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 .
Claims 1-10 are presented for examination.
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) 1-10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Leighton et al. (US 20050255067).
The claims are drawn to a clear hair styling formulation, comprising: a dermatologically acceptable vehicle; and
a hair fixative polymer; wherein the hair fixative polymer is a hydrolyzed starch; wherein the hydrolyzed starch has a weight average molecular weight of 5,000 to 50,000 Daltons.
Regarding claims 1 and 10, Leighton teaches to a hair fixative film composition, and methods of fixing and maintaining the hair in a given style by applying said hair fixative film composition to the hair shafts. See Para [0001]. The use of hydrolyzed starch is taught in claim 4. Leighton does not teach the molecular weight of 5000 to 50,000 for starch. However, the determination of optimum molecular weight is considered to be within the skill of artisan in the absence of evidence to the contrary.
Regarding claim 2, Leighton teaches the use of fixdative polymer, such as acrylic, polyacrylic and carbomer. See para [0018].
Regarding claim 3, the use of a plasticizer is taught in Paras [0012], [0035] and [0037]. Of Leighton.
Regarding claim 4, the claimed turbidity is the inherent property of Leighton’s composition, which uses the same ingredients as the claimed invention. Furthermore, the determination of turbidity is considered to be within the skill of artisan in the absence of evidence to the contrary.
Regarding claims 5 and 6, Leighton teaches the use of carbomer, which is a crosslinked acrylic acid polymer. Furthermore, other polymers of acrylic acids are also taught by Leighton. See Para [0018].
Regarding claim 7, the determination of optimum proportions or amounts are considered to be within the skill of artisan in the absence of evidence to the contrary. Applicant’s attention is drawn to In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955), wherein the court states “Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[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”.
Regarding claim 8, Leighton teaches the use of other ingredients, such as moisturizers, emollients, vitamins, colors, conditioning agents and foaming agent in the hair styling composition. See Para [0043].
Regarding claim 9, the use of composition in a spray, gel, lotion, mousse, wax or pomade is taught in Para [0062] of Leighton.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ZOHREH A FAY whose telephone number is (703)756-1800. The examiner can normally be reached Monday-Friday 9:30AM-6:00.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sue Liu can be reached at 571-272-5539. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ZOHREH A FAY/Primary Examiner, Art Unit 1617
