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 .
Applicant's election with traverse of the elected species in the reply filed on 08/25/2026 is acknowledged. The traversal is on the ground(s) that the inventions must be independent or distinct and there must be a serious search burden on the examiner. Applicants assert that even though the classes vary, the classes overlap, and some of the art relevant for one specific group will be the same art that is relevant for another group. This is not found persuasive. As previously recited, the method of applying, as well as the different combinations of nonionic surfactants, different classes and mixture of co-surfactants, the cationic polymers, the thickening polymers, and varying scalp care active ingredients, may result in a composition having varied structural properties, stability, activity, applications, etc., and these species are not obvious variants of each other based on the current record. While there may be some overlap in the classes, a serious search burden exists because the species or groupings of patentably indistinct species have acquired a separate status in the art in view of their different classification, the species or groupings of patentably indistinct species have acquired a separate status in the art due to their recognized subject matter, and/or the species or grouping of patentably indistinct species require a different field of search (e.g., searching different classes/subclasses or electronic resources, or employing different search strategies or search queries). The examiner notes that the species may be expanded upon the finding of allowable subject matter.
The requirement is still deemed proper and is therefore made FINAL.
Claims 3-6 and 24-31 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected species, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 08/25/2026.
Claim Status
Claims 1-37 are pending.
Claims 3-6 and 24-31 are withdrawn.
Claim Objections
Claim 1 is objected to because of the following informalities: in line 2, following “anti-dandruff activity” and “scalp care active”, a comma should be inserted. Additionally, “and” should be removed following “scalp care active” in line 2. Appropriate correction is required.
Claim 1 is objected to because of the following informalities: in line 5, “scalp scare active” should read “scalp care active” to correct a typographical error. Appropriate correction is required.
Claims 1, 8, and 9, are objected to because of the following informalities: “ug/cm2” should read “μg/cm2”. Appropriate correction is required.
Claims 2, 7-23, and 32-37, are objected to because of the following informalities: “Claim” should be lowercase and a comma “,” should be included immediately following the dependent claim number. Appropriate correction is required.
Claim 11 is objected to because of the following informalities: “methos” should read “method” in line 1 to correct a typographical error. Appropriate correction is required.
Claim 11 is objected to because of the following informalities: “anionic alkyl sulfates and alkyl ether sulfates having straight or branched alkyl chains and mixtures thereof” should read “anionic alkyl sulfates, alkyl ether sulfates having straight or branched alkyl chains, and mixtures thereof” for proper punctuation. Appropriate correction is required.
Claim 13 is objected to because of the following informalities: “one or more surfactants is” should be “one or more surfactants are”, where one or more surfactants is plural. Appropriate correction is required.
Claim 35 is objected to because of the following informalities: a comma and a space is missing following “claim 1”. Appropriate correction is required.
Claim Rejections - 35 USC § 101 / § 112- Hybrid Claim
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1, 2, 7-23, and 32-37, are rejected under 35 U.S.C. 101 because the claimed invention is not directed to a single statutory class. The claims are directed to neither a “process” nor a “machine”, but rather embraces or overlaps two different statutory categories of invention set forth under that statute, which is drafted so as to set forth the statutory classes of invention in the alternative only. See Ex parte Lyell, 17 USPQ2d 1548, 1551 (Bd. Pat. App. & Inter. 1990).
In the present instance, claim 1 recites a method of “using” a booster in combination with a hair care composition, which is neither a “process” or “machine”, where no active steps of using the booster is claimed.
The following is a quotation of the second paragraph of 35 U.S.C. 112:
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, 2, 7-23, and 32-37 are also rejected under 35 U.S.C. 112, second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which applicant regards as the invention.
A single claim which recites both a product and method steps of using that product is indefinite under 35 USC 112, second paragraph. See Ex parte Lyell, 17 USPQ2d 1548 (Bd. Pat. App. & Inter. 1990).
Note, for purposes of examination as best understood by the Examiner, the claimed limitations directed to using the booster in combination with a hair care composition will be interpreted as any method of combining the booster with a hair care composition.
Claim Rejections - 35 USC § 112(b) or pre-AIA 2nd ¶
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, 2, 7-23, and 32-37, 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 1 recites “wherein the hair care composition contains no scalp care active,” and the limitation is unclear where “scalp care active” is not defined. For example, a surfactant could reasonably read on a scalp care active, a fragrance could reasonably read on a scalp care active, etc. For purposes of examination, as best understood by the Examiner, the scalp care active is interpreted as an anti-dandruff active agent, where the claims are directed to providing anti-dandruff activity.
Claims 1, 13, 14, and 17-20, recite a percentage of a component, and it is unclear if the percentage is a weight percent, volume percent, weight by volume percent, mole percent, etc. For purposes of Examination, the claim is interpreted as a weight percent.
Claims 2, 7-23, and 32-37, are also rejected for the same reasons for depending on rejected claim 1.
Claim 7 recites wherein deposition is greater when leaving the booster composition in combination with the hair care composition on the scalp/hair for 3 minutes, compared to leaving on hair care composition for 30 seconds. It is not clear to the Examiner what this limitation means where claim 1 recites the hair care composition doesn’t comprise any of the scalp care active. Therefore, if the hair care composition deposits 0 of the scalp care active by virtue of not comprising any, how can the booster have 2.5-3 times greater deposition after 3 minutes, where 0 multiplied by anything is 0. For purposes of examination and as best understood by the Examiner, any deposition of the scalp care active when the booster is combined with the hair care composition is interpreted to meet the claimed limitation. Additionally, “the scalp/hair” limitation lacks antecedent basis where there is no recitation in claim 1 of applying the combination to scalp/hair.
Claim 13 recites one or more surfactants, and it is unclear if the claim is referring to the one or more surfactants of claim 1, or an additional one or more surfactants. For purposes of examination, the claim is interpreted as “the one or more surfactants”.
Claim 15 recites the limitation "the detersive surfactant" in line 6. There is insufficient antecedent basis for this limitation in the claim. There is no previous recitation of a detersive surfactant in claim 15 or claim 1.
Claim 21 recites homopolymers “based on acrylic acid, methacrylic acid or other related derivatives”. It is not clear what polymers read on “other related derivatives” where the term does not provide an objective boundary to determine what would reasonably read on the claimed polymer.
Claims 34 and 35 recites the viscosity of the booster, and where there are no testing conditions for which the viscosity is measured, the limitation is unclear where viscosity would be expected to vary depending on the temperature, shear rate, device used, etc. For purposes of examination, any viscosity that is taught to fall within the claimed range is interpreted to meet the limitation.
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.
Claims 1, 7-23, 32, 34, and 35, are rejected under 35 U.S.C. 103 as being unpatentable over Renock et al (US 20200000690 A1, hereinafter “Renock”, cited on IDS dated 08/27/2024), in view of Chang et al (US 20190328647 A1, hereinafter “Chang”, cited on IDS dated 08/27/2024).
Renock teaches low surfactant anti-dandruff compositions comprising about 5 to about 13% of one or more anionic surfactants, from 0.1 to about 2 wt% of an antidandruff active, etc. (abs). The compositions provide improved deposition of anti-dandruff active compared to control, having a deposition of greater than or equal to 0.8 microgram/cm2 (¶¶ 4, 156, 183, 203, claims 10, 30). The compositions may have a deposition efficiency of greater than 1.7 times that of a control composition (¶ 156). The compositions are formulated by mixing (¶ 161). The compositions may be in the form of a shampoo (¶ 12). In embodiments, the average deposition is 1.2 micrograms/cm2 (examples). The one or more anionic surfactants are alkyl sulfates, alkyl ether sulfates, and mixtures thereof (¶¶ 24-26). Suitable examples include sodium lauryl sulfate, sodium laureth sulfate, sodium decyl sulfate, etc. (¶¶ 25-26, examples). Suitable cationic guar polymers include cationic guar gum derivatives, such as guar hydroxypropyltrimonium chloride (¶¶ 44, 51, examples). The concentration of the cationic polymers ranges about 0.025 wt% to about 5 wt%, from about 0.1 wt% to about 3 wt%, and/or from about 0.2 wat% to about 1 wt% of the hair care composition (¶ 103, examples). The hair care composition can comprise a thickening polymer to increase the viscosity of the composition from about 0.1 to about 5 wt% (¶ 105). Thickening polymers include 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 combinations thereof (¶¶ 105-113). The composition has a pH of about 3.5 to 6.5 (abs). The viscosity of the liquid phase may be from about 8 to about 25,000 centipoise measured using a TA Instruments AR-G2 Rheometer with a concentric cylinder attachment at a shear rate of 2 reciprocal seconds at 25° C (¶ 39). The composition may have a viscosity in a range that allows for ease of dispensing from a package configuration (¶ 39). In embodiments, the compositions have a deposition of active agent that 2.7 times greater than control (examples 11-14). The composition may further comprise about 1 to about 5 wt% of one or more amphoteric/zwitterionic or nonionic co-surfactants, and mixtures thereof, including cocamidopropyl betaine and lauramidopropyl betaine (¶ 28, claim 16).
Chang is cited for additional motivation for the combination of low concentrations of anionic surfactant and cationic polymer, where it was known that the combination of low amounts of anionic surfactant and cationic polymer provides a deposition benefit to antidandruff actives, including piroctone olamine (abs, ¶¶ 1, 25, 125, 209-216, examples). The cationic polymers include guar hydroxypropyltrimonium chloride, and are included in an amount from about 0.01 to about 5% (¶¶ 65, 128, claim 1). The compositions are directed to 8-16% of one or more surfactants; 0.01-10% of one or more surfactant soluble antidandruff agents, 0.01-5% of one or more cationic polymer, wherein the composition has a deposition efficiency of from about 1.4 to about 3 times that of a control composition (abs).
Regarding claim 1, it would have been obvious to formulate a composition comprising piroctone olamine and anionic surfactant, where the combination was known from Chang and Renock to result in increased deposition of antidandruff active agent.
Regarding the amount of surfactant, it would have been obvious to formulate the combination above with anionic surfactant ranging from about 5 to about 13 wt%, as taught by Renock, where low levels of anionic surfactant were known to improve the deposition of piroctone olamine, as taught by Chang, overlapping the claimed range. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I).
Regarding the deposition amount, it would have been obvious to formulate the composition above with a deposition of piroctone olamine of greater than 0.8 microgram/cm2, as taught by Renock, overlapping the claimed range. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I).
Regarding the limitation of a “booster”, where the combination of antidandruff active agent and anionic surfactant overlapping the claimed amounts with a deposition falling within the claimed range, it appears the limitations are met. There appears to be no difference between the “booster” as claimed and the combination made obvious above.
Regarding the method of claim 1, the claims are directed to a method of using a “booster” in combination with a hair care composition. The examiner best understands the method as a production method of a hair care composition with antidandruff activity from two intermediate composition by combining them. Where Renock teaches the components of the combination above are combined and mixed to formulate a shampoo with antidandruff activity, the method of combining the components appears to inherently combine the scalp care active and surfactants (i.e., booster), with additional hair care components, including conditioning agents, blowing agents, fragrances, emulsions, preservatives, etc., which together reasonably reads on a hair care composition, thereby meeting the claimed method of using a “booster” in combination with a hair care composition.
Regarding claim 7, where the booster made obvious above is taught to improve deposition of the active agent, and comprises the same components within the claimed amounts, it appears that the deposition after 3 minutes would be the same after application to the hair/scalp. Where applicant claims a composition in terms of a function, property or characteristic and the composition of the prior art is the same as that of the claim but the function is not explicitly disclosed by the reference, the examiner may make a rejection under both 35 U.S.C. 102 and 103. See MPEP 2112(I-III).
Regarding claim 8, it would have been obvious to formulate the booster made obvious above with a deposition of greater than or equal to 0.8 microgram/cm2, overlapping the claimed range. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I). Further, it would have been obvious to formulate the combination with a deposition of 1.2 microgram/cm2, from the working embodiments of Renock, thereby meeting the claimed limitation.
Regarding claim 9, it would have been obvious to formulate the booster made obvious above with a deposition of greater than or equal to 0.8 microgram/cm2, overlapping the claimed range. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I).
Regarding claims 10 and 11, it would have been obvious to formulate the booster made obvious above wherein the surfactant is an anionic surfactant selected from the group consisting of anionic alkyl sulfates, alkyl ether sulfates having straight or branched alkyl chains, and mixtures thereof, as taught by Renock.
Regarding claim 12, it would have been obvious to select from those suitable anionic surfactants taught by Renock above, thereby meeting the claimed limitations.
Regarding claim 13, it would have been obvious to formulate the booster made obvious above with anionic surfactant ranging from about 5 to about 13%, as taught by Renock, where low levels of anionic surfactant were known to improve the deposition of piroctone olamine, as taught by Chang, overlapping the claimed range. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I).
Regarding claim 14, it would have been obvious to further include about 1 to about 5% of one or more amphoteric/zwitterionic or nonionic co-surfactants, and mixtures thereof, including cocamidopropyl betaine and lauramidopropyl betaine, as motivated by Renock, falling within the claimed range.
Regarding claims 15 and 16, it would have been obvious to further include cationic polymers including guar hydroxypropyltrimonium chloride, as taught by Renock, and where Chang teaches cationic polymers, including guar hydroxypropyltrimonium chloride, were known to improve deposition of antidandruff actives, including piroctone olamine.
Regarding claims 17-19, it would have been obvious to include the cationic polymer made obvious above in amounts ranging from about 0.025% to about 5%, from about 0.1% to about 3%, and/or from about 0.2% to about 1%, by weight of the combination, as taught by Renock, and where these amounts were known from Chang to improve the deposition of the antidandruff active agent. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I).
Regarding claim 20, it would have been obvious to further include one or more thickening polymers in amounts from about 0.1 to about 5% , as taught by Renock, in order to achieve desired viscosity of the combination. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I).
Regarding claim 21, it would have been obvious to select from 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 combinations thereof, as the thickening polymer, as taught by Renock.
Regarding claims 22 and 23, it would have been obvious to select from piroctone olamine as the antidandruff active agent, as taught by Renock.
Regarding claim 32, it would have been obvious to formulate the booster made obvious above with a pH of about 3.5 to 6.5, as taught by Renock, overlapping the claimed range. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I).
Regarding claims 34 and 35, it would have been obvious to formulate the combination with known viscosities taught to be suitable for the formulations of Renock, such as from about 8 to about 25,000 centipoise measured using a TA Instruments AR-G2 Rheometer with a concentric cylinder attachment at a shear rate of 2 reciprocal seconds at 25° C. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I).
Claims 1, 2, 7-23, 32, 34, and 35, rejected under 35 U.S.C. 103 as being unpatentable over Renock et al (US 20200000690 A1, hereinafter “Renock”, cited on IDS dated 08/27/2024), Chang et al (US 20190328647 A1, hereinafter “Chang”, cited on IDS dated 08/27/2024), and
The Long Hair Community (The Long Hair Community, Forum, 2018).
Renock teaches low surfactant anti-dandruff compositions comprising about 5 to about 13% of one or more anionic surfactants, from 0.1 to about 2 wt% of an antidandruff active, etc. (abs). The compositions provide improved deposition of anti-dandruff active compared to control, having a deposition of greater than or equal to 0.8 microgram/cm2 (¶¶ 4, 156, 183, 203, claims 10, 30). The compositions may have a deposition efficiency of greater than 1.7 times that of a control composition (¶ 156). The compositions are formulated by mixing (¶ 161). The compositions may be in the form of a shampoo (¶ 12). In embodiments, the average deposition is 1.2 micrograms/cm2 (examples). The one or more anionic surfactants are alkyl sulfates, alkyl ether sulfates, and mixtures thereof (¶¶ 24-26). Suitable examples include sodium lauryl sulfate, sodium laureth sulfate, sodium decyl sulfate, etc. (¶¶ 25-26, examples). Suitable cationic guar polymers include cationic guar gum derivatives, such as guar hydroxypropyltrimonium chloride (¶¶ 44, 51, examples). The concentration of the cationic polymers ranges about 0.025 wt% to about 5 wt%, from about 0.1 wt% to about 3 wt%, and/or from about 0.2 wat% to about 1 wt% of the hair care composition (¶ 103, examples). The hair care composition can comprise a thickening polymer to increase the viscosity of the composition from about 0.1 to about 5 wt% (¶ 105). Thickening polymers include 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 combinations thereof (¶¶ 105-113). The composition has a pH of about 3.5 to 6.5 (abs). The viscosity of the liquid phase may be from about 8 to about 25,000 centipoise measured using a TA Instruments AR-G2 Rheometer with a concentric cylinder attachment at a shear rate of 2 reciprocal seconds at 25° C (¶ 39). The composition may have a viscosity in a range that allows for ease of dispensing from a package configuration (¶ 39). In embodiments, the compositions have a deposition of active agent that 2.7 times greater than control (examples 11-14). The composition may further comprise about 1 to about 5 wt% of one or more amphoteric/zwitterionic or nonionic co-surfactants, and mixtures thereof, including cocamidopropyl betaine and lauramidopropyl betaine (¶ 28, claim 16).
Chang is cited for additional motivation for the combination of low concentrations of anionic surfactant and cationic polymer, where it was known that the combination of low amounts of anionic surfactant and cationic polymer provides a deposition benefit to antidandruff actives, including piroctone olamine (abs, ¶¶ 1, 25, 125, 209-216, examples). The cationic polymers include guar hydroxypropyltrimonium chloride, and are included in an amount from about 0.01 to about 5% (¶¶ 65, 128, claim 1). The compositions are directed to 8-16% of one or more surfactants; 0.01-10% of one or more surfactant soluble antidandruff agents, 0.01-5% of one or more cationic polymer, wherein the composition has a deposition efficiency of from about 1.4 to about 3 times that of a control composition (abs).
The references are discussed above but do not specifically teach the method of combining of claim 2. Further, purely arguendo, if somehow the method of combining as discussed above does not meet the limitation of using a booster in combination with a hair care composition, the following also applies.
The Long Hair Community teaches it was known to combine antidandruff shampoos with a regular shampoo, in order to achieve antidandruff effects (entry number 2).
Regarding claim 1, it would have been obvious to formulate a composition comprising piroctone olamine and anionic surfactant, where the combination was known from Chang and Renock to result in increased deposition of antidandruff active agent.
Regarding the amount of surfactant, it would have been obvious to formulate the combination above with anionic surfactant ranging from about 5 to about 13%, as taught by Renock, where low levels of anionic surfactant were known to improve the deposition of piroctone olamine, as taught by Chang, overlapping the claimed range. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I).
Regarding the deposition amount, it would have been obvious to formulate the composition above with a deposition of piroctone olamine of greater than 0.8 microgram/cm2, as taught by Renock, overlapping the claimed range. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I).
Regarding the limitation of a “booster”, where the combination of antidandruff active agent and anionic surfactant overlapping the claimed amounts with a deposition falling within the claimed range, it appears the limitations are met. There appears to be no different between the “booster” as claimed and the combination made obvious above.
Regarding the method of claim 1, purely arguendo, if somehow the method of combining as discussed above does not meet the limitation of using a booster in combination with a hair care composition, it would have been obvious to combine the “booster” composition made obvious above with regular shampoos (i.e., those without antidandruff active agents), by mixing the “booster” with a regular shampoo, as taught by The Long Hair Community, in order to impart antidandruff activity to regular shampoos The skilled artisan would recognize that the improved deposition of the combination made obvious above, when combined with a shampoo of choice, would combine the desired antidandruff effect with shampoos that are chosen to impart other beneficial hair properties.
Regarding claim 2, where the combination made obvious above by Renock and Chang was combined with other hair care ingredients that appear to reasonably read on other hair care compositions, and where The Long Hair Community teaches mixing antidandruff compositions with other shampoos was known, it would have been obvious for the skilled artisan to mix the combination and the hair care composition by any means, where the skilled artisan would recognize hand mixing as a suitable mixing alternative. Further, where the method made obvious above is directed to a shampoo, it would have been obvious to apply the combination to the hair/scalp.
Regarding claim 7, where the booster made obvious above is taught to improve deposition of the active agent, and comprises the same components within the claimed amounts, it appears that the deposition after 3 minutes would be the same after application to the hair/scalp. Where applicant claims a composition in terms of a function, property or characteristic and the composition of the prior art is the same as that of the claim but the function is not explicitly disclosed by the reference, the examiner may make a rejection under both 35 U.S.C. 102 and 103. See MPEP 2112(I-III).
Regarding claim 8, it would have been obvious to formulate the booster made obvious above with a deposition of greater than or equal to 0.8 microgram/cm2, overlapping the claimed range. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I). Further, it would have been obvious to formulate the combination with a deposition of 1.2 microgram/cm2, from the working embodiments of Renock, thereby meeting the claimed limitation.
Regarding claim 9, it would have been obvious to formulate the booster made obvious above with a deposition of greater than or equal to 0.8 microgram/cm2, overlapping the claimed range. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I).
Regarding claims 10 and 11, it would have been obvious to formulate the booster made obvious above wherein the surfactant is an anionic surfactant selected from the group consisting of anionic alkyl sulfates, alkyl ether sulfates having straight or branched alkyl chains, and mixtures thereof, as taught by Renock.
Regarding claim 12, it would have been obvious to select from those suitable anionic surfactants taught by Renock above, thereby meeting the claimed limitations.
Regarding claim 13, it would have been obvious to formulate the booster made obvious above with anionic surfactant ranging from about 5 to about 13%, as taught by Renock, where low levels of anionic surfactant were known to improve the deposition of piroctone olamine, as taught by Chang, overlapping the claimed range. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I).
Regarding claim 14, it would have been obvious to further include about 1 to about 5% of one or more amphoteric/zwitterionic or nonionic co-surfactants, and mixtures thereof, as motivated by Renock, falling within the claimed range.
Regarding claims 15 and 16, it would have been obvious to further include cationic polymers, Suitable including cationic guar gum derivatives, such as guar hydroxypropyltrimonium chloride, as taught by Renock, and where Chang teaches cationic polymers, including guar hydroxypropyltrimonium chloride, were known to improve deposition of antidandruff actives, including piroctone olamine.
Regarding claims 17-19, it would have been obvious to include the cationic polymer made obvious above in amounts ranging from about 0.025% to about 5%, from about 0.1% to about 3%, and/or from about 0.2% to about 1%, by weight of the combination, as taught by Renock, and where these amounts were known from Chang to improve the deposition of the antidandruff active agent. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I).
Regarding claim 20, it would have been obvious to further include one or more thickening polymers in amounts from about 0.1 to about 5% , as taught by Renock, in order to achieve desired viscosity of the combination. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I).
Regarding claim 21, it would have been obvious to select from 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 combinations thereof, as the thickening polymer, as taught by Renock.
Regarding claims 22 and 23, it would have been obvious to select from piroctone olamine as the antidandruff active agent, as taught by Renock.
Regarding claim 32, it would have been obvious to formulate the booster made obvious above with a pH of about 3.5 to 6.5, as taught by Renock, overlapping the claimed range. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I).
Regarding claims 34 and 35, it would have been obvious to formulate the booster made obvious above with known viscosities taught to be suitable for the formulations of Renock, such as from about 8 to about 25,000 centipoise measured using a TA Instruments AR-G2 Rheometer with a concentric cylinder attachment at a shear rate of 2 reciprocal seconds at 25° C. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I).
Claim 33 is rejected under 35 U.S.C. 103 as being unpatentable over Renock et al (US 20200000690 A1, hereinafter “Renock”) and Chang et al (US 20190328647 A1, hereinafter “Chang”), and further in view of Moreau et al (WO 2022167672 A1, hereinafter “Moreau”).
Renock and Chang are discussed above but do not specifically teach wherein the scalp care active is encapsulated.
Moreau teaches compositions comprising an antidandruff agent, at least one cationic polymer, and at least one anionic surfactant, where it was known to encapsulate antidandruff agents in order to combat deposition, and improve dissolution and distribution (abs, pg 2 ln 3-9).
It would have been obvious to encapsulate the antidandruff active agent, where encapsulation was known to combat deposition, improve dissolution and distribution of antidandruff agents in compositions comprising at least one cationic polymer, and at least one anionic surfactant, as taught by Moreau.
Claim 33 is rejected under 35 U.S.C. 103 as being unpatentable over Renock et al (US 20200000690 A1, hereinafter “Renock”, cited on IDS dated 08/27/2024), Chang et al (US 20190328647 A1, hereinafter “Chang”, cited on IDS dated 08/27/2024), and The Long Hair Community (The Long Hair Community, Forum, 2018), and further in view of Moreau et al (WO 2022167672 A1, hereinafter “Moreau”).
The reference are discussed above but do not specifically teach wherein the scalp care active is encapsulated.
Moreau teaches compositions comprising an antidandruff agent, at least one cationic polymer, and at least one anionic surfactant, where it was known to encapsulate antidandruff agents in order to combat deposition, and improve dissolution and distribution (abs, pg 2 ln 3-9).
It would have been obvious to encapsulate the antidandruff active agent, where encapsulation was known to combat deposition, improve dissolution and distribution of antidandruff agents in compositions comprising at least one cationic polymer, and at least one anionic surfactant, as taught by Moreau.
Claims 36 and 37 are rejected under 35 U.S.C. 103 as being unpatentable over Renock et al (US 20200000690 A1, hereinafter “Renock”, cited on IDS dated 08/27/2024) and Chang et al (US 20190328647 A1, hereinafter “Chang”, cited on IDS dated 08/27/2024), and further in view of Chang et al (US 20180311135 A1, hereinafter “Chang ‘135”, cited on IDS dated 08/27/2024).
Renock et al and Chang are discussed above but do not specifically teach the composition is transparent.
Chang ‘135 teaches it was known to formulate compositions comprising piroctone olamine, anionic surfactants including sodium laureth-1 sulfate and sodium decyl sulfate, with guar hydroxypropyltrimonium chloride with a transmittance of 72% (comparative ex. 18). Other embodiments comprise a transmittance of 89%, 77% (comparative examples 20 and 22).
It would have been obvious to formulate the “booster” made obvious above with a desired formulation appearance, such as a transparent composition with a transparency of 72%, 77%, and 89%, where these transparencies were known for compositions comprising piroctone olamine, and anionic surfactants and cationic polymer as instantly claimed, as taught by Chang ‘135.
Claims 36 and 37 are rejected under 35 U.S.C. 103 as being unpatentable over Renock et al (US 20200000690 A1, hereinafter “Renock”, cited on IDS dated 08/27/2024), Chang et al (US 20190328647 A1, hereinafter “Chang”, cited on IDS dated 08/27/2024), and The Long Hair Community (The Long Hair Community, Forum, 2018), and further in view of Chang et al (US 20180311135 A1, hereinafter “Chang ‘135”, cited on IDS dated 08/27/2024).
Renock et al, Chang, and The Long Hair Community are discussed above but do not specifically teach the composition is transparent.
Chang ‘135 teaches it was known to formulate compositions comprising piroctone olamine, anionic surfactants including sodium laureth-1 sulfate and sodium decyl sulfate, with guar hydroxypropyltrimonium chloride with a transmittance of 72% (comparative ex. 18). Other embodiments comprise a transmittance of 89%, 77% (comparative examples 20 and 22).
It would have been obvious to formulate the “booster” made obvious above with a desired formulation appearance, such as a transparent composition with a transparency of 72%, 77%, and 89%, where these transparencies were known for compositions comprising piroctone olamine, and anionic surfactants and cationic polymer as instantly claimed, as taught by Chang ‘135.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1, 2, 7-23, and 32-37, are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over the claims of copending Application No. 17/960,862 (reference application), hereinafter ’862, in view of Renock et al (US 20200000690 A1, hereinafter “Renock”, cited on IDS dated 08/27/2024), Chang et al (US 20190328647 A1, hereinafter “Chang”, cited on IDS dated 08/27/2024), The Long Hair Community (The Long Hair Community, Forum, 2018), and Moreau et al (WO 2022167672 A1, hereinafter “Moreau”). Although the claims at issue are not identical, they are not patentably distinct from each other because the claims are directed to a shampoo composition comprising about 3-35 wt% anionic surfactant, about 0.01-2 wt% of a cationic polymer selected from hydroxypropyltrimonium guar, an amphoteric surfactant, an antidandruff agent selected from piroctone olamine, a %T of greater than about 80, and a viscosity of about 3000-20,000 cp.
The claims do not disclose the method as instantly claimed, nor wherein the active is encapsulated.
It would have been obvious use the antidandruff composition of '862 for the method of combining with a hair care composition, for the same reasons discussed above by The Long Hair Community.
It would have been obvious to select among those amounts, particular surfactants and cationic polymers, where the combination was known to improve deposition of the antidandruff active with a deposition overlapping the claimed range, for the same reasons discussed above by Renock and Chang, as applied to each claimed limitation. Further, it would have been obvious to encapsulate the active as taught by Moreau in order to combat dissolution, improve dissolution and distribution.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
The following are rejected for the same reasons:
Copending Application no. 17/960,865 - The claims are directed to a shampoo composition comprising an anionic surfactant, an amphoteric surfactant, a cationic guar polymer, and an antidandruff agent selected from piroctone olamine. The claims do not disclose the method as instantly claimed, nor wherein the active is encapsulated. It would have been obvious use the antidandruff composition of '685 for the method of combining with a hair care composition, for the same reasons discussed above by The Long Hair Community. It would have been obvious to select among those amounts, particular surfactants and cationic polymers, where the combination was known to improve deposition of the antidandruff active, for the same reasons discussed above by Renock and Chang, as applied to each claimed limitation. Further, it would have been obvious to encapsulate the active as taught by Moreau for the same reasons discussed above.
Copending Application no. 17/960,867 - The claims are directed to a shampoo composition comprising an anionic surfactant, an amphoteric surfactant, a cationic guar polymer, and an antidandruff agent selected from piroctone olamine. The claims do not disclose the method as instantly claimed, nor wherein the active is encapsulated. It would have been obvious use the antidandruff composition of '867 for the method of combining with a hair care composition, for the same reasons discussed above by The Long Hair Community. It would have been obvious to select among those amounts, particular surfactants and cationic polymers, where the combination was known to improve deposition of the antidandruff active, for the same reasons discussed above by Renock and Chang, as applied to each claimed limitation. Further, it would have been obvious to encapsulate the active as taught by Moreau for the same reasons discussed above.
Copending Application no. 19/049,671 - The claims are directed to a shampoo composition comprising an anionic surfactant, an amphoteric surfactant, a cationic guar polymer, and an antidandruff agent selected from piroctone olamine. The claims do not disclose the method as instantly claimed, nor wherein the active is encapsulated. It would have been obvious use the antidandruff composition of '671 for the method of combining with a hair care composition, for the same reasons discussed above by The Long Hair Community. It would have been obvious to select among those amounts, particular surfactants and cationic polymers, where the combination was known to improve deposition of the antidandruff active, for the same reasons discussed above by Renock and Chang, as applied to each claimed limitation.
Claims 1, 2, 7-23, and 32-37, are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over the claims of copending Application No. 17/078,781 (reference application), hereinafter ‘781, in view of Renock et al (US 20200000690 A1, hereinafter “Renock”, cited on IDS dated 08/27/2024), Chang et al (US 20190328647 A1, hereinafter “Chang”, cited on IDS dated 08/27/2024), The Long Hair Community (The Long Hair Community, Forum, 2018), Moreau et al (WO 2022167672 A1, hereinafter “Moreau”), and Chang et al (US 20180311135 A1, hereinafter “Chang ‘135”, cited on IDS dated 08/27/2024). Although the claims at issue are not identical, they are not patentably distinct from each other because the claims are directed to a hair care composition comprising from about 8% to about 17% anionic surfactant, an amphoteric, nonionic, or zwitterionic surfactant, about 0.08% to about 3% cationic polymer selected from guar hydroxypropyltrimonium chloride, and from about 0.01% to about 10% of an antidandruff agent selected from piroctone olamine. Thickener can be included at about 0.1 to about 10%.
The claims do not disclose the method as instantly claimed, encapsulation of the active, the viscosity, nor the %T.
It would have been obvious use the antidandruff composition of '781 for the method of combining with a hair care composition, for the same reasons discussed above by The Long Hair Community. It would have been obvious to select among those amounts, particular surfactants and cationic polymers, where the combination was known to improve deposition of the antidandruff active with a deposition overlapping the claimed range, for the same reasons discussed above by Renock and Chang, as applied to each claimed limitation.
It would have been obvious to encapsulate the active as taught by Moreau in order to combat dissolution, improve dissolution and distribution.
It would have been obvious to formulate the “booster” with known viscosities, including those taught by Renock above and for the same reasons.
Further, it would have been obvious to formulate the “booster” made obvious above with a desired formulation appearance, such as a transparent composition with a transparency of 72%, 77%, and 89%, where these transparencies were known for compositions comprising piroctone olamine, and anionic surfactants and cationic polymer as instantly claimed, as taught by Chang ‘135.
The following are rejected for the same reasons:
Copending Application no. 17/078,813 - The claims are directed to a hair care composition comprising an anionic surfactant selected from those of instant claim 12, an amphoteric, nonionic, or zwitterionic surfactant, a cationic polymer selected from guar hydroxypropyltrimonium chloride, and an antidandruff agent selected from piroctone olamine. The claims do not disclose the method as instantly claimed, encapsulation of the active, the viscosity, nor the %T. It would have been obvious use the antidandruff composition of '813 for the method of combining with a hair care composition, for the same reasons discussed above by The Long Hair Community. It would have been obvious to select among those amounts, particular surfactants and cationic polymers, and viscosities, where the combination was known to improve deposition of the antidandruff active, for the same reasons discussed above by Renock and Chang, as applied to each claimed limitation. It would have been obvious to encapsulate the active as taught by Moreau for the same reasons discussed above. Further, it would have been obvious to formulate the “booster” made obvious above with known transparencies as taught by Chang '135 for the same reasons discussed above.
Copending Application no. 17/980,169 - The claims are directed to a hair care composition comprising an anionic surfactant, an amphoteric, nonionic, or zwitterionic surfactant, a cationic polymer selected from guar hydroxypropyltrimonium chloride, and an antidandruff agent selected from piroctone olamine. The claims do not disclose the method as instantly claimed, encapsulation of the active, nor the %T. It would have been obvious use the antidandruff composition of '169 for the method of combining with a hair care composition, for the same reasons discussed above by The Long Hair Community. It would have been obvious to select among those amounts, particular surfactants and cationic polymers, and viscosities, where the combination was known to improve deposition of the antidandruff active, for the same reasons discussed above by Renock and Chang, as applied to each claimed limitation. It would have been obvious to encapsulate the active as taught by Moreau for the same reasons discussed above. Further, it would have been obvious to formulate the “booster” made obvious above with known transparencies as taught by Chang '135 for the same reasons discussed above.
Copending Application no. 15/962,351 - The claims are directed to a hair care composition comprising an anionic surfactant selected from those of instant claim 12, an amphoteric, nonionic, or zwitterionic surfactant, a cationic polymer, and an antidandruff agent selected from piroctone olamine. The claims do not disclose the method as instantly claimed, encapsulation of the active, nor the %T. It would have been obvious use the antidandruff composition of '351 for the method of combining with a hair care composition, for the same reasons discussed above by The Long Hair Community. It would have been obvious to select among those amounts, particular surfactants and cationic polymers, where the combination was known to improve deposition of the antidandruff active, for the same reasons discussed above by Renock and Chang, as applied to each claimed limitation. It would have been obvious to encapsulate the active as taught by Moreau for the same reasons discussed above. Further, it would have been obvious to formulate the “booster” made obvious above with known transparencies as taught by Chang '135 for the same reasons discussed above.
Copending application no. 17/694,270 - The claims are directed to a hair care composition comprising an anionic surfactant, an amphoteric, nonionic, or zwitterionic surfactant, a cationic polymer, and an antidandruff agent selected from piroctone olamine. The claims do not disclose the method as instantly claimed, encapsulation of the active, the viscosity, nor the %T. It would have been obvious use the antidandruff composition of '270 for the method of combining with a hair care composition, for the same reasons discussed above by The Long Hair Community. It would have been obvious to select among those amounts, particular surfactants and cationic polymers, and viscosities, where the combination was known to improve deposition of the antidandruff active, for the same reasons discussed above by Renock and Chang, as applied to each claimed limitation. It would have been obvious to encapsulate the active as taught by Moreau for the same reasons discussed above. Further, it would have been obvious to formulate the “booster” made obvious above with known transparencies as taught by Chang '135 for the same reasons discussed above.
Claims 1, 2, 7-23, and 32-37, are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over the claims of copending Application No. 17/078,781 (reference application), hereinafter ‘781, in view of Renock et al (US 20200000690 A1, hereinafter “Renock”, cited on IDS dated 08/27/2024), The Long Hair Community (The Long Hair Community, Forum, 2018), Moreau et al (WO 2022167672 A1, hereinafter “Moreau”), and Chang et al (US 20180311135 A1, hereinafter “Chang ‘135”, cited on IDS dated 08/27/2024). Although the claims at issue are not identical, they are not patentably distinct from each other because the claims are directed to a hair care composition comprising 8-16 wt% of anionic surfactant selected from those of instant claim 12, an amphoteric, nonionic, or zwitterionic surfactant, 0.01-5 wt% of a cationic polymer selected from guar hydroxypropyltrimonium chloride, 0.01-10 wt% of an antidandruff agent selected from piroctone olamine, and about 0.1 to about 10% of one or more thickening agents.
The claims do not disclose the method as instantly claimed, encapsulation of the active, the viscosity, nor the %T.
It would have been obvious use the antidandruff composition of '516 for the method of combining with a hair care composition, for the same reasons discussed above by The Long Hair Community.
It would have been obvious to select among those amounts, particular surfactants and cationic polymers, where the combination was known to improve deposition of the antidandruff active with a deposition overlapping the claimed range, for the same reasons discussed above by Renock as applied to each claimed limitation.
It would have been obvious to encapsulate the active as taught by Moreau for the same reasons discussed above.
It would have been obvious to formulate the “booster” with known viscosities, including those taught by Renock above and for the same reasons.
Further, it would have been obvious to formulate the “booster” made obvious above with a desired formulation appearance, such as a transparent composition with a transparency of 72%, 77%, and 89%, where these transparencies were known for compositions comprising piroctone olamine, and anionic surfactants and cationic polymer as instantly claimed, as taught by Chang ‘135.
Claims 1, 2, 7-23, and 32-37, are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over the claims of copending Application No. 15/962,327 (reference application), hereinafter ‘327, in view of Renock et al (US 20200000690 A1, hereinafter “Renock”, cited on IDS dated 08/27/2024), Chang et al (US 20190328647 A1, hereinafter “Chang”, cited on IDS dated 08/27/2024), The Long Hair Community (The Long Hair Community, Forum, 2018), Moreau et al (WO 2022167672 A1, hereinafter “Moreau”), and Chang et al (WO 2018200644 A1, hereinafter "Chang '644"). Although the claims at issue are not identical, they are not patentably distinct from each other because the claims are directed to a hair care composition comprising about 10% to about 25% anionic surfactant selected from those of instant claim 12, an amphoteric, nonionic, or zwitterionic surfactant, about 0.01% to 5% of a cationic polymer selected from guar hydroxypropyltrimonium chloride, and about 0.01% to 10% of an antidandruff agent selected from piroctone olamine. The viscosity is at least 3000 cps and further comprises thickeners at about 0.1 to about 2% by weight. The pH is from about 4 to about 9. The compositions have improved deposition efficiency, with a viscosity of at least 3000 cps.
The claims do not disclose the method as instantly claimed, encapsulation of the active, nor the %T.
Renock, Chang, The Long Hair Community, and Moreau are discussed above but do not teach the %T as claimed.
Chang ‘644 teaches it was known to formulate compositions comprising piroctone olamine, anionic surfactants including sodium laureth-1 sulfate and sodium decyl sulfate, with guar hydroxypropyltrimonium chloride with a transmittance of 72% (comparative ex. 18). Other embodiments comprise a transmittance of 89%, 77% (comparative examples 20 and 22).
It would have been obvious use the antidandruff composition of '327 for the method of combining with a hair care composition, for the same reasons discussed above by The Long Hair Community.
It would have been obvious to select among those amounts, particular surfactants and cationic polymers, where the combination was known to improve deposition of the antidandruff active with a deposition overlapping the claimed range, for the same reasons discussed above by Renock and Chang, as applied to each claimed limitation.
It would have been obvious to encapsulate the active as taught by Moreau for the same reasons discussed above.
It would have been obvious to formulate the “booster” made obvious above with a desired formulation appearance, such as a transparent composition with a transparency of 72%, 77%, and 89%, where these transparencies were known for compositions comprising piroctone olamine, and anionic surfactants and cationic polymer as instantly claimed, as taught by Chang ‘644.
Claims 1, 2, 7-23, and 32-37, are rejected on the ground of nonstatutory double patenting as being unpatentable over the claims of U.S. Patent No. 12409125 B2, hereinafter ‘125, in view of Renock et al (US 20200000690 A1, hereinafter “Renock”, cited on IDS dated 08/27/2024), Chang et al (US 20190328647 A1, hereinafter “Chang”, cited on IDS dated 08/27/2024), The Long Hair Community (The Long Hair Community, Forum, 2018), and Moreau et al (WO 2022167672 A1, hereinafter “Moreau”). Although the claims at issue are not identical, they are not patentably distinct from each other because the claims are directed to a shampoo composition comprising about 3% to about 35% of an anionic surfactant, an amphoteric surfactant, about 0.01% to about 2% of a cationic polymer, an antidandruff agent selected from piroctone olamine, and a thickener at about 0.15 to about 1.5%. The %T is greater than 70%, the viscosity is greater than 2500 cp, and a pH of 5.5.
The claims do not disclose the method as instantly claimed nor encapsulation of the active.
It would have been obvious use the antidandruff composition of '125 for the method of combining with a hair care composition, for the same reasons discussed above by The Long Hair Community.
It would have been obvious to select among those amounts, particular surfactants and cationic polymers, where the combination was known to improve deposition of the antidandruff active with a deposition overlapping the claimed range, for the same reasons discussed above by Renock and Chang, as applied to each claimed limitation.
It would have been obvious to encapsulate the active as taught by Moreau for the same reasons discussed above.
Claims 1, 2, 7-23, and 32-37, are rejected on the ground of nonstatutory double patenting as being unpatentable over the claims of U.S. Patent No. 11684558 B2, hereinafter ‘558, in view of Renock et al (US 20200000690 A1, hereinafter “Renock”, cited on IDS dated 08/27/2024), Chang et al (US 20190328647 A1, hereinafter “Chang”, cited on IDS dated 08/27/2024), The Long Hair Community (The Long Hair Community, Forum, 2018), Moreau et al (WO 2022167672 A1, hereinafter “Moreau”), and Chang et al (US 20180311135 A1, hereinafter “Chang ‘135”, cited on IDS dated 08/27/2024). Although the claims at issue are not identical, they are not patentably distinct from each other because the claims are directed to a hair care composition comprising about 8 to about 17% of an anionic surfactant, 0.01% to about 5% of a thickening polymer, an amphoteric, nonionic, or zwitterionic surfactant, about 0.08% to about 3% of a cationic polymer selected from guar hydroxypropyltrimonium chloride, about 0.01% to about 9% of an antidandruff agent selected from piroctone olamine, and about 0.15 to about 1.5% of a thickener. The viscosity is greater than 2500 cp and a pH of greater than 5.5.
The claims do not disclose the method as instantly claimed, encapsulation of the active, nor the %T.
It would have been obvious use the antidandruff composition of '558 for the method of combining with a hair care composition, for the same reasons discussed above by The Long Hair Community. It would have been obvious to select among those amounts, particular surfactants and cationic polymers, where the combination was known to improve deposition of the antidandruff active with a deposition overlapping the claimed range, for the same reasons discussed above by Renock and Chang, as applied to each claimed limitation.
It would have been obvious to encapsulate the active as taught by Moreau for the same reasons discussed above.
Further, it would have been obvious to formulate the “booster” made obvious above with known transparencies as taught by Chang '135 for the same reasons discussed above.
The following are also rejected for the same reasons:
U.S. Patent No. 10881597 B2 - The claims are directed to a hair care composition comprising an anionic surfactant, an amphoteric, nonionic, or zwitterionic surfactant, a cationic polymer selected from guar hydroxypropyltrimonium chloride, and an antidandruff agent selected from piroctone olamine. The claims do not disclose the method as instantly claimed, encapsulation of the active, nor the %T. The composition increases deposition efficiency. It would have been obvious use the antidandruff composition of '597 for the method of combining with a hair care composition, for the same reasons discussed above by The Long Hair Community. It would have been obvious to select among those amounts, particular surfactants and cationic polymers, where the combination was known to improve deposition of the antidandruff active, for the same reasons discussed above by Renock and Chang, as applied to each claimed limitation. It would have been obvious to encapsulate the active as taught by Moreau for the same reasons discussed above. Further, it would have been obvious to formulate the “booster” made obvious above with known transparencies as taught by Chang '135 for the same reasons discussed above.
U.S. Patent No. 11129783 B2 - The claims are directed to a stable shampoo composition comprising an anionic surfactant, an amphoteric surfactant, a cationic polymer selected from guar hydroxypropyltrimonium chloride, and an antidandruff agent selected from piroctone olamine. The claims do not disclose the method as instantly claimed, encapsulation of the active, nor the %T. The composition increases deposition efficiency. It would have been obvious use the antidandruff composition of '783 for the method of combining with a hair care composition, for the same reasons discussed above by The Long Hair Community. It would have been obvious to select among those amounts, particular surfactants and cationic polymers, where the combination was known to improve deposition of the antidandruff active, for the same reasons discussed above by Renock and Chang, as applied to each claimed limitation. It would have been obvious to encapsulate the active as taught by Moreau for the same reasons discussed above. Further, it would have been obvious to formulate the “booster” made obvious above with known transparencies as taught by Chang '135 for the same reasons discussed above.
U.S. Patent No. 10441519 B2 - The claims are directed to a stable hair composition comprising an anionic surfactant, an amphoteric surfactant, a cationic polymer selected from guar hydroxypropyltrimonium chloride, and an antidandruff agent selected from piroctone olamine. The claims do not disclose the method as instantly claimed, encapsulation of the active, nor the %T. The composition increases deposition efficiency. It would have been obvious use the antidandruff composition of '519 for the method of combining with a hair care composition, for the same reasons discussed above by The Long Hair Community. It would have been obvious to select among those amounts, particular surfactants and cationic polymers, where the combination was known to improve deposition of the antidandruff active, for the same reasons discussed above by Renock and Chang, as applied to each claimed limitation. It would have been obvious to encapsulate the active as taught by Moreau for the same reasons discussed above. Further, it would have been obvious to formulate the “booster” made obvious above with known transparencies as taught by Chang '135 for the same reasons discussed above.
U.S. Patent No. 11291616 B2 - The claims are directed to a stable hair composition comprising an anionic surfactant, an amphoteric surfactant, a cationic polymer, and an antidandruff agent selected from piroctone olamine. The claims do not disclose the method as instantly claimed, encapsulation of the active, nor the %T. The composition increases deposition efficiency. It would have been obvious use the antidandruff composition of '616 for the method of combining with a hair care composition, for the same reasons discussed above by The Long Hair Community. It would have been obvious to select among those amounts, particular surfactants and cationic polymers, where the combination was known to improve deposition of the antidandruff active, for the same reasons discussed above by Renock and Chang, as applied to each claimed limitation. It would have been obvious to encapsulate the active as taught by Moreau for the same reasons discussed above. Further, it would have been obvious to formulate the “booster” made obvious above with known transparencies as taught by Chang '135 for the same reasons discussed above.
U.S. Patent No. 10532013 B2 - The claims are directed to method comprising a composition comprising an anionic surfactant, an amphoteric surfactant, a cationic guar polymer, an antidandruff agent, a thickener, etc. The claims do not disclose the method as instantly claimed, encapsulation of the active, nor the %T. The composition increases deposition efficiency. It would have been obvious use the antidandruff composition of '013 for the method of combining with a hair care composition, for the same reasons discussed above by The Long Hair Community. It would have been obvious to select among those amounts, particular surfactants and cationic polymers, where the combination was known to improve deposition of the antidandruff active, for the same reasons discussed above by Renock and Chang, as applied to each claimed limitation. It would have been obvious to encapsulate the active as taught by Moreau for the same reasons discussed above. Further, it would have been obvious to formulate the “booster” made obvious above with known transparencies as taught by Chang '135 for the same reasons discussed above.
Claims 1, 2, 7-23, and 32-37, are rejected on the ground of nonstatutory double patenting as being unpatentable over the claims of U.S. Patent No. 11318073 B2, hereinafter ‘073, in view of Renock et al (WO 2020005309 A1, hereinafter "Renock '309"), Chang et al (US 20190328647 A1, hereinafter “Chang”, cited on IDS dated 08/27/2024), The Long Hair Community (The Long Hair Community, Forum, 2018), Moreau et al (WO 2022167672 A1, hereinafter “Moreau”), and Chang et al (US 20180311135 A1, hereinafter “Chang ‘135”, cited on IDS dated 08/27/2024). Although the claims at issue are not identical, they are not patentably distinct from each other because the claims are directed to a hair care composition comprising about 5% to about 13% of anionic surfactant, an amphoteric, nonionic, or zwitterionic surfactant, a cationic polymer, and an antidandruff agent selected from piroctone olamine. The viscosity is less than 3000 cp. The pH is from about 4 to about 6.
The claims do not disclose the method as instantly claimed, the viscosity as claimed, encapsulation, nor the %T as claimed.
Renock ‘309 teaches low surfactant anti-dandruff compositions comprising about 5 to about 13% of one or more anionic surfactants, from 0.1 to about 2% of an antidandruff active, etc. (abs). The compositions provide improved deposition of anti-dandruff active compared to control, having a deposition of greater than or equal to 0.8 microgram/cm2 (pg. 1 ln 4-6, 54 J, 55 DD, claim 2, 15). The compositions may have a deposition efficiency of greater than 1.7 times that of a control composition (claim 15). The compositions are formulated by mixing pg 35 ln 14). The compositions may be in the form of a shampoo pg 2 ln 26). In embodiments, the average deposition is 1.2 micrograms/cm2 (examples). The one or more anionic surfactants are alkyl sulfates, alkyl ether sulfates, and mixtures thereof (pg 4). Suitable examples include sodium lauryl sulfate, sodium laureth sulfate, sodium decyl sulfate, etc. pg 4, examples). Suitable cationic guar polymers include cationic guar gum derivatives, such as guar hydroxypropyltrimonium chloride (pg 11 examples). The concentration of the cationic polymers ranges about 0.025% to about 5%, from about 0.1% to about 3%, and/or from about 0.2% to about 1%, by weight of the hair care composition (pg 22 ln 20-21, examples). The hair care composition can comprise a thickening polymer to increase the viscosity of the composition from about 0.1 to about 5% (pg 23 ln 5-9). Thickening polymers include 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 combinations thereof (pg 23-25). The composition has a pH of about 3.5 to 6.5 (abs). The viscosity of the liquid phase may be from about 8 to about 25,000 centipoise measured using a TA Instruments AR-G2 Rheometer with a concentric cylinder attachment at a shear rate of 2 reciprocal seconds at 25° C (pg 8). The composition may have a viscosity in a range that allows for ease of dispensing from a package configuration (pg 8). In embodiments, the compositions have a deposition of active agent that 2.7 times greater than control (examples 11-14). The composition may further comprise about 1 to about 5% of one or more amphoteric/zwitterionic or nonionic co-surfactants, and mixtures thereof (pg 5 ln 4-6, pg 54 P, claim 7).
Chang, The Long Hair Community, Moreau, and Chang ‘135 are discussed above.
It would have been obvious use the antidandruff composition of '073 for the method of combining with a hair care composition, for the same reasons discussed above by The Long Hair Community.
It would have been obvious to select among those amounts, particular surfactants and cationic polymers, where the combination was known to improve deposition of the antidandruff active with a deposition overlapping the claimed range, as taught by Renock ‘309 and Chang, as applied to each claimed limitation.
It would have been obvious to formulate the “booster” with known viscosities, including those taught by Renock ‘309 above and for the same reasons.
It would have been obvious to encapsulate the active as taught by Moreau for the same reasons discussed above.
Further, it would have been obvious to formulate the “booster” made obvious above with a desired formulation appearance, such as a transparent composition with a transparency of 72%, 77%, and 89%, where these transparencies were known for compositions comprising piroctone olamine, and anionic surfactants and cationic polymer as instantly claimed, as taught by Chang ‘135.
Conclusion
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/JOSHUA A ATKINSON/Examiner, Art Unit 1612
/SAHANA S KAUP/Supervisory Primary Examiner, Art Unit 1612
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