DETAILED ACTION
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 .
Information Disclosure Statement
The information disclosure statements (IDS) submitted on 15 September 2024 and 20 March 2026 are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statements are being considered by the examiner.
Election/Restrictions
Applicant’s election without traverse of Group I drawn to a system for lightening keratinous fibers in the reply filed on 9 July 2026 is acknowledged.
Claims 22-30 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 9 July 2026.
Claims 1-6, 8, 10-11, and 14-15 are examined on the merits herein.
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 1-2, 8, 10-11, and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Pratt et al. (US 2017/0000700 cited on Applicant’s IDS filed 15 September 2024) in view of Weser et al. (US 9,839,596).
Claim 1 is drawn to a system for lightening keratinous fibers, the system comprising:
a peroxide hydrogel composition; and
an oxidizing agent booster,
wherein, when the peroxide hydrogel composition and the oxidizing agent booster are combined in a ratio of from 1:1 to 1:2, the system has a pH of from about 9 to about 12.
Claim 2 is drawn to the system of claim 1, wherein the peroxide hydrogel composition comprises hydrogen peroxide in an amount of from about 5 to about 17% by weight based on the total weight of the peroxide hydrogel composition.
Claim 10 is drawn to the system of claim 1, wherein the peroxide hydrogel composition has a pH of from about 3.5 to about 4.5 prior to being combined with the oxidizing agent booster.
Claim 11 is drawn to the system of claim 1, wherein the oxidizing agent booster comprises a persulfate selected from inorganic salts of a peroxosulfuric acid and mixtures thereof, the persulfate being in an amount of from about 5 to about 85% by weight based on the total weight of the oxidizing agent booster.
Pratt et al. teach systems for hair bleaching comprising a bleaching composition and an aqueous oxidizing composition (Abstract). Pratt et al. further teach in Example 1 (Pg. 8) combining 25 parts of a bleaching composition with 35 parts of an oxidizing composition, the bleaching composition comprising 45% by weight persulfate salts, and the oxidizing composition comprising 9% by weight hydrogen peroxide and having a pH of 4.0.
As such, Pratt et al. teach a system for lightening keratinous fibers, the system comprising: a peroxide composition and an oxidizing agent booster, wherein the peroxide composition and the oxidizing agent booster are combined, wherein the peroxide composition comprises from about 5 to about 17% by weight hydrogen peroxide, the peroxide composition has a pH of from 3.5 to 4.5 prior to being combined with the oxidizing agent booster, and the oxidizing agent booster comprises a persulfate comprising a mixture of inorganic salts of peroxosulfuric acid in an amount of from 5% to 85% by weight.
The system of Pratt et al. differs from the instantly claimed system in the following ways:
the system of Pratt et al. does not comprise a peroxide hydrogel;
the system of Pratt et al. does not contain the peroxide composition and oxidizing agent booster in a ratio of 1:1 to 1:2; and
Pratt et al. are silent as to the pH of the combined composition.
Yet, as to 1: Weser et al. also teach two part systems for lightening hair (Abstract), wherein one of the compositions is an acidic hydrogen peroxide composition (Claim 1). Weser et al. further teach the hydrogen peroxide composition being in the form of a hydrogel, having a pH in the range of 2.0 to 6.5, and comprising 1 to 23 wt% of hydrogen peroxide.
Therefore, it would have been prima facie obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have modified the system of Pratt et al. to include a hydrogen peroxide hydrogel as taught by Weser et al. it would have been obvious to substitute one acidic peroxide composition suitable for lightening hair for another to obtain the predictable result of a system for lightening hair, with a reasonable expectation of success.
As to 2: Pratt et al. further teach preferably combining the bleaching composition and the oxidizing composition in a ratio of 4:4 (Par. [0097]), overlapping with the instantly claimed range.
And, as to 3: Pratt et al. further teach the ready to use product formed by mixing the compositions of the system having a pH in a range between 8 and 12 (Par. [0099]), overlapping with the instantly claimed range.
Based on all of the foregoing, claims 1-2 and 10-11 are rejected as prima facie obvious.
Claim 8 is drawn to the system of claim 1, wherein the peroxide hydrogel composition comprises phosphoric acid in an amount of from about 0.5% to about 2.5% by weight, based on the total weight of the peroxide hydrogel composition.
Pratt et al. teach phosphoric acid as an acidifying agent to adjust the pH of the composition (Par. [0048]), further teaching 0.5% by weight as a suitable amount of phosphoric acid (Example 2 on pg. 9).
As such, claim 8 is rejected as prima facie obvious.
Claim 14 is drawn to a kit for bleaching hair, the kit comprising:
an oxidizing agent booster having a pH of from about 9 to about 12; and
a peroxide hydrogel having a pH of from about 3 to about 4.5,
wherein the oxidizing agent booster and the peroxide hydrogel are in a weight ratio of 1:1 to about 2:1, based on the total weight of the kit.
As discussed in the rejection of claim 1 above, Pratt et al. in view of Weser et al. teach a kit for bleaching hair comprising an oxidizing agent booster; and a peroxide hydrogel having a pH of from about 3 to about 4.5, wherein the oxidizing agent booster and the peroxide hydrogel are in a weight ratio of 1:1.
Pratt et al. and Weser et al. do not teach the pH of the oxidizing agent booster.
However, Pratt et al. teach the ready to use product formed by mixing the compositions of the system having a pH in a range between 8 and 12 (Par. [0099]) and the peroxide composition having a pH in the range of 2.5 and 5 (Par. [0048]), indicating that the pH of the oxidizing agent booster would need to be adjusted such that the combination has a pH in the desired range, additionally teaching adjusting the pH of compositions with acids or alkaline compounds (Par. [0096]).
And, as discussed by MPEP 2144.05, “where 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…” Indeed, as further discussed by the court, “[s]uch experimentation is no more than the application of the expected skill of the [ordinarily skilled artisan] and failure to perform such experiments would, in our opinion, show a want of the expected skill”; see also In re Peterson, 315 F.3d at 1325 (Fed. Cir. 2005): “[t]he normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages” and “[o]nly if the ‘results of optimizing a variable’ are ‘unexpectedly good’ can a patent be obtained for the claimed critical range” (quoting In re Antonie (559 F.2d 618 (CCPA 1977))).
In the instant case, the pH of the oxidizing agent booster is clearly a result effective variable, determining the pH of the ready to use composition when the compositions of the kit are mixed. Accordingly, it would have been customary for an artisan of ordinary skill in the art to determine the optimal pH of the oxidizing agent booster in order to best achieve the desired results.
As such, claim 14 is rejected as prima facie obvious.
Claims 3-6 are rejected under 35 U.S.C. 103 as being unpatentable over Pratt et al. and Weser et al. as applied to claims 1-2, 8, 10-11, and 14 above, and further in view of Hoover (US 2017/0281670) and Zalluhoglu et al. (Ind Eng Chem Res, 2017, Vol. 56, 2607-2614 cited on Applicant’s IDS filed 15 September 2024).
Claim 8 is ADDITIONALLY rejected under 35 U.S.C. 103 as being unpatentable over Pratt et al. and Weser et al. as applied to claims 1-2, 8, 10-11, and 14 above, and further in view of Hoover (US 2017/0281670) and Zalluhoglu et al. (Ind Eng Chem Res, 2017, Vol. 56, 2607-2614 cited on Applicant’s IDS filed 15 September 2024).
The teachings of Pratt et al. and Weser et al. have been set forth above.
Claims 2-3 are drawn to the system of claim 1, wherein the peroxide hydrogel composition comprises about 15 to about 30% by weight of sodium silicate based on the total weight of the peroxide hydrogel composition.
Pratt et al. and Weser et al. do not teach the peroxide hydrogel comprising sodium silicate or calcium chloride.
Hoover teaches hydrogel compositions containing a reactive oxygen species (Abstract), wherein the reactive oxygen species includes hydrogen peroxide (Par. [0058]), the compositions are for use as cosmetics (Par. [0057]), and the hydrogels comprise sodium silicate (Claims 3-4).
Zalluhoglu et al. also teach hydrogen peroxide containing sodium silicate hydrogels (Abstract). Zalluhoglu et al. further teach the hydrogels containing 28% by weight of sodium silicate (Sec. 2.2 on pg. 2608).
Therefore, it would have been prima facie obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have modified the peroxide hydrogel of Pratt et al. and Weser et al. to comprise 28% sodium silicate as taught by Zalluhoglu et al. It would have been obvious to substitute the known sodium silicate hydrogel in the place of the hydrogel of Weser et al. as both are taught in the prior art to be suitable for cosmetic delivery of hydrogen peroxide, with a reasonable expectation of success.
As such, claims 2-3 are rejected as prima facie obvious.
Claims 5-6 are drawn to the system of claim 1, wherein the peroxide hydrogel composition comprises a divalent metal cation.
Claim 8 is drawn to the system of claim 1, wherein the peroxide hydrogel composition comprises calcium chloride in an amount of 0.1 to 1% by weight based on the total weight of the peroxide hydrogel composition.
Zalluhoglu et al. further teach the hydrogels comprising 1% by weight CaCl2 (Sec. 2.2 on pg. 2608) further teaching hydrogels containing calcium ions providing increased stability of hydrogen peroxide (Conclusions on pg. 2613).
Therefore, it would have been prima facie obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have modified the peroxide hydrogel of Pratt et al., Weser et al., and Zalluhoglu et al. to include 1% by weight CaCl2. It would have been obvious to use the known technique of including calcium ions in a sodium silicate hydrogel to improve the hydrogel in the same way, by improving the stability of the entrapped hydrogen peroxide, with a reasonable expectation of success.
As such, claims 5-6 and 8 are rejected as prima facie obvious.
Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over Pratt et al. and Weser et al. as applied to claims 1-2, 8, 10-11, and 14 above, and further in view of Muniz et al. (US 2021/0037944).
The teachings of Pratt et al. and Weser et al. have been set forth above.
Claim 15 is drawn to the kit of claim 14, further comprising at least one of an application aid, disposable gloves, or instructions for use for the kit.
Pratt et al. and Weser et al. do not teach the kit comprising an application aid, disposable gloves, or instructions for use for the kit.
Muniz et al. also teach kits for bleaching hair (Abstract). Muniz et al. further teach the kit comprising protective gloves, a tool for bleaching the hair such as a comb or brush, and instructions for how to bleach hair with the kit (Par. [0245]).
Therefore, it would have been prima facie obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have modified the kit of Pratt et al. and Weser et al. to include an application aid, disposable gloves, and instructions for use for the kit. It would have been obvious to combine the known kit and the known inclusion of application aid, disposable gloves, and instructions in the kit to yield the predictable result of a kit that is easy to use for the consumer, with a reasonable expectation of success.
As such, claim 15 is rejected as prima facie obvious.
Conclusion
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/BETHANY P BARHAM/Supervisory Patent Examiner, Art Unit 1611
/PAUL HOERNER/Examiner, Art Unit 1611
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