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 arguments, filed 02 July 2026, have been fully considered. Rejections and/or objections not reiterated from previous office actions are hereby withdrawn. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1-6, 8-9 and 11-17 are rejected under 35 U.S.C. 103 as being unpatentable over Preuilh et al. (US 2006/0233735 A1, 10/19/2006, IDS reference) (hereinafter Preuilh).
Regarding claims 1-3, 12, and 16, Preuilh discloses compositions for washing and treating hair comprising at least an anionic surfactant; at least an amphoteric surfactant, and a pro-penetrating agent (abs). The pro-penetrating agent may be 0.1-25% by weight [0043]) and includes glycol ethers such as ethoxydiglycol and polyhydric alcohols such as propylene glycol ([0041]). The anionic surfactants include alkyl ether sulfates ([0030]) and may be used in proportions of between 0.05 and 50% by weight of composition ([0034]). The amphoteric surfactants include sulfobetaines ([0035]) and may be 0.01-30% by weight ([0039]). The pH may be adjusted with cosmetically acceptable basifying or acidifying agents ([0113]). Exemplary acidifying agents include lactic acid, in amounts sufficient to adjust the pH to desired value ([0128]), or citric acid, which may be included in amounts of 0.24 g out of 100 g of composition ([0135]).
Accordingly, Preuilh discloses compositions for washing hair comprising 0.1-25% wt. of pro-penetrating agents including ethoxydiglycol (i.e. instantly claimed diethylene glycol monoethyl ether as a polyalkylene glycol ether of component (a)); 0.05-50% wt. of anionic surfactants including alkyl ether sulfates (i.e. instantly claimed component (b); and acidifying agents including lactic acid and citric acid (i.e. instantly claimed hydroxycarboxylic acid of component (c)). Together these would provide compositions as instantly claimed. The prior art is not anticipatory insofar as this combination must be selected from various lists/locations in the reference. It would have been obvious, however, to make the combination since all the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination yielded nothing more than predictable results to one of ordinary skill in the art. See MPEP § 2143 (I)(A).
Regarding claims 1 and 2 reciting amounts of component (a), the claimed amounts (0.1-18% and 0.5-15%, respectively) would have been obvious to one of ordinary skill in the art since they overlap with the ranges of the prior art (i.e. 0.1-25% weight). 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(A).
Regarding claims 1 and 3 reciting amounts of component (b), the claimed amounts (≥ 5% and 8-30%, respectively) would have been obvious to one of ordinary skill in the art since they overlap with the ranges of the prior art (i.e. 0.05-50% weight). 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(A).
Regarding claim 1 reciting a ratio of component (a) to component (c), as discussed above, Preuilh discloses 0.1-25% wt. pro-penetrating agents including glycol ethers such as ethoxydiglycol (i.e. instantly claimed component (a)), and acidifying agents including 0.24g citric acid per 100g composition (i.e. 0.24%). Accordingly, it would have been obvious to one of ordinary skill in the art to have selected an amount of pro-penetrating agents, such as ethoxydiglycol, from the disclosed range of 0.1-25 wt.%, such that the amounts selected would have equated to a ratio that overlaps with the claimed ratio (i.e. 2 to 30), thus making it obvious. 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(A). Moreover, in any case, the selection of appropriate weight percentages would appear to require no more than routine testing on the part of the skilled artisan, and so alternatively it would have been obvious to determine workable ranges to arrive at the claimed ratio of (a)/(c). "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." See MPEP § 2144.05(II)(A).
Regarding claims 1 and 16 reciting one or more species of alkylene glycols, it is not necessary for Preuilh to disclose the recited alkylene glycols since the claim, as currently recited, does not require the component (a) to be an alkylene glycol. The claim recites wherein component (a) may be a polyalkylene glycol ether, which Preuilh discloses by disclosing wherein the composition comprises ethoxydiglycol (i.e. diethylene glycol monoethyl ether).
Regarding claims 4, 14 and 15, as noted by para. [0028] of the instant Specification, citric acid is an organic acid having 8 or less carbon atoms, and a hydroxycarboxylic acid.
Regarding claim 5, as discussed above, Preuilh discloses at least one anionic surfactant and at least one amphoteric surfactant.
Regarding claim 6, Preuilh further discloses wherein the composition comprises nonionic surfactants ([0114]).
Regarding claims 8-9, 11 and 17, as discussed above, Preuilh discloses wherein the pro-penetrating agents include ethoxydiglycol (i.e. diethylene glycol monoethyl ether). Accordingly, Preuilh ethoxydiglycol meets the limitation of the formula (I) of claim 8 wherein R1 is H, R2 is C2 alkyl, and n=2.
Regarding claim 13, as discussed above, Preuilh discloses wherein the composition comprises sulfobetaine.
Response to Arguments
Applicant asserts that the present claims clearly exclude dipropylene glycol from the definition of the alkylene glycol in component (a). The cited references contain no suggestion of the presently claimed compositions.
Applicant mainly asserts neither of the cited references contain any disclosure regarding the problem of forming spiral-shaped, cohesive, and aesthetically pleasing wave curls on wet hair after shampooing. Moreover, these references do not recognize the (a)/(c) ratio of 2 to 30 as a result-effective variable for achieving such wave curl formation. The cited references merely use component (c) – an organic acid or its salt, solely as a pH adjuster, and neither references disclose any content level of component (c). Because the amount of component (c) is not disclosed at all, any idea of adjusting the (a)/(c) ratio is entirely absent from the prior art. Accordingly, a skilled person in the art would have had no reason to select an (a)/(c) ratio of 2 to 30 for the purpose of forming aesthetically pleasing wave curls.
Finally, Applicant asserts ratio of (a)/(c) contributes to the formation of a spiral shape of wet hair after shampooing, thereby improving curl cohesion and consistency (see [0030] on page 13, of the specification). Component (a) acts as the primary functional ingredient, softening wet hair and providing lubricity between hair fibers without adding viscosity, which facilitates the formation of spiral bundles. Component (c) is more prone to adsorption and penetration into hair; its presence enhances the retention of component (a) on hair, likely through stabilization of hydrogen bonding. On the other hand, excessive retention of component (c) may cause hair roughness, so a sufficient amount of component (a) is required to prevent such negative effects. Thus, the (a)/(c) ratio is important. Furthermore, the unexpected improvement in forming beautiful wave curls by setting the (a)/(c) ratio to 2 to 30 is demonstrated in the present specification through the examples and comparative examples, in particular Examples 1 and 5-7 and Comparative Example 3.
The Examiner does not find Applicant’s assertions to be persuasive. It is noted that amended claim 1 does not require a presence of alkylene glycol. Claim 1 recites wherein component (a) may be a polyalkylene glycol ether, which is disclosed by Preuilh.
Regarding the Applicant’s assertion that Preuilh is silent to the problem solved by the Applicant, it is noted that rationale different from the Applicant’s is permissible. It is not necessary for the prior art to suggest the combination to achieve the same advantage or result discovered by Applicant. See MPEP 2144(IV). Thus, it is not necessary for Preuilh to disclose using an amount of a pro-penetrating agent such as ethoxydiglycol, or an amount of an acidifying agent such as lactic acid or citric acid, or a resulting ratio of (a)/(c), for the same reason as Applicant, which is to form aesthetically pleasing wave curls. As such, Applicant’s assertion is unpersuasive.
Regard potential evidence of unexpected results, Applicant has the burden of explaining the data in any declaration they proffer as evidence of non-obviousness. MPEP § 716.02(b)(II). Note that factually uncorroborated assertions (such as those referenced in the specification) cannot take the place of evidence in the record. See MPEP § 716.01 (c)(Il). Moreover, any differences between the claimed invention and the prior art may be expected to result in some difference in properties. The issue is whether the properties differ to such an extent that the difference is really unexpected. The burden is on Applicant to establish that the results are in fact really unexpected and of statistical and practical significance. Ex parte Gelles, 22 USPQ2d 1318 (Bd. Pat. App. & Inter. 1992). See also MPEP § 716.02. Although Applicant has made references to [0030] (which appears to comprise conclusory statements), Examples 1 and 5-7 and Comparative Example 3 in the instant Specification, Applicant does not appear to have discussed same (at least in specific detail) with respect to the putative probative value of the objective data in those working examples.
Finally, assuming purely arguendo that unexpectedness results have been established, the probative value of the evidence as compared to the invention as claimed must then be determined, i.e., the claims must be “commensurate in scope” with the showing. MPEP § 716.02(d). See also MPEP § 2145. Applicant must explain the “manner in which the specific compositions illustrated are considered to be commensurate in scope with the claimed invention”; see Ex parte Gelles, 22 USPQ2d 1318 (Bd. Pat. App. & Inter. 1992); see also MPEP 716.02, citing same.
Examples 1 and 5-7 on Table 3 (p. 52) of the instant specification employ specific components in specific percentages, and even if Applicant were to show unexpected results, they would have been obtained, for example, not with the broad class of “polyalkylene glycol ether,” “anionic or amphoteric surfactants,” or “organic acid” generally, but instead with specific species of same. Note, for example, Example 1 on p.52 of the instant Specification uses ethoxydiglycol, a combination of polyoxyethylene lauryl ether ammonium sulfate and lauryl hydroxysultaine, and lactic acid, each at specific percentages as the “polyalkylene glycol ether,” “anionic or amphoteric surfactants,” and “organic acid” respectively. Applicant would need to explain how these specific species are “reasonably representative” of the more broadly claimed subject matter of the claims, even were the results persuasively demonstrated to be “in fact really unexpected and of statistical and practical significance”.
The Examiner appreciates Applicant’s responses to the discussion of 2 June 2026 on pages 8-9 of the Remarks dated 02 July 2026. The Examiner further notes a comparison of Examples 1 and 4 (p. 52). Example 1, disclosing specifically 10% mass of diethylene glycol monoethyl ether (i.e. ethoxydiglycol) as (a), and 0.5% by mass of lactic acid at as (c), (i.e. (a)/(c) ratio of 20), demonstrates higher spiral rate, lower curl manageability score, and lower curl deviation score (i.e., more uniform curls, more manageable, and less deviation of curls) when compared to example 4. Thus, it is not clear to the Examiner how all species of “alkylene glycol” would be suitable as component (a) as instantly claimed.
Moreover, The Examiner notes Comparative Examples 4 and 5, while each having an (a)/(c) ratio of 20, do not appear to demonstrate the same benefits as asserted by the Applicant. Thus, it appears to the Examiner that any unexpectedness of results would not have been obtained only through an (a)/(c) ratio, but a combination of specific amounts of specific species of each component. More clarification is kindly requested.
Claims 1-6, 8-9, and 11-17 rejected under 35 U.S.C. 103 as being unpatentable over Preuilh et al. (US 2006/0233735 A1, 10/19/2006, IDS reference) (hereinafter Preuilh) in view of Miyata et al. (JP 2003/095842 A, 04/03/2003, IDS reference) (hereinafter Miyata).
The disclosure of Preuilh is discussed above. While Preuilh is believed to support a finding of obviousness, purely arguendo, for the purposes of complete prosecution, and for the purposes of this ground of rejection only, claims 1 and 16 have been interpreted as though it requires the presence of an alkylene glycol.
As discussed above, Preuilh discloses wherein the pro-penetrating agents include polyhydric alcohols such as propylene glycol.
Preuilh differs from the instant claim insofar as not explicitly disclosing wherein the polyhydric alcohols include isoprene glycol.
However, Miyata discloses compositions suitable for washing hair ([0016]), comprising one or more of ionic surfactants ([0010]). The compositions may comprise other known components, blended in suitable ranges, including polyhydric alcohols such as propylene glycol and isoprene glycol ([0015]).
Accordingly, it would have been prima facie obvious to one of ordinary skill in the art to have included isoprene glycol (i.e. instantly claimed 3-methyl-1,3-butanediol) as the pro-penetrating agents of Preuilh, since each is taught as a known and effective polyalcohol suitable for hair washing compositions as taught by Miyata. It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose… [T]he idea of combining them flows logically from their having been individually taught in the prior art. See MPEP § 2144.06(I).
Response to Arguments
Applicant does not present specific arguments with regard to Preuilh and Miyata.
Since the Examiner has discussed Preuilh above, this rejection is maintained.
Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over Preuilh et al. (US 2006/0233735 A1, 10/19/2006, IDS reference) (hereinafter Preuilh), as applied to claims 1-6, 8-9 and 11-17 above, in view of Morita et al. (JPH04/230614A, 08/19/1992, IDS reference) (hereinafter Morita).
Regarding claim 18, Preuilh differs from the instant claim insofar as not explicitly disclosing wherein the glycol ethers comprise diethylene glycol monobutyl ether (i.e. butoxydiglycol).
However, Morita discloses hair cosmetic compositions including shampoos and hair treatments ([0028]) helpful to treat and prevent damaged hair (p.2, § PURPOSE) comprising an alkylpolyalkylene glycol ether such as diethylene glycol monoethyl ether and diethylene glycol monobutyl ether ([0008]).
Accordingly, it would have been obvious to one of ordinary skill in the art to have included diethylene glycol monobutyl ether in the composition of Preuilh since it is a known and effective glycol ether as taught by Morita. “It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose… [T]he idea of combining them flows logically from their having been individually taught in the prior art." See MPEP § 2144.06(I).
Claim 19 is rejected under 35 U.S.C. 103 as being unpatentable over Preuilh et al. (US 2006/0233735 A1, 10/19/2006, IDS reference) (hereinafter Preuilh), as applied to claims 1-6, 8-9 and 11-17 above, in view of Fonseca et al. (WO 2019/119080 A1, 06/27/2019) (hereinafter Fonseca).
Regarding claim 19, Preuilh differs from the instant claim insofar as not explicitly disclosing wherein the glycol ethers comprise triethylene glycol monomethyl ether (i.e. methoxytriglycol).
However, Fonseca discloses compositions for treating hair comprising monomeric polyol compounds (abs) including propylene glycol and triethylene glycol monomethyl ether (p.14, lines 3-13). The composition is suitable as a rinse-off product (p.3, lines 7-8).
Accordingly, it would have been obvious to one of ordinary skill in the art to have included triethylene glycol monomethyl ether in the composition of Preuilh since it is a known and effective monomeric polyol compounds suitable in combination with propylene glycol in rinse-off hair compositions as taught by Fonseca. “It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose… [T]he idea of combining them flows logically from their having been individually taught in the prior art." See MPEP § 2144.06(I).
Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over Preuilh et al. (US 2006/0233735 A1, 10/19/2006, IDS reference) (hereinafter Preuilh) in view of Miyata et al. (JP 2003/095842 A, 04/03/2003, IDS reference) (hereinafter Miyata), as applied to claims 1-6, 8-9 and 11-17 above, further in view of Morita et al. (JPH04/230614A, 08/19/1992, IDS reference) (hereinafter Morita).
Regarding claim 18, Preuilh and Miyata differ from the instant claim insofar as not explicitly disclosing wherein the glycol ethers comprise diethylene glycol monobutyl ether (i.e. butoxydiglycol).
However, Morita discloses hair cosmetic compositions including shampoos and hair treatments ([0028]) helpful to treat and prevent damaged hair (p.2, § PURPOSE) comprising an alkylpolyalkylene glycol ether such as diethylene glycol monoethyl ether and diethylene glycol monobutyl ether ([0008]).
Accordingly, it would have been obvious to one of ordinary skill in the art to have included diethylene glycol monobutyl ether in the composition of Preuilh since it is a known and effective glycol ether as taught by Morita. “It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose… [T]he idea of combining them flows logically from their having been individually taught in the prior art." See MPEP § 2144.06(I).
Claim 19 is rejected under 35 U.S.C. 103 as being unpatentable over Preuilh et al. (US 2006/0233735 A1, 10/19/2006, IDS reference) (hereinafter Preuilh) in view of Miyata et al. (JP 2003/095842 A, 04/03/2003, IDS reference) (hereinafter Miyata), as applied to claims 1-6, 8-9 and 11-17 above, further in view of Fonseca et al. (WO 2019/119080 A1, 06/27/2019) (hereinafter Fonseca).
Regarding claim 19, Preuilh and Miyata differ from the instant claim insofar as not explicitly disclosing wherein the glycol ethers comprise triethylene glycol monomethyl ether (i.e. methoxytriglycol).
However, Fonseca discloses compositions for treating hair comprising monomeric polyol compounds (abs) including propylene glycol and triethylene glycol monomethyl ether (p.14, lines 3-13). The composition is suitable as a rinse-off product (p.3, lines 7-8).
Accordingly, it would have been obvious to one of ordinary skill in the art to have included triethylene glycol monomethyl ether in the composition of Preuilh since it is a known and effective monomeric polyol compounds suitable in combination with propylene glycol in rinse-off hair compositions as taught by Fonseca. “It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose… [T]he idea of combining them flows logically from their having been individually taught in the prior art." See MPEP § 2144.06(I).
Double Patenting (Withdrawn)
Response to Arguments
Regarding the double patenting rejection, the rejection is withdrawn in view of arguments presented on 02 July 2026,
Pertinent Prior Art
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Sakurai et al. (US 2004/0266656 A1, 12/30/2004, IDS reference), directed to a shampoo composition comprising propylene glycol; POE ether sulfate; alkyl polyglucoside; sulfobetaines; and organic acids.
Xiang (CN 110787111 A, 02/14/2020, IDS reference), directed to a shampoo comprising propylene glycol, sodium laureth sulfate, betaine, and citric acid.
Smith (EP 0278505 B1, 06/17/1992, IDS reference), directed to a composition comprising sodium laureth sulfate, ethoxydiglycol, sodium lauryl sulfate, and citric acid.
Busby (US 2016/0287566 A1, 10/06/2016, IDS reference), directed to a composition comprising nonionic and amphoteric surfactants, propylene glycol, citric acid, and ethoxydiglycol.
Rughani et al. (US 2018/0280270 A1, 10/04/2018, IDS reference); and
Rughani et al. (US 2018/0280267 A1, 10/04/2018), directed to compositions for hair comprising a mono, di, or tricarboxylic acid including citric acid; one or more anionic surfactants including alkyl ether sulfates; amphoteric surfactants including sulfobetaines; and polyhydric alcohols including 3-methyl-1,3-butanediol and diethylene glycol monoethyl ether.
Conclusion
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.
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/LUCY M TIEN/Examiner, Art Unit 1612
/SAHANA S KAUP/Supervisory Primary Examiner, Art Unit 1612
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