DETAILED ACTION
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 . 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 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.
Election/Restrictions
Applicant’s election without traverse of Group I (claims 16-24 and 31) in the reply filed on 23 June 2026 is acknowledged. Claims 25-30 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.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 statements filed 20 February 2025 and 04 March 2026 fail to comply with the provisions of 37 CFR 1.98(a)(4) because they lack the appropriate size fee assertion. These have been placed in the application file, but the information referred to therein has not been considered as to the merits.
Claim Rejections - 35 USC § 112 - Indefiniteness
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.
Claims 17-24 and 31 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention. The rejected claims all recite that they further limit the composition “according to claim 1” or “according to claim 4.” These claims are cancelled, and thus it is not clear what limitations are being incorporated into these claims. For purposes of applying prior art, the claims will be taken to further limit independent claim 16.
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.
Claims 16-24 are rejected under 35 U.S.C. 103 as being unpatentable over Schaal et al. (European Patent Publication EP 3944852).
Schaal et al. discloses anti-dandruff compositions comprising piroctone olamine (abstract). The piroctone olamine is present in the blend in amounts ranging from 2 to 70 wt% (paragraph [44]). And as for the amount, the taught range overlaps the instantly recited range. And in cases involving overlapping ranges, where the instantly claimed ranges “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists. See MPEP 2144.05. This element reads upon instantly recited element (a).
Schaal et al. further suggests the inclusion of additives such as surfactants and co-surfactants (paragraph [63]). Examples of surfactants taught include betaine surfactants (paragraph [144]). These can be present in from 1 to 68 wt% of the blend (paragraph [64]), a range which overlaps the instantly recited range. This element reads upon instantly recited element (b).
The blend can comprise a solvent as an additive, and the solvent can be propylene glycol (paragraphs [59-60]). And it can be present in from 1 to 68 wt% of the blend (paragraph [64]), a range which overlaps the instantly recited range. This element reads upon instantly recited element (c).
The blend can comprise an oily substance as an additive (paragraph [63]), and oily substances suggested by Schaal et al. include triglycerides (paragraphs [156-157]). And it can be present in from 1 to 68 wt% of the blend (paragraph [64]), a range which overlaps the instantly recited range. This element reads upon instantly recited element (d). Thus the compositions recited by independent instant claim 16 is rendered prima facie obvious.
Instant claims 17-24 further limit the amounts or identity of these four elements, and are addressed by the above cited teachings of Schaal et al.
Instant claim 24 also recites the inclusion of water. Schaal et al. suggests the blend can comprise water as a solvent (paragraphs [60-61]). And it can be present in from 1 to 68 wt% of the blend (paragraph [64]), a range which overlaps the instantly recited range.
Allowable Subject Matter
The following is a statement of reasons for the indication of allowable subject matter. The subject matter of claim 31 is free of the prior art. The claimed composition is free of the prior art in view of the evidence of unexpected results presented in the instant specification. The data presented (examples) shows that compositions with these ingredients in such amounts would have the improved stability while retaining good antifungal activity (table 5).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Brian Gulledge whose telephone number is (571) 270-5756. The examiner can normally be reached Monday - Friday 7am - 4pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Fereydoun Sajjadi can be reached at (571) 272-3311. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Brian Gulledge/Primary Examiner, Art Unit 1699
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