Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Status of claims
Claims 1, 3-13, 15-20, and 22-24 are currently amended. Claim 2 is original. Claim 21 is previously amended. Claims 14 and 25 are cancelled. Claims 1-13 and 15-24 are pending and under examination.
Priority
This application is a 371 of PCT/EP2022/079449, filed on 10/21/2022. Acknowledgment is made of applicant’s claim for foreign priority under 35 U.S.C. 119 (a)-(d). The certified copy has been filed in parent Application No. PCTEP2021079372, filed on 10/22/2021. Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Rejections and Objections Withdrawn
All objections imposed in the previous correspondence are withdrawn due to applicant’s amendments.
All USC §35 USC § 112(b) rejections imposed in the previous correspondence that are not maintained in this one are withdrawn due to applicant’s amendments.
The 35 USC § 101 imposed in the previous correspondence is withdrawn due to applicant’s cancellation of claim 25.
The 35 USC § 103 for claim 25 imposed in the previous correspondence is withdrawn due to applicant’s cancellation of claim 25.
Claim Rejections - 35 USC § 112(b)
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 15-20 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.
Rejections maintained in view of amendments due to applicant’s failure to correct the indefinite elements.
Claim 15 recites “the weight percentage ratio of anionic surfactants to non-ionic surfactant(s)”. However, it is unclear which anionic surfactants are included in the recited ratio. For example, claim 1 introduces a first sulfate-free anionic surfactant and a second sulfate-free anionic surfactant. However, claim 15 does not specify whether the ratio refers only to either the first or second anionic surfactant, or to the total amount of all anionic surfactants that could be present. Because the scope of the claimed ratio is unclear, claim 15 is indefinite.
Claims 15-20 refer to “the non-ionic surfactant” or “non-ionic surfactant, whereas the antecedent basis introduced in the earlier claims they depend on is “one or more nonionic surfactant”. It is therefore unclear whether the later reference refers to a single surfactant or the previously introduced “one or more nonionic surfactants”. because the scope of these claims cannot be determined with reasonable certainty of which non-ionic surfactant from the one or more is being referred to, claims 15-20 are indefinite. Applicant may resolve this issue by amending claims 15-20 so that they consistently refer to “the one or more nonionic surfactants” as originally introduced.
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 text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Rejections maintained in view of arguments and amendments: Prior arts unchanged, prior art mappings modified due to amendment
Claims 1-4, 6-9, 15, 18, and 21-24 are rejected under 35 U.S.C. 103 as being unpatentable over Foley et al. (US6239093B1) in view of Mauer et al. (US20170333734A1).
Applicant added the limitation of “wherein the water-reduced shampoo composition is devoid of any sulfate anionic surfactant”, which is more closed than the former limitation of former claim 14 that was “essentially or completely free of sulfate anionic surfactant”. “Essentially free” allows for some amount to be present while “devoid” does not allow an amount to be present.
Foley et al. discloses a liquid cleaning composition or shampoo comprising a surfactant system with a dianionic or alkoxylated dianionic surfactant having a structural skeleton of at least five carbon atoms to which two anionic substituent groups spaced at least three atoms apart (first and second anionic surfactant) (abstract). Conversely, Foley et al teaches that “an essential component of the liquid cleaning compositions of the present invention may be a dianionic cleaning agent” (column 3, line 59-60; column 5, lines 50 to 55), which also means that the dianionic component may not be essential or needed in some embodiments. Foley teaches “Preferably, these liquid compositions comprise a surfactant system further comprising one or more co-surfactants selected from: anionic surfactants, preferably selected from the group of alkyl alkoxylated sulfates, alkyl sulfates, and/or linear alkyl benzenesulfonate surfactants; cationic surfactants, preferably selected from quaternary ammonium surfactants; nonionic surfactants, preferably alkyl ethoxylates, alkyl polyglucosides, and/or amine (e.g., amidopropylamines) or amine oxide surfactants; amphoteric surfactants, preferably selected from betaines and/or polycarboxylates (for example polyglycinates); and zwiterionic surfactants.” (Summary of invention). Thus, Foley allows other options like benzensulfonates and other non-sulfate surfactants. Foley provides the dianionic cleaning agent as a genus and does not necessitate it has to be a sulfate in its broader teachings (see Field of the invention, first sentence). In column 4, a structure of a dianionic compound with variable anion groups is pictured and anionic groups are discussed generally (lines 1-40). Thus, a sulfate group on a dianionic surfactant/cleaning agent might be a preferred embodiment in Foley, but does not exclude non-sulfate versions. Foley et al. teaches that other cosurfactants may be present (abstract). Foley et al. describes liquid cleaning compositions to include shampoos as well (column 1, lines 12-16). Foley et al. teaches that such shampoo compositions may include anionic and non-ionic surfactants (claims 14 and 15). Foley et al. teaches that such compositions may comprise water and/or other solvents such as polyols including those containing from 2 to about 6 carbon atoms and from 2 to about 6 hydroxy groups (e.g., 1,3-propanediol, ethylene glycol, glycerin, and 1,2-propanediol) (column 22, lines 7-14). Foley et al. teaches that such compositions may contain the above solvents at concentrations ranging from about 1% to about 99.7% or 5 to 90% (column 22, lines 15-16; column 2, line 60). These components satisfy the water and polyol composition and concentration requirements of present claim 1, in addition to all elemental requirements of present claims 2, 3, 22, and 23. Foley teaches hair conditioning agents (Cationic surfactants). Foley teaches “typical examples include the C12-C18 and C12-C14 N-methylglucamides” as (2) nonionic co-surfactants (also see example 3 with C24 N-methyl glucamide).
However, Foley et al. fails to teach the various combinations, concentrations, and ratios of the anionic and non-ionic surfactants in the composition as disclosed in many of the present claims, including present claims 6, 8-9, 12-13, 15, 18, and 22-23. In addition, Foley et al. fails to teach the composition being sulfate-free as taught in present claim 14, and also fails to teach it being free of amphoteric surfactants as taught in present claim 21.
Mauer et al. discloses a composition suitable as a shampoo or hair conditioner, comprising at least one surfactant (abstract). Mauer et al. teaches that the composition may include at least one surfactant consisting of a sulfate, an ethoxylated sulfate, a sulfonate, an alkyl polyglycoside, a derivative of an alkyl polyglycoside, a betaine, an amphoacetate, a glutamate, a sulfosuccinate, a taurate, a glycinate and an isethionate (¶30) ––making the option of adding or omitting sulfate surfactants apparent, and thus satisfying the sulfate-free requirements of all applicable present claims, which thereby covers all required elements of present claim 14. Mauer teaches alkylglucamides and alkyl oligoglucoside surfactants (31). Mauer et al. teaches that the composition may specifically include at least one surfactant that is an an-ionic and/or non-ionic and/or amphoteric and/or zwitterionic (¶31) ––thus making the option of omitting amphoteric surfactants apparent, thereby satisfying all requirements of present claim 21, in addition to covering the nonionic and anionic surfactant teachings of all present claims, including claim 1. Additionally, Mauer et al. teaches that the at least one surfactant may be in the composition at concentrations ranging from 3% to 40% by weight (¶31), preferably 10% to 20% by weight (¶32). Mauer et al. teaches that the composition may also include at least one co-surfactant (¶34), with the at least one co-surfactant being at concentrations ranging from 0% to 15% by weight (¶81; claim 2). Collectively, the above teachings cover all components of concentration ranges, concentration ratios, and combinations of sulfate-free anionic and nonionic surfactants in all present claims (such as present claim 1), and thus also satisfy all the requirements of present claims 6, 8, 9, 12, 13, 15, and 18. Mauer teaches a conditioning agent/compound (paragraphs 149 and 158).
It would have been obvious to a person of ordinary skill in the art, before the effective filing date of the claimed inventions, to modify the liquid cleaning compositions of Foley et al. with the surfactant selections and concentration ranges taught by Mauer et al. This is because Foley et al. teaches shampoo compositions comprising anionic and nonionic surfactants in combination with water and/or polyol solvents such as glycerin at concentrations overlapping with those in the present claims. Mauer et al. further teaches shampoo compositions comprising sulfate-free anionic and nonionic surfactants/cosurfactants at combinations, concentrations, and ratios overlapping with those in the present claims. A person of ordinary skill in the art would have thus been motivated to combine these teachings in order to formulate sulfate-free cleansing compositions with suitable surfactant systems and solvent compositions for improved formulation flexibility and cosmetic stability. Furthermore, adjusting the classes/combinations of these conventional shampoo surfactants, in addition to their concentrations and ratios is a matter of routine optimization of result-effective variables for a person of ordinary skill in the art to enhance properties such as cleansing performance, foaming, and stability of the composition based on overlapping ranges in the prior art. Because both references are directed to closely related shampoo compositions employing compatible surfactant systems and solvents, one of ordinary skill in the art would have had a reasonable expectation of success in combining the teachings of Foley et al. and Mauer et al. to arrive at the claimed invention.
Claims 5, 10-13, 16-17, and 19-20 are rejected under 35 U.S.C. 103 as being unpatentable over Foley et al. (US6239093B1) in view of Mauer et al. (US20170333734A1) in further view of Patron et al. (US20170087199A1).
Foley et al. and Mauer et al. collectively teach all limitations of claim 1. In addition, they collectively teach all combinations, concentrations, and ratios of the sulfate-free anionic and nonionic surfactants in the composition of all present claims.
However, Foley et al. and Mauer et al. fail to collectively teach the required species of anionic and nonionic surfactants recited in present claims 4-5, 7, 10-11, 16-17, and 19-20. They additionally fail to collectively teach the presence and concentration of conditioners taught in present claim 24.
Patron et al. discloses compositions comprising combinations of one or more cooling agents with additional cooling agents, inactive drug ingredients, food additives, antimicrobials, corticosteroids, and compounds known to be used in personal care products (abstract). Patron et al. teaches that the composition can be made in the form of shampoos (¶44). Patron et al. teaches that the composition may include one or more surfactants (¶5), including anionic and nonionic surfactants (¶164). Patron et al. teaches that such topical compositions may include Sodium Cocoyl Isethionate (¶28), which satisfies the anionic surfactant requirements of present claims 4 and 5. Patron et al. teaches that the composition may also contain Sodium Lauroyl Sarcosinate (¶28), which satisfies all required elements of present claim 7. Patron et al. also teaches that such compositions may include Sodium Hydrogenated Cocoyl Methyl Isethionate (¶28), which satisfies all required elements of present claims 10 and 11. Patron et al. teaches that the composition may also include Lauroyl Methyl Glucamide and lauryl methyl glucamide (¶28), which satisfies all required elements of present claims 16 and 17 as being a species that obviates those in applicant’s claims 16 and 17. Collectively, the above teachings also cover all required elements of present claim 19, in addition to covering the required surfactant components of present claim 20. Patron et al. also teaches that emollients (a form of conditioner) can be present in such compositions at concentrations ranging from 1% to 10% w/w (¶90), and further states that the composition may contain Quaternary ammonium compounds (¶164), which satisfies all required elements of present claim 24. In paragraph 25, glucosides such as cocoglucosides, decyl glucoside, Caproyl ethyl glucoside, Caprylyl/Capryl Glucoside and caprylyl glucoside are taught as representative surfactants.
It would have been obvious to a person of ordinary skill in the art, before the effective filing date of the claimed inventions, to modify the shampoo compositions suggested by Foley et al. and Mauer et al. with the specific surfactant species and conditioning agents taught by Patron et al. This is because Foley et al. and Mauer et al. collectively teach shampoo compositions comprising anionic and nonionic surfactants in solvent systems that overlap with those in the present claims, while Mauer et al. further teaches sulfate-free anionic and nonionic surfactant systems at concentrations and ratios overlapping with those in the present claims. Patron et al. teaches that such shampoo compositions may include the specific anionic and non-ionic surfactants as required by the present claims such as sodium cocoyl isethionate, sodium lauroyl sarcosinate, lauroyl methyl glucamide, sodium hydrogenated cocoyl methyl isethionate, in addition to conditioners at concentrations overlapping with those in the present claims. A person of ordinary skill in the art would have thus been motivated to incorporate these known surfactant species and conditioning agents into the shampoo compositions suggested by Foley et al. and Mauer et al. in order to formulate cosmetically acceptable cleansing compositions using conventional surfactants and conditioners. Furthermore, the selection and combination of such conventional surfactants for shampoos is a matter of routine formulation choice and optimization for one of ordinary skill in the art to enhance properties such as cleansing performance, nourishment, foaming, and stability of the composition. And because these references are directed to closely related shampoo formulations employing compatible surfactant systems, one of ordinary skill in the art would have had a reasonable expectation of success in combining the teachings of Foley et al., Mauer et al., and Patron et al. to arrive at the claimed invention.
Response to Arguments
Applicant's arguments filed 05/04/2026 have been fully considered but they are not persuasive.
Applicant argues that Foley allegedly teaches that its disclosure’s “dianionic cleaning agent is an essential component of (Foley's) liquid cleaning composition…. In which at least one of its two anionic groups is a sulfate”. Applicant further argues that therefore, excluding it as suggested by Mauer would thus improperly eliminate an essential component of Foley. These arguments are not persuasive because:
Applicant has misquoted Foley. Foley does not state that dianionic cleaning agents are always “essential”. As stated in the U.SC 103 rejection above, It explicitly states that “an essential component of the liquid cleaning compositions of the present invention may be a dianionic cleaning agent” (column 3, line 59-60; column 5, lines 50 to 55), which also means that the dianionic component may not be essential in some embodiments. Additionally, Foley has discussion of the dianionic cleaning agents where it refers to these agents having anionic groups in general. Lastly, the Mauer reference sees various types of anionic surfactants with different anionic groups, not just sulfates, being acceptable for such a formulation. See MPEP 2123 – alternative and non-preferred embodiments of the prior art are considered as teachings of the references and patent documents are relevant for all their teachings.
The rejection does not require bodily incorporation of every feature of Foley. Rather, Mauer teaches sulfate-free anionic surfactants suitable for shampoo compositions, and an ordinarily skilled artisan would have been motivated to employ Mauer’s sulfate-free surfactant system in Foley’s shampoo vehicle to provide a sulfate-free cleansing composition. Such modification would retain the intended cleansing function of Foley ‘s composition and therefore would not render the composition unsatisfactory for its intended purpose of cleaning hair.
Conclusions
No Claim is found allowable.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ARYA AHMADI BAZARGANI whose telephone number is (571)272-0211. The examiner can normally be reached Monday - Friday 9:00AM - 5:00 PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Brian-Yong Kwon can be reached at (571) 272-0581. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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Arya A. Bazargani, Ph.D.
Patent Examiner
Art Unit 1613
/MARK V STEVENS/ Primary Examiner, Art Unit 1613
Prosecution Insights