CTNF 18/731,057 CTNF 71046 Notice of Pre-AIA or AIA Status 07-03-aia AIA 15-10-aia The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA. 07-30-03-h AIA Claim Interpretation The claims are broadly interpreted by the examiner as a cleansing or treating composition and method of cleansing keratin fibers such as hair comprising: A) an anionic surfactant such as sulfonates, sulfosuccinates, sarcosinates and sulfoacetates; B) an anionic surfactant different from A but may include a surfactant from A; C) a humectant; D) a film forming polymer; E) water and the compositions are essentially free of sulfate based surfactants meaning less than 2% according to applicant’s specification. Claim Rejections - 35 USC § 102 07-06 AIA 15-10-15 In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status. 07-07-aia AIA 07-07 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 – 07-08-aia AIA (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. 07-15-aia AIA Claim(s) 1-2, 4-7, 9, 11-14, 16 and 20 is/are rejected under 35 U.S.C. 102 (a1) as being anticipated by WO (2015/013782) . WO ‘782 discloses relates to compositions, especially hair compositions, comprising a combination of at least one particular anionic surfactant, and of a particular amphoteric surfactant, and also to a treatment process using the said composition. These compositions are more particularly intended for washing keratin materials, especially the hair (page 1, lines 1-5). WO ‘782 discloses from 0.1 % to 15% by weight of one or more sulfonate anionic surfactants such as alkyl sulfoacetates , alkyl sulfonates, alkylamide sulfonates, alkylaryl sulfonates, a- olefin sulfonates, paraffin sulfonates, alkylsulfosuccinates, alkyl ether sulfosuccinates, alkylamide sulfosuccinates, acyl isethionates and N-acyltaurates, and also the corresponding salified forms, the alkyl and acyl groups preferably comprising from 6 to 30 carbon atoms, better still from 12 to 24 or even from 16 to 22 carbon atoms (page 3, lines 9-16 and page 5, lines 25-28). Additionally, from 0.1 % to 15% by weight of an amphoteric surfactant such as alkyl betaines (col. 7, lines 5-10); from 1-15% of humectants such mixtures of fatty acid diesters of polyethylene glycol (page 1o, lines 3-5); from 0.1 to 10% of film forming cationic polymers such as polyquaternium-10 (page 24, lines 25-28); from 20-98% of a solvent such as water and/or glycerol; adjunct ingredients such as thickeners, moisturizers or humectants such as PEG distearate and glycol distearate and anti-dandruff agent such as salicylic acid (page 25, lines 7-10 and 21-28). Note, example I: PNG media_image1.png 376 633 media_image1.png Greyscale As this reference teaches all of the instantly required it is considered anticipatory . Claim Rejections - 35 USC § 103 07-06 AIA 15-10-15 In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status. 07-20-aia AIA 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. 07-23-aia AIA 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. 07-20-02-aia AIA 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. 07-21-aia AIA Claim (s) 3, 10 and 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over WO (2015/013782) . WO’782 is relied upon a set forth above. Specifically, WO ‘782 does not teach with sufficient specificity to anticipate the claims. In particular, cationic polymers, olefin sulfonates and additional adjunct ingredients are not specified in the examples but are listed as required alternatives including cationic polymers, C6-C30 olefin sulfonates and glycerol ingredients (see above). It would have been obvious to the skill artisan to include additional alternatives for anionic surfactants in the preferred embodiment and include olefin sulfonates and solvents such as glycerol given they are known and specified in the four corners of the reference as alternatives . In the absence of a showing to the contrary, one skilled in the art would have utilized non-preferred embodiments of additional polymers, surfactants and adjunct solvents for their intended purpose. A reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill the art, including nonpreferred embodiments. Merck & Co. v. Biocraft Laboratories, 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir.), cert. denied, 493 U.S. 975 (1989). [W]hen a patent 'simply arranges old elements with each performing the same function it had been known to perform' and yields no more than one would expect from such an arrangement, the combination is obvious. [KSR Int'l Co. v.Teleflex Inc., 550 U.S. at 418 (quoting Sakraida v. Ag Pro, Inc., 425 U.S. 273,282 (1976).] 07-21-aia AIA Claim (s) 8, 17-19 is/are rejected under 35 U.S.C. 103 as being unpatentable over WO (2015/013782) in view of RUGHANI et al (20180280270) WO ‘782 is relied upon as set forth above. Specifically, WO ‘782 is silent with respect to the film forming starch component; and specific pyrithione anti-dandruff component as claimed. Rughani et al disclose a keratin treatment composition comprising thickener including potato starch (modified or unmodified) (0080); specific anti-dandruff agents such as zinc pyrithione and salicylic acid for hair treatment (0083) and anionic surfactants including olefin sulfonates (0321). It would have been obvious to the skill artisan to include thickeners such as starches and anti-dandruff pyrithione to the compositions of WO ‘782 since WO ‘782 invites the inclusion of anti-dandruff ingredients such as salicylic acid and Rughani et al teach the equivalence of pyrithione and salicylic acid as hair treatment agents, one skilled would have substituted or included for their intended purpose. With respect to the starch component, Rughani et al teach said component as a thickener and to adjust the viscosity of the hair treatment composition. One skilled in the art would readily adjust the viscosity of WO ‘782 by incorporating thickeners such as starches since thickeners are invited in WO ‘782 (page 25, lines 21-28) as adjunct ingredients well known in the hair treatment art. Only synergistic results would have been obtained by the inclusion of these ingredients . Double Patenting 08-33 AIA 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. 08-35 Claim 1-20 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim s 1-20 of copending Application No. 18/731,048 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because additional adjunct ingredients read upon similar components for same or similar purposes . This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented. Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to NECHOLUS OGDEN JR whose telephone number is (571)272-1322. The examiner can normally be reached 8-4:30 EST M-F. 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, Angela Brown-Pettigrew can be reached at 571-272-1498. 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. /NECHOLUS OGDEN JR/Primary Examiner, Art Unit 1761 Application/Control Number: 18/731,057 Page 2 Art Unit: 1761 Application/Control Number: 18/731,057 Page 3 Art Unit: 1761 Application/Control Number: 18/731,057 Page 4 Art Unit: 1761 Application/Control Number: 18/731,057 Page 5 Art Unit: 1761 Application/Control Number: 18/731,057 Page 6 Art Unit: 1761 Application/Control Number: 18/731,057 Page 7 Art Unit: 1761 Application/Control Number: 18/731,057 Page 8 Art Unit: 1761
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