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 .
Election/Restrictions
Applicant's election with traverse of group I, claims 19-35 and 38 in the reply filed on 07/07/26 is acknowledged. The traversal is on the ground(s) that there is a special technical feature linking the groups. This is not found persuasive because as noted by Applicant, unity of invention only exists wherein there is a technical relationship among the claimed inventions involving one or more of the same or corresponding special technical features, wherein 'special technical features' are those technical features that define a contribution which each of the inventions, considered as a whole, makes over the prior art.
As discussed in the restriction requirement and more specifically in the 103 rejection below Allard clearly teaches that the claimed components of the claimed hair dye composition(s) were known in the art, additionally, for instance with respect to claim 1 which is the composition which links the groups of inventions this composition is rendered obvious by Allard for instance with example A-7 in view of the broader teachings of the useful ethoxylated fatty alcohols which clearly teach wherein the numbers of EO groups can be from 1-200. Thus, as discussed below it would have been obvious for one of ordinary skill in the art to have optimized the number of EO groups on the fatty alcohol ethoxylate of Allard’s example A-7 in order to achieve the claimed numbers of EO groups on the fatty alcohol ethoxylates because the claimed ethoxylates are already taught by Allard to be useful for forming hair dye compositions with the claimed 6-hydroxybenzomorpholine coupler and the claimed polysaccharides. Thus, clearly the instantly claimed compositions were rendered obvious by the teachings of Allard and as such are not the required special technical feature linking the groups.
Applicant’s arguments as to the species elections are persuasive and the examiner has withdrawn all species elections, and for instance is examining both liquid and solid fatty substances, etc. and alkaline agents and has not limited her search to or focused her search on the specific elected species.
The restriction requirement is still deemed proper and is therefore made FINAL. The election of species requirements are withdrawn.
Claims 36-37 are hereby withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 07/07/26.
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 28-29 is/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 28 recites the composition of claim 19, further comprising at least one polysaccharide chosen from those listed in the claim. However, claim 19 already requires a polysaccharide. It is unclear if applicants actually intend claim 28 to further define the polysaccharide of claim 19 or if the polysaccharide of claim 28 is in addition to the polysaccharide of claim 19 because of the further comprising language? For compact prosecution purposes the examiner is interpreting claim 28 as further defining the polysaccharides which are already required by claim 19.
Claim 29 depends from claim 28 and is also indefinite because it is unclear if “the polysaccharide(s)” are meant to be the polysaccharides required by claim 19 or if they are meant to be the total amount and also include additional polysaccharides which might be added in claim 28 from which claim 29 depends which has been addressed above due to the clarity issues of that claim, thus the scope of what polysaccharides are being referred to as “the polysaccharides” in claim 29 is unclear. For compact prosecution purposes the examiner is interpreting claim 29 as defining the amount of the specific polysaccharides of claim 28, which is being interpreted for compact prosecution purposes as further defining the polysaccharides which are required by claim 19.
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.
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.
Claim(s) 19-35, and 38 is/are rejected under 35 U.S.C. 103 as being unpatentable over Allard et al. (WO2013144260, from IDS).
Determination of the scope and content of the prior art
(MPEP 2141.01)
Regarding claims 19-21, 25-29, Allard teaches compositions comprising applicant’s formula (I) as a coupler in amounts of 0.0001 % to 10% by weight relative to the total weight of the composition and teach wherein these compositions comprise a polyoxyalkylenated fatty alcohols (C8-C40 alcohols) having from 1 to 200 alkyleneoxide groups, preferably EO (OE) groups (which read on the claimed 50 to 300 and the more specific 80-250 EO units instantly claimed), and wherein these alcohols are preferably present in the composition in amounts of from 0.1 to 40 wt% based on the total weight of the composition, and thickener, e.g. xanthan gum and/or guar gum (polysaccharide) and/or cellulose which reads on the claimed polysaccharide in amounts of 0.01 to 20% by weight based on the total weight of the composition (See entire document; pg. 20, ln. 1-20; pg. 21, ln. 28-33; pg. 42, ln. 3-29; pg. 49, ln. 28-pg. 50, ln. 5; pg. 51, ln. 26-pg. 52, ln. 15), and Allard teaches examples, e.g. A-7 for instance which contain polyoxyalkylenated fatty alcohol(s) having lower numbers of EO groups (e.g. 20 EO (OE) groups and 2 EO (OE) groups) in total amounts of 0.2%, the claimed 6-hydroxybenzomorpholine (formula (I)) in amounts 0.033%, cellulose/hydroxyethylcellulose in amounts of 2.5% (See A-7).
Regarding claims 22-24, Allard teaches wherein the composition comprises at least one oxidation base, specifically the claimed p-phenylenediamines, e.g. 2-B-hydroxyethyl-para-phenylenediamine and wherein the total amounts of the oxidation bases ranges from 0.0001% to 20% by weight relative to the total weight of the composition, and specifically in example A-7 they use it in amounts of 1.58% (See entire document; A-7; pg. 37, ln. 1-17).
Regarding claims 30-32, Allard teaches wherein their compositions comprise at least one fatty substance chosen from liquid and/or solid fatty substances, and they specifically teach when the fatty substance is liquid that it is chosen from liquid petroleum jelly and when the fatty substance is solid that it is selected from waxes (e.g. carnauba, paraffin, etc.), and in A-7 Allard uses for instance the exemplified/disclosed liquid petroleum jelly (See A-7; all sections cited above; pg. 5, ln. 26-pg. 16, ln. 8; pg. 15, 14-pg. 16, ln. 8; pg. 6, ln. 22-27; pg. 8, ln. 5-15).
Regarding claims 33-35, Allard teaches wherein their compositions comprise at least one surfactant other than the ethoxylated C8-C40 fatty alcohols comprising the claimed 50 to 300 alkylene oxide groups (specifically Allard teaches from 1-200), which is selected from nonionic and/or anionic and/or amphoteric surfactants, for instance A-7 contains other oxyethylenated (40 OE) hydrogenated castor oil, and also comprise cocoylbetaine which is an amphoteric surfactant, and wherein their composition can further comprise at least one chemical oxidizing agent, and at least one alkaline agent, for instance in A-7 monoethanolamine which is an alkanolamine and/or the elected ammonia, and as chemical oxidizing agents, hydrogen peroxide which is present in corresponding B-7 which is mixed with A-7 to form the dye composition (See A-7; see entire document; pg. 4, ln. 9-27; pg. 16, ln. 10-pg. 22, ln. 14; and additional surfactants discussed pg. 22, ln. 15-pg. 36, ln. 22, inclusive; basifying agents: pg. 45, ln. 7-pg. 48, ln. 24; pg. 48, ln. 26-pg. 49, ln. 11; oxidizing composition B-7; pg. 20, ln. 1-20; pg. 21, ln. 28-33; pg. 42, ln. 3-29; pg. 49, ln. 28-pg. 50, ln. 5; pg. 51, ln. 26-pg. 52, ln. 15).
Regarding claim 38, Allard teaches forming devices, e.g. kits comprising multi-compartments, specifically the claimed first compartment and second compartment, e.g. wherein the first compartment comprises the A composition which comprises the claimed oxidation coupler and the at least one ethoxylated fatty alcohol and at least one polysaccharide, e.g. composition A-7, and as discussed above Allard teaches wherein the ethoxylated fatty alcohol can have the claimed number of alkylene oxide/ethylene oxide groups even if they are not exemplified and wherein the second compartment comprises the oxidizing composition comprising the chemical oxidizing agents, as per B-7, hydrogen peroxide (See entire document; pg. 4, ln. 32-33; pg. 56, ln. 34-pg. 57, ln. 23; pg. 20, ln. 1-20; pg. 21, ln. 28-33; pg. 42, ln. 3-29; pg. 49, ln. 28-pg. 50, ln. 5; pg. 51, ln. 26-pg. 52, ln. 15; A-7, B-7).
Ascertainment of the difference between prior art and the claims
(MPEP 2141.02)/ Finding of prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
As discussed above Allard does not teach an example of the claimed composition specifically Allard does not teach the claimed ethoxylated fatty alcohols having the claimed numbers of EO units in their examples. However, Allard does teach each and every component of the claimed composition and teaches wherein these components are useful for making hair dye compositions. It would have been obvious to one of ordinary skill in the art to have added the claimed component (ii) and/or substituted the claimed component (ii) having the claimed number of ethylene oxide groups into Allard’s A-7 in order to form the claimed composition(s) because these numbers of groups are clearly taught to be useful for forming the claimed compositions as per Allard for the ethoxylated fatty alcohol having lower numbers of ethylene oxide units in order to form the claimed composition because as is taught by Allard each and every component claimed was known in the art to be useful for forming hair dye compositions in the amounts which are instantly claimed and it is known, “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.” In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980). It also would have been obvious for one of ordinary skill in the art to optimize the number of EO groups in the ethoxylated fatty alcohol in order to form the most effective ethoxylated fatty alcohol surfactant for use in the hair dye composition and which would help the dye to better disperse in the formulation and therefore on the hair when applied to the hair, thereby leading to more uniform hair coloring. “[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.” In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Thus, it would be obvious to combine the claimed components in the claimed amounts together because Allard clearly teaches each and every component is known to be useful in the claimed amounts for forming hair dye compositions and it would be obvious to optimize the concentrations/amounts of these agents because Allard teaches using the same and/or overlapping amounts of these agents in hair dye compositions and it is known, “[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.” In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
It also would have been obvious to form the claimed kit because it was already known to separate the claimed first compartment components from the claimed second compartment components as is taught by Allard. It would have been obvious to add the claimed (ii) to formulation A-7 in the first compartment and/or substitute the claimed (ii) for the ethoxylated fatty alcohol having a lower number of EO groups because as discussed above Allard teaches that the claimed ethoxylated fatty alcohols having the claimed numbers of EO units are useful in dye compositions in the claimed amounts. It also would have been obvious for one of ordinary skill in the art to optimize the number of EO groups in the ethoxylated fatty alcohol in order to form the most effective ethoxylated fatty alcohol surfactant for use in the hair dye composition and which helps the dye to be dispersed in the dye composition and therefore on the hair leading to more uniform application of the dye molecules/coloring of the hair. “[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.” In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
It also would have been obvious to add and/or substitute the claimed solid fatty substance, e.g. waxes into the composition A-7 of Allard in order to form the claimed composition(s) for dyeing hair because these solid fatty substances are also taught by Allard to be useful in hair dye compositions and would help the hair dye to physically stay on the hair when applied.
In light of the forgoing discussion, the Examiner concludes that the subject matter defined by the above claims would have been obvious to one of ordinary skill in the art within the meaning of 35 USC 103(a).
From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made, as evidenced by the references, especially in the absence of evidence to the contrary.
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 19-35, and 38 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 19-36, and 38 of copending Application No. 18268088 (‘088) in view of Allard (cited above). ‘088 teaches dye compositions which comprise the claimed and elected phenylenediamine oxidation bases in the same amounts which are instantly claimed and oxidation couplers in the claimed amount, and fatty substance both liquid and/or solid, and additional surfactants, and the same alkaline agents and the same chemical oxidation agents and kits comprising the same two compartments. ‘088 does not claim wherein the coupler comprises the claimed coupler or wherein the surfactant is the claimed ethoxylated fatty alcohol or the claimed polysaccharide. These deficiencies in ‘088 are addressed by Allard.
Regarding claims 19-21, 25-29, Allard teaches compositions comprising applicant’s formula (I) as a coupler in amounts of 0.0001 % to 10% by weight relative to the total weight of the composition and teach wherein these compositions comprise a polyoxyalkylenated fatty alcohols (C8-C40 alcohols) having from 1 to 200 EO groups which are preferably present in the composition in amounts of from 0.1 to 40 wt% based on the total weight of the composition, and thickener, e.g. xanthan gum and/or guar gum (polysaccharide) and/or cellulose which reads on the claimed polysaccharide in amounts of 0.01 to 20% by weight based on the total weight of the composition (See entire document; pg. 20, ln. 1-20; pg. 21, ln. 28-33; pg. 42, ln. 3-29; pg. 49, ln. 28-pg. 50, ln. 5; pg. 51, ln. 26-pg. 52, ln. 15), and Allard teaches examples, e.g. A-7 for instance which contain polyoxyalkylenated fatty alcohol(s) having lower numbers of EO groups (e.g. 20 EO (OE) groups and 2 EO (OE) groups) in total amounts of 0.2%, the claimed 6-hydroxybenzomorpholine (formula (I)) in amounts 0.033%, cellulose/hydroxyethylcellulose in amounts of 2.5% (See A-7).
Regarding claims 22-24, Allard teaches wherein the composition comprises at least one oxidation base, specifically the claimed p-phenylenediamines, e.g. 2-B-hydroxyethyl-para-phenylenediamine and wherein the total amounts of the oxidation bases ranges from 0.0001% to 20% by weight relative to the total weight of the composition, and specifically in example A-7 they use it in amounts of 1.58% (See entire document; A-7; pg. 37, ln. 1-17).
Regarding claims 30-32, Allard teaches wherein their compositions comprise at least one fatty substance chosen from liquid and/or solid fatty substances, and they specifically teach when the fatty substance is liquid that it is chosen from liquid petroleum jelly and when the fatty substance is solid that it is selected from waxes (e.g. carnauba, paraffin, etc.), and in A-7 Allard uses for instance the exemplified/disclosed liquid petroleum jelly (See A-7; all sections cited above; pg. 5, ln. 26-pg. 16, ln. 8; pg. 15, 14-pg. 16, ln. 8; pg. 6, ln. 22-27; pg. 8, ln. 5-15).
Regarding claims 33-35, Allard teaches wherein their compositions comprise at least one surfactant other than the ethoxylated C8-C40 fatty alcohols comprising the claimed 50 to 300 alkylene oxide groups selected from nonionic and/or anionic and/or amphoteric surfactants, for instance A-7 contains other oxyethylenated (40 OE) hydrogenated castor oil, and also comprise cocoylbetaine which is an amphoteric surfactant, and wherein their composition can further comprise at least one chemical oxidizing agent, and at least one alkaline agent, for instance in A-7 monoethanolamine which is an alkanolamine, and as chemical oxidizing agents, hydrogen peroxide which is present in corresponding B-7 which is mixed with A-7 to form the dye composition(See A-7; see entire document; pg. 4, ln. 9-27; pg. 16, ln. 10-pg. 22, ln. 14; and additional surfactants discussed pg. 22, ln. 15-pg. 36, ln. 22, inclusive; basifying agents: pg. 45, ln. 7-pg. 48, ln. 24; pg. 48, ln. 26-pg. 49, ln. 11; oxidizing composition B-7).
Regarding claim 38, Allard teaches forming devices, e.g. kits comprising multi-compartments, specifically the claimed first compartment and second compartment, e.g. wherein the first compartment comprises the A composition which comprises the claimed oxidation coupler and the at least one ethoxylated fatty alcohol and at least one polysaccharide, e.g. composition A-7, and as discussed above Allard teaches wherein the ethoxylated fatty alcohol can have the claimed number of alkylene oxide/ethylene oxide groups even if they are not exemplified and wherein the second compartment comprises the oxidizing composition comprising the chemical oxidizing agents, as per B-7, hydrogen peroxide (See entire document; pg. 4, ln. 32-33; pg. 56, ln. 34-pg. 57, ln. 23; pg. 20, ln. 1-20; pg. 21, ln. 28-33; pg. 42, ln. 3-29; pg. 49, ln. 28-pg. 50, ln. 5; pg. 51, ln. 26-pg. 52, ln. 15; A-7, B-7).
As discussed above ‘088 and Allard do not teach an example of the claimed composition. However, Allard does teach each and every component of the claimed composition and teaches wherein these components are useful for making hair dye compositions. It would have been obvious to one of ordinary skill in the art to have added the polysaccharide and the claimed component (ii) and/or substituted the claimed component (ii) having the claimed number of ethylene oxide groups into ‘088’s composition in order to form the claimed composition(s) because these numbers of groups are clearly taught to be useful for forming the claimed compositions as per Allard for the ethoxylated fatty alcohol having lower numbers of ethylene oxide units in order to form the claimed composition because as is taught by Allard each and every component claimed was known in the art to be useful for forming hair dye compositions in the amounts which are instantly claimed and it is known, “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.” In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980). It also would have been obvious for one of ordinary skill in the art to optimize the number of EO groups in the ethoxylated fatty alcohol in order to form the most effective ethoxylated fatty alcohol surfactant for use in the hair dye composition and which would help the dye to better disperse in the formulation and therefore on the hair when applied to the hair, thereby leading to more uniform hair coloring. “[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.” In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Thus, it would be obvious to combine the claimed components in the claimed amounts together because ‘088 and Allard clearly teach each and every component is known to be useful in the claimed amounts for forming hair dye compositions and it would be obvious to optimize the concentrations/amounts of these agents because together ‘088 and Allard teaches using the same and/or overlapping amounts of these agents in hair dye compositions and it is known, “[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.” In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
It also would have been obvious to form the claimed kit because it was already known to separate the claimed first compartment components from the claimed second compartment components as is taught by ‘088 and Allard. It would have been obvious to add the claimed (ii) and the claimed 6-hydroxybenzomorpholine to formulations of ‘088 and Allard in the first compartment because as discussed above Allard teaches that the claimed ethoxylated fatty alcohols having the claimed numbers of EO units are useful in dye compositions in the claimed amounts. It also would have been obvious for one of ordinary skill in the art to optimize the number of EO groups in the ethoxylated fatty alcohol in order to form the most effective ethoxylated fatty alcohol surfactant for use in the hair dye composition and which would help the dye to better disperse in the formulation and therefore on the hair when applied to the hair, thereby leading to more uniform hair coloring. “[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.” In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
It also would have been obvious to add and/or substitute the claimed solid fatty substance, e.g. waxes into the composition taught by ‘088 and Allard in order to form the claimed composition(s) for dyeing hair because these fatty substances are taught by Allard to be useful in hair dye compositions and would help the hair dye to adhere to the hair upon application.
Thus, one of ordinary skill in the art would conclude that the instantly claimed composition is an obvious variant of the composition taught by ‘088 in view of Allard.
This is a provisional nonstatutory double patenting rejection.
Claims 19-35, and 38 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 19-36, and 38 of copending Application No. 18266729 in view of Allard (cited above) for similar/same reasons detailed above with respect to ‘088 in view of Allard.
This is a provisional nonstatutory double patenting rejection.
Claims 19-35, and 38 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 21-36, 40 of copending Application No. 18717308 in view of Allard (cited above) for similar/same reasons detailed above with respect to ‘088 in view of Allard.
Claims 19-35, and 38 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 20-36, and 39 of copending Application No. 18704686 in view of Allard (cited above) for similar/same reasons detailed above with respect to ‘088 in view of Allard.
This is a provisional nonstatutory double patenting rejection.
Claims 19-35, and 38 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 17-28, and 36 of copending Application No. 18704688 in view of Allard (cited above). ‘688 teaches dye compositions which comprise the claimed and elected phenylenediamine oxidation bases in the same amounts which are instantly claimed and the same oxidation couplers in the claimed amount, and fatty substance both liquid and/or solid, and additional surfactants, and the same alkaline agents and the same chemical oxidation agents and kits comprising the same two compartments, etc. ‘088 does not claim wherein the surfactant is the claimed ethoxylated fatty alcohol, or wherein the compositions comprise the claimed cellulose, etc. These deficiencies in ‘688 are addressed by Allard.
Regarding claims 19-21, 25-29, Allard teaches compositions comprising applicant’s formula (I) as a coupler in amounts of 0.0001 % to 10% by weight relative to the total weight of the composition and teach wherein these compositions comprise a polyoxyalkylenated fatty alcohols (C8-C40 alcohols) having from 1 to 200 EO groups which are preferably present in the composition in amounts of from 0.1 to 40 wt% based on the total weight of the composition, and thickener, e.g. xanthan gum and/or guar gum (polysaccharide) and/or cellulose which reads on the claimed polysaccharide in amounts of 0.01 to 20% by weight based on the total weight of the composition (See entire document; pg. 20, ln. 1-20; pg. 21, ln. 28-33; pg. 42, ln. 3-29; pg. 49, ln. 28-pg. 50, ln. 5; pg. 51, ln. 26-pg. 52, ln. 15), and Allard teaches examples, e.g. A-7 for instance which contain polyoxyalkylenated fatty alcohol(s) having lower numbers of EO groups (e.g. 20 EO (OE) groups and 2 EO (OE) groups) in total amounts of 0.2%, the claimed 6-hydroxybenzomorpholine (formula (I)) in amounts 0.033%, cellulose/hydroxyethylcellulose in amounts of 2.5% (See A-7).
Regarding claims 22-24, Allard teaches wherein the composition comprises at least one oxidation base, specifically the claimed p-phenylenediamines, e.g. 2-B-hydroxyethyl-para-phenylenediamine and wherein the total amounts of the oxidation bases ranges from 0.0001% to 20% by weight relative to the total weight of the composition, and specifically in example A-7 they use it in amounts of 1.58% (See entire document; A-7; pg. 37, ln. 1-17).
Regarding claims 30-32, Allard teaches wherein their compositions comprise at least one fatty substance chosen from liquid and/or solid fatty substances, and they specifically teach when the fatty substance is liquid that it is chosen from liquid petroleum jelly and when the fatty substance is solid that it is selected from waxes (e.g. carnauba, paraffin, etc.), and in A-7 Allard uses for instance the exemplified/disclosed liquid petroleum jelly (See A-7; all sections cited above; pg. 5, ln. 26-pg. 16, ln. 8; pg. 15, 14-pg. 16, ln. 8; pg. 6, ln. 22-27; pg. 8, ln. 5-15).
Regarding claims 33-35, Allard teaches wherein their compositions comprise at least one surfactant other than the ethoxylated C8-C40 fatty alcohols comprising the claimed 50 to 300 alkylene oxide groups selected from nonionic and/or anionic and/or amphoteric surfactants, for instance A-7 contains other oxyethylenated (40 OE) hydrogenated castor oil, and also comprise cocoylbetaine which is an amphoteric surfactant, and wherein their composition can further comprise at least one chemical oxidizing agent, and at least one alkaline agent, for instance in A-7 monoethanolamine which is an alkanolamine, and as chemical oxidizing agents, hydrogen peroxide which is present in corresponding B-7 which is mixed with A-7 to form the dye composition(See A-7; see entire document; pg. 4, ln. 9-27; pg. 16, ln. 10-pg. 22, ln. 14; and additional surfactants discussed pg. 22, ln. 15-pg. 36, ln. 22, inclusive; basifying agents: pg. 45, ln. 7-pg. 48, ln. 24; pg. 48, ln. 26-pg. 49, ln. 11; oxidizing composition B-7).
Regarding claim 38, Allard teaches forming devices, e.g. kits comprising multi-compartments, specifically the claimed first compartment and second compartment, e.g. wherein the first compartment comprises the A composition which comprises the claimed oxidation coupler and the at least one ethoxylated fatty alcohol and at least one polysaccharide, e.g. composition A-7, and as discussed above Allard teaches wherein the ethoxylated fatty alcohol can have the claimed number of alkylene oxide/ethylene oxide groups even if they are not exemplified and wherein the second compartment comprises the oxidizing composition comprising the chemical oxidizing agents, as per B-7, hydrogen peroxide (See entire document; pg. 4, ln. 32-33; pg. 56, ln. 34-pg. 57, ln. 23; pg. 20, ln. 1-20; pg. 21, ln. 28-33; pg. 42, ln. 3-29; pg. 49, ln. 28-pg. 50, ln. 5; pg. 51, ln. 26-pg. 52, ln. 15; A-7, B-7).
As discussed above ‘688 and Allard do not teach an example of the claimed composition. However, Allard does teach each and every component of the claimed composition and teaches wherein these components are useful for making hair dye compositions. It would have been obvious to one of ordinary skill in the art to have added the claimed component (ii) and/or substituted the claimed component (ii) having the claimed number of ethylene oxide groups into ‘688’s composition in order to form the claimed composition(s) because these numbers of groups are clearly taught to be useful for forming the claimed compositions as per Allard for the ethoxylated fatty alcohol having lower numbers of ethylene oxide units in order to form the claimed composition because as is taught by Allard each and every component claimed was known in the art to be useful for forming hair dye compositions in the amounts which are instantly claimed and it is known, “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.” In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980). It also would have been obvious for one of ordinary skill in the art to optimize the number of EO groups in the ethoxylated fatty alcohol in order to form the most effective ethoxylated fatty alcohol surfactant for use in the hair dye composition and which would help the dye to better disperse in the formulation and therefore on the hair when applied to the hair, thereby leading to more uniform hair coloring. “[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.” In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Thus, it would be obvious to combine the claimed components in the claimed amounts together because together ‘688 and Allard clearly teaches that each and every claimed component is known to be useful in the claimed amounts for forming hair dye compositions and it is obvious to optimize the amounts of the components to the specifically claimed ranges because “[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.” In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
It also would have been obvious to form the claimed kit because it was already known to separate the claimed first compartment components from the claimed second compartment components as is taught by ‘688 and Allard. It would have been obvious to add/select the claimed (ii) and the claimed 6-hydroxybenzomorpholine to form the claimed formulations when looking to ‘688 and Allard in the first compartment because as discussed above Allard teaches that the claimed ethoxylated fatty alcohols having the claimed numbers of EO units are useful in dye compositions in the claimed amounts. It also would have been obvious for one of ordinary skill in the art to optimize the number of EO groups in the ethoxylated fatty alcohol in order to form the most effective ethoxylated fatty alcohol surfactant for use in the hair dye composition and which would help the dye to better disperse in the formulation and therefore on the hair when applied to the hair, thereby leading to more uniform hair coloring. “[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.” In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
It also would have been obvious to add and/or substitute the claimed solid fatty substance, e.g. waxes into the composition taught by ‘688 and Allard in order to form the claimed composition(s) for dyeing hair because these fatty substances are taught by Allard to be useful in hair dye compositions and would help the hair dye to adhere to the hair upon application.
Claims 19-35, and 38 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 17-28, and 36 of copending Application No. 18717326 in view of Allard (cited above) for the same/similar reasons as discussed above with respect to ‘688.
Claims 19-35, and 38 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 21-26, 28-36, and 39 of copending Application No. 18717318 in view of Allard (cited above). ‘318 teaches dye compositions which comprise the claimed and elected phenylenediamine oxidation bases in the same amounts which are instantly claimed and the same oxidation couplers in the claimed amount, and fatty substance both liquid and/or solid, and additional surfactants, and the same alkaline agents and the same chemical oxidation agents and kits comprising the same two compartments, etc. ‘318 does not claim wherein the surfactant is the claimed ethoxylated fatty alcohol. These deficiencies in ‘318 are addressed by Allard.
Regarding claims 19-21, 25-29, Allard teaches compositions comprising applicant’s formula (I) as a coupler in amounts of 0.0001 % to 10% by weight relative to the total weight of the composition and teach wherein these compositions comprise a polyoxyalkylenated fatty alcohols (C8-C40 alcohols) having from 1 to 200 EO groups which are preferably present in the composition in amounts of from 0.1 to 40 wt% based on the total weight of the composition, and thickener, e.g. xanthan gum and/or guar gum (polysaccharide) and/or cellulose which reads on the claimed polysaccharide in amounts of 0.01 to 20% by weight based on the total weight of the composition (See entire document; pg. 20, ln. 1-20; pg. 21, ln. 28-33; pg. 42, ln. 3-29; pg. 49, ln. 28-pg. 50, ln. 5; pg. 51, ln. 26-pg. 52, ln. 15), and Allard teaches examples, e.g. A-7 for instance which contain polyoxyalkylenated fatty alcohol(s) having lower numbers of EO groups (e.g. 20 EO (OE) groups and 2 EO (OE) groups) in total amounts of 0.2%, the claimed 6-hydroxybenzomorpholine (formula (I)) in amounts 0.033%, cellulose/hydroxyethylcellulose in amounts of 2.5% (See A-7).
Regarding claims 22-24, Allard teaches wherein the composition comprises at least one oxidation base, specifically the claimed p-phenylenediamines, e.g. 2-B-hydroxyethyl-para-phenylenediamine and wherein the total amounts of the oxidation bases ranges from 0.0001% to 20% by weight relative to the total weight of the composition, and specifically in example A-7 they use it in amounts of 1.58% (See entire document; A-7; pg. 37, ln. 1-17).
Regarding claims 30-32, Allard teaches wherein their compositions comprise at least one fatty substance chosen from liquid and/or solid fatty substances, and they specifically teach when the fatty substance is liquid that it is chosen from liquid petroleum jelly and when the fatty substance is solid that it is selected from waxes (e.g. carnauba, paraffin, etc.), and in A-7 Allard uses for instance the exemplified/disclosed liquid petroleum jelly (See A-7; all sections cited above; pg. 5, ln. 26-pg. 16, ln. 8; pg. 15, 14-pg. 16, ln. 8; pg. 6, ln. 22-27; pg. 8, ln. 5-15).
Regarding claims 33-35, Allard teaches wherein their compositions comprise at least one surfactant other than the ethoxylated C8-C40 fatty alcohols comprising the claimed 50 to 300 alkylene oxide groups selected from nonionic and/or anionic and/or amphoteric surfactants, for instance A-7 contains other oxyethylenated (40 OE) hydrogenated castor oil, and also comprise cocoylbetaine which is an amphoteric surfactant, and wherein their composition can further comprise at least one chemical oxidizing agent, and at least one alkaline agent, for instance in A-7 monoethanolamine which is an alkanolamine, and as chemical oxidizing agents, hydrogen peroxide which is present in corresponding B-7 which is mixed with A-7 to form the dye composition(See A-7; see entire document; pg. 4, ln. 9-27; pg. 16, ln. 10-pg. 22, ln. 14; and additional surfactants discussed pg. 22, ln. 15-pg. 36, ln. 22, inclusive; basifying agents: pg. 45, ln. 7-pg. 48, ln. 24; pg. 48, ln. 26-pg. 49, ln. 11; oxidizing composition B-7).
Regarding claim 38, Allard teaches forming devices, e.g. kits comprising multi-compartments, specifically the claimed first compartment and second compartment, e.g. wherein the first compartment comprises the A composition which comprises the claimed oxidation coupler and the at least one ethoxylated fatty alcohol and at least one polysaccharide, e.g. composition A-7, and as discussed above Allard teaches wherein the ethoxylated fatty alcohol can have the claimed number of alkylene oxide/ethylene oxide groups even if they are not exemplified and wherein the second compartment comprises the oxidizing composition comprising the chemical oxidizing agents, as per B-7, hydrogen peroxide (See entire document; pg. 4, ln. 32-33; pg. 56, ln. 34-pg. 57, ln. 23; pg. 20, ln. 1-20; pg. 21, ln. 28-33; pg. 42, ln. 3-29; pg. 49, ln. 28-pg. 50, ln. 5; pg. 51, ln. 26-pg. 52, ln. 15; A-7, B-7).
As discussed above ‘318 and Allard do not teach an example of the claimed composition. However, Allard does teach each and every component of the claimed composition and teaches wherein these components are useful for making hair dye compositions. It would have been obvious to one of ordinary skill in the art to have added the claimed component (ii) and/or substituted the claimed component (ii) having the claimed number of ethylene oxide groups into ‘318’s composition in order to form the claimed composition(s) because these numbers of groups are clearly taught to be useful for forming the claimed compositions because as is taught by Allard each and every component claimed was known in the art to be useful for forming hair dye compositions in the amounts which are instantly claimed and it is known, “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.” In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980). It also would have been obvious for one of ordinary skill in the art to optimize the number of EO groups in the ethoxylated fatty alcohol in order to form the most effective ethoxylated fatty alcohol surfactant for use in the hair dye composition and which would help the dye to better disperse in the formulation and therefore on the hair when applied to the hair, thereby leading to more uniform hair coloring. “[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.” In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Thus, it would be obvious to combine the claimed components in the claimed amounts together because together ‘318 and Allard clearly teaches that each and every claimed component is known to be useful in the claimed amounts for forming hair dye compositions and it is obvious to optimize the amounts of the components to the specifically claimed ranges because “[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.” In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
It also would have been obvious to form the claimed kit because it was already known to separate the claimed first compartment components from the claimed second compartment components as is taught by ‘318 and Allard. It would have been obvious to add/select the claimed (ii) and the claimed 6-hydroxybenzomorpholine to form the claimed formulations when looking to ‘318 and Allard in the first compartment because as discussed above Allard teaches that the claimed ethoxylated fatty alcohols having the claimed numbers of EO units are useful in dye compositions in the claimed amounts. It also would have been obvious for one of ordinary skill in the art to optimize the number of EO groups in the ethoxylated fatty alcohol in order to form the most effective ethoxylated fatty alcohol surfactant for use in the hair dye composition and which helps the dye to be dispersed in the dye composition and therefore on the hair leading to more uniform application of the dye molecules/coloring of the hair. “[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.” In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
It also would have been obvious to add and/or substitute the claimed solid fatty substance, e.g. waxes into the composition taught by ‘318 and Allard in order to form the claimed composition(s) for dyeing hair because these fatty substances are taught by Allard to be useful in hair dye compositions and would help the hair dye to adhere to the hair upon application.
Claims 19-35, and 38 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 21-36, and 39 of copending Application No. 18717321 (‘321) in view of Allard (cited above). ‘321 teaches compositions comprising the claimed coupler, polysaccharides, oxidation bases, additional surfactants, specifically phosphoric surfactants, alkaline agents, chemical oxidizing agents, fatty substances, both solid and/or liquid fatty substances, etc. which are instantly claimed. ‘321 does not teach wherein the composition comprises the claimed ethoxylated fatty alcohol in the claimed amounts nor does it necessarily claim the claimed amounts of the other components which are taught by Allard.
Regarding claims 19-21, 25-29, Allard teaches compositions comprising applicant’s formula (I) as a coupler in amounts of 0.0001 % to 10% by weight relative to the total weight of the composition and teach wherein these compositions comprise a polyoxyalkylenated fatty alcohols (C8-C40 alcohols) having from 1 to 200 EO groups which are preferably present in the composition in amounts of from 0.1 to 40 wt% based on the total weight of the composition, and thickener, e.g. xanthan gum and/or guar gum (polysaccharide) and/or cellulose which reads on the claimed polysaccharide in amounts of 0.01 to 20% by weight based on the total weight of the composition (See entire document; pg. 20, ln. 1-20; pg. 21, ln. 28-33; pg. 42, ln. 3-29; pg. 49, ln. 28-pg. 50, ln. 5; pg. 51, ln. 26-pg. 52, ln. 15), and Allard teaches examples, e.g. A-7 for instance which contain polyoxyalkylenated fatty alcohol(s) having lower numbers of EO groups (e.g. 20 EO (OE) groups and 2 EO (OE) groups) in total amounts of 0.2%, the claimed 6-hydroxybenzomorpholine (formula (I)) in amounts 0.033%, cellulose/hydroxyethylcellulose in amounts of 2.5% (See A-7).
Regarding claims 22-24, Allard teaches wherein the composition comprises at least one oxidation base, specifically the claimed p-phenylenediamines, e.g. 2-B-hydroxyethyl-para-phenylenediamine and wherein the total amounts of the oxidation bases ranges from 0.0001% to 20% by weight relative to the total weight of the composition, and specifically in example A-7 they use it in amounts of 1.58% (See entire document; A-7; pg. 37, ln. 1-17).
Regarding claims 30-32, Allard teaches wherein their compositions comprise at least one fatty substance chosen from liquid and/or solid fatty substances, and they specifically teach when the fatty substance is liquid that it is chosen from liquid petroleum jelly and when the fatty substance is solid that it is selected from waxes (e.g. carnauba, paraffin, etc.), and in A-7 Allard uses for instance the exemplified/disclosed liquid petroleum jelly (See A-7; all sections cited above; pg. 5, ln. 26-pg. 16, ln. 8; pg. 15, 14-pg. 16, ln. 8; pg. 6, ln. 22-27; pg. 8, ln. 5-15).
Regarding claims 33-35, Allard teaches wherein their compositions comprise at least one surfactant other than the ethoxylated C8-C40 fatty alcohols comprising the claimed 50 to 300 alkylene oxide groups selected from nonionic and/or anionic and/or amphoteric surfactants, for instance A-7 contains other oxyethylenated (40 OE) hydrogenated castor oil, and also comprise cocoylbetaine which is an amphoteric surfactant, and wherein their composition can further comprise at least one chemical oxidizing agent, and at least one alkaline agent, for instance in A-7 monoethanolamine which is an alkanolamine, and as chemical oxidizing agents, hydrogen peroxide which is present in corresponding B-7 which is mixed with A-7 to form the dye composition(See A-7; see entire document; pg. 4, ln. 9-27; pg. 16, ln. 10-pg. 22, ln. 14; and additional surfactants discussed pg. 22, ln. 15-pg. 36, ln. 22, inclusive; basifying agents: pg. 45, ln. 7-pg. 48, ln. 24; pg. 48, ln. 26-pg. 49, ln. 11; oxidizing composition B-7).
Regarding claim 38, Allard teaches forming devices, e.g. kits comprising multi-compartments, specifically the claimed first compartment and second compartment, e.g. wherein the first compartment comprises the A composition which comprises the claimed oxidation coupler and the at least one ethoxylated fatty alcohol and at least one polysaccharide, e.g. composition A-7, and as discussed above Allard teaches wherein the ethoxylated fatty alcohol can have the claimed number of alkylene oxide/ethylene oxide groups even if they are not exemplified and wherein the second compartment comprises the oxidizing composition comprising the chemical oxidizing agents, as per B-7, hydrogen peroxide (See entire document; pg. 4, ln. 32-33; pg. 56, ln. 34-pg. 57, ln. 23; pg. 20, ln. 1-20; pg. 21, ln. 28-33; pg. 42, ln. 3-29; pg. 49, ln. 28-pg. 50, ln. 5; pg. 51, ln. 26-pg. 52, ln. 15; A-7, B-7).
It would have been obvious to form the claimed compositions comprising the claimed amounts when looking to copending ‘321 and Allard because the claimed amounts of the claimed components which are taught by ‘321 were known to be effective for forming hair dye compositions as is taught by Allard and because Allard clearly teaches that each and every claimed component is known to be useful in the claimed amounts for forming hair dye compositions and it is obvious to optimize the amounts of the components to the specifically claimed ranges because “[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.” In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
As discussed above ‘321 and Allard do not teach an example of the claimed composition. However, Allard does teach each and every component of the claimed composition and teaches wherein these components are useful for making hair dye compositions. It would have been obvious to one of ordinary skill in the art to have added the claimed component (ii) and/or substituted the claimed component (ii) having the claimed number of ethylene oxide groups into ‘321’s composition along with the claimed amounts of the other components taught by ‘321 which are also taught by Allard in order to form the claimed composition(s) because these numbers of EO groups are clearly taught to be useful for forming the claimed compositions because as is taught by ‘321 and Allard each and every component claimed was known in the art to be useful for forming hair dye compositions in the amounts which are instantly claimed and it is known, “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.” In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980). It also would have been obvious for one of ordinary skill in the art to optimize the number of EO groups in the ethoxylated fatty alcohol in order to form the most effective ethoxylated fatty alcohol surfactant for use in the hair dye composition and which would help the dye to better disperse in the formulation and therefore on the hair when applied to the hair, thereby leading to more uniform hair coloring. “[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.” In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Thus, it would be obvious to combine the claimed components in the claimed amounts together because together ‘321 and Allard clearly teaches that each and every claimed component is known to be useful in the claimed amounts for forming hair dye compositions and it is obvious to optimize the amounts of the components to the specifically claimed ranges because “[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.” In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
It also would have been obvious to form the claimed kit because it was already known to separate the claimed first compartment components from the claimed second compartment components as is taught by ‘321 and Allard. It would have been obvious to add/select the claimed (ii) and the claimed 6-hydroxybenzomorpholine to form the claimed formulations when looking to ‘318 and Allard in the first compartment because as discussed above Allard teaches that the claimed ethoxylated fatty alcohols having the claimed numbers of EO units are useful in dye compositions in the claimed amounts. It also would have been obvious for one of ordinary skill in the art to optimize the number of EO groups in the ethoxylated fatty alcohol in order to form the most effective ethoxylated fatty alcohol surfactant for use in the hair dye composition and which helps the dye to be dispersed in the dye composition and therefore on the hair leading to more uniform application of the dye molecules/coloring of the hair. “[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.” In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
It also would have been obvious to add and/or substitute the claimed solid fatty substance, e.g. waxes into the composition taught by ‘321 and Allard in order to form the claimed composition(s) for dyeing hair because these fatty substances are taught by Allard to be useful in hair dye compositions and would help the hair dye to adhere to the hair upon application.
Claims 19-35, and 38 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 24-41, and 43 of copending Application No. 18574814 (‘814) in view of Allard (cited above). ‘814 teaches dye compositions comprising the claimed coupler, alkaline agents, fatty substances, in the claimed amounts and wherein the composition can comprise surfactants, oxidizing agents, thickeners. ‘814 does not teach wherein the surfactant includes the claimed ethoxylated fatty alcohols or other components in the claimed amounts or wherein the fatty substances, etc are liquid and/or solid or wherein the polysaccharide are the claimed components in the claimed amounts. However, these deficiencies are addressed by Allard.
Regarding claims 19-21, 25-29, Allard teaches compositions comprising applicant’s formula (I) as a coupler in amounts of 0.0001 % to 10% by weight relative to the total weight of the composition and teach wherein these compositions comprise a polyoxyalkylenated fatty alcohols (C8-C40 alcohols) having from 1 to 200 EO groups which are preferably present in the composition in amounts of from 0.1 to 40 wt% based on the total weight of the composition, and thickener, e.g. xanthan gum and/or guar gum (polysaccharide) and/or cellulose which reads on the claimed polysaccharide in amounts of 0.01 to 20% by weight based on the total weight of the composition (See entire document; pg. 20, ln. 1-20; pg. 21, ln. 28-33; pg. 42, ln. 3-29; pg. 49, ln. 28-pg. 50, ln. 5; pg. 51, ln. 26-pg. 52, ln. 15), and Allard teaches examples, e.g. A-7 for instance which contain polyoxyalkylenated fatty alcohol(s) having lower numbers of EO groups (e.g. 20 EO (OE) groups and 2 EO (OE) groups) in total amounts of 0.2%, the claimed 6-hydroxybenzomorpholine (formula (I)) in amounts 0.033%, cellulose/hydroxyethylcellulose in amounts of 2.5% (See A-7).
Regarding claims 22-24, Allard teaches wherein the composition comprises at least one oxidation base, specifically the claimed p-phenylenediamines, e.g. 2-B-hydroxyethyl-para-phenylenediamine and wherein the total amounts of the oxidation bases ranges from 0.0001% to 20% by weight relative to the total weight of the composition, and specifically in example A-7 they use it in amounts of 1.58% (See entire document; A-7; pg. 37, ln. 1-17).
Regarding claims 30-32, Allard teaches wherein their compositions comprise at least one fatty substance chosen from liquid and/or solid fatty substances, and they specifically teach when the fatty substance is liquid that it is chosen from liquid petroleum jelly and when the fatty substance is solid that it is selected from waxes (e.g. carnauba, paraffin, etc.), and in A-7 Allard uses for instance the exemplified/disclosed liquid petroleum jelly (See A-7; all sections cited above; pg. 5, ln. 26-pg. 16, ln. 8; pg. 15, 14-pg. 16, ln. 8; pg. 6, ln. 22-27; pg. 8, ln. 5-15).
Regarding claims 33-35, Allard teaches wherein their compositions comprise at least one surfactant other than the ethoxylated C8-C40 fatty alcohols comprising the claimed 50 to 300 alkylene oxide groups selected from nonionic and/or anionic and/or amphoteric surfactants, for instance A-7 contains other oxyethylenated (40 OE) hydrogenated castor oil, and also comprise cocoylbetaine which is an amphoteric surfactant, and wherein their composition can further comprise at least one chemical oxidizing agent, and at least one alkaline agent, for instance in A-7 monoethanolamine which is an alkanolamine, and as chemical oxidizing agents, hydrogen peroxide which is present in corresponding B-7 which is mixed with A-7 to form the dye composition(See A-7; see entire document; pg. 4, ln. 9-27; pg. 16, ln. 10-pg. 22, ln. 14; and additional surfactants discussed pg. 22, ln. 15-pg. 36, ln. 22, inclusive; basifying agents: pg. 45, ln. 7-pg. 48, ln. 24; pg. 48, ln. 26-pg. 49, ln. 11; oxidizing composition B-7).
Regarding claim 38, Allard teaches forming devices, e.g. kits comprising multi-compartments, specifically the claimed first compartment and second compartment, e.g. wherein the first compartment comprises the A composition which comprises the claimed oxidation coupler and the at least one ethoxylated fatty alcohol and at least one polysaccharide, e.g. composition A-7, and as discussed above Allard teaches wherein the ethoxylated fatty alcohol can have the claimed number of alkylene oxide/ethylene oxide groups even if they are not exemplified and wherein the second compartment comprises the oxidizing composition comprising the chemical oxidizing agents, as per B-7, hydrogen peroxide (See entire document; pg. 4, ln. 32-33; pg. 56, ln. 34-pg. 57, ln. 23; pg. 20, ln. 1-20; pg. 21, ln. 28-33; pg. 42, ln. 3-29; pg. 49, ln. 28-pg. 50, ln. 5; pg. 51, ln. 26-pg. 52, ln. 15; A-7, B-7).
It would have been obvious to form the claimed compositions comprising the claimed amounts when looking to copending ‘814 and Allard because the claimed amounts of the claimed components which are taught by ‘814 were known to be effective for forming hair dye compositions as is taught by Allard and because Allard clearly teaches that each and every claimed component is known to be useful in the claimed amounts for forming hair dye compositions and it is obvious to optimize the amounts of the components to the specifically claimed ranges because “[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.” In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
As discussed above ‘814 and Allard do not teach an example of the claimed composition. However, Allard does teach each and every component of the claimed composition and teaches wherein these components are useful for making hair dye compositions. It would have been obvious to one of ordinary skill in the art to have added the claimed component (ii) and/or substituted the claimed component (ii) having the claimed number of ethylene oxide groups into ‘814’s composition along with the claimed amounts of the other components taught by ‘814 which are also taught by Allard in order to form the claimed composition(s) because these numbers of EO groups are clearly taught to be useful for forming the claimed compositions because as is taught by ‘814 and Allard each and every component claimed was known in the art to be useful for forming hair dye compositions in the amounts which are instantly claimed and it is known, “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.” In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980). It also would have been obvious for one of ordinary skill in the art to optimize the number of EO groups in the ethoxylated fatty alcohol in order to form the most effective ethoxylated fatty alcohol surfactant for use in the hair dye composition and which would help the dye to better disperse in the formulation and therefore on the hair when applied to the hair, thereby leading to more uniform hair coloring. “[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.” In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Thus, it would be obvious to combine the claimed components in the claimed amounts together because together ‘814 and Allard clearly teaches that each and every claimed component is known to be useful in the claimed amounts for forming hair dye compositions.
It also would have been obvious to form the claimed kit because it was already known to separate the claimed first compartment components from the claimed second compartment components as is taught by ‘814 and Allard. It would have been obvious to add/select the claimed (ii) and the claimed 6-hydroxybenzomorpholine to form the claimed formulations when looking to ‘814 and Allard in the first compartment because as discussed above Allard teaches that the claimed ethoxylated fatty alcohols having the claimed numbers of EO units are useful in dye compositions in the claimed amounts. It also would have been obvious for one of ordinary skill in the art to optimize the number of EO groups in the ethoxylated fatty alcohol in order to form the most effective ethoxylated fatty alcohol surfactant for use in the hair dye composition and which helps the dye to be dispersed in the dye composition and therefore on the hair leading to more uniform application of the dye molecules/coloring of the hair. “[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.” In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
It also would have been obvious to add and/or substitute the claimed solid fatty substance, e.g. waxes into the composition taught by ‘814 and Allard in order to form the claimed composition(s) for dyeing hair because these fatty substances are taught by Allard to be useful in hair dye compositions and would help the hair dye to adhere to the hair upon application.
Thus one of ordinary skill in the art would conclude that the instant invention is an obvious variant of the above discussed application in view of Allard.
Claims 19-35, and 38 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 20-22, 24-37, and 39 of copending Application No. 18037294 (‘294) in view of Allard (cited above) for the same/similar reasons as discussed above with respect to ‘814.
Thus one of ordinary skill in the art would conclude that the instant invention is an obvious variant of the above discussed application in view of Allard.
Claims 19-35, and 38 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 20-22, 24-37, and 39 of US Patent No. 12337051 (‘051) in view of Allard (cited above) for similar reasons as discussed above with respect to ‘814.
Thus one of ordinary skill in the art would conclude that the instant invention is an obvious variant of the above discussed application in view of Allard.
Claims 19-35, and 38 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 19-36, and 38 of copending 18253667(‘667). ‘667 teaches dye compositions comprising the claimed coupler, alkaline agents, fatty substances, polysaccharide (guar gum) and wherein the composition can comprise surfactants, oxidizing agents, thickeners. ‘667 does not teach/claim wherein the surfactant includes the claimed ethoxylated fatty alcohols or other components in the claimed amounts or wherein the fatty substances, etc. are liquid and/or solid or wherein the alkaline agents, etc. are the specifically claimed components. However, these deficiencies are addressed by Allard.
Regarding claims 19-21, 25-29, Allard teaches compositions comprising applicant’s formula (I) as a coupler in amounts of 0.0001 % to 10% by weight relative to the total weight of the composition and teach wherein these compositions comprise a polyoxyalkylenated fatty alcohols (C8-C40 alcohols) having from 1 to 200 EO groups which are preferably present in the composition in amounts of from 0.1 to 40 wt% based on the total weight of the composition, and thickener, e.g. xanthan gum and/or guar gum (polysaccharide) and/or cellulose which reads on the claimed polysaccharide in amounts of 0.01 to 20% by weight based on the total weight of the composition (See entire document; pg. 20, ln. 1-20; pg. 21, ln. 28-33; pg. 42, ln. 3-29; pg. 49, ln. 28-pg. 50, ln. 5; pg. 51, ln. 26-pg. 52, ln. 15), and Allard teaches examples, e.g. A-7 for instance which contain polyoxyalkylenated fatty alcohol(s) having lower numbers of EO groups (e.g. 20 EO (OE) groups and 2 EO (OE) groups) in total amounts of 0.2%, the claimed 6-hydroxybenzomorpholine (formula (I)) in amounts 0.033%, cellulose/hydroxyethylcellulose in amounts of 2.5% (See A-7).
Regarding claims 22-24, Allard teaches wherein the composition comprises at least one oxidation base, specifically the claimed p-phenylenediamines, e.g. 2-B-hydroxyethyl-para-phenylenediamine and wherein the total amounts of the oxidation bases ranges from 0.0001% to 20% by weight relative to the total weight of the composition, and specifically in example A-7 they use it in amounts of 1.58% (See entire document; A-7; pg. 37, ln. 1-17).
Regarding claims 30-32, Allard teaches wherein their compositions comprise at least one fatty substance chosen from liquid and/or solid fatty substances, and they specifically teach when the fatty substance is liquid that it is chosen from liquid petroleum jelly and when the fatty substance is solid that it is selected from waxes (e.g. carnauba, paraffin, etc.), and in A-7 Allard uses for instance the exemplified/disclosed liquid petroleum jelly (See A-7; all sections cited above; pg. 5, ln. 26-pg. 16, ln. 8; pg. 15, 14-pg. 16, ln. 8; pg. 6, ln. 22-27; pg. 8, ln. 5-15).
Regarding claims 33-35, Allard teaches wherein their compositions comprise at least one surfactant other than the ethoxylated C8-C40 fatty alcohols comprising the claimed 50 to 300 alkylene oxide groups selected from nonionic and/or anionic and/or amphoteric surfactants, for instance A-7 contains other oxyethylenated (40 OE) hydrogenated castor oil, and also comprise cocoylbetaine which is an amphoteric surfactant, and wherein their composition can further comprise at least one chemical oxidizing agent, and at least one alkaline agent, for instance in A-7 monoethanolamine which is an alkanolamine, and as chemical oxidizing agents, hydrogen peroxide which is present in corresponding B-7 which is mixed with A-7 to form the dye composition(See A-7; see entire document; pg. 4, ln. 9-27; pg. 16, ln. 10-pg. 22, ln. 14; and additional surfactants discussed pg. 22, ln. 15-pg. 36, ln. 22, inclusive; basifying agents: pg. 45, ln. 7-pg. 48, ln. 24; pg. 48, ln. 26-pg. 49, ln. 11; oxidizing composition B-7).
Regarding claim 38, Allard teaches forming devices, e.g. kits comprising multi-compartments, specifically the claimed first compartment and second compartment, e.g. wherein the first compartment comprises the A composition which comprises the claimed oxidation coupler and the at least one ethoxylated fatty alcohol and at least one polysaccharide, e.g. composition A-7, and as discussed above Allard teaches wherein the ethoxylated fatty alcohol can have the claimed number of alkylene oxide/ethylene oxide groups even if they are not exemplified and wherein the second compartment comprises the oxidizing composition comprising the chemical oxidizing agents, as per B-7, hydrogen peroxide (See entire document; pg. 4, ln. 32-33; pg. 56, ln. 34-pg. 57, ln. 23; pg. 20, ln. 1-20; pg. 21, ln. 28-33; pg. 42, ln. 3-29; pg. 49, ln. 28-pg. 50, ln. 5; pg. 51, ln. 26-pg. 52, ln. 15; A-7, B-7).
It would have been obvious to form the claimed compositions comprising the claimed amounts of the claimed components when looking to copending ‘667 and Allard because the claimed amounts of the claimed components which are taught by ‘’667 and Allard are known to be effective for forming hair dye compositions as is taught by Allard and because Allard clearly teaches that each and every claimed component is known to be useful in the claimed amounts for forming hair dye compositions and it is obvious to optimize the amounts of the components to the specifically claimed ranges because “[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.” In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
As discussed above 667 and Allard do not teach an example of the claimed composition. However, Allard does teach each and every component of the claimed composition and teaches wherein these components are useful for making hair dye compositions. It would have been obvious to one of ordinary skill in the art to have added the claimed component (ii) and/or substituted the claimed component (ii) having the claimed number of ethylene oxide groups into ‘667’s composition along with the claimed amounts of the other components taught by ‘667 which are also taught by Allard in order to form the claimed composition(s) because these numbers of EO groups are clearly taught to be useful for forming the claimed compositions because as is taught by ‘667 and Allard each and every component claimed was known in the art to be useful for forming hair dye compositions in the amounts which are instantly claimed and it is known, “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.” In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980). It also would have been obvious for one of ordinary skill in the art to optimize the number of EO groups in the ethoxylated fatty alcohol in order to form the most effective ethoxylated fatty alcohol surfactant for use in the hair dye composition and which would help the dye to better disperse in the formulation and therefore on the hair when applied to the hair, thereby leading to more uniform hair coloring. “[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.” In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Thus, it would be obvious to combine the claimed components in the claimed amounts together because together ‘667 and Allard clearly teach that each and every claimed component is known to be useful in the claimed amounts for forming hair dye compositions.
It also would have been obvious to form the claimed kit because it was already known to separate the claimed first compartment components from the claimed second compartment components as is taught by ‘667 and Allard. It would have been obvious to add/select the claimed (ii) and the claimed 6-hydroxybenzomorpholine to form the claimed formulations when looking to ‘667 and Allard in the first compartment because as discussed above Allard teaches that the claimed ethoxylated fatty alcohols having the claimed numbers of EO units are useful in dye compositions in the claimed amounts. It also would have been obvious for one of ordinary skill in the art to optimize the number of EO groups in the ethoxylated fatty alcohol in order to form the most effective ethoxylated fatty alcohol surfactant for use in the hair dye composition and which helps the dye to be dispersed in the dye composition and therefore on the hair leading to more uniform application of the dye molecules/coloring of the hair. “[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.” In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
It also would have been obvious to add and/or substitute the claimed solid fatty substance, e.g. waxes into the composition taught by ‘667 and Allard in order to form the claimed composition(s) for dyeing hair because these fatty substances are taught by Allard to be useful in hair dye compositions and would help the hair dye to adhere to the hair upon application.
Thus one of ordinary skill in the art would conclude that the instant invention is an obvious variant of the above discussed application in view of Allard.
Claims 19-35, and 38 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-2, 4-16, and 20 of copending 18257983 (‘983). ‘983 teaches dye compositions comprising the claimed coupler in the claimed amounts, additional surfactants different from instantly claimed ethoxylated fatty alcohols, and wherein the composition also comprises alkaline agents, fatty substances, etc. and wherein the composition can comprise surfactants, oxidizing agents, thickeners. ‘983 does not teach/claim wherein the surfactant includes the claimed ethoxylated fatty alcohols or the other claimed components in the claimed amounts or wherein the fatty substances or wherein the alkaline agents, etc. are the specifically claimed components. However, these deficiencies are addressed by Allard.
Regarding claims 19-21, 25-29, Allard teaches compositions comprising applicant’s formula (I) as a coupler in amounts of 0.0001 % to 10% by weight relative to the total weight of the composition and teach wherein these compositions comprise a polyoxyalkylenated fatty alcohols (C8-C40 alcohols) having from 1 to 200 EO groups which are preferably present in the composition in amounts of from 0.1 to 40 wt% based on the total weight of the composition, and thickener, e.g. xanthan gum and/or guar gum (polysaccharide) and/or cellulose which reads on the claimed polysaccharide in amounts of 0.01 to 20% by weight based on the total weight of the composition (See entire document; pg. 20, ln. 1-20; pg. 21, ln. 28-33; pg. 42, ln. 3-29; pg. 49, ln. 28-pg. 50, ln. 5; pg. 51, ln. 26-pg. 52, ln. 15), and Allard teaches examples, e.g. A-7 for instance which contain polyoxyalkylenated fatty alcohol(s) having lower numbers of EO groups (e.g. 20 EO (OE) groups and 2 EO (OE) groups) in total amounts of 0.2%, the claimed 6-hydroxybenzomorpholine (formula (I)) in amounts 0.033%, cellulose/hydroxyethylcellulose in amounts of 2.5% (See A-7).
Regarding claims 22-24, Allard teaches wherein the composition comprises at least one oxidation base, specifically the claimed p-phenylenediamines, e.g. 2-B-hydroxyethyl-para-phenylenediamine and wherein the total amounts of the oxidation bases ranges from 0.0001% to 20% by weight relative to the total weight of the composition, and specifically in example A-7 they use it in amounts of 1.58% (See entire document; A-7; pg. 37, ln. 1-17).
Regarding claims 30-32, Allard teaches wherein their compositions comprise at least one fatty substance chosen from liquid and/or solid fatty substances, and they specifically teach when the fatty substance is liquid that it is chosen from liquid petroleum jelly and when the fatty substance is solid that it is selected from waxes (e.g. carnauba, paraffin, etc.), and in A-7 Allard uses for instance the exemplified/disclosed liquid petroleum jelly (See A-7; all sections cited above; pg. 5, ln. 26-pg. 16, ln. 8; pg. 15, 14-pg. 16, ln. 8; pg. 6, ln. 22-27; pg. 8, ln. 5-15).
Regarding claims 33-35, Allard teaches wherein their compositions comprise at least one surfactant other than the ethoxylated C8-C40 fatty alcohols comprising the claimed 50 to 300 alkylene oxide groups selected from nonionic and/or anionic and/or amphoteric surfactants, for instance A-7 contains other oxyethylenated (40 OE) hydrogenated castor oil, and also comprise cocoylbetaine which is an amphoteric surfactant, and wherein their composition can further comprise at least one chemical oxidizing agent, and at least one alkaline agent, for instance in A-7 monoethanolamine which is an alkanolamine, and as chemical oxidizing agents, hydrogen peroxide which is present in corresponding B-7 which is mixed with A-7 to form the dye composition(See A-7; see entire document; pg. 4, ln. 9-27; pg. 16, ln. 10-pg. 22, ln. 14; and additional surfactants discussed pg. 22, ln. 15-pg. 36, ln. 22, inclusive; basifying agents: pg. 45, ln. 7-pg. 48, ln. 24; pg. 48, ln. 26-pg. 49, ln. 11; oxidizing composition B-7).
Regarding claim 38, Allard teaches forming devices, e.g. kits comprising multi-compartments, specifically the claimed first compartment and second compartment, e.g. wherein the first compartment comprises the A composition which comprises the claimed oxidation coupler and the at least one ethoxylated fatty alcohol and at least one polysaccharide, e.g. composition A-7, and as discussed above Allard teaches wherein the ethoxylated fatty alcohol can have the claimed number of alkylene oxide/ethylene oxide groups even if they are not exemplified and wherein the second compartment comprises the oxidizing composition comprising the chemical oxidizing agents, as per B-7, hydrogen peroxide (See entire document; pg. 4, ln. 32-33; pg. 56, ln. 34-pg. 57, ln. 23; pg. 20, ln. 1-20; pg. 21, ln. 28-33; pg. 42, ln. 3-29; pg. 49, ln. 28-pg. 50, ln. 5; pg. 51, ln. 26-pg. 52, ln. 15; A-7, B-7).
It would have been obvious to form the claimed compositions comprising the claimed amounts of the claimed components when looking to copending ‘983 and Allard because the claimed amounts of the claimed components which are taught by ‘983 and Allard are known to be effective for forming hair dye compositions as is taught by Allard and because Allard clearly teaches that each and every claimed component is known to be useful in the claimed amounts for forming hair dye compositions and it is obvious to optimize the amounts of the components to the specifically claimed ranges because “[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.” In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
As discussed above ‘983 and Allard do not teach an example of the claimed composition. However, Allard does teach each and every component of the claimed composition and teaches wherein these components are useful for making hair dye compositions. It would have been obvious to one of ordinary skill in the art to have added the claimed component (ii) and/or substituted the claimed component (ii) having the claimed number of ethylene oxide groups into ‘983’s composition along with the claimed amounts of the other components taught by ‘983 and add in any of the other claimed components in the claimed amounts which are taught by Allard in order to form the claimed composition(s) because these numbers of EO groups are clearly taught to be useful for forming the claimed compositions because as is taught by ‘983 and Allard each and every component claimed was known in the art to be useful for forming hair dye compositions in the amounts which are instantly claimed and it is known, “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.” In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980). It also would have been obvious for one of ordinary skill in the art to optimize the number of EO groups in the ethoxylated fatty alcohol in order to form the most effective ethoxylated fatty alcohol surfactant for use in the hair dye composition and which would help the dye to better disperse in the formulation and therefore on the hair when applied to the hair, thereby leading to more uniform hair coloring. “[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.” In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Thus, it would be obvious to combine the claimed components in the claimed amounts together because together ‘983 and Allard clearly teach that each and every claimed component is known to be useful in the claimed amounts for forming hair dye compositions.
It also would have been obvious to form the claimed kit because it was already known to separate the claimed first compartment components from the claimed second compartment components as is taught by ‘983 and Allard. It would have been obvious to add/select the claimed (ii) and the claimed 6-hydroxybenzomorpholine to form the claimed formulations when looking to ‘983 and Allard in the first compartment because as discussed above Allard teaches that the claimed ethoxylated fatty alcohols having the claimed numbers of EO units are useful in dye compositions in the claimed amounts. It also would have been obvious for one of ordinary skill in the art to optimize the number of EO groups in the ethoxylated fatty alcohol in order to form the most effective ethoxylated fatty alcohol surfactant for use in the hair dye composition and which helps the dye to be dispersed in the dye composition and therefore on the hair leading to more uniform application of the dye molecules/coloring of the hair. “[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.” In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Thus one of ordinary skill in the art would conclude that the instant invention is an obvious variant of the above discussed application in view of Allard.
Claims 19-35, and 38 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-14, 17-21 of US Patent No 12472136. ‘136 teaches compositions comprising surfactants different from the required ethoxylated fatty alcohols instantly claimed, the same fatty substances (e.g. fatty acids) in the claimed/overlapping amounts, the same alkaline agents in the same/overlapping amounts, and optionally the claimed dyes (e.g. coupler, oxidation bases) and wherein the composition can comprise oxidizing agents, thickeners. ‘136 does not teach/claim wherein the surfactant includes the claimed ethoxylated fatty alcohols or the other claimed components in the claimed amounts or wherein the oxidation bases, couplers, etc. are the specifically claimed components in the claimed amounts, etc.. However, these deficiencies are addressed by Allard.
Regarding claims 19-21, 25-29, Allard teaches compositions comprising applicant’s formula (I) as a coupler in amounts of 0.0001 % to 10% by weight relative to the total weight of the composition and teach wherein these compositions comprise a polyoxyalkylenated fatty alcohols (C8-C40 alcohols) having from 1 to 200 EO groups which are preferably present in the composition in amounts of from 0.1 to 40 wt% based on the total weight of the composition, and thickener, e.g. xanthan gum and/or guar gum (polysaccharide) and/or cellulose which reads on the claimed polysaccharide in amounts of 0.01 to 20% by weight based on the total weight of the composition (See entire document; pg. 20, ln. 1-20; pg. 21, ln. 28-33; pg. 42, ln. 3-29; pg. 49, ln. 28-pg. 50, ln. 5; pg. 51, ln. 26-pg. 52, ln. 15), and Allard teaches examples, e.g. A-7 for instance which contain polyoxyalkylenated fatty alcohol(s) having lower numbers of EO groups (e.g. 20 EO (OE) groups and 2 EO (OE) groups) in total amounts of 0.2%, the claimed 6-hydroxybenzomorpholine (formula (I)) in amounts 0.033%, cellulose/hydroxyethylcellulose in amounts of 2.5% (See A-7).
Regarding claims 22-24, Allard teaches wherein the composition comprises at least one oxidation base, specifically the claimed p-phenylenediamines, e.g. 2-B-hydroxyethyl-para-phenylenediamine and wherein the total amounts of the oxidation bases ranges from 0.0001% to 20% by weight relative to the total weight of the composition, and specifically in example A-7 they use it in amounts of 1.58% (See entire document; A-7; pg. 37, ln. 1-17).
Regarding claims 30-32, Allard teaches wherein their compositions comprise at least one fatty substance chosen from liquid and/or solid fatty substances, and they specifically teach when the fatty substance is liquid that it is chosen from liquid petroleum jelly and when the fatty substance is solid that it is selected from waxes (e.g. carnauba, paraffin, etc.), and in A-7 Allard uses for instance the exemplified/disclosed liquid petroleum jelly (See A-7; all sections cited above; pg. 5, ln. 26-pg. 16, ln. 8; pg. 15, 14-pg. 16, ln. 8; pg. 6, ln. 22-27; pg. 8, ln. 5-15).
Regarding claims 33-35, Allard teaches wherein their compositions comprise at least one surfactant other than the ethoxylated C8-C40 fatty alcohols comprising the claimed 50 to 300 alkylene oxide groups selected from nonionic and/or anionic and/or amphoteric surfactants, for instance A-7 contains other oxyethylenated (40 OE) hydrogenated castor oil, and also comprise cocoylbetaine which is an amphoteric surfactant, and wherein their composition can further comprise at least one chemical oxidizing agent, and at least one alkaline agent, for instance in A-7 monoethanolamine which is an alkanolamine, and as chemical oxidizing agents, hydrogen peroxide which is present in corresponding B-7 which is mixed with A-7 to form the dye composition(See A-7; see entire document; pg. 4, ln. 9-27; pg. 16, ln. 10-pg. 22, ln. 14; and additional surfactants discussed pg. 22, ln. 15-pg. 36, ln. 22, inclusive; basifying agents: pg. 45, ln. 7-pg. 48, ln. 24; pg. 48, ln. 26-pg. 49, ln. 11; oxidizing composition B-7).
Regarding claim 38, Allard teaches forming devices, e.g. kits comprising multi-compartments, specifically the claimed first compartment and second compartment, e.g. wherein the first compartment comprises the A composition which comprises the claimed oxidation coupler and the at least one ethoxylated fatty alcohol and at least one polysaccharide, e.g. composition A-7, and as discussed above Allard teaches wherein the ethoxylated fatty alcohol can have the claimed number of alkylene oxide/ethylene oxide groups even if they are not exemplified and wherein the second compartment comprises the oxidizing composition comprising the chemical oxidizing agents, as per B-7, hydrogen peroxide (See entire document; pg. 4, ln. 32-33; pg. 56, ln. 34-pg. 57, ln. 23; pg. 20, ln. 1-20; pg. 21, ln. 28-33; pg. 42, ln. 3-29; pg. 49, ln. 28-pg. 50, ln. 5; pg. 51, ln. 26-pg. 52, ln. 15; A-7, B-7).
It would have been obvious to form the claimed compositions comprising the claimed amounts of the claimed components when looking to copending ‘136 and Allard because the claimed amounts of the claimed components which are taught/claimed by ‘136 and taught by Allard are known to be effective for forming hair dye compositions as is taught by Allard and because Allard clearly teaches that each and every claimed component is known to be useful in the claimed amounts for forming hair dye compositions and it is obvious to optimize the amounts of the components to the specifically claimed ranges because “[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.” In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
As discussed above ‘136 and Allard do not teach an example of the claimed composition. However, Allard does teach each and every component of the claimed composition and teaches wherein these components are useful for making hair dye compositions. It would have been obvious to one of ordinary skill in the art to have added the claimed component (ii) and/or substituted the claimed component (ii) having the claimed number of ethylene oxide groups into ‘136’s composition along with the claimed amounts of the other components taught by ‘136 and add in any of the other specifically claimed components in the claimed amounts which are taught by Allard and broadly taught by ‘136 in order to form the claimed composition(s) because these numbers of EO groups are clearly taught to be useful for forming the claimed compositions because as is taught by ‘136 and Allard each and every component claimed was known in the art to be useful for forming hair dye compositions in the amounts which are instantly claimed and it is known, “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.” In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980). It also would have been obvious for one of ordinary skill in the art to optimize the number of EO groups in the ethoxylated fatty alcohol in order to form the most effective ethoxylated fatty alcohol surfactant for use in the hair dye composition and which would help the dye to better disperse in the formulation and therefore on the hair when applied to the hair, thereby leading to more uniform hair coloring. “[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.” In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Thus, it would be obvious to combine the claimed components in the claimed amounts together because together ‘136 and Allard clearly teach that each and every claimed component is known to be useful in the claimed amounts for forming hair dye compositions.
It also would have been obvious to form the claimed kit because it was already known to separate the claimed first compartment components from the claimed second compartment components as is taught by ‘136 and Allard. It would have been obvious to add/select the claimed (ii) and the claimed 6-hydroxybenzomorpholine and the claimed oxidation bases to form the claimed formulations when looking to ‘136 and Allard in the first compartment because as discussed above Allard teaches that the claimed ethoxylated fatty alcohols having the claimed numbers of EO units are useful in dye compositions in the claimed amounts. It also would have been obvious for one of ordinary skill in the art to optimize the number of EO groups in the ethoxylated fatty alcohol in order to form the most effective ethoxylated fatty alcohol surfactant for use in the hair dye composition and which would help the dye to better disperse in the formulation and therefore on the hair when applied to the hair, thereby leading to more uniform hair coloring. “[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.” In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Thus one of ordinary skill in the art would conclude that the instant invention is an obvious variant of the above discussed application in view of Allard.
Claims 19-35, and 38 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 4-6, 9-17, 21-23 of copending 18257841 (recently allowed). ‘841 claims compositions comprising the claimed oxidation coupler in amounts which read on/overlap those claimed, oxidation bases in the same/overlapping amounts which are instantly claimed, the claimed fatty substances which are liquid and/or solid fatty substances, at least one surfactant, at least one alkaline agent as claimed, and at least one chemical oxidizing agent as claimed and a device/kit which separates the composition into the same first compartments which comprise the oxidation coupler, etc. separate from the second compartment which comprises the oxidizing agents. ‘841 does not claim the claimed polysaccharide in the claimed amounts or the claimed ethoxylated fatty alcohol (surfactant) having the claimed numbers of EO (OE) units in the claimed amounts, nor does it claim what types of surfactants, or the specific types of liquid or solid fatty substances claimed, etc. However, these deficiencies in ‘841 are addressed by Allard.
Regarding claims 19-21, 25-29, Allard teaches compositions comprising applicant’s formula (I) as a coupler in amounts of 0.0001 % to 10% by weight relative to the total weight of the composition and teach wherein these compositions comprise a polyoxyalkylenated fatty alcohols (C8-C40 alcohols) having from 1 to 200 EO groups which are preferably present in the composition in amounts of from 0.1 to 40 wt% based on the total weight of the composition, and thickener, e.g. xanthan gum and/or guar gum (polysaccharide) and/or cellulose which reads on the claimed polysaccharide in amounts of 0.01 to 20% by weight based on the total weight of the composition (See entire document; pg. 20, ln. 1-20; pg. 21, ln. 28-33; pg. 42, ln. 3-29; pg. 49, ln. 28-pg. 50, ln. 5; pg. 51, ln. 26-pg. 52, ln. 15), and Allard teaches examples, e.g. A-7 for instance which contain polyoxyalkylenated fatty alcohol(s) having lower numbers of EO groups (e.g. 20 EO (OE) groups and 2 EO (OE) groups) in total amounts of 0.2%, the claimed 6-hydroxybenzomorpholine (formula (I)) in amounts 0.033%, cellulose/hydroxyethylcellulose in amounts of 2.5% (See A-7).
Regarding claims 22-24, Allard teaches wherein the composition comprises at least one oxidation base, specifically the claimed p-phenylenediamines, e.g. 2-B-hydroxyethyl-para-phenylenediamine and wherein the total amounts of the oxidation bases ranges from 0.0001% to 20% by weight relative to the total weight of the composition, and specifically in example A-7 they use it in amounts of 1.58% (See entire document; A-7; pg. 37, ln. 1-17).
Regarding claims 30-32, Allard teaches wherein their compositions comprise at least one fatty substance chosen from liquid and/or solid fatty substances, and they specifically teach when the fatty substance is liquid that it is chosen from liquid petroleum jelly and when the fatty substance is solid that it is selected from waxes (e.g. carnauba, paraffin, etc.), and in A-7 Allard uses for instance the exemplified/disclosed liquid petroleum jelly (See A-7; all sections cited above; pg. 5, ln. 26-pg. 16, ln. 8; pg. 15, 14-pg. 16, ln. 8; pg. 6, ln. 22-27; pg. 8, ln. 5-15).
Regarding claims 33-35, Allard teaches wherein their compositions comprise at least one surfactant other than the ethoxylated C8-C40 fatty alcohols comprising the claimed 50 to 300 alkylene oxide groups selected from nonionic and/or anionic and/or amphoteric surfactants, for instance A-7 contains other oxyethylenated (40 OE) hydrogenated castor oil, and also comprise cocoylbetaine which is an amphoteric surfactant, and wherein their composition can further comprise at least one chemical oxidizing agent, and at least one alkaline agent, for instance in A-7 monoethanolamine which is an alkanolamine, and as chemical oxidizing agents, hydrogen peroxide which is present in corresponding B-7 which is mixed with A-7 to form the dye composition(See A-7; see entire document; pg. 4, ln. 9-27; pg. 16, ln. 10-pg. 22, ln. 14; and additional surfactants discussed pg. 22, ln. 15-pg. 36, ln. 22, inclusive; basifying agents: pg. 45, ln. 7-pg. 48, ln. 24; pg. 48, ln. 26-pg. 49, ln. 11; oxidizing composition B-7).
Regarding claim 38, Allard teaches forming devices, e.g. kits comprising multi-compartments, specifically the claimed first compartment and second compartment, e.g. wherein the first compartment comprises the A composition which comprises the claimed oxidation coupler and the at least one ethoxylated fatty alcohol and at least one polysaccharide, e.g. composition A-7, and as discussed above Allard teaches wherein the ethoxylated fatty alcohol can have the claimed number of alkylene oxide/ethylene oxide groups even if they are not exemplified and wherein the second compartment comprises the oxidizing composition comprising the chemical oxidizing agents, as per B-7, hydrogen peroxide (See entire document; pg. 4, ln. 32-33; pg. 56, ln. 34-pg. 57, ln. 23; pg. 20, ln. 1-20; pg. 21, ln. 28-33; pg. 42, ln. 3-29; pg. 49, ln. 28-pg. 50, ln. 5; pg. 51, ln. 26-pg. 52, ln. 15; A-7, B-7).
It would have been obvious to form the claimed compositions comprising the claimed amounts of the claimed components when looking to copending ‘841 and Allard because the claimed amounts of the claimed components which are taught/claimed by ‘841 and taught by Allard are known to be effective for forming hair dye compositions as is taught by Allard and because Allard clearly teaches that each and every claimed component is known to be useful in the claimed amounts for forming hair dye compositions and it is obvious to optimize the amounts of the components to the specifically claimed ranges because “[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.” In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
As discussed above ‘841 and Allard both do not teach an example of the claimed composition. However, Allard does teach each and every component of the claimed composition and teaches wherein these components are useful for making hair dye compositions. It would have been obvious to one of ordinary skill in the art to have added the claimed component (ii) and/or substituted the claimed component (ii) having the claimed number of ethylene oxide groups into ‘841’s composition along with the claimed amounts of the other components as taught by ‘841 and Allard and add in any of the other specifically claimed components in the claimed amounts which are taught by Allard and broadly taught by ‘841 in order to form the claimed composition(s) because these numbers of EO groups are clearly taught to be useful for forming the claimed compositions because as is taught by ‘841 and Allard each and every component claimed was known in the art to be useful for forming hair dye compositions in the amounts which are instantly claimed and it is known, “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.” In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980). It also would have been obvious for one of ordinary skill in the art to optimize the number of EO groups in the ethoxylated fatty alcohol in order to form the most effective ethoxylated fatty alcohol surfactant for use in the hair dye composition and which would help the dye to better disperse in the formulation and therefore on the hair when applied to the hair, thereby leading to more uniform hair coloring. “[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.” In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Thus, it would be obvious to combine the claimed components in the claimed amounts together because together ‘841 and Allard clearly teach that each and every claimed component is known to be useful in the claimed amounts for forming hair dye compositions.
It also would have been obvious to form the claimed kit because it was already known to separate the claimed first compartment components from the claimed second compartment components as is taught by ‘841 and Allard. It would have been obvious to add/select the claimed (ii) and the claimed 6-hydroxybenzomorpholine and the claimed oxidation bases to form the claimed formulations when looking to ‘841 and Allard in the first compartment because as discussed above Allard teaches that the claimed ethoxylated fatty alcohols having the claimed numbers of EO units are useful in dye compositions in the claimed amounts. It also would have been obvious for one of ordinary skill in the art to optimize the number of EO groups in the ethoxylated fatty alcohol in order to form the most effective ethoxylated fatty alcohol surfactant for use in the hair dye composition and which would help the dye to better disperse in the formulation and therefore on the hair when applied to the hair, thereby leading to more uniform hair coloring. “[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.” In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Thus one of ordinary skill in the art would conclude that the instant invention is an obvious variant of the above discussed application in view of Allard.
Claims 19-35, and 38 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-15, and 18 of U.S. Patent No. 12290586 in view of Allard (Cited above in the 103 rejection) for similar/same reasons detailed above with respect to ‘841 in view of Allard.
Claims 19-35, and 38 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-15, and 18 of U.S. Patent No. 12533306 in view of Allard (Cited above in the 103 rejection). ‘306 teaches compositions which comprise the claimed fatty substance(s) the claimed coupler and the claimed oxidation bases in amounts which are the same/overlap those claimed. ‘306 further teaches wherein the composition comprises an additional surfactant different from the instantly required ethoxylated fatty alcohol having the claimed degree of ethoxylation, and wherein the composition further comprises the same liquid and/or solid fatty substances, the same alkaline agent, and the same chemical oxidizing agents and the claimed kit/device having the claimed first and second compartments which separate the oxidizing agents from the coupler and base and other components. ‘306 merely does not claim/require the claimed polysaccharide or the ethoxylated fatty alcohol having the claimed degree of ethoxylation. However, these deficiencies in ‘306 are addressed by Allard.
Regarding claims 19-21, 25-29, Allard teaches compositions comprising applicant’s formula (I) as a coupler in amounts of 0.0001 % to 10% by weight relative to the total weight of the composition and teach wherein these compositions comprise a polyoxyalkylenated fatty alcohols (C8-C40 alcohols) having from 1 to 200 EO groups which are preferably present in the composition in amounts of from 0.1 to 40 wt% based on the total weight of the composition, and thickener, e.g. xanthan gum and/or guar gum (polysaccharide) and/or cellulose which reads on the claimed polysaccharide in amounts of 0.01 to 20% by weight based on the total weight of the composition (See entire document; pg. 20, ln. 1-20; pg. 21, ln. 28-33; pg. 42, ln. 3-29; pg. 49, ln. 28-pg. 50, ln. 5; pg. 51, ln. 26-pg. 52, ln. 15), and Allard teaches examples, e.g. A-7 for instance which contain polyoxyalkylenated fatty alcohol(s) having lower numbers of EO groups (e.g. 20 EO (OE) groups and 2 EO (OE) groups) in total amounts of 0.2%, the claimed 6-hydroxybenzomorpholine (formula (I)) in amounts 0.033%, cellulose/hydroxyethylcellulose in amounts of 2.5% (See A-7).
Regarding claims 22-24, Allard teaches wherein the composition comprises at least one oxidation base, specifically the claimed p-phenylenediamines, e.g. 2-B-hydroxyethyl-para-phenylenediamine and wherein the total amounts of the oxidation bases ranges from 0.0001% to 20% by weight relative to the total weight of the composition, and specifically in example A-7 they use it in amounts of 1.58% (See entire document; A-7; pg. 37, ln. 1-17).
Regarding claims 30-32, Allard teaches wherein their compositions comprise at least one fatty substance chosen from liquid and/or solid fatty substances, and they specifically teach when the fatty substance is liquid that it is chosen from liquid petroleum jelly and when the fatty substance is solid that it is selected from waxes (e.g. carnauba, paraffin, etc.), and in A-7 Allard uses for instance the exemplified/disclosed liquid petroleum jelly (See A-7; all sections cited above; pg. 5, ln. 26-pg. 16, ln. 8; pg. 15, 14-pg. 16, ln. 8; pg. 6, ln. 22-27; pg. 8, ln. 5-15).
Regarding claims 33-35, Allard teaches wherein their compositions comprise at least one surfactant other than the ethoxylated C8-C40 fatty alcohols comprising the claimed 50 to 300 alkylene oxide groups selected from nonionic and/or anionic and/or amphoteric surfactants, for instance A-7 contains other oxyethylenated (40 OE) hydrogenated castor oil, and also comprise cocoylbetaine which is an amphoteric surfactant, and wherein their composition can further comprise at least one chemical oxidizing agent, and at least one alkaline agent, for instance in A-7 monoethanolamine which is an alkanolamine, and as chemical oxidizing agents, hydrogen peroxide which is present in corresponding B-7 which is mixed with A-7 to form the dye composition(See A-7; see entire document; pg. 4, ln. 9-27; pg. 16, ln. 10-pg. 22, ln. 14; and additional surfactants discussed pg. 22, ln. 15-pg. 36, ln. 22, inclusive; basifying agents: pg. 45, ln. 7-pg. 48, ln. 24; pg. 48, ln. 26-pg. 49, ln. 11; oxidizing composition B-7).
Regarding claim 38, Allard teaches forming devices, e.g. kits comprising multi-compartments, specifically the claimed first compartment and second compartment, e.g. wherein the first compartment comprises the A composition which comprises the claimed oxidation coupler and the at least one ethoxylated fatty alcohol and at least one polysaccharide, e.g. composition A-7, and as discussed above Allard teaches wherein the ethoxylated fatty alcohol can have the claimed number of alkylene oxide/ethylene oxide groups even if they are not exemplified and wherein the second compartment comprises the oxidizing composition comprising the chemical oxidizing agents, as per B-7, hydrogen peroxide (See entire document; pg. 4, ln. 32-33; pg. 56, ln. 34-pg. 57, ln. 23; pg. 20, ln. 1-20; pg. 21, ln. 28-33; pg. 42, ln. 3-29; pg. 49, ln. 28-pg. 50, ln. 5; pg. 51, ln. 26-pg. 52, ln. 15; A-7, B-7).
It would have been obvious to form the claimed compositions comprising the claimed amounts of the claimed components when looking to copending ‘306 and Allard because the claimed amounts of the claimed components which are taught/claimed by ‘306 and taught by Allard are known to be effective for forming hair dye compositions as is taught by Allard and because Allard clearly teaches that each and every claimed component is known to be useful in the claimed amounts for forming hair dye compositions and it is obvious to optimize the amounts of the components to the specifically claimed ranges because “[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.” In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
As discussed above ‘306 and Allard do not teach an example of the claimed composition. However, Allard does teach each and every component of the claimed composition and teaches wherein these components are useful for making hair dye compositions. It would have been obvious to one of ordinary skill in the art to have added the claimed component (ii) and/or substituted the claimed component (ii) having the claimed number of ethylene oxide groups into ‘306’s composition along with the claimed amounts of the other components taught by ‘306 and add in any of the other specifically claimed components in the claimed amounts, e.g. polysaccharides, e.g. guar gum, etc. which are taught by Allard and/or broadly taught by ‘306 in order to form the claimed composition(s) because these numbers of EO groups are clearly taught to be useful for forming the claimed compositions because as is taught by ‘306 and Allard each and every component claimed was known in the art to be useful for forming effective hair dye compositions in the amounts which are instantly claimed and it is known, “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.” In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980). It also would have been obvious for one of ordinary skill in the art to optimize the number of EO groups in the ethoxylated fatty alcohol in order to form the most effective ethoxylated fatty alcohol surfactant for use in the hair dye composition and which would help the dye to better disperse in the formulation and therefore on the hair when applied to the hair, thereby leading to more uniform hair coloring. “[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.” In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Thus, it would be obvious to combine the claimed components in the claimed amounts together because together ‘306 and Allard clearly teach that each and every claimed component is known to be useful in the claimed amounts for forming effective hair dye compositions.
It also would have been obvious to form the claimed kit because it was already known to separate the claimed first compartment components from the claimed second compartment components as is taught by ‘306 and Allard. It would have been obvious to add/select the claimed (ii) and the claimed 6-hydroxybenzomorpholine and the claimed oxidation bases to form the claimed formulations when looking to ‘306 and Allard in the first compartment because as discussed above Allard teaches that the claimed ethoxylated fatty alcohols having the claimed numbers of EO units are useful in dye compositions in the claimed amounts. It also would have been obvious for one of ordinary skill in the art to optimize the number of EO groups in the ethoxylated fatty alcohol in order to form the most effective ethoxylated fatty alcohol surfactant for use in the hair dye composition and which would help the dye to better disperse in the formulation and therefore on the hair when applied to the hair, thereby leading to more uniform hair coloring. “[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.” In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Thus one of ordinary skill in the art would conclude that the instant invention is an obvious variant of the above discussed application in view of Allard.
Claims 19-35, and 38 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-13, and 18 of U.S. Patent No. 12569420 in view of Allard (Cited above in the 103 rejection). ‘420 teaches compositions which comprise the claimed amounts of the claimed oxidation bases and the claimed couplers, and ‘420 claims the instantly claimed fatty substances which are the same liquid or solid fatty substances instantly claimed, a surfactant which reads on the claimed additional surfactant different from the instantly claimed ethoxylated alcohol having the claimed degrees of ethoxylation, and they also require the claimed alkaline agents, and the claimed chemical oxidizing agents and forming a device/kit with the same two compartments wherein the oxidizing agent is separate from the dye components. ‘420 does not specifically claim the instantly required polysaccharides/specific polysaccharide in the claimed amounts or the ethoxylated alcohol having the claimed degrees of ethoxylation. However, these deficiencies are addressed by Allard.
Regarding claims 19-21, 25-29, Allard teaches compositions comprising applicant’s formula (I) as a coupler in amounts of 0.0001 % to 10% by weight relative to the total weight of the composition and teach wherein these compositions comprise a polyoxyalkylenated fatty alcohols (C8-C40 alcohols) having from 1 to 200 EO groups which are preferably present in the composition in amounts of from 0.1 to 40 wt% based on the total weight of the composition, and thickener, e.g. xanthan gum and/or guar gum (polysaccharide) and/or cellulose which reads on the claimed polysaccharide in amounts of 0.01 to 20% by weight based on the total weight of the composition (See entire document; pg. 20, ln. 1-20; pg. 21, ln. 28-33; pg. 42, ln. 3-29; pg. 49, ln. 28-pg. 50, ln. 5; pg. 51, ln. 26-pg. 52, ln. 15), and Allard teaches examples, e.g. A-7 for instance which contain polyoxyalkylenated fatty alcohol(s) having lower numbers of EO groups (e.g. 20 EO (OE) groups and 2 EO (OE) groups) in total amounts of 0.2%, the claimed 6-hydroxybenzomorpholine (formula (I)) in amounts 0.033%, cellulose/hydroxyethylcellulose in amounts of 2.5% (See A-7).
Regarding claims 22-24, Allard teaches wherein the composition comprises at least one oxidation base, specifically the claimed p-phenylenediamines, e.g. 2-B-hydroxyethyl-para-phenylenediamine and wherein the total amounts of the oxidation bases ranges from 0.0001% to 20% by weight relative to the total weight of the composition, and specifically in example A-7 they use it in amounts of 1.58% (See entire document; A-7; pg. 37, ln. 1-17).
Regarding claims 30-32, Allard teaches wherein their compositions comprise at least one fatty substance chosen from liquid and/or solid fatty substances, and they specifically teach when the fatty substance is liquid that it is chosen from liquid petroleum jelly and when the fatty substance is solid that it is selected from waxes (e.g. carnauba, paraffin, etc.), and in A-7 Allard uses for instance the exemplified/disclosed liquid petroleum jelly (See A-7; all sections cited above; pg. 5, ln. 26-pg. 16, ln. 8; pg. 15, 14-pg. 16, ln. 8; pg. 6, ln. 22-27; pg. 8, ln. 5-15).
Regarding claims 33-35, Allard teaches wherein their compositions comprise at least one surfactant other than the ethoxylated C8-C40 fatty alcohols comprising the claimed 50 to 300 alkylene oxide groups selected from nonionic and/or anionic and/or amphoteric surfactants, for instance A-7 contains other oxyethylenated (40 OE) hydrogenated castor oil, and also comprise cocoylbetaine which is an amphoteric surfactant, and wherein their composition can further comprise at least one chemical oxidizing agent, and at least one alkaline agent, for instance in A-7 monoethanolamine which is an alkanolamine, and as chemical oxidizing agents, hydrogen peroxide which is present in corresponding B-7 which is mixed with A-7 to form the dye composition(See A-7; see entire document; pg. 4, ln. 9-27; pg. 16, ln. 10-pg. 22, ln. 14; and additional surfactants discussed pg. 22, ln. 15-pg. 36, ln. 22, inclusive; basifying agents: pg. 45, ln. 7-pg. 48, ln. 24; pg. 48, ln. 26-pg. 49, ln. 11; oxidizing composition B-7).
Regarding claim 38, Allard teaches forming devices, e.g. kits comprising multi-compartments, specifically the claimed first compartment and second compartment, e.g. wherein the first compartment comprises the A composition which comprises the claimed oxidation coupler and the at least one ethoxylated fatty alcohol and at least one polysaccharide, e.g. composition A-7, and as discussed above Allard teaches wherein the ethoxylated fatty alcohol can have the claimed number of alkylene oxide/ethylene oxide groups even if they are not exemplified and wherein the second compartment comprises the oxidizing composition comprising the chemical oxidizing agents, as per B-7, hydrogen peroxide (See entire document; pg. 4, ln. 32-33; pg. 56, ln. 34-pg. 57, ln. 23; pg. 20, ln. 1-20; pg. 21, ln. 28-33; pg. 42, ln. 3-29; pg. 49, ln. 28-pg. 50, ln. 5; pg. 51, ln. 26-pg. 52, ln. 15; A-7, B-7).
It would have been obvious to form the claimed compositions comprising the claimed amounts of the claimed components when looking to copending ‘420 and Allard because the claimed amounts of the claimed components which are taught/claimed by ‘420 and taught by Allard are known to be effective for forming hair dye compositions as is taught by Allard and because Allard clearly teaches that each and every claimed component is known to be useful in the claimed amounts for forming hair dye compositions and it is obvious to optimize the amounts of the components to the specifically claimed ranges because “[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.” In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
As discussed above ‘420 and Allard do not teach an example of the claimed composition. However, Allard does teach each and every component of the claimed composition and teaches wherein these components are useful for making hair dye compositions. It would have been obvious to one of ordinary skill in the art to have added the claimed component (ii) and/or substituted the claimed component (ii) having the claimed number of ethylene oxide groups into ‘420’s composition along with the claimed amounts of the other components taught by ‘420 and add in any of the other specifically claimed components in the claimed amounts, e.g. polysaccharides, e.g. guar gum, etc. which are taught by Allard and/or broadly taught by ‘420 in order to form the claimed composition(s) because these numbers of EO groups are clearly taught to be useful for forming the claimed compositions because as is taught by ‘420 and Allard each and every component claimed was known in the art to be useful for forming effective hair dye compositions in the amounts which are instantly claimed and it is known, “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.” In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980). It also would have been obvious for one of ordinary skill in the art to optimize the number of EO groups in the ethoxylated fatty alcohol in order to form the most effective ethoxylated fatty alcohol surfactant for use in the hair dye composition and which would help the dye to better disperse in the formulation and therefore on the hair when applied to the hair, thereby leading to more uniform hair coloring. “[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.” In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Thus, it would be obvious to combine the claimed components in the claimed amounts together because together ‘420 and Allard clearly teach that each and every claimed component is known to be useful in the claimed amounts for forming effective hair dye compositions.
It also would have been obvious to form the claimed kit because it was already known to separate the claimed first compartment components from the claimed second compartment components as is taught by ‘420 and Allard. It would have been obvious to add/select the claimed (ii) and the claimed 6-hydroxybenzomorpholine and the claimed oxidation bases to form the claimed formulations when looking to ‘420 and Allard in the first compartment because as discussed above Allard teaches that the claimed ethoxylated fatty alcohols having the claimed numbers of EO units are useful in dye compositions in the claimed amounts. It also would have been obvious for one of ordinary skill in the art to optimize the number of EO groups in the ethoxylated fatty alcohol in order to form the most effective ethoxylated fatty alcohol surfactant for use in the hair dye composition and which would help the dye to better disperse in the formulation and therefore on the hair when applied to the hair, thereby leading to more uniform hair coloring. “[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.” In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Thus one of ordinary skill in the art would conclude that the instant invention is an obvious variant of the above discussed application in view of Allard.
Claims 19-35, and 38 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-18, and 20 of U.S. Patent No. 12296035 in view of Allard (Cited above in the 103 rejection) for similar/same reasons detailed above with respect to ‘420 in view of Allard.
Claims 19-35, and 38 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-18, and 20 of U.S. Patent No. 12390408 in view of Allard (Cited above in the 103 rejection) for similar/same reasons detailed above with respect to ‘420 in view of Allard.
Claims 19-35, and 38 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 4-11, and 14 of U.S. Patent No. 12453683 in view of Allard (Cited above in the 103 rejection). ‘683 teaches compositions comprising at least one non-ionic surfactants which would broadly include the claimed ethoxylated alcohols having the claimed degree of ethoxylation, one or more fatty substances which are the claimed liquid or solid fatty substances and one or more dyes, and wherein the surfactants and fatty substances are present in the claimed/disclosed/overlapping amounts and wherein the composition can also comprise the claimed oxidation bases, chemical oxidizing agents and alkaline agents and be formed in the claimed device/kit having two compartments wherein the fatty substance and surfactant and dye composition are separate from the chemical oxidizing agents as claimed. ‘683 does not claim the specific fatty substances claimed, the oxidation bases claimed, the specific couplers claimed in the claimed amounts, the claimed polysaccharides in the claimed amounts or the specifically required ethoxylated alcohols having the claimed degree of ethoxylation in the claimed amounts, etc. These deficiencies are addressed by Allard.
Regarding claims 19-21, 25-29, Allard teaches compositions comprising applicant’s formula (I) as a coupler in amounts of 0.0001 % to 10% by weight relative to the total weight of the composition and teach wherein these compositions comprise a polyoxyalkylenated fatty alcohols (C8-C40 alcohols) having from 1 to 200 EO groups which are preferably present in the composition in amounts of from 0.1 to 40 wt% based on the total weight of the composition, and thickener, e.g. xanthan gum and/or guar gum (polysaccharide) and/or cellulose which reads on the claimed polysaccharide in amounts of 0.01 to 20% by weight based on the total weight of the composition (See entire document; pg. 20, ln. 1-20; pg. 21, ln. 28-33; pg. 42, ln. 3-29; pg. 49, ln. 28-pg. 50, ln. 5; pg. 51, ln. 26-pg. 52, ln. 15), and Allard teaches examples, e.g. A-7 for instance which contain polyoxyalkylenated fatty alcohol(s) having lower numbers of EO groups (e.g. 20 EO (OE) groups and 2 EO (OE) groups) in total amounts of 0.2%, the claimed 6-hydroxybenzomorpholine (formula (I)) in amounts 0.033%, cellulose/hydroxyethylcellulose in amounts of 2.5% (See A-7).
Regarding claims 22-24, Allard teaches wherein the composition comprises at least one oxidation base, specifically the claimed p-phenylenediamines, e.g. 2-B-hydroxyethyl-para-phenylenediamine and wherein the total amounts of the oxidation bases ranges from 0.0001% to 20% by weight relative to the total weight of the composition, and specifically in example A-7 they use it in amounts of 1.58% (See entire document; A-7; pg. 37, ln. 1-17).
Regarding claims 30-32, Allard teaches wherein their compositions comprise at least one fatty substance chosen from liquid and/or solid fatty substances, and they specifically teach when the fatty substance is liquid that it is chosen from liquid petroleum jelly and when the fatty substance is solid that it is selected from waxes (e.g. carnauba, paraffin, etc.), and in A-7 Allard uses for instance the exemplified/disclosed liquid petroleum jelly (See A-7; all sections cited above; pg. 5, ln. 26-pg. 16, ln. 8; pg. 15, 14-pg. 16, ln. 8; pg. 6, ln. 22-27; pg. 8, ln. 5-15).
Regarding claims 33-35, Allard teaches wherein their compositions comprise at least one surfactant other than the ethoxylated C8-C40 fatty alcohols comprising the claimed 50 to 300 alkylene oxide groups selected from nonionic and/or anionic and/or amphoteric surfactants, for instance A-7 contains other oxyethylenated (40 OE) hydrogenated castor oil, and also comprise cocoylbetaine which is an amphoteric surfactant, and wherein their composition can further comprise at least one chemical oxidizing agent, and at least one alkaline agent, for instance in A-7 monoethanolamine which is an alkanolamine, and as chemical oxidizing agents, hydrogen peroxide which is present in corresponding B-7 which is mixed with A-7 to form the dye composition(See A-7; see entire document; pg. 4, ln. 9-27; pg. 16, ln. 10-pg. 22, ln. 14; and additional surfactants discussed pg. 22, ln. 15-pg. 36, ln. 22, inclusive; basifying agents: pg. 45, ln. 7-pg. 48, ln. 24; pg. 48, ln. 26-pg. 49, ln. 11; oxidizing composition B-7).
Regarding claim 38, Allard teaches forming devices, e.g. kits comprising multi-compartments, specifically the claimed first compartment and second compartment, e.g. wherein the first compartment comprises the A composition which comprises the claimed oxidation coupler and the at least one ethoxylated fatty alcohol and at least one polysaccharide, e.g. composition A-7, and as discussed above Allard teaches wherein the ethoxylated fatty alcohol can have the claimed number of alkylene oxide/ethylene oxide groups even if they are not exemplified and wherein the second compartment comprises the oxidizing composition comprising the chemical oxidizing agents, as per B-7, hydrogen peroxide (See entire document; pg. 4, ln. 32-33; pg. 56, ln. 34-pg. 57, ln. 23; pg. 20, ln. 1-20; pg. 21, ln. 28-33; pg. 42, ln. 3-29; pg. 49, ln. 28-pg. 50, ln. 5; pg. 51, ln. 26-pg. 52, ln. 15; A-7, B-7).
It would have been obvious to form the claimed compositions comprising the claimed amounts of the claimed components when looking to copending ‘683 and Allard because the claimed amounts of the claimed components which are taught/claimed by ‘683 and/or taught by Allard are known to be effective for forming hair dye compositions as is taught by Allard and because Allard clearly teaches that each and every claimed component is known to be useful in the claimed amounts for forming hair dye compositions and it is obvious to optimize the amounts of the components to the specifically claimed ranges because “[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.” In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
As discussed above ‘683 and Allard do not teach an example of the claimed composition. However, Allard does teach each and every component of the claimed composition and teaches wherein these components are useful for making hair dye compositions. It would have been obvious to one of ordinary skill in the art to have added the claimed component (ii) and/or substituted the claimed surfactant component (ii) having the claimed number of ethylene oxide groups into ‘683’s composition along with the claimed amounts of the other components taught by ’683 and Allard to the composition of ‘683 and to add in any of the other specifically claimed components in the claimed amounts, e.g. polysaccharides, e.g. guar gum, etc. which are taught by Allard in order to form the claimed composition(s) because these numbers of EO groups are clearly taught to be useful for forming the claimed compositions because as is taught by ‘683 and Allard each and every component claimed was known in the art to be useful for forming effective hair dye compositions in the amounts which are instantly claimed and it is known, “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.” In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980). It also would have been obvious for one of ordinary skill in the art to optimize the number of EO groups in the ethoxylated fatty alcohol in order to form the most effective ethoxylated fatty alcohol surfactant for use in the hair dye composition and which would help the dye to better disperse in the formulation and therefore on the hair when applied to the hair, thereby leading to more uniform hair coloring. “[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.” In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Thus, it would be obvious to combine the claimed components in the claimed amounts together because together ‘683 and Allard clearly teach that each and every claimed component is known to be useful in the claimed amounts for forming effective hair dye compositions.
It also would have been obvious to form the claimed kit because it was already known to separate the claimed first compartment components from the claimed second compartment components as is taught by ‘683 and Allard. It would have been obvious to add/select the claimed (ii) and the claimed 6-hydroxybenzomorpholine and the claimed oxidation bases to form the claimed formulations when looking to ‘683 and Allard in the first compartment because as discussed above Allard teaches that the claimed ethoxylated fatty alcohols having the claimed numbers of EO units are useful in dye compositions in the claimed amounts. It also would have been obvious for one of ordinary skill in the art to optimize the number of EO groups in the ethoxylated fatty alcohol in order to form the most effective ethoxylated fatty alcohol surfactant for use in the hair dye composition and which would help the dye to better disperse in the formulation and therefore on the hair when applied to the hair, thereby leading to more uniform hair coloring. “[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.” In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Thus one of ordinary skill in the art would conclude that the instant invention is an obvious variant of the above discussed application in view of Allard.
Claims 19-35, and 38 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-14, 16-19, and 14 of U.S. Patent No. 12453686 in view of Allard (Cited above in the 103 rejection). ‘686 teaches compositions comprising the instant additional surfactant different from the claimed ethoxylated alcohols having the claimed degree of ethoxylation, one or more fatty substances which are the claimed liquid or solid fatty substances and one or more dyes, and one or more alkaline substances which are the same as those instantly claimed wherein the surfactants and fatty substances which can be the claimed liquid or solid fatty substances are present in the claimed/disclosed/overlapping amounts and wherein the composition can also comprise the claimed oxidation bases, coupling agent, chemical oxidizing agents and alkaline agents and be formed in the claimed device/kit having two compartments wherein the fatty substance and surfactant and dye composition are separate from the chemical oxidizing agents as claimed. ‘683 does not claim the specific liquid fatty substances claimed, the oxidation bases claimed in the claimed amounts, the specific couplers claimed in the claimed amounts, the claimed polysaccharides in the claimed amounts or the specifically required ethoxylated alcohols having the claimed degree of ethoxylation in the claimed amounts, etc. These deficiencies are addressed by Allard.
Regarding claims 19-21, 25-29, Allard teaches compositions comprising applicant’s formula (I) as a coupler in amounts of 0.0001 % to 10% by weight relative to the total weight of the composition and teach wherein these compositions comprise a polyoxyalkylenated fatty alcohols (C8-C40 alcohols) having from 1 to 200 EO groups which are preferably present in the composition in amounts of from 0.1 to 40 wt% based on the total weight of the composition, and thickener, e.g. xanthan gum and/or guar gum (polysaccharide) and/or cellulose which reads on the claimed polysaccharide in amounts of 0.01 to 20% by weight based on the total weight of the composition (See entire document; pg. 20, ln. 1-20; pg. 21, ln. 28-33; pg. 42, ln. 3-29; pg. 49, ln. 28-pg. 50, ln. 5; pg. 51, ln. 26-pg. 52, ln. 15), and Allard teaches examples, e.g. A-7 for instance which contain polyoxyalkylenated fatty alcohol(s) having lower numbers of EO groups (e.g. 20 EO (OE) groups and 2 EO (OE) groups) in total amounts of 0.2%, the claimed 6-hydroxybenzomorpholine (formula (I)) in amounts 0.033%, cellulose/hydroxyethylcellulose in amounts of 2.5% (See A-7).
Regarding claims 22-24, Allard teaches wherein the composition comprises at least one oxidation base, specifically the claimed p-phenylenediamines, e.g. 2-B-hydroxyethyl-para-phenylenediamine and wherein the total amounts of the oxidation bases ranges from 0.0001% to 20% by weight relative to the total weight of the composition, and specifically in example A-7 they use it in amounts of 1.58% (See entire document; A-7; pg. 37, ln. 1-17).
Regarding claims 30-32, Allard teaches wherein their compositions comprise at least one fatty substance chosen from liquid and/or solid fatty substances, and they specifically teach when the fatty substance is liquid that it is chosen from liquid petroleum jelly and when the fatty substance is solid that it is selected from waxes (e.g. carnauba, paraffin, etc.), and in A-7 Allard uses for instance the exemplified/disclosed liquid petroleum jelly (See A-7; all sections cited above; pg. 5, ln. 26-pg. 16, ln. 8; pg. 15, 14-pg. 16, ln. 8; pg. 6, ln. 22-27; pg. 8, ln. 5-15).
Regarding claims 33-35, Allard teaches wherein their compositions comprise at least one surfactant other than the ethoxylated C8-C40 fatty alcohols comprising the claimed 50 to 300 alkylene oxide groups selected from nonionic and/or anionic and/or amphoteric surfactants, for instance A-7 contains other oxyethylenated (40 OE) hydrogenated castor oil, and also comprise cocoylbetaine which is an amphoteric surfactant, and wherein their composition can further comprise at least one chemical oxidizing agent, and at least one alkaline agent, for instance in A-7 monoethanolamine which is an alkanolamine, and as chemical oxidizing agents, hydrogen peroxide which is present in corresponding B-7 which is mixed with A-7 to form the dye composition(See A-7; see entire document; pg. 4, ln. 9-27; pg. 16, ln. 10-pg. 22, ln. 14; and additional surfactants discussed pg. 22, ln. 15-pg. 36, ln. 22, inclusive; basifying agents: pg. 45, ln. 7-pg. 48, ln. 24; pg. 48, ln. 26-pg. 49, ln. 11; oxidizing composition B-7).
Regarding claim 38, Allard teaches forming devices, e.g. kits comprising multi-compartments, specifically the claimed first compartment and second compartment, e.g. wherein the first compartment comprises the A composition which comprises the claimed oxidation coupler and the at least one ethoxylated fatty alcohol and at least one polysaccharide, e.g. composition A-7, and as discussed above Allard teaches wherein the ethoxylated fatty alcohol can have the claimed number of alkylene oxide/ethylene oxide groups even if they are not exemplified and wherein the second compartment comprises the oxidizing composition comprising the chemical oxidizing agents, as per B-7, hydrogen peroxide (See entire document; pg. 4, ln. 32-33; pg. 56, ln. 34-pg. 57, ln. 23; pg. 20, ln. 1-20; pg. 21, ln. 28-33; pg. 42, ln. 3-29; pg. 49, ln. 28-pg. 50, ln. 5; pg. 51, ln. 26-pg. 52, ln. 15; A-7, B-7).
It would have been obvious to form the claimed compositions comprising the claimed amounts of the claimed components when looking to copending ‘686 and Allard because the claimed amounts of the claimed components which are taught/claimed by ‘686 and/or taught by Allard are known to be effective for forming hair dye compositions as is taught by Allard and because Allard clearly teaches that each and every claimed component is known to be useful in the claimed amounts for forming hair dye compositions and it is obvious to optimize the amounts of the components to the specifically claimed ranges because “[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.” In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
As discussed above ‘686 and Allard do not teach an example of the claimed composition. However, Allard does teach each and every component of the claimed composition and teaches wherein these components are useful for making hair dye compositions. It would have been obvious to one of ordinary skill in the art to have added the claimed component (ii) and/or substituted the claimed surfactant component (ii) having the claimed number of ethylene oxide groups into ‘686’s composition along with the claimed amounts of the other components taught by ’686 and Allard to the composition of ‘686 and to add in any of the other specifically claimed components in the claimed amounts, e.g. polysaccharides, e.g. guar gum, etc. which are taught by Allard in order to form the claimed composition(s) because these numbers of EO groups are clearly taught to be useful for forming the claimed compositions because as is taught by ‘686 and Allard each and every component claimed was known in the art to be useful for forming effective hair dye compositions in the amounts which are instantly claimed and it is known, “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.” In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980). It also would have been obvious for one of ordinary skill in the art to optimize the number of EO groups in the ethoxylated fatty alcohol in order to form the most effective ethoxylated fatty alcohol surfactant for use in the hair dye composition and which would help the dye to better disperse in the formulation and therefore on the hair when applied to the hair, thereby leading to more uniform hair coloring. “[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.” In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Thus, it would be obvious to combine the claimed components in the claimed amounts together because together ‘686 and Allard clearly teach that each and every claimed component is known to be useful in the claimed amounts for forming effective hair dye compositions and because “[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.” In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
It also would have been obvious to form the claimed kit because it was already known to separate the claimed first compartment components from the claimed second compartment components as is taught by ‘686 and Allard. It would have been obvious to add/select the claimed (ii) and the claimed 6-hydroxybenzomorpholine and the claimed oxidation bases to form the claimed formulations when looking to ‘686 and Allard in the first compartment because as discussed above Allard teaches that the claimed ethoxylated fatty alcohols having the claimed numbers of EO units are useful in dye compositions in the claimed amounts. It also would have been obvious for one of ordinary skill in the art to optimize the number of EO groups in the ethoxylated fatty alcohol in order to form the most effective ethoxylated fatty alcohol surfactant for use in the hair dye composition and which would help the dye to better disperse in the formulation and therefore on the hair when applied to the hair, thereby leading to more uniform hair coloring. “[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.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Thus one of ordinary skill in the art would conclude that the instant invention is an obvious variant of the above discussed application in view of Allard.
Conclusion
No claims are allowed.
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/ERIN E HIRT/Primary Examiner, Art Unit 1616
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