DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
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.
Status of the Claims
Claims 1-20 are pending and under consideration in this action. Claims 6-20 are newly added.
Examiner’s Suggestions
Claims 1-6, 8, 10, 12, 13, 16, 18, and 20 each recite ranges in the form of “X or higher and Y or lower” (or the like). While not necessarily unclear, Examiner kindly suggests amending such limitations to read “X to Y” (or the like) to put the claims in better form.
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 5, 13, 17, and 18 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.
With regards to Claim 5, the claim is directed to a composition, but the claim also recites that “the composition is applied to the keratinous material…” implying method steps for using this product. Per MPEP 2173.05(p), a single claim which claims both an apparatus and the method steps of using the apparatus is indefinite.
With regards to Claim 13, the claim recites that the ratio of mass of cleansing agent composition (A) / dry mass of hair to be treated is 0.005 or more and 20 or less. As written, it is unclear if numerical values as written are intended to be the ratios themselves (e.g., 0.005:1 to 20:1) or if the numerical values are aligned to the two components being compared (e.g., 0.005 or more (composition A) : 20 or less (hair)).
With regards to Claims 17 and 18, the claims recite the term “higher alcohol”. The term “higher” is not defined in the instant Specification to specifically define the end points of what number of carbon atoms are and are not encompassed by the term “higher”. The instant Specification provides examples of what are considered “higher” alcohols (P.G. Pub., para.0115); however, as they are merely exemplary, it is indefinite as to what the full scope of number of carbon atoms are and are not encompassed by the term “higher”.
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.
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 1-3 and 5-20 are rejected under 35 U.S.C. 103 as being unpatentable over Terazaki et al. (Terazaki) (US 2014/0079658 A1; published Mar. 20, 2014) and Molenda et al. (Molenda) (US 2006/0134041 A1; published Jun. 22, 2006).
Terazaki discloses an aqueous hair cleansing agent which has excellent performance in all of sufficient formidability during washing, rinsing, rinsing characteristics in rinsing, and shininess of hair after drying (para.0013).
With regards to Claims 1, 5, and 11, Terazaki discloses an aqueous hair cleansing agent comprising (A) an internal olefin sulfonate, (B) an organic solvent, (C) an organic carboxylic acid, and water (reading on aqueous medium), and having a pH of 2 to 5 at 25oC (abstract; para.0001, 0006).
Component (A) is a sulfonate of an internal olefin (internal olefin sulfonate), which improves foaming (foamability), and imparts good rinsing characteristics and shininess to hair (para.0014).
The internal olefin means an olefin having a double bond inside (namely, except for terminal carbon atoms) of the carbon chain. The internal olefin sulfonate is obtained by sulfonating a straight-chain alkene having 12 or more and 24 or less carbon atoms which contains a double bond on a carbon atom except for the terminal carbon atoms, followed by neutralization and hydrolysis (para.0017).
The total content of the internal olefins with double bonds being located on the third or more inward positions in the raw material internal olefin is preferably 70% by mass or more from the viewpoint of foamability and smoothness in rinsing and also from the viewpoint of imparting shine to hair (par.0031). 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.
With regards to Claim 2, the content of component (A) is from 1 to 20% by mass (para.0042).
With regards to Claim 6, the number of carbon atoms of the internal olefin sulfonate (component (A)) is 12 or more and 24 or less, and preferably from 12 or more and 18 or less from the viewpoint of foamability and rinsing characteristics, and also from the viewpoint of imparting shine to hair (para.0018-0019).
With regards to Claim 7, the aqueous hair cleansing agent may comprise a cationized polymer (para.0058).
With regards to Claim 8, the content of the cationized polymers may be 0.01 to 3% by mass relative to the total amount of the aqueous hair cleansing agent from the viewpoint of reducing a squeaky feeling in rinsing (para.0063).
With regards to Claim 9, the aqueous hair cleansing agent may include salts, e.g., sodium chloride, ammonium chloride, and sodium citrate (para.0096). Terazaki exemplifies the use of sodium chloride in Examples 1-4 (Table 1).
With regards to Claim 10, the salts may be incorporated in an amount of 0.01 to 5% by mass in the aqueous hair cleansing agent from the point of the quantity of foam and foam texture (para.0096). Terazaki exemplifies the incorporation of sodium chloride in an amount of 0.4% by mass relative to the total amount of the aqueous hair cleansing agent in Examples 1-4 (Table 1).
With regards to Claim 12, Terazaki exemplifies the incorporation of water in an amount of about 76.7% by mass relative to the total amount of the aqueous hair cleansing agent in Example 1 (Table 1).
With regards to Claim 13, Terazaki exemplifies applying 0.5 g of the aqueous hair cleansing agent to 10 g of dry hair (reading on ratio of mass of cleaning agent composition (A) / dry mass of hair to be treated) of 0.5:10 (1:20) (para.0137).
With regards to Claim 14, Terazaki exemplifies rinsing off the aqueous hair cleansing agent with water (para.0137).
Terazaki does not appear to explicitly disclose (i) applying a conditioning agent composition (B) after applying cleansing agent composition (A). Molenda is relied upon for this disclosure. The teachings of Molenda are set forth herein below.
Molenda discloses a conditioning composition for hair comprising optical brightener. The conditioning composition can be in the form of a conditioner used after washing hair with cleansing compositions (abstract; para.0001). The conditioning compositions comprise additionally one or more cationic surfactants as conditioner (para.0021).
The compositions show optimum performance in hair brightening and excellently superior performance in hair shine improving, making hair excellently manageable, and softness of hair. The composition also improve compatibility, volume, and body of hair. After using the compositions, hair feels nicer and more natural when touching (para.0005).
With regards to Claims 3 and 16, the typical concentration of cationic surfactants can be 0.1-10% by weight of the total composition (para.0026).
With regards to Claim 15, a typical example of suitable cationic surfactants include cetyltrimethyl ammonium chloride (an alkyltrimethylammonium salt) (par.0024).
With regards to Claim 17, Molenda discloses that the conditioning composition may be in the form of emulsions, such as emulsion type of coloring conditioners. The emulsion type of coloring conditions comprise additionally at least one fatty alcohol having a fatty acyl chain with 8-24 C atoms (par.0058).
With regards to Claim 18, concentration of fatty alcohols is usually less than 20% by weight calculated to total composition (para.0058).
With regards to Claim 19, the compositions are prepared by mixing the individual components in water (par.0069).
With regards to Claim 20, Molenda exemplifies a conditioner with about 90% by weight of water (Example 7, para.0084).
Both Terazaki and Molenda are directed to hair treatment compositions. In particular, Terazaki is directed to an aqueous hair cleansing agent, and Molenda is directed to a hair conditioner used after washing hair with a cleansing composition. One of ordinary skill in the art would have found it prima facie obvious before the effective filing date of the instant invention to combine the teachings of Terazaki and Molenda and apply Molenda’s conditioning composition discussed above to hair after the application of Terazaki’s aqueous hair cleansing agent. One of ordinary skill in the art would have been motivated to do so in order to obtain both the benefit of Terazaki’s cleansing agent (e.g., excellent performance in all of sufficient formidability during washing, rinsing, smoothness in rinsing, and shininess of hair after drying) and the benefit of Molenda’s conditioning composition (e.g., optimum performance in hair brightening and excellently superior performance in hair shine improving, making hair excellently manageable, and softness of hair) when cleansing and treating hair. One of ordinary skill in the art would have had a reasonable expectation of success in doing so as both Terazaki and Molenda are directed to hair treatment compositions, where Terazaki is directed to a hair cleansing formulation, and Molenda is directed to a hair conditioner that is used after washing hair with a cleansing agent.
Therefore, the claimed invention, as a whole, would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the instant invention, because the combined teachings of the prior art references is fairly suggestive of the claimed invention.
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Terazaki et al. (Terazaki) (US 2014/0079658 A1; published Mar. 20, 2014) and Molenda et al. (Molenda) (US 2006/0134041 A1; published Jun. 22, 2006) as applied to claims 1-3 and 5-20, further in view of Siddiqui et al. (Siddiqui) (US 2004/0110650 A1; published Jun. 10, 2004).
The teachings of Terazaki and Molenda and the motivation for their combination as they apply to Claims 1-3 and 5-20 are set forth above and incorporated herein.
The combined teachings of Terazaki and Molenda do not appear to explicitly disclose a kit comprising a cleansing agent composition (A) and a conditioning agent composition (B). Siddiqui is relied upon for this disclosure. The teachings of Siddiqui are set forth herein below.
Siddiqui discloses a hair care formulation that enhances visual and/or tactile qualities of the hair (abstract). Siddiqui discloses that such formulations are sold in a kit that includes a daily shampoo, a deep cleansing shampoo, a daily conditioner, a deep conditioner, and a scalp serum treatment. Other kits include any subset of these products (para.0010).
As discussed above, Terazaki is directed to a hair cleansing formulation, and Molenda is directed to a hair conditioner used after washing hair with a cleansing composition. One of ordinary skill in the art would have found it prima facie obvious before the effective filing date of the instant invention to further combine the teachings of Terazaki and Molenda with the teachings of Siddiqui and provide Terazaki’s hair cleansing formulation together with Molenda’s hair conditioner as a kit. One of ordinary skill in the art would have been motivated to do so to conveniently package and provide the two products together for use to achieve the benefits of each formulation discussed above. One of ordinary skill in the art would have had a reasonable expectation of success in doing so as Siddiqui discloses that it is art recognized and conventional to provide a hair cleansing formulation and a hair conditioning formulation together as a kit.
Therefore, the claimed invention, as a whole, would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the instant invention, because the combined teachings of the prior art references is fairly suggestive of the claimed invention.
Conclusion
Claims 1-20 are rejected. No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MONICA A. SHIN whose telephone number is (571)272-7138. The examiner can normally be reached Monday-Friday (9:00AM-5:00PM EST).
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sue X Liu can be reached at 571-272-5539. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MONICA A SHIN/Primary Examiner, Art Unit 1616
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