or a salt thereof is defined within the range of 0.001% by mass or more, preferably 0.01 to 50.0% by mass in terms of solid content in the total amount of the preparation” (Hasebe, par. [0022]);
(b) 5.0 Mass % “Methylpolysiloxane” and 5.0 Mass % “Liquid paraffin” (Hasebe, par. [0120], Ex. 28); and
(c) 0.4 Mass % “Alkyl denaturated carboxyvinyl polymer” (Hasebe, par. [0120], Ex. 28);
wherein the ratio of (a) to (b) is 3.0 Mass % to 10.0 Mass % or 1 to 3.3; and
wherein the ratio of (a) to (c) is 3.0 Mass% to 4 mass %;
(see MPEP § 2144.05 (I) regarding the obviousness of prior art overlapping claimed numerical ranges) Hasebe DOES NOT EXPRESSLY TEACH the range requirements of claim 1, as well as the ratio requirements of claims 2-3 for:
2. The hair treatment serum of claim 1, wherein (a) and (b)(i) are in a weight ratio of about 1:1 to about 1:25 ((a):(b)(i)).
3. The hair treatment serum of claim 1, wherein (a) and (c)(i) are in a weight ratio of about 1:1 to about 1:25 ((a):(c)(i)).
(ii) although Hasebe teaches suitable “dosage form[s],” inter alia, an “emulsion”:
[0022] […] In addition, the dosage form of the composition for hair treatment according to the present invention is arbitrary, and examples thereof include ample, capsule, powder, granule, pill, tablet, solid, liquid, gel, foam, emulsion, cream, ointment, sheet, moose, powder-dispersed, multiple-layered, and aerosol forms.
(Hasebe, par. [0022]), Hasebe, however, DOES NOT EXPRESSLY TEACH, an “oil-in-water emulsion or oil-in-water dispersion” as required by claim 1.
Based on the state of the art, an artisan of ordinary skill would have found each of these features obvious.
Regarding (i), it is noted that a reference is analyzed using its broadest teachings. MPEP § 2123 [R-5] states: “[W]hen a patent simply arranges old elements with each performing the same function it had been known to perform and yields no more than one would expect from such an arrangement, the combination is obvious.” KSR v. Teleflex, 127 S.Ct. 1727, 1740 (2007)(quoting Sakraida v. A.G. Pro, 425 U.S. 273, 282 (1976). “[W]hen the question is whether a patent claiming the combination of elements of prior art is obvious”, the relevant question is “whether the improvement is more than the predictable use of prior art elements according to their established functions.” (Id.). Addressing the issue of obviousness, the Supreme Court noted that the analysis under 35 USC 103 “need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.” KSR v. Teleflex, 127 S.Ct. 1727, 1741 (2007). The Court emphasized that “[a] person of ordinary skill is… a person of ordinary creativity, not an automaton.” Id. at 1742. In this respect, it is further noted, “[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.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955); and also MPEP § 2144.05(II)(A). In the instant case, the amount of “γ-polyglutamic acid or a salt thereof” is clearly a result-effective variable, which “may vary slightly depending on the type, quality, desired degree of action, and so on of the hair cosmetic and is not specifically limited, is defined within the concentration range of 0.01% by mass or more, preferably 0.1 to 20.0% by mass in the total amount of the preparation”:
[0022] The content of γ-polyglutamic acid or a salt thereof in the composition for hair treatment according to the present invention may vary slightly depending on the type, quality, desired degree of action, and so on of the composition and is not specifically limited. In general, it is effective when the content of γ-polyglutamic acid or a salt thereof is defined within the range of 0.001% by mass or more, preferably 0.01 to 50.0% by mass in terms of solid content in the total amount of the preparation. In addition, the dosage form of the composition for hair treatment according to the present invention is arbitrary, and examples thereof include ample, capsule, powder, granule, pill, tablet, solid, liquid, gel, foam, emulsion, cream, ointment, sheet, moose, powder-dispersed, multiple-layered, and aerosol forms.
[0023] It is effective when the content of the composition for hair treatment with respect to the hair cosmetic for damaged hair in the present invention, which may vary slightly depending on the type, quality, desired degree of action, and so on of the hair cosmetic and is not specifically limited, is defined within the concentration range of 0.01% by mass or more, preferably 0.1 to 20.0% by mass in the total amount of the preparation.
Hasebe, par. [0022]-[0023]. Therefore, it would have been customary for an artisan of ordinary skill to select an amount of “γ-polyglutamic acid or a salt thereof” that is “within the concentration range of 0.01% by mass or more, preferably 0.1 to 20.0% by mass in the total amount of the preparation” in optimizing “type, quality, desired degree of action, and so on of the hair cosmetic” (Hasebe, par. [0023]) in order to attain the range requirements of claim 1, as well as the ratio requirements of claims 2-3.
Therefore, Hasebe renders (i) obvious.
Regarding (ii), Springer, for instance, is directed to:
HAIR TREATMENT PRODUCT AND HAIR AFTER-TREATMENT PRODUCT CONTAINING ETHER GUANIDINES AS ACTIVE SUBSTANCES, FOR PROTECTING FROM DAMAGE CAUSED BY CHEMICAL TREATMENT AND FOR REPAIRING ALREADY DAMAGED HAIR
The invention relates to ether guanidines of the general formulae (I)
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and/or salts or hydrates thereof, in which R1=—CH2—CH2—CH2—O—R3 where R3 is, independently of the others, hydrocarbon radicals having greater than or equal to 10 carbon atoms, where part of the ether guanidines has radicals R3 which are branched and part of the ether guanidines has radicals R3 which are unbranched, and R2=independently of the others H or an optionally branched, optionally double-bond-containing hydrocarbon radical having 1 to 30 carbon atoms, and use thereof in hair treatment compositions and hair aftertreatment compositions, in particular for preventing damage by chemical treatment compositions and for repairing hair which is already damaged.
Springer, title & abstract. In this regard, Springer teaches suitable compositional forms, inter alia, “O/W” emulsions:
[0039] As regards the way according to which the ether guanidines according to the invention and/or the hair treatment composition according to the invention is applied to the keratin fibres, in particular human hair, there are in principle no limitations. Suitable formulations of these preparations are, for example, creams, lotions, solutions, water, emulsions such as W/O, O/W, PIT emulsions (emulsions in accordance with the teaching of phase inversion, called PIT), microemulsions and multiple emulsions, gels, sprays, aerosols and foam aerosols.
(Springer, par. [0039]), which encompass an “oil-in-water emulsion” of claim 1. Springer also teaches the incorporation of “protein hydrolysates” (Springer, par. [0048] & [0063]) including “polyglutamic acid” (Springer, par. [0063]).
In light of these teachings, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to formulate Hasebe’s “Permanent Pre-Treatment Agent” (Hasebe, par. [0120], Ex. 28) as an “O/W” emulsion per Springer (Springer, par. [0039]). One would have been motivated to do so with a reasonable expectation of success since both Hasebe and Springer are concerned with similar problems in the art, namely formulations for treating damaged hair (Hasebe, abstract; Springer, abstract) that may contain component such as polyglutamic acid (Hasebe, abstract; Springer, par. [0063]). Further, it is well within the skill of the ordinary artisan to select a particular “emulsion” as a “dosage form” (Hasebe, par. [0022]) for treating damaged hair (Hasebe, abstract) such as an “O/W” emulsion (Springer, par. [0039]). Doing so amounts to no more than combining prior art elements according to known methods to yield predictable results.
Therefore, the prior art renders (ii) obvious.
Thus, the prior art renders claims 1-3, 5-6 and 9 obvious.
Regarding claim 4 and the requirements:
4. The hair treatment serum of claim 1, wherein the hair treatment serum has a pH of about 4 to less than 7.
Hasebe teaches the incorporation of “Other adjuvants,” inter alia, “a pH adjuster.” Hasebe, par. [0079]. However, Hasebe DOES NOT EXPRESSLY TEACH “a pH of about 4 to less than 7” as required by claim 4, which is well within the purview of the ordinarily skilled artisan. Springer, for instance, teaches the incorporation of “any acid or base which can be used for cosmetic purposes and/or any buffer mixture can be used for adjusting the pH” to “preferably have a pH of from 3 to 7”:
[0040] The pH of the hair treatment composition according to the invention can preferably be values from 2 to 11, preferably values from 3 to 10. The hair treatment compositions and hair aftertreatment compositions according to the invention particularly preferably have a pH of from 3 to 7. Virtually any acid or base which can be used for cosmetic purposes and/or any buffer mixture can be used for adjusting the pH. Preferred bases are ammonia, alkali metal hydroxides, monoethanolamine, triethanolamine, and N,N,N',N'-tetrakis-(2-hydroxy-propyl)ethylenediamine. Preferred acids are, for example, lactic acid or citric acid.
Springer, par. [0040]. In light of these teachings, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to formulate Hasebe’s “Permanent Pre-Treatment Agent” (Hasebe, par. [0120], Ex. 28) with a “pH adjuster” (Hasebe, par. [0079]) to a “pH of from 3 to 7” per Springer (Springer, par. [0040]). One would have been motivated to do so in order to obtain the advantage of a suitable pH range for a composition for treating hair damage. Springer, abstract. See MPEP § 2144.05 (I) regarding the obviousness of prior art overlapping claimed numerical ranges.
Thus, the prior art renders claim 4 obvious.
Regarding claims 7-8 and the requirements:
7. The hair treatment serum of claim 1, wherein the hydrocarbon oil is selected from undecane, tridecane, tetradecane, pentadecane, hexadecane, octadecane, docosane, squalane, hydrogenated polyisobutene, polybutene, hydrogenated polydecene, hydrogenated didecene, mineral oil, liquid, petrolatum, dodecane, isododecane, isoeicosane, isohexadecane, isoparaffin, isodecanefarnesene, hydrogenated farnesene, coconut alkanes, coconut/palm kernel alkanes, C9-C12 alkane, C10-C13 alkane, alkane, C12-C17 alkane, C13-C15 alkane, C13-15 alkane, C13-14 alkane, C14-17 alkane, C14-19 alkane, C15-19 alkane, C14-C17 alkane, C14-C19 alkane, C14-C20 alkane, C14-C22 alkane, C15-C19 alkane, C21-C28 alkane, C17-C23 alkane, C9-C12 isoalkane, C9-C13 isoalkane, C9-C14 isoalkane, C9-C16 isoalkane, C10-C11 isoalkane, C10-C12 isoalkane, C10-C13 isoalkane, isoalkane, C11-C13 isoalkane, C11-C14 isoalkane, C12-C14 isoalkane, C11-C16 isoalkane, C12-C20 isoalkane, C13-C14 isoalkane, C13-C16 isoalkane, C14-C16 isoalkane, C15-C19 isoalkane, or mixtures thereof.
8. The hair treatment serum of claim 1, wherein the one or more oils further include one or more silicone oils, one or more ester oils, or mixtures thereof.
Hasebe teaches suitable “film-forming agent[s],” inter alia, “squalane” and “silicone oil”:
[0027] Generally, the film-forming agent of the present invention can be optionally selected from compounds having property to form a film over a hair. Examples of the compound include: fats and oils such as avocado oil, almond oil, fennel oil, perilla oil, olive oil, orange oil, orange raffer oil, sesame oil, cacao butter, camomile oil, carrot oil, cucumber oil, tallowate, Kukui nut oil, safflower oil, silicone oil, shea butter, liquid shea butter, soybean oil, camellia oil, maize oil, rapeseed oil, persic oil, castor oil (polyoxyethylene (POE) hardened castor oil, derivatives thereof (40, 50, and 60 EO), and the like), jojoba oil, cottonseed oil, peanut oil, turtle oil, mink oil, egg yolk oil, palm oil, palm kernel oil, haze wax, coconut oil, beef tallow, lard, squalene, squalane, pristane, and hydrogenated products thereof (hardened oils); waxes such as beeswax (white beeswax or the like), carnauba wax, spermaceti wax, lanolin, liquid lanolin, reduced lanolin, hard lanolin, candellila wax, montan wax, shellac wax, wax, and rice wax; mineral oils such as liquid paraffin, paraffin wax, solid paraffin, vaseline, paraffin, ozokerite, ceresin, and microcrystalline wax; natural fatty acids such as lauric acid, myristic acid, palmitic acid, stearic acid, behenic acid, oleic acid, linoleic acid, linolenic acid, docosahexaenoic acid, eicosapentaenoic acid, 12-hydroxystearate, undecylenic acid, tall oil, and lanolin fatty acid; and fatty acids of synthetic fatty acids such as isononanoic acid, caproic acid, 2-ethylbutanoic acid, isopentanoic acid, 2-methylpentanoic acid, 2-ethylhexanoic acid, isopentanoic acid, and isostearic acid.
(Hasebe, par. [0027]), which is “squalane” of claim 7, and encompassed by “one or more silicone oils” of claim 8. See MPEP § 2123 [R-5] regarding the obviousness of rearranging a reference according to the teachings of that same reference.
Thus, the prior art renders claims 7-8 obvious.
Regarding claim 10 and the requirements:
10. The hair treatment serum of claim 1, wherein the one or more thickening agents further include one or more polysaccharide thickening agents.
Hasebe teaches suitable “thickening agents such as xanthan gum”:
[0079] Other adjuvants, which can be used in combination, include: hormones; a sequestrant; a pH adjuster; chelators such as EDTA (EDTA-2Na and EDTA-3Na); antivirus and antifungus agents such as paraben, methyl paraben, ethyl paraben, and propyl paraben; refrigerant; stabilizer; emulsifier; animal and plant proteins and digests thereof (urea, for instance); animal and plant polysaccharides and digests thereof; animal and plant glycoproteins and digests thereof; antiflash and antiallergic agents; a therapeutic agent for wounds; refoamer; thickening agents such as xanthan gum, quinceseed gum, and toraja gum; enzyme; purified water. (electron water, small clustered water, and the like); deodorant and deodorant; and solvents such as trichlorofluoroethane.
(Hasebe, par. [0079]), which is encompassed by “one or more polysaccharide thickening agents” of claim 10 (as well as par. [0096] of the instant published application, US 2025/0302716 A1). See MPEP § 2123 [R-5] regarding the obviousness of rearranging a reference according to the teachings of that same reference.
Thus, the prior art renders claim 10 obvious.
Regarding claim 11 and the requirements:
11. The hair treatment serum of claim 1, further comprising one or more surfactants.
Hasebe teaches “The hair conditioning and managing compositions are substantially anhydrous and include: […]; one or more cationic surfactants; […]” (Hasebe, abstract), which is “one or more surfactants” of claim 11.
Thus, the prior art renders claim 11 obvious.
Regarding claim 14 and the requirements:
14. The hair treatment serum of claim 1, wherein:
the polyglutamic acid, salt thereof, or mixture thereof is sodium polyglutamate;
the one or more hydrocarbon oils include squalane; and
the one or more one or more polyacrylic acid thickening agents include a crosslinked polyacrylic acid homopolymer.
Hasebe teaches:
a “Permanent Pre-Treatment Agent” containing “y-Sodium polyglutamate” (Hasebe, par. [0120], Ex. 28), which is “sodium polyglutamate” of claim 14;
suitable “film-forming agent[s],” inter alia, “squalane” (Hasebe, par. [0027]), which is “squalane” of claim 14; and
a “Permanent Pre-Treatment Agent” containing “Alkyl denaturated carboxyvinyl polymer” (Hasebe, par. [0120], Ex. 28), which is encompassed by a “crosslinked polyacrylic acid homopolymer” of claim 14.
See MPEP § 2123 [R-5] regarding the obviousness of rearranging a reference according to the teachings of that same reference.
Thus, the prior art renders claim 14 obvious.
Regarding claims 19-20 and the requirements:
19. A method for treating hair comprising applying the hair treatment serum of claim 1 to the hair.
20. The method of claim 19, wherein the hair treatment serum is applied to wet or damp hair and remains on the hair while drying and optionally styling the hair.
Hasebe tests for “Improvement Effect on Hair Strength” by taking “decolorized hair” that is “dipped for 5 minutes in the γ-polyglutamic acid solution of Production Example 1, which was adjusted at 40° C., and then washed with purified water sufficiently, followed by standing in a drying machine at 40° C. to dry the hair bundle” (Hasebe, par. [0088]), which is the active steps of applying to “wet hair” and “remains on the hair while drying” of claim 20, and “applying” of claim 19.
Thus, the prior art renders claim 19-20 obvious.
Claims 12-13 and 15-18 are rejected under 35 U.S.C. § 103 as being unpatentable over HASEBE (US 2006/0165636 A1, Publ. Jul. 27, 2006; on 02/14/2025 IDS; hereinafter, “Hasebe”), in view of SPRINGER (US 2011/0117219 A1, Publ. May 19, 2011; hereinafter, “Springer”), as applied to claims 1-11, 14 and 19-20, above, and further in view of BHOGAL (US 2014/0335038 A1, Publ. Nov. 13, 2014; hereinafter, “Bhogal”).
The teachings of Hasebe and Springer, as set forth above are hereby incorporated. Although Hasebe teaches the incorporation of other components, such as a “surfactant,” and other adjuvants such as “thickening agents”:
[0025] In the present invention, in addition to γ-polyglutamic acid or a salt thereof which is an essential ingredient for the composition for hair treatment and hair cosmetic for damaged hair, the composition for hair treatment and the hair cosmetic for damaged hair may arbitrarily select and use together with, as an additive, a film former, a bioactive ingredient, and a preparation-regulating ingredients such as a coloring agent, a surfactant, a fragrance and a vehicle, and so on. Thus, the superior composition for hair treatment and the hair cosmetic for damaged hair having more various functionalities can be constructed. The content of those ingredients in the preparation is generally within the concentration range of 0.0001 to 50% by mass.
[…]
[0079] Other adjuvants, which can be used in combination, include: hormones; a sequestrant; a pH adjuster; chelators such as EDTA (EDTA-2Na and EDTA-3Na); antivirus and antifungus agents such as paraben, methyl paraben, ethyl paraben, and propyl paraben; refrigerant; stabilizer; emulsifier; animal and plant proteins and digests thereof (urea, for instance); animal and plant polysaccharides and digests thereof; animal and plant glycoproteins and digests thereof; antiflash and antiallergic agents; a therapeutic agent for wounds; refoamer; thickening agents such as xanthan gum, quinceseed gum, and toraja gum; enzyme; purified water. (electron water, small clustered water, and the like); deodorant and deodorant; and solvents such as trichlorofluoroethane.
(Hasebe, par. [0025] & [0079]), Hasebe DOES NOT EXPRESSLY TEACH “polyquaterniums” or “one or more cationic conditioning polymers” of claims 12-13:
12. The hair treatment serum of claim 1, further comprising one or more cationic conditioning polymers.
13. The hair treatment serum of claim 12, wherein the one or more cationic conditioning polymers are selected from polyquaterniums.
OR particular range amounts of “hydrocarbon oils,” particular range amounts of “silicone oils,” “one or more ester oils” and range amounts thereof, and particular amounts of “thickening agents” in order to meet the requirements of claim 15 for:
15. A hair treatment serum comprising:
(a) about 0.05 to about 2 wt. % of γ-polyglutamic acid, a salt thereof, or a mixture thereof;
(b) about 2 to about 10 wt. % of one or more oils, wherein the one or more oils comprise:
(i) about 0.1 to about 3 wt. % of one or more hydrocarbon oils;
(ii) about 1 to about 5 wt. % of one or more silicone oils; and
(iii) about 1 to about 8 wt. % of one or more ester oils;
wherein (a) and (b)(i) are in a weight ratio of about 1:1 to about 1:25;
(c) about 0.1 to about 3 wt. % of one or more thickening agents, wherein the one or more thickening agents comprise:
(i) about 0.1 to about 2 wt. % of one or more polyacrylic acids thickening agents; and
(ii) about 0.1 to about 3 wt. % of one or more polysaccharide thickening agents;
wherein (a) and (c)(i) are in a weight ratio of about 1:1 to about 1:25;
(d) about 65 to about 92 wt. % of water;
(e) about 0.1 to about 5 wt. % of one or more surfactants; and
(f) optionally, about 0.1 to about 2 wt. % of one or more cationic conditioning polymers;
wherein the hair treatment serum is an oil-in-water emulsion or an oil-in-water dispersion, and
all percentages by weight are based on a total weight of the hair treatment serum.
Based on the state of the art, an artisan of ordinary skill would have found each of these features obvious.
Bhogal, for instance, is directed to:
METHOD OF STRENGTHENING HAIR FIBRES
ABSTRACT
Hair can be damaged in a number of ways including exposure to heat, bleaching, use of shampoos and styling products, brushing and combing, and exposure to the environment, for example ultra-violet light. Existing treatments designed to repair damaged hair make use of surface active materials that mask the problem rather than actually repairing the hair. These materials modify fibre feel by changing consumer perceivable fibre sensory cues such as smoothness, may change some measurable physical properties such as hydrophobicity and hydrophilicity, but do not change other physical characteristics such as fibre stiffness, strength or structural integrity. The invention relates to a method of repairing hair fibres using flavonoids, hydrogen peroxide and a peroxidase enzyme.
Bhogal, title & abstract. In this regard, Bhogal teaches the incorporation of:
Non-Silicone Oils (Bhogal, par. [0118]-[0121]) including:
“hydrocarbon oils,” e.g., “paraffin oil, mineral oil, saturated and unsaturated dodecane, saturated and unsaturated tridecane, saturated and unsaturated tetradecane, saturated and unsaturated pentadecane, saturated and unsaturated hexadecane, and mixtures thereof,” and “[b]ranched-chain isomers of these compounds, as well as of higher chain length hydrocarbons” (Bhogal, par. [0119]), and
“fatty esters [that] are characterised by having at least 10 carbon atoms, and include esters with hydrocarbyl chains derived from fatty acids or alcohols, Monocarboxylic acid esters include esters of alcohols and/or acids of the formula R′COOR in which R′ and R independently denote alkyl or alkenyl radicals and the sum of carbon atoms in R′ and R is at least 10, preferably at least 20,” and “Di- and trialkyl and alkenyl esters of carboxylic acids can also be used” (Bhogal, par. [0120]),
wherein “The oily or fatty material is suitably present at a level of from 0.05 to 10, preferably from 0.2 to 5, more preferably from about 0.5 to 3% w/w of the composition of the invention” (Bhogal, par. [0121]), which relates to “one or more hydrocarbon oils” and “one or more ester oils” of claim 15;
Silicones (Bhogal, par. [0066]-[0077]), inter alia, “polydiorganosiloxanes, in particular polydimethylsiloxanes which have the CTFA designation dimethicone” (Bhogal, par. [0067]), wherein “[t]he total amount of silicone is preferably from 0.01 to 10, more preferably from 0.1 to 5, most preferably 0.5 to 3% w/w of the composition of the invention” (Bhogal, par. [0077]), which relates to “one or more silicone oils” of claim 15;
Suspending agents (Bhogal, par. [0054]-[0057]) including:
“polyacrylic acids, cross-linked polymers of acrylic acid,” e.g., “Carbopol 1342” (Bhogal, par. [0054]), and
“heteropolysaccharide gums” (Bhogal, par. [0054]) such as “xanthan gum” (Bhogal, par. [0055]),
wherein “Suspending agent will generally be present in a shampoo composition of the invention at levels of from 0.1 to 10, preferably from 0.5 to 6, more preferably from 0.9 to 4% w/w of the composition” (Bhogal, par. [0057]), which relates to “one or more polyacrylic acids thickening agents” and “one or more polysaccharide thickening agents” of claim 15; AND
Cationic polymers (Bhogal, par. [0080]-[0057]), inter alia, “cationic diallyl quaternary ammonium-containing polymers including, for example, dimethyldiallylammonium chloride homopolymer and copolymers of acrylamide and dimethyldiallylammonium chloride, referred to in the industry (CTFA) as Polyquaternium 6 and Polyquaternium 7” (Bhogal, par. [0086]), wherein “Cationic polymer will generally be present in a shampoo composition of the invention at levels of from 0.01 to 5, preferably from 0.05 to 1, more preferably from 0.08 to 0.5% w/w of the weight of the compositions of the invention” (Bhogal, par. [0096]), which relates to both “one or more surfactants” of claim 15, as well as “one or more cationic conditioning polymers” claims 12-13 and 15, and “polyquaterniums” of claim 16.
In light of these teachings, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to formulate Hasebe’s “Permanent Pre-Treatment Agent” (Hasebe, par. [0120], Ex. 28) per Springer (as discussed above), and per Bhogal to have further incorporated Non-Silicone Oils (Bhogal, par. [0118]-[0121]), Silicones (Bhogal, par. [0066]-[0077]), Suspending agents (Bhogal, par. [0054]-[0057]), and Cationic polymers (Bhogal, par. [0080]-[0057]). One would have been motivated to do so with a reasonable expectation of success since both Hasebe and Bhogal are concerned with similar problems in the art, namely formulations for treating damaged hair (Hasebe, abstract; Bhogal, abstract). Further, it is well within the skill of the ordinary artisan to select suitable components, and amounts thereof, in obtaining a formulation for treating damaged hair. See MPEP § 2144.07 stating that the selection of a known material based on its suitability for its intended use is prima facie obvious, which cites Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945), wherein “Reading a list and selecting a known compound to meet known requirements is no more ingenious than selecting the last piece to put in the last opening in a jig-saw puzzle.” Doing so amounts to no more than combining prior art elements according to known methods to yield predictable results, namely the formulation of Hasebe’s “Permanent Pre-Treatment Agent” (Hasebe, par. [0120], Ex. 28) with suitable components for a hair damage composition:
(a) 3.0 Mass % “γ-Sodium polyglutamate (MW about 260,000)” (Hasebe, par. [0120], Ex. 28), wherein “the content of γ-polyglutamic acid or a salt thereof is defined within the range of 0.001% by mass or more, preferably 0.01 to 50.0% by mass in terms of solid content in the total amount of the preparation” (Hasebe, par. [0022]);
(b) silicone and non-silicone oils:
(i) 5.0 Mass % “Liquid paraffin” (Hasebe, par. [0120], Ex. 28) or Non-Silicone Oils (Bhogal, par. [0118]-[0121]), inter alia, “hydrocarbon oils,” (Bhogal, par. [0119]), wherein “The oily or fatty material is suitably present at a level of from 0.05 to 10, preferably from 0.2 to 5, more preferably from about 0.5 to 3% w/w of the composition of the invention” (Bhogal, par. [0121]),
(ii) 5.0 Mass % “Methylpolysiloxane” and 5.0 Mass % “Liquid paraffin” (Hasebe, par. [0120], Ex. 28), wherein “[t]he total amount of silicone is preferably from 0.01 to 10, more preferably from 0.1 to 5, most preferably 0.5 to 3% w/w of the composition of the invention” (Bhogal, par. [0077]), and
(iii) Non-Silicone Oils (Bhogal, par. [0118]-[0121]), inter alia, “fatty esters” (Bhogal, par. [0120]), wherein “The oily or fatty material is suitably present at a level of from 0.05 to 10, preferably from 0.2 to 5, more preferably from about 0.5 to 3% w/w of the composition of the invention” (Bhogal, par. [0121]);
(c) thickeners or suspending agents:
(i) 0.4 Mass % “Alkyl denaturated carboxyvinyl polymer” (Hasebe, par. [0120], Ex. 28), wherein “Suspending agent will generally be present in a shampoo composition of the invention at levels of from 0.1 to 10, preferably from 0.5 to 6, more preferably from 0.9 to 4% w/w of the composition” (Bhogal, par. [0057]), and
(ii) Suspending agents (Bhogal, par. [0054]-[0057]), inter alia, “heteropolysaccharide gums” (Bhogal, par. [0054]) such as “xanthan gum” (Bhogal, par. [0055]), wherein “Suspending agent will generally be present in a shampoo composition of the invention at levels of from 0.1 to 10, preferably from 0.5 to 6, more preferably from 0.9 to 4% w/w of the composition” (Bhogal, par. [0057]);
(d) a “Balance” of “Purified water” (Hasebe, par. [0120], Ex. 28) up to 100 wt.%; and
(e) Cationic polymers (Bhogal, par. [0080]-[0057]), inter alia, “Polyquaternium 6 and Polyquaternium 7” (Bhogal, par. [0086]), wherein “Cationic polymer will generally be present in a shampoo composition of the invention at levels of from 0.01 to 5, preferably from 0.05 to 1, more preferably from 0.08 to 0.5% w/w of the weight of the compositions of the invention” (Bhogal, par. [0096]);
wherein the composition is formulate as a particular “emulsion” as a “dosage form” (Hasebe, par. [0022]) for treating damaged hair (Hasebe, abstract) such as an “O/W” emulsion (Springer, par. [0039]).
See MPEP § 2144.05 (I) regarding the obviousness of prior art overlapping claimed numerical ranges; it is also noted that “[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” (In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955); and also MPEP § 2144.05(II)(A)). In this regard, it would have been customary for an artisan of ordinary skill to select an amount of “γ-polyglutamic acid or a salt thereof” that is “within the concentration range of 0.01% by mass or more, preferably 0.1 to 20.0% by mass in the total amount of the preparation” in optimizing “type, quality, desired degree of action, and so on of the hair cosmetic” (Hasebe, par. [0023]) in order to attain the range and ratio requirements of claim 15.
Thus, the prior art renders claims 12-13 and 15 obvious.
Regarding claim 16 and the requirements:
16. The hair treatment serum of claim 15, wherein the one or more surfactants are selected from nonionic surfactants, one or more amphoteric surfactants, and one or more cationic surfactants.
Hasebe teaches suitable adjuvants, inter alia, “cationic surfactants” ((Hasebe, par. [0078]), which is encompassed by “one or more cationic surfactants” of claim 16.
Thus, the prior art renders claim 16 obvious.
Regarding claim 17 and the requirements:
17. The hair treatment serum of claim 15, wherein the one or more silicone oils are selected from caprylyl methicone, cyclohexasiloxane, cyclopentasiloxane, dimethiconol, dimethicone, methyl trimethicone, diphenyl dimethicone, diphenylsiloxy phenyl trimethicone, phenyl trimethicone, amodimethicone, bis-hydroxy/methoxy amodimethicones, bis-cetearyl amodimethicone, amodimethicone, bis(C13-15 alkoxy) PG amodimethicones, aminopropyl phenyl trimethicones, aminopropyl dimethicones, or combinations thereof.
Hasebe teaches a “Permanent Pre-Treatment Agent” with “Methylpolysiloxane” (Hasebe, par. [0120], Ex. 28), which is encompassed by “dimethicone” of claim 17.
Thus, the prior art renders claim 17 obvious.
Regarding claim 18 and the requirements:
18. The hair treatment serum of claim 15, wherein:
the polyglutamic acid, salt thereof, or mixture thereof is sodium polyglutamate;
the one or more hydrocarbon oils include squalane; and
the one or more one or more polyacrylic acid thickening agents include a crosslinked polyacrylic acid homopolymers.
Hasebe teaches:
a “Permanent Pre-Treatment Agent” containing “y-Sodium polyglutamate” (Hasebe, par. [0120], Ex. 28), which is “sodium polyglutamate” of claim 18;
suitable “film-forming agent[s],” inter alia, “squalane” (Hasebe, par. [0027]), which is “squalane” of claim 18; and
a “Permanent Pre-Treatment Agent” containing “Alkyl denaturated carboxyvinyl polymer” (Hasebe, par. [0120], Ex. 28), which is encompassed by a “crosslinked polyacrylic acid homopolymer” of claim 18.
See MPEP § 2123 [R-5] regarding the obviousness of rearranging a reference according to the teachings of that same reference.
Thus, the prior art renders claim 18 obvious.
Conclusion
Claims 1-20 are rejected. No claims are allowed.
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/DOMINIC LAZARO/Primary Examiner, Art Unit 1611