Response to Amendment
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 Interpretation
The examiner interprets the claims broadly as a cleansing composition comprising greater than 0.0001% by weight to less than 10% by weight of a direct dye; greater than or equal to 17% by weight to less than 50% by weight of a cyclic saccharide surfactant, where said surfactant has a surface active content of greater than 7.5% by weight and less than 25% by weight.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
Claim(s) 1-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Grosjacques et al (10667999).
Grosjacques et al disclose a cleansing agent for the dyeing of keratinic fibers, in particular human hair, containing in a cosmetic carrier (a) at least one direct-acting dye, (b) at least one amphoteric surfactant, in particular at least one alkyl betaine, and (c) at least one alkyl polyglycoside, in particular at least one alkyl polyglucoside, wherein the weight-related total amount of amphoteric surfactant (b) in the agent, based on the weight of the agent, is less than the weight-related total amount of alkyl polyglycoside (c) or equal to the weight-related total amount of alkyl polyglycoside (c) (abstract). Specifically, the direct-acting dye(s) (a) is or are preferably present in a total amount from about 0.001 to about 7% by weight (col. 4, lines 40-49) and said dye(s) preferably comprise Acid Yellow 3, Acid Violet 43, and Acid Orange 7 (col. 6, lines 10-13). Moreover, the total amount of surfactants in the agent as contemplated herein is preferably up to 50% by weight, preferably from about 1 to about 40% by weight, in each case based on the weight of the agent. Furthermore, the total surfactant content, based on the weight of the agent, of amphoteric surfactants (b) and alkyl polyglycosides (c) together is from about 1.0 to about 25.0% by weight (col. 8, lines 1-14) and the total amount of at least one alkyl polyglycoside (c) is preferably from about 0.5 to about 15.0% by weight (col. 8, lines 45-53). In addition, with respect to claim 10, the ratio of alkyl polyglycosides to amphoteric is from 1:1 (col. 8, lines 20-25). Specifically, examples E3-E6 show the overlap of the claimed invention and the teachings of Grosjacques et al:
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Grosjacques et al show a composition comprising a direct dye at 0.50% correlating to HC Blue 12; cocamidopropyl betaine at 4% with a 37% active content equals 2.52%; lauryl polyglucoside at 12% with a 51% active content equals 5.88%; the surfactant ratio of polyglucoside to betaine is 3:1; pH adjuster in 0.4% citric acid; 0.5% castor oil humectant; 0.6% polyquaternium conditioner and 0.4% sodium benzoate foaming agent.
Grosjacques et al lacks a teaching with sufficient specificity to anticipate the claims because Grosjacques et al do not call out greater than 17% saccharide based surfactant (APG) and said surfactant having a surfactant content of greater than 7.5%.
It would have been obvious to optimize the proportions of Grosjacques et al to encompass the claim limitation given the broad teachings of 15% and up to 50% in certain teachings (see column 8). With a level of 15% suggested in Grosjacques et al, a surfactant content of (51%) as exemplified, amounts to an active level of 7.65%. With surfactant content proportion suggested at higher limits, the surfactant contents are guided to higher levels and therefore would encompass the claimed amounts as suggested. One skill in the art would readily derive the levels of proportions and without a showing to the contrary and optimize the proportions to suggest a cleansing composition with a direct dye and surfactants specific to the claimed invention.
“The 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” Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382; In re Hoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969) Merck & Co. Inc. v. Biocraft Laboratories Inc., 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir.), cert. denied, 493 U.S. 975 (1989); In re Kulling, 897 F.2d 1147, 14 USPQ2d 1056 (Fed. Cir. 1990); and In re Geisler, 116 F.3d 1465, 43 USPQ2d 1362 (Fed. Cir. 1997).[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 Int'l Co. v.Teleflex Inc., 550 U.S. at 418 (quoting Sakraida v. Ag Pro, Inc., 425 U.S. 273,282 (1976).]
Response to Arguments
Applicant argues that Grosjacques et al do not teach or suggest a level of 17% of saccharide surfactant.
The examiner contends that Grosjacques et al would have been obvious to optimize the proportions of Grosjacques et al to encompass the claim limitation given the broad teachings of 15% and up to 50% in certain teachings (see column 8). With a level of 15% suggested in Grosjacques et al, a surfactant content of (51%) as exemplified, amounts to an active level of 7.65%. With surfactant content proportion suggested at higher limits, the surfactant contents are guided to higher levels and therefore would encompass the claimed amounts as suggested. One skill in the art would readily derive the levels of proportions and without a showing to the contrary and optimize the proportions to suggest a cleansing composition with a direct dye and surfactants specific to the claimed invention. Furthermore, in the absence of a showing to the contrary, commensurate in scope with the claims, one skilled in the art would optimize the amount from 15% to 17% with the expectation of decreasing the surface tension and cleanse the personal substrate accordingly.
Similarly, a prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have the same properties. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed. Cir. 1985)
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 NECHOLUS OGDEN JR whose telephone number is (571)272-1322. The examiner can normally be reached 8-4:30 EST M-F.
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/NECHOLUS OGDEN JR/Primary Examiner, Art Unit 1761
