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 Claim
The amendments and arguments filed 10 April 2026 are acknowledged and have been fully considered. Claims 1-20 are currently pending. Claims 1-20 are amended; no claims are cancelled; no claims are withdrawn; no claims are new.
Claims 1-20 are examined on the merits herein.
Objections/Rejections Withdrawn
Rejections and/or objections not reiterated from previous Office Actions are hereby withdrawn. In particular, the rejection of claims under 35 U.S.C. 101 is withdrawn in view of Applicant’s amendment to the claims. The following rejections and/or objections are either reiterated or newly applied, and constitute the complete set presently being applied to the instant application.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 17 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 17 recites the limitation "the vitamin E" in line 2. There is insufficient antecedent basis for this limitation in the claim. For examination purposes, claim 17 is interpreted as “The all-natural argan oil blend hair treatment of claim 1, wherein the natural oil combination further comprises about 0.7% to about 2.0% by weight of vitamin E.”
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-20 are MAINTAINED rejected under 35 U.S.C. 103 as being unpatentable over Ma (US 2021/0268110) in view of Petkoska et al. (US 2023/0293423, effectively filed 29 April 2015).
Claim 1 is drawn to an all-natural argan oil blend hair treatment comprising:
about 75% to about 99% (more specifically about 90% to about 96% (claims 8-10)) by weight of a natural oil combination and;
about 1% to about 25% (more specifically about 4% to about 10% (claims 8-10) by weight of an essential oil combination,
wherein the natural oil combination includes:
about 3% to 20% argan oil,
about 20% to about 45% by weight sunflower oil (more specifically 25% to 40% (Claim 2)),
about 20% to about 45% by weight canola oil (more specifically 25% to 40% (Claim 3)), and
about 3% to about 20% by weight castor oil (more specifically 5% to 15% (Claim 4)), based on a weight of the argan oil blend hair treatment.
Claim 5 is drawn to the argan oil blend of claim 1, wherein the essential oil combination comprises at least four oils from the group including clove, rosemary, thyme, and chamomile maroc essential oils.
Claim 11 is drawn to an all-natural argan oil blend hair treatment, comprising:
about 80% to about 98% by weight of a natural oil combination and;
about 2% to about 20% by weight of an essential oil combination,
wherein the natural oil combination includes:
about 4% to 15% argan oil (more specifically 5% to 10% (claim 12)),
about 25% to about 40% by weight sunflower oil (more specifically 30% to 35% (claim 12)),
about 25% to about 40% by weight canola oil (more specifically 30% to 35% (claim 12)),
about 5% to about 15% by weight coconut oil (more specifically 7% to 12% (claim 13)), and
about 5% to about 15% by weight castor oil (more specifically 7% to 12% (claim 14)), based on a weight of the argan oil blend hair treatment.
Ma teaches oil-based compositions (Claim 1) for the application to the skin or hair (Par. [0011, 0030]). Ma teaches in claims 10-12 a composition comprising:
a base composition comprising sunflower seed oil, coconut oil, and macadamia nut oil in an amount of 50% to 99% of the formulation; and
a blend of essential oils including clove, rosemary, thyme, and Moroccan chamomile in an amount of about 2.2% to about 50% of the formulation.
While Ma does not explicitly teach the composition being an all-natural composition, the sunflower seed, coconut, macadamia, clove, rosemary, thyme, and Moroccan chamomile oils are all oils sourced from naturally occurring plants, reading on an all-natural composition.
As such, Ma teaches an all-natural oil composition for application to the skin and hair comprising 50% to 99% by weight of a natural oil combination; and about 2.2% to 50% by weight of an essential oil combination, wherein the natural oil combination includes sunflower oil and coconut oil, wherein the essential oil blend contains at least four essential oils selected from the group including clove, rosemary, thyme, and chamomile maroc essential oils.
The composition of Ma differs from the instantly claimed composition in the following ways:
the composition of Ma does not comprise argan oil;
the composition of Ma does not canola oil;
the composition of Ma does not comprise castor oil; and
Ma is silent as to the amounts of argan oil, sunflower oil, canola oil, coconut, and castor oil in the composition.
Yet, as to 1: Petkoska et al. also teach oil compositions for application to the skin, wherein the natural oils protect the skin from high energy visible light (Abstract). Petkoska et al. further teach that argan oil by itself or in combination with other oils provides protection from a wide spectrum of light (Fig. 3), further teaching that argan oil provides excellent antioxidant behavior, anti-inflammatory behavior, and regulation of healthy skin (Pars. [0310-12]).
Therefore, it would have been prima facie obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have modified the composition of Ma to include argan oil. It would have been obvious to combine the known composition with the known use of argan oil as a wide spectrum protectant, antioxidant, and anti-inflammatory agent to yield the predictable result of a composition with excellent antioxidant behavior, anti-inflammatory behavior, and regulation of healthy skin, with a reasonable expectation of success.
As to 2: Petkoska et al. further teach canola oil as being a suitable oil for use in formulations for application to the skin (Par. [0124]). And as discussed in MPEP 2141(I), "[I]n Sakraida v. AG Pro, Inc., the Court derived . . . the conclusion that when 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." Id. at 417, 82 USPQ2d at 1395-96.
Therefore, it would have been prima facie obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to modify the composition of Ma to include canola oil as taught by Petkoska et al. It would have been obvious to combine the known composition for application to the skin with the known use of canola oil in compositions for application to the skin to yield the predictable result of a composition suitable for application to the skin, with a reasonable expectation of success.
As to 3: Petkoska et al. further teach castor oil as a suitable oil for formulations for application to the skin (Par. [0124]), additionally teaching castor oil as a highly stable and moisturizing oil (Par. [0187]).
Therefore, it would have been prima facie obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have modified the composition of Ma to include castor oil. It would have been obvious to combine the known composition with the known use of castor oil as a moisturizing oil to yield the predictable result of a stable moisturizing composition, with a reasonable expectation of success.
And, as to 4: Petkoska et al. further teach that varying the amount of the oils in a formulation can change the absorbance behavior of the formulation, and thus the skin protecting capabilities of the formulation (Figs. 22-23; Pars. [0339-0340]), indicating that the concentration of oils in the formulation is a result effective variable.
And, as discussed by MPEP 2144.05, “[g]enerally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical” (see also In re Aller (220 F.2d 454)): “where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation…” Indeed, as further discussed by the court, “[s]uch experimentation is no more than the application of the expected skill of the [ordinarily skilled artisan] and failure to perform such experiments would, in our opinion, show a want of the expected skill”; see also In re Peterson, 315 F.3d at 1325 (Fed. Cir. 2005): “[t]he normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages” and “[o]nly if the ‘results of optimizing a variable’ are ‘unexpectedly good’ can a patent be obtained for the claimed critical range” (quoting In re Antonie (559 F.2d 618 (CCPA 1977))).
Therefore, it would have been prima facie obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to optimize the amounts of the argan, sunflower, canola, coconut, and castor oils in the composition. It would have been obvious to do so to obtain a composition with the desired absorbance behavior to provide the desired light protection for the skin, with a reasonable expectation of success.
Based on all of the foregoing, claims 1-5 and 8-14 are rejected as prima facie obvious.
Claims 6-7 are drawn to the argan oil blend of claim 1, wherein the essential oil combination comprises at least twelve oils selected from the group including thyme, basil, lavender, carrot seed, peppermint, rosemary, ginger, pomegranate peel, chamomile maroc, clove, turmeric, and garlic essential oils.
Claims 18-19 are drawn to the argan oil blend of claim 11, wherein the essential oil combination comprises at least twelve oils selected from the group including thyme, basil, lavender, carrot seed, peppermint, rosemary, ginger, pomegranate peel, chamomile maroc, clove, turmeric, and garlic essential oils.
The composition of Ma does not comprise basil, lavender, carrot seed, peppermint, ginger, pomegranate peel, turmeric, and garlic essential oils.
However, Ma further teaches in Table 1 (pgs. 6-31) the health benefits of various oils, including basil essential oil for treating acne; carrot seed essential oil for sun protection and antifungal activity; turmeric essential oil as an anti-inflammatory; garlic essential oil as an anti-inflammatory and to promote cardiovascular health; ginger essential oil to improve circulation; pomegranate peel essential oil as an anti-tumorigenic and anti-inflammatory; and peppermint essential oil as an antioxidant; further teaching lavender for hypertension and hair growth (Pars. [449] and [474]).
Therefore, it would have been prima facie obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have modified the composition of Ma to include basil, lavender, carrot seed, peppermint, ginger, pomegranate peel, turmeric, and garlic essential oils. It would have been obvious to combine the known composition with the known essential oils in order to obtain a composition with added health benefits, with a reasonable expectation of success.
As such, claims 6-7 and 18-19 are rejected as prima facie obvious.
Claim 15 is drawn to the argan oil blend of claim 14, wherein the natural oil combination comprises about 0.7% to about 2.0% by weight of the black seed oil.
Ma does not teach the composition comprising black seed oil. However, Ma teaches in Table 1 (Pg. 22) black seed oil as being useful in the treatment of pain and having anti-inflammatory properties, further teaching composition comprising 0.01% to about 10% of black seed oil (Par. [0066]). While the percentage taught by Ma is a percent by volume, based on the average density of the oils in the composition as evidenced by Typology and Aceite de Las Valdesas, 0.01% to 10% by volume corresponds to about 0.01% to about 10% by weight as calculated by examiner, overlapping with the instantly claimed range.
Therefore, it would have been prima facie obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have modified the composition of Ma to include black seed oil. It would have been obvious to combine the known composition with the known use of black seed oil for treating pain to obtain the predictable result of a composition suitable for treating pain, with a reasonable expectation of success. It would have been further obvious to one of ordinary skill in the art to optimize the amount of black seed oil in the composition in order to obtain a composition having the desired efficacy in treating inflammation and pain, as well as having the desired absorbance behavior to provide the desired light protection for the skin, with a reasonable expectation of success.
Claim 16 is drawn to the argan oil blend of claim 14, wherein the natural oil combination comprises about 0.7% to about 2.0% by weight of the vitamin E.
Claim 17 is drawn to the argan oil blend of claim 1, herein the natural oil combination comprises about 0.7% to about 2.0% by weight of the vitamin E.
Ma teaches in Table 1 (pgs. 27) vitamin E being a powerful antioxidant, improving skin clarity, and having anti-inflammatory and photoprotective activity. Ma further teaches compositions comprising about 0.01% to about 10% vitamin E (Par. [0067]). While the percentage taught by Ma is a percent by volume, based on the average density of the oils in the composition as evidenced by Millipore Sigma and Aceite de Las Valdesas, 0.01% to 10% by volume corresponds to about 0.01% to about 10% by weight as calculated by examiner, overlapping with the instantly claimed range.
Therefore, it would have been prima facie obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have modified the composition of Ma to include vitamin E. It would have been obvious to combine the known composition with the known use of vitamin E in composition for application to the skin to yield the predictable result of a composition that promotes skin clarity with antioxidant, anti-inflammatory, and photoprotective properties, with a reasonable expectation of success.
As such, claims 16-17 are rejected as prima facie obvious.
Claim 20 is drawn to a composition containing the limitations of claims 11-14 and 19, and is therefore rejected as prima facie obvious for the same reasons applied to claims 11-14 and 19 above.
Response to Arguments
Applicant's arguments filed 10 April 2026 have been fully considered but they are not persuasive.
Applicant argues on pg. 8 of the remarks that Ma does not provide any motivation to include argan oil, canola oil, or castor oil.
In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
As Petkoska et al. also teaches natural oil-based composition for the application to the skin or hair (Abstract), and further teaches argan, canola, and castor oils (Pars. [310-12], [124], and [187]), the combination is proper, and the argument is insufficient to overcome the case of prima facie obviousness.
Applicant argues on pg. 9 of the remarks that as Ma teaches a formulation substantially similar to that of a membrane of a cell, an organelle, or exosome”, there would be no motivation to modify the composition of Ma to arrive at the instant hair treatment formulation.
This argument is not persuasive. The recitation of a hair treatment formulation is a recitation of an intended use of the instantly claimed composition. A recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. As the composition of Ma and Petkoska et al. is capable of performing the intended use, it meets the claim. Nevertheless, Ma teaches application of the oil compositions to the hair or skin (Par. [0097]). As such, one of ordinary skill in the art would look to Petkoska et al. to modify Ma, as both are drawn to oil compositions for application to the hair and skin.
Applicant argues on pg. 10 that there is no disclosure or suggestion of the claimed percentage ranges of the instantly claimed oils, and that there is no support that the instantly claimed ranges would have been obvious.
This argument is not persuasive. As discussed in MPEP 2144.05(II), the optimization of a result-effective variable is obvious and well within the capability of one of ordinary skill in the art. As Petkoska et al. has taught a number of oil compositions (see e.g., Fig. 4) having various concentrations (Par. [0017]) to provide the desired light absorbing properties, establishing that the concentration of the various oils in the composition is a result-effective variable. As such, the optimization of the concentrations of the oils in the composition to obtain the desired absorption behavior renders the instantly claimed concentration ranges prima facie obvious.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Paul Hoerner whose telephone number is (571)270-0259. The examiner can normally be reached Monday - Friday 9:00am - 5:00pm eastern.
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/BETHANY P BARHAM/Supervisory Patent Examiner, Art Unit 1611
/PAUL HOERNER/ Examiner, Art Unit 1611
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