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 .
Information Disclosure Statement
Receipt is acknowledged of the Information Disclosure Statement filed on 08/27/2025 and 03/10/2025. The Examiner has considered the reference cited therein to the extent that each is a proper citation. Please see attached USPTO form.
Election/Restrictions
Applicant's election of sodium C12-13 alkyl sulfate surfactant as Species 1, piroctane olamine as the scalp care active in Species 2, acrylate copolymer as the thickening polymer in Species 3, and cationic guar polymer as the cationic polymer in Species 4 with traverse in the reply filed on 06/11/2026 is acknowledged.
The applicant traverses on the grounds that “the different groups of the present invention have not acquired a separate status in the art” (see page 8). Applicant’s arguments have been considered and the election of species for scalp health agents is withdrawn.
Claims 1-30 are under examination and the requirement for restriction is made final.
Claim Objections
Claim 1 is objected to because of the following informalities: typo in line 5 for “scalp scare active”. 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 1-30 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 1a recites “from about 5% to about 7% of one or more surfactants” (line 2). It is unclear whether 5-7 wt% refers to the weight level of an individual surfactant when there are multiple surfactants or the total surfactant level in the composition. For the purpose of compact prosecution, claim 1a will be interpreted as 5-7 wt% level of each type of surfactant in the composition.
Claims 2-30 inherit this rejection.
Claims 10-13 recite the limitation "the one or more cationic polymers" in line 1. There is insufficient antecedent basis for this limitation in the claim because there is no cationic polymer in claim 1. Claim 1 recites the use of a thickening polymer. It is unclear whether the cationic polymer is a thickening polymer or an additional polymer to the composition.
Claim 14 depends on claim 1c which recites “from about 0.5% to about 8% of a thickening polymer”. However, claim 14 recites “0.1% to about 10% of one of more of a thickening polymer.” It is unclear whether the 0.1-10 wt% thickening polymer in claim 14 is the same as the 0.5-8 wt% thickening polymer in claim 1 or a second additional thickening polymer. For the purposes of compact prosecution, claim 14 will be interpreted as 0.1-10 wt% of the same thickening polymer as claim 1.
Claim 15 inherits this rejection.
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 1-30 are rejected under 35 U.S.C. 103 as being unpatentable over Chang et. al (US20180311135A1) hereinafter Chang.
Chang teaches a hair care composition comprising surfactants, antidandruff agents, anionic and cationic polymers, among others (see Abstract). With regard to claims 1 and 14, Chang teaches the hair care composition to comprise of 10-12 wt% of multiple surfactants, which includes sodium C10-15 alkyl sulfate, sodium laureth sulfate, sodium deceth sulfate, among other anionic surfactants (see [0030]-[0031]); 0.01-10 wt% of an antidandruff agent such as piroctone olamine ( see [0025]-[0027]); and 0.5-8 wt% of a thickening polymer (see [0135]). In Example 13, Chang teaches 6.0 wt% sodium laureth-sulfate, 6.0 wt% sodium deceth sulfate, 1.0 wt% piroctone olamine, among others in the composition (see [0232]). Chang does not explicitly teach a deposition rate for antidandruff agent (scalp care active) but teaches the deposition efficiency of the hair care composition to be 1.2x greater of the control composition, which is 1.08 ug/cm2 (see Abstract; see also [0223]).
Although Chang does not disclose a hair care composition comprising 5-7 wt% of sodium C10-15 alkyl sulfate anionic surfactant, 0.01-10 wt% of piroctone olamine, and 0.5-8 wt% thickening polymer in a single embodiment to the point of anticipation, it would have been obvious to a person of ordinary skill in the art before the effective filing date to combine these elements into a single hair care composition. The combination would lead to a cleaning composition that has the added benefit of increase in coacervate formation as well as a deposition benefits (see [0004]).
With regards to claims 2-3, Chang teaches the deposition efficiency of the haircare composition to be at least 1.2x of the control (1.08 ug/cm2) (see [0223]). The deposition rate is necessarily at least 1.296 ug/cm2 (1.08 ug/cm2 x 1.2) which is about 1.2 ug/cm2 as recited in claim 2, and about 1.0 ug/cm2 as recited in claim 3. If range of prior art and claimed range do not overlap, obviousness may still exist if the range are close enough that one would not expect a difference in properties, In re Woodruff 16 USPQ 2d 1934 (Fed. Cir. 1990); Titanium Metals Corp. of America v. Banner 227 USPQ 773 (Fed. Cir. 1985); In re Aller 105 USPQ 233 (CCPA 1955).
With regards to claim 4, Chang teaches the surfactant to be an anionic surfactant or combinations of anionic surfactants (see [0029]).
With regards to claim 5, Chang teaches the surfactant to be an anionic surfactant selected from the group consisting of anionic alkyl sulfates, and alkyl ether sulfates having straight or branched alkyl chains (see [0038]).
With regards to claim 6, Chang teaches the use of surfactants of the group consisting of sodium lauryl sulfate, sodium laureth-n sulfate where n is between about 0.5 to about 3.5, sodium C10-15 alkyl sulfate where the alkyl chain can be linear or branched (see [0032]).
With regards to claim 7, Chang teaches the use of 6.5 wt% sodium deceth-1 sulfate in Example 12 (see [0232]).
With regards to claim 8, Chang teaches about 0.25% to about 15% of one or more amphoteric, nonionic or zwitterionic co-surfactants in the hair care composition (see [0042]).
With regards to claim 9, Chang teaches the use of a cationic guar polymer, a cationic non-guar galactomannan polymer, a cationic tapioca polymer, a cationic copolymer of acrylamide monomers and cationic monomers, a synthetic, non-crosslinked, cationic polymer, which may or may not form lyotropic liquid crystals upon combination with the detersive surfactant, a cationic cellulose polymer, among others (see [0059]).
With regards to claim 10, Chang teaches the use of guar hydroxypropyltrimonium chloride, salts of hydroxyethyl cellulose reacted with trimethyl ammonium substituted epoxide, a cationic copolymer of acrylamide monomers and cationic monomers, a synthetic, non-crosslinked, cationic polymer, which may or may not form lyotropic liquid crystals upon combination with the detersive surfactant (see [0065]).
With regards to claim 11, Chang teaches cationic polymers is from about 0.08% to about 3% in the hair care composition (see [0303]).
With regards to claim 12, Chang teaches cationic polymers is from about 0.1% to about 2% in the hair care composition (see [0303]).
With regards to claim 13, Chang teaches cationic polymers is from about 0.2% to about 1% in the composition (see [0303]).
With regard to claim 14, Chang teaches the hair care composition to comprise 0.5-8 wt% of a thickening polymer (see [0135]).
With regards to claim 15, Chang teaches the thickening polymer to be homopolymers based on acrylic acid, methacrylic acid or other related derivatives, alkali swellable and hydrophobically-modified alkali swellable acrylic copolymers or methacrylate copolymers, soluble crosslinked acrylic polymers, associative polymeric thickeners and mixtures (see [0137]).
With regards to claim 16, Chang teaches the surfactant soluble antidandruff agent to be hydroxyl pyridone (see [0303]).
With regards to claim 17, Chang teaches the hydroxyl pyridone to be piroctone olamine (see [0303]).
With regards to claim 18, Chang teaches the surfactant soluble antidandruff agent to be an azole (see [0025]).
With regards to claim 19, Chang teaches the azole to be climbazole (see [0025]).
With regards to claim 20, Chang teaches the hair care composition to further comprising one or more scalp health agents (see [0171]).
With regards to claim 21, Chang teaches the scalp health agents to be pyridinethione salts, selenium sulfide, particulate sulfur, salicylic acid, menthol, menthyl lactate and mixtures thereof (see [0171]).
With regards to claim 22, Chang teaches the scalp health agents to be polyvalent metal salts of pyrithione (see [0171]).
With regards to claim 23, Chang teaches the scalp health agents to be zinc pyrithione (see [0171]).
With regards to claim 24, Chang teaches the scalp health agents to be 0.1% to 9% of the composition (see claim 38).
With regards to claim 25, Chang teaches the scalp health agents to be 0.25% to 8% of the composition (see claim 39).
With regards to claim 26, Chang teaches the pH of the composition to be from about 4 to about 9 (see claim 26).
With regards to claim 27, Chang teaches the hair care composition to be in an encapsulated form (see [0207]). Chang also teaches the use of optional perfume microcapsules (see [0181]). It would be reasonable for a person of ordinary skill in the art to expect the scalp care active to be encapsulated.
With regards to claims 28-29, Chang generally teaches the viscosity of the composition from about 20 to 2,000,000 centistokes (see [0185]). Because the range recited is so wide, a person of ordinary skill would reasonably expect the viscosity of the instant claims to fall within the general range taught by Chang.
With regards to claim 30, Chang teaches the average T% of comparative example 18 to be 72% (see [0235]).
Conclusion
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/SP/Patent Examiner, Art Unit 1761
/ANGELA C BROWN-PETTIGREW/Supervisory Patent Examiner, Art Unit 1761
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