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 .
DETAILED ACTION
Status of the Claims
Claims 18-20 have been withdrawn. Claims included in the prosecution are claims 1-17.
Election/Restrictions
Applicant’s election of Group I, claims 1-17, with traverse of in the reply filed on April 27, 2026 is acknowledged. The traversal is on the ground that there is no significant search or examination burden because the composition and method claims are directed to a single inventive concept and can be examined together without imposing a distinct search or examination burden. This is not found persuasive because there is a significant search or examination burden since each group/species require a separate status in the art in view of their different classification.
The requirement is still deemed proper and is therefore made FINAL. Accordingly, claims 18-20 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim.
Information Disclosure Statement
The Information Disclosure Statement(s) (IDS) submitted on 07/29/2024, 10/31/2024, 04/07/2025, 04/11/2025, 11/19/2025, and 11/20/2025 is/are in compliance with the provisions of 37 CFR 1.97. Accordingly, this/these IDS(s) has/have been considered by the Examiner.
Specification
The use of the term “Miranol Ultra C 32” (see Spec., line 3 of paragraph [0070]) which is a trade name or a mark used in commerce, has been noted in this application. The term should be accompanied by the generic terminology; furthermore the term should be capitalized wherever it appears or, where appropriate, include a proper symbol indicating use in commerce such as ™, SM , or ® following the term.
Although the use of trade names and marks used in commerce (i.e., trademarks, service marks, certification marks, and collective marks) are permissible in patent applications, the proprietary nature of the marks should be respected and every effort made to prevent their use in any manner which might adversely affect their validity as commercial marks.
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 2-5, 11, and 15 and all dependent claims thereof 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.
Claims 2 and 3 recite the limitation "a first anionic surfactant" in the first line of each claim. These are indefinite because as the claims recite “a first anionic surfactant,” claim 1 already recites this limitation. Therefore, it is not clear if the limitation refers back to the one in claim 1 or is a new additional limitation.
Claims 4 and 5 recite the limitation "a second anionic surfactant" in the first line of each claim. These are indefinite because as the claims recite “a second anionic surfactant,” claim 1 already recites this limitation. Therefore, it is not clear if the limitation refers back to the one in claim 1 or is a new additional limitation.
Claims 11 and 15 recite the limitation "at least one nonionic surfactant" in the first line of each claim. These are indefinite because as the claims recite “at least one nonionic surfactant,” claim 1 already recites this limitation. Therefore, it is not clear if the limitation refers back to the one in claim 1 or is a new additional limitation.
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.
With respect to rejections numbered 1-5 below, the present claims of 18/731,010 (herein ‘010) are drawn to sulfate-based surfactant free anti-dandruff compositions comprising a first anionic surfactant selected from C10-C24 olefin sulfonates, and a second anionic surfactant different from the first anionic surfactant selected from C8-C30 alkyl sulfosuccinate, C8-C30 alkyl sulfoacetates, acyl sarcosinates, alkoxylated monoacids; at least one anti-dandruff active agent; at least one amphoteric surfactant, and at least on anti-dandruff active agent; at least one nonionic surfactant, and at least one conditioning agent.
Claims 1-12 of ‘010 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-6, and 9-15 of copending Application No. 18/731,048 (herein '048). Although the claims at issue are not identical, they are not patentably distinct from each other because as mentioned above ‘010 claims the anti-dandruff composition, copending '048 claims a cosmetic composition comprising a first anionic surfactant selected from C10-C24 olefin sulfonates, a second anionic surfactant different from the first anionic surfactant chosen from C6-C30 alkyl sulfosuccinates, C8-C30 alkyl sulfoacetates, acyl sarcosinates, alkoxylated monoacids. The ‘048 claims require an anti-dandruff active agent and optionally at least one amphoteric surfactant, nonionic surfactant, conditioning agent, anti-dandruff and water. Therefore, the present claims are prima facie obvious in view of the teachings of '048. This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1-17 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-17 of copending Application No. 18/731,070 (herein ‘070). Although the claims at issue are not identical, they are not patentably distinct from each other because as mentioned above ‘010 claims the anti-dandruff composition, copending ‘070 claims are compositions comprising a first anionic surfactant selected from sulfosuccinates, sulfoacetates and sarcosinates; a second anionic surfactant different from the first and chosen from C10-C24 olefin sulfonates. Copending ‘070 claims at least one amphoteric surfactant and a composition essentially free of cocamidopropyl betaine. At least one conditioning agent chosen from cationic conditioning agents, silicone compounds, non-silicone fatty compound and at least one anti-dandruff active agent is present. The composition is essentially free of sulfate-based surfactants and cocamidopropyl betaine. Therefore the present claims are prima facie obvious in view of the teachings of '070.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1-17 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-6, 9-15, and 18 of copending Application No. 18/680,920 (herein '920). Although the claims at issue are not identical, they are not patentably distinct from each other because as mentioned above ‘010 claims the anti-dandruff composition, the copending '920 composition comprises a first anionic surfactant selected from C10-C24, a second anionic surfactant different from the first anionic surfactant chosen from C8-C30 alkyl sulfosuccinates, C8-C30 alkyl sulfoacetates, acyl sarcosinates, alkoxylated monoacids and at least one conditioning agent chosen cationic conditioning agents, silicone compounds, and non-silicone fatty compounds. The composition comprises at least one anti-dandruff agent. The composition is essentially free of cocamidopropyl betaine. Therefore the present claims are prima facie obvious in view of the teachings of '920. This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1-17 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-9, 11-12, and 14-17 of copending Application No. 18/680,901 (herein '901). Although the claims at issue are not identical, they are not patentably distinct from each other because as mentioned above ‘010 claims the anti-dandruff composition, copending '901 discloses a first anionic surfactant chosen from C10-C24 olefin sulfonates; second anionic surfactant different from the first and chosen from C8-C30 alkyl sulfosuccinates, C8-C30 alkyl sulfoacetates, acyl sarcosinates, alkoxylated monoacids. The composition comprises at least one conditioning agent chosen from cationic conditioning agents, silicone compounds, non-silicone fatty compound and at least one anti-dandruff active agent is present. The composition is essentially free of sulfate-based surfactants and cocamidopropyl betaine. Copending ‘901 discloses that compositions comprise at least one anti-dandruff active agent ([00116]). Therefore the present claims are prima facie obvious in view of the teachings of '901. This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1-12 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-6, 9-15, 18, and 19 of copending Application No. 18/731,045 (herein '045). Although the claims at issue are not identical, they are not patentably distinct from each other because as mentioned above, ‘010 claims the anti-dandruff composition, copending '045 discloses compositions comprising a first anionic surfactant selected from C10-C24 olefin sulfonates, a second anionic surfactant different from the first and chosen from C8-C30 alkyl sulfosuccinates, C8-C30 alkyl sulfoacetates, acyl sarcosinates, alkoxylated monoacids. Compositions comprise at least one anti-dandruff active agent and optionally at least one conditioning agent. Therefore the present claims are prima facie obvious in view of the teachings of '045. This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1-5, 7, 8, 12, 13 and 16-17 is/are rejected under 35 U.S.C. 102(a)(1) as being clearly anticipated by TS Houttuynia Cordata Shampoo (published May 2022, as cited on IDS).
Applicant claims a composition comprising: a) a surfactant system (i) a first anionic surfactant chosen from sulfo-derived anionic surfactants, (ii) at least one second anionic surfactant different from the first anionic surfactant, (iii) optionally at least one amphoteric surfactant, and (iv) optionally at least one nonionic surfactant; (b) at least one anti-dandruff active agent; and (c) water, wherein the composition is essentially free of sulfate-based surfactants (claim 1).
TS Houttuynia Cordata Shampoo is free of sulfates sodium lauryl sulfate and sodium laureth sulfate (product description). Ingredients include water shown as “Aqua (Purified)”, sodium C14-16 olefin sulfonate (first anionic surfactant), disodium laureth sulfosuccinate (second anionic surfactant of instant claim 17), C12-13 alketh-9 (nonionic surfactant), coco betaine (amphoteric surfactant of instant claim 16), salicylic acid (anti-dandruff agent of instant claim 8), polyquaternium-10 (cationic conditioning agent of instant claim 12), panthenol (non-silicone fatty compound of instant claim 8) and does not list cocamidopropyl betaine to anticipate the free of sulfate-based surfactants and cocamidopropyl betaine of instant claim 13 (see Ingredients of the document).
Claim(s) 1-12 is/are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Ceballos et al. (US 20190365619 A1).
Ceballos et al. anticipates the claims with the disclosure of an anti-dandruff cleansing composition comprising: about 1 to about 5 wt.% of salicylic acid; about 15 to about 45 wt.% of a surfactant system comprising: about 1 to about 15 wt.% of one or more non-sulfate anionic surfactants; about 1 to about 15 wt.% of one or more amphoteric surfactants; at least 10 wt.% of a plurality of nonionic surfactants and water; wherein all weight percentages are based on the total weight of the cleansing composition (claim 1). The cleansing composition is essentially free of sulfate-based surfactants (claim 17). Example 1 shows an anti-dandruff agent, anionic surfactants, amphoteric surfactants, and nonionic surfactants ([0280]).
Regarding claim 2, Ceballos et al. disclose C4-C18 fatty alcohol sulfoacetates and/or salts thereof ([0062]) to anticipate C6-C30 alkyl sulfoacetates of the claim.
Regarding claim 3, Ceballos et al. disclose C10-C24 olefin sulfonates ([0054]).
Regarding claims 4, acyl taurates are taught as non-sulfate anionic surfactants (claim 2) to anticipate the acyl taurates species recited in line 3 of claim 4.
Regarding claim 5, the teaching of acyl sarcosinates as an exemplary non-sulfate anionic surfactant ([0017], [0089]) anticipates acyl sarcosinates species recited in line 2 of claim 5.
Regarding claim 6, the total amount of nonionic surfactants is typically at least 10 wt. %, based on the total weight of the anti-dandruff cleansing composition ([0006]).
Regarding claim 7, Ceballos et al. teach that the one or more amphoteric surfactants are selected from betaines (claim 5) to anticipate betaines.
Regarding claims 8 and 9, salicylic acid is taught as an anti-dandruff ([0038], claim 1); present from about 1 to about 5 wt.% (claim 1).
Regarding claim 10, Ceballos et al. disclose the composition comprising about 1 to about 15 wt. % of one or more amphoteric surfactants ([0029], claim 1).
Regarding claim 11, Ceballos et al. teach that the total amount of nonionic surfactants is at least 10 wt. %, based on the total weight of the anti-dandruff cleansing composition ([0006]).
Regarding claim 12, Ceballos et al. teach that the compositions may include one or more conditioning agents and disclose non-silicone fatty compounds as an exemplary conditioning agent ([0022]) to anticipate the non-silicone fatty compounds recited in lines 2-3 of claim 12.
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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. § 103 (a) are summarized as follows:
Determining the scope and contents of the prior art.
Ascertaining the differences between the prior art and the claims at issue.
Resolving the level of ordinary skill in the pertinent art.
Considering objective evidence present in the application indicating obviousness or nonobviousness.
1. Claims 1-12 are rejected under 35 U.S.C. § 103 as being unpatentable over Ceballos et al. (US 20190365619 A1).
Ceballos et al. disclose a surfactant system that includes: (i) one or more non-sulfate anionic surfactants; (ii) one or more amphoteric surfactants; and (iii) a plurality of nonionic surfactants. Ceballos et al. provide an anti-dandruff cleansing composition comprising: (a) about 1 to about 5 wt.% of salicylic acid; (b) about 15 to about 45 wt.% of a surfactant system comprising: (i) about 1 to about 15 wt.% of one or more non-sulfate anionic surfactants; (ii) about 1 to about 15 wt.% of one or more amphoteric surfactants; (iii) at least 10 wt.% of a plurality of nonionic surfactants comprising: (iii-a) about 1 to about 15 wt.% of one or more alkyl polyglucosides (i.e., nonionic surfactant); and (iii-b) about 1 to about 20 wt.% of one or more amide surfactants; and (c) water; wherein all weight percentages are based on the total weight of the cleansing composition. (claim 1). The cleansing composition of Ceballos et al. is essentially free of silicones and/or essentially free of film forming polymers and/or essentially free of sulfate-based surfactants, salts thereof, and mixtures thereof (claim 17). Here the prior art reads on element (a) surfactant system, as well as the recitation of anionic surfactants; element (b) anti-dandruff agent (i.e., salicylic acid); element (c) water, and the essentially free of sulfate-based surfactants limitation of instant claim 1.
Regarding element (a)(i) (i.e., sulfo-derived anionic), Ceballos et al. teach olefin sulfonates and alpha-olefin sulfonates with preference for C10-C24 olefin sulfonates, specifically sodium C14-16 olefin sulfonate ([0052]-[0054]) to meet the sulfo-derived anionic surfactant of element (a)(i) of instant claim 1, the C4-C28 alkyl sulfonates limitation of instant claim 2, the C10-C24 olefin sulfonates limitation of instant claims 3.
Regarding element (a)(ii), Ceballos et al. disclose a cleansing composition comprising one or more non-sulfate anionic surfactants selected from acyl isethionates, alkyl sulfonates, alkyl sulfosuccinates, alkyl sulfoacetates, alkoxylated monoacids, acyl amino acids such as acyl taurates, acyl glycinates, acyl glutamates, acyl sarcosinates, salts thereof, and a mixture thereof (claim 2) to read on the acyl taurates species of instant claim 4; thereby meeting the anionic surfactant requirement in element (a)(ii) of instant claim 1.
Regarding elements (a)(iii) and (a)(iv) of instant claim 1, the Examiner notes that recitations following the term “optionally” will be considered not required. Nonetheless, Ceballos et al. disclose that the composition comprises about 1 to about 15 wt. % of one or more amphoteric surfactants (claim 1 (ii)) to also meet the total amount of amphoteric surfactants present from about 0.5% to about 10% by weight limitation of instant claim 10.
Regarding claim 5, Ceballos et al. teach disodium lauryl (i.e., 12 carbons) sulfosuccinate as an example of alkyl sulfosuccinates salts to read on the C8-C30 alkyl sulfosuccinate species.
Regarding claim 6 (i.e., anionic surfactants present in the composition ranges from about 0.5% to about 15% by weight), as mentioned above, Ceballos et al. teach a plurality of nonionic surfactants comprising: (iii-a) about 1 to about 15 wt. % of one or more alkyl polyglucosides; (i.e., nonionic surfactant) and (iii-b) about 1 to about 20 wt. % of one or more amide surfactants (claim 1). Ceballos et al. also explicitly teach the total amount of non-sulfate anionic surfactants in the anti-dandruff cleansing compositions can vary but typically ranges from about 1 to about 30 wt. %, based on the total weight of the anti-dandruff cleansing composition ([0044]). Here the prior art teaches a range of a plurality of nonionic surfactants and a range of total sulfate-free nonionic surfactants that overlaps with the claimed ranges thereby rendering the claim limitations obvious.
Regarding claim 7, Ceballos et al. provide Anti-Dandruff Shampoo Compositions in which either coco-betaine and/or cocamidopropyl betaine are present in a range from at least 3.6 to 7.2 wt.% ([0280] Example 1). Ceballos et al. disclose the one or more amphoteric surfactants are betaines, alkyl amphoacetates, alkyl amphoproprionates (claim 5). The betaines include coco betaine, cocamidopropyl betaine, cocamidopropyl hydroxysultaine (claim 7).
Regarding claim 8 (i.e., salicylic acid) and claim 9 (i.e., 0.01% to about 10%), as mentioned above Ceballos et al. provide an anti-dandruff cleansing composition comprising: (a) about 1 to about 5 wt. % of salicylic acid (claim 1).
Regarding claim 10, as mentioned above, about 1 to about 15 wt. % of one or more amphoteric surfactants is taught by Ceballos et al.
Regarding claim 11 (i.e., at least one nonionic surfactant, 0.5-15% wt) and considering the 112 issue discussed above, Ceballos et al. teach that the total amount of nonionic surfactants is typically at least 10 wt.%, based on the total weight of the anti-dandruff cleansing composition ([0006]). MPEP 2144.05 states that a prima facie case of obviousness exists in the case where the claimed ranges overlap or lie inside ranges disclosed by the prior art.
Regarding claim 12, Ceballos et al. teach that the cleansing composition further comprises (d) about 0.01 to about 10 wt. % of one or more conditioning agents selected from alkylamines, cationic conditioning polymers, non-silicone fatty compounds, silicones, cationic proteins, cationic protein hydrolysates, and a mixture thereof (claim 14). Here the prior art reads on each species of instant claim 12 (i.e., cationic conditioning agents, silicone compounds, non-silicone fatty compounds).
It would have been prima facie obvious to a person of ordinary skill in the art, ahead of the effective filing date of the claimed invention, to utilize the components taught by Ceballos et al. with expected results. One would be motivated to do so because Ceballos et al. provide anti-dandruff cleansing compositions that are particularly useful for treating dandruff and for cleansing and conditioning hair ([0024]).
2. Claim(s) 13-17 is/are rejected under 35 U.S.C. § 103 as being unpatentable over Wise (US 20240207156 A1, filed Dec. 12, 2023) in view of Cochran et al. (US 20190105246 A1) and evidenced by The Allergy Life (My Favorite Allergy Free Shampoo. Published Nov. 27, 2019).
Wise discloses a sulfate-free dilutable compact personal cleaning composition comprising: a) at least 20 wt % of total surfactant, by weight of the composition, comprising: i) more than about 50 wt % of an anionic alkyl olefin sulfonate surfactant, by weight of the surfactant, and ii) about 10 wt% to about 40 wt% of an amphoteric surfactant, by weight of the surfactant; and b) water, wherein the composition is substantially free of sulfated surfactants (claim 1). The anionic alkyl olefin sulfonate surfactant is an a-olefin sulfonate surfactant selected from sodium C12-14 olefin sulfonate, sodium C14-C16 olefin sulfonate or a combination thereof (claim 2). The composition comprises 20% or more alkyl olefin sulfonate surfactant, based on the weight of the composition (claim 3) to read on claim 13 (a)(i).
Wise teaches sulfate-free anionic surfactants that may be suitable for use include sulfosuccinates, sulfoacetates, sarcosinates, carboxylates, taurates, and isethionates ([0039]). Wise cites Cochran et al. for more specific examples of sulfate-free surfactants. Looking to the cited reference, Cochran et al., sodium lauroyl sarcosinate ([0030], disodium laureth sulfosuccinate ([0033]), and sodium lauryl sulfoacetate ([0036]) are all taught and mirror the species of instant claim 17 and thereby teach the limitation of instant claim 13 (a)(ii).
Regarding elements (a)(iii) and (a)(iv) of instant claim 13, the Examiner notes that recitations following the term “optionally” will be considered as not required. Nonetheless, Wise teaches that the amphoteric surfactant is selected from the group consisting of betaines, lauroampho-acetates, alkanolamides, and combinations thereof (claim 4).
The composition taught by Wise further comprises an anti-dandruff agent selected from a group that includes zinc pyrithione, and salicylic acid (claim 10) to read on instant claim 13 (b).
The composition of Wise further comprises a conditioning agent (claim 5) wherein the conditioning agent is a cationic conditioning polymer (claim 6) to read on instant claim 13 (c).
Wise teaches diluting the compact composition to provide a dilute personal cleansing composition at a composition to water ratio of 3:1 to 1:4 (claim 13) to read on the water limitation of instant claim 13 (d).
As mentioned above, the composition of Wise is directed to sulfate-free composition formulations and formulation challenges specific to rheology, e.g., viscosity. Wise teaches the use of alkyl olefine sulfonates above 20% generally results in a compact composition with a viscosity that is too high to conveniently process (e.g., too thick for a user to conveniently pour) ([0008]).
Regarding the limitation of instant claim 13, i.e., essentially free of cocamidopropyl betaine, applicant’s specification defines a composition being “substantially free” or “essentially free” of a component when the component is present in amounts less than about 2%, less than about 1.5%, less than about 1%, less than about 0.5%, less than about 0.1%, less than about 0.01%, less than about 0.001%, or less than about 0.0001% (see Spec., [00149]).
Wise teaches how within the class of sulfate-free surfactants, alkyl olefin sulfonates may be preferred due to their high cleaning performance, wide availability, and low cost compared to other sulfate-free surfactants ([0008]). However, the use of alkyl olefin sulfonates above 20% generally results in a compact composition with a viscosity that is too high to conveniently process (e.g., too thick for a user to conveniently pour) ([0008]). Wise teaches that it is generally accepted in the art that combinations of alkyl olefin sulfonate (AOS) as the primary with certain amphoteric surfactants (e.g., cocamidopropyl betaine (CAPB)) do not build sufficient viscosity ([0008]). So, it would have been known to a skilled artisan, and depending on the perceived viscosity to be achieved one may be motivated to not incorporate CAPB when AOS is the first anionic surfactant. However, evidence from The Allergy Life, illustrates how CAPB is a concern in the sulfate-free shampoo space especially for those with contact dermatitis allergy (see document page 3, paragraph 2). The author provides the ingredient list for a specific shampoo sulfate-based free and CAPB free beauty and personal care product line (i.e., Cleure®) shampoo in which sodium C14-16 olefin sulfonate appears second after water and is followed by disodium cocoamphodiacetate (see document page 3, paragraph 3). While Wise shows shampoo formulations with sodium lauroamphoacetate and sodium C14-C16 olefin sulfonate ([0067]), cocoamphodiacetate is also taught ([0047]). Looking at the viscosity adjustment needed in the formulation example of Wise, significantly less viscosity adjuster is needed when sodium lauroamphoacetate is used (e.g., 10.4 versus 2.8) ([0067]). Here the prior art is giving at least one reason obtain a composition that is essentially free of both sulfate-based surfactants and CAPB.
Wise teaches as mentioned above, at least 20 wt % of total surfactant; 10-40 wt % amphoteric surfactant, by weight of the surfactant; more than about 50 wt % of an anionic alkyl olefin sulfonate surfactant, by weight of the surfactant (i.e., 8% and 10% respectively) to meet the 0.5-10% weight, relative to the total weight of the composition of instant claim 14, and 0.5-15% by weight relative to the total weight of the composition of instant claim 15.
Regarding claim 16, Wise teaches cocamidopropyl hydroxysultaine alkanolamides (e.g., cocamide monoisopropanolamide), and cocoamphodiacetate ([0047]) to read on at least the cocamidopropyl hydroxysultaine and disodium cocoamphodiacetate limitation of the claim.
With respect to instant claim 17, while Wise uses sodium C14-C16 olefin sulfonate as the primary surfactant, the other sulfate-free anionic surfactants listed in Table 1 are isethionate and taurate ([0067]). As mentioned above, Wise cites Cochran et al., where sodium lauroyl sarcosinate ([0030], disodium laureth sulfosuccinate ([0033]), and sodium lauryl sulfoacetate ([0036]) are all taught. Accordingly, it would have been prima facie obvious to a person of ordinary skill in the art, ahead of the effective filing date of the claimed invention, to substitute one known anionic surfactant of Wise with the specific anionic surfactant e.g., sodium lauroyl sarcosinate taught by Cochran et al. for a similar purpose of obtaining a composition that is essentially free of sulfate-based surfactants and cocamidopropyl betaine. Simple substitution of one anionic surfactant for another is within the purview of the skilled artisan and would yield predictable results. Both Wise and Cochran et al. recognize the challenges when using certain cationic conditioning polymers in products that are substantially free of sulfate containing surfactants, e.g., stability and consumer perception thereof (Cochran [0002]; Wise [0035]). It would have been prima facie obvious to a person of ordinary skill in the art, ahead of the effective filing date of the claimed invention, to use and/or combine the teachings of Wise and Cochran et al. as Wise found an unexpected benefit, wherein the compositions disclosed do not require hydrotropes, fatty acids or water miscible solvents to provide the desired viscosity ([0012]). Wise explain that this is beneficial because these types of materials (e.g., fatty acids) can be expensive, provide objectionable performance (e.g., formation of soap scum) and they can reduce the ability of a composition to thicken upon dilution ([0012]).
Conclusion
Claims 1-17 are rejected. Claims 18-20 are withdrawn. No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Karen Ketcham whose telephone number is (571)270-5896. The examiner can normally be reached 0830-1630.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Ali Soroush can be reached at 571-272-9925. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/Karen A Ketcham/Examiner, Art Unit 1614
/ALI SOROUSH/Supervisory Patent Examiner, Art Unit 1614
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