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 .
Formal Matters
Applicant’s claim set filed on 19 November 2024 are acknowledged and have been fully considered. Claims 1-11 and 14-19 are pending. Claims 1-11 and 14-19 are under consideration in the instant office action.
Priority
Acknowledgment is made of applicant’s claim for foreign priority under 35 U.S.C. 119 (a)-(d).
Information Disclosure Statement
The information disclosure statements (IDS) submitted on19 November 2024 is noted and the submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner. A signed copy is attached herein.
Objection to the title
The title of the invention is not descriptive. A new title is required that is clearly indicative of the invention to which the claims are directed. The title of the instant application is “CONCENTRATED CLEANSING COMPOSITIONS”. The title should be brief but technically accurate and descriptive and should contain fewer than 500 characters. The title does not reflect the main inventive concept of Applicant’s invention and the major components of the “CONCENTRATED CLEANSING COMPOSITIONS”. The title is generic and can be applicable to any “CONCENTRATED CLEANSING COMPOSITIONS”. The examiner advises Applicant to consider including major components of the composition in the title to precisely reflect the inventive concept. Inasmuch as the words "new," "improved," "improvement of," and "improvement in" are not considered as part of the title of an invention, these words should not be included at the beginning of the title of the invention and will be deleted when the Office enters the title into the Office’s computer records, and when any patent issues. Similarly, the articles "a," "an," and "the" should not be included as the first words of the title of the invention and will be deleted when the Office enters the title into the Office’s computer records, and when any patent issues.
Claim Objections
Claim 1 is objected to because of the following informalities: Claim 1 in relevant parts recites “0.05 to 2.0% by weight based on the total weight of the concentrated cleansing composition of a sensory modifying agent, wherein the sensory modifying agent comprises isohexadecane, a silicone, a cationic polymer, a polymer of ethylene oxide, or a combination thereof; and a thickening agent, wherein the thickening agent comprises sodium chloride, silica, bentonite, magnesium aluminium silicate, carbomer, cellulose, or a combination thereof; 30 to 85% by weight of water based on the total weight of the concentrated cleansing composition;”. The claim recites a list of components in the “comprising: clause with semicolons separating the elements, followed by “30 to 85% by weight of water”. While a terminal “and” can be appropriate in some multi-element lists to improve readability, the placement of “and” in the middle of the recitations before the recitation “a thickening agent,” (after multiple semicolon separated elements including the thickening agent) while both the thickening agent and water are listed as components in the claim renders the claim grammatically awkward and potentially unclear as to whether “and” improperly joins the water limitation to the preceding “a thickening agent” element or functions as a proper list terminator. Additionally, the addition of another conjunction “and” before the wherein clause will help separate the listing of components from the wherein limitation. Appropriate correction is requested.
Claim 3 recites “The concentrated cleansing composition of Claim 1, wherein the co-surfactant comprises sodium lauroamphoacetate, sodium cocoamphoacetate, sodium lauroamphoacetate, sodium cocoamphoacetate, cocodimethyl carboxymethyl betaine, cocamidopropyl betaine, laurylamidopropyl betaine, cocamidopropyl hydroxysultaine, lauryl hydroxysultaine, cocamide monoethanolamine, or a combination thereof.”. The repeated identical compounds (sodium lauroamphoacetate and sodium cocoamphoacetate listed twice) render the claim grammatically awkward, redundant, and unclear. Applicant is advised to delete the duplicates to correct this informality.
Claims 2-11 and 14-19 are objected to because of the following informalities: The term “Claim” is capitalized in the middle of sentences. Appropriate correction is required.
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.
Claim 3, 14, 17, and 19 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.
Claim 1 in relevant parts recites “4 to 8% by weight based on the total weight of the concentrated cleansing composition of a co-surfactant comprising sodium acyl amphoacetate, sodium acyl amphopropionate, disodium acyl amphodiacetate, disodium acyl amphodipropionate, betaine, or a combination thereof;” Claim 3 recites “The concentrated cleansing composition of Claim 1, wherein the co-surfactant comprises sodium lauroamphoacetate, sodium cocoamphoacetate, sodium lauroamphoacetate, sodium cocoamphoacetate, cocodimethyl carboxymethyl betaine, cocamidopropyl betaine, laurylamidopropyl betaine, cocamidopropyl hydroxysultaine, lauryl hydroxysultaine, cocamide monoethanolamine, or a combination thereof.”. Claim 17 recites “The concentrated cleansing composition of Claim 3, wherein the co-surfactant comprises cocamidopropyl betaine, cocamidopropyl hydroxysultaine, lauryl hydroxysultaine, cocamide monoethanolamine, or a combination thereof.” There is insufficient antecedent basis both in claims 3 and 17 for the recitations of cocamidopropyl hydroxysultaine, lauryl hydroxysultaine, cocamide monoethanolamine, or a combination thereof in the claim 1.
Claim 3 recites “The concentrated cleansing composition of Claim 1, wherein the co-surfactant comprises sodium lauroamphoacetate, sodium cocoamphoacetate, sodium lauroamphoacetate, sodium cocoamphoacetate, cocodimethyl carboxymethyl betaine, cocamidopropyl betaine, laurylamidopropyl betaine, cocamidopropyl hydroxysultaine, lauryl hydroxysultaine, cocamide monoethanolamine, or a combination thereof.”. The repeated identical compounds (sodium lauroamphoacetate and sodium cocoamphoacetate listed twice) render the claim indefinite because the list of co-surfactants contains duplicates rendering the metes and bounds of the claim unclear. It is not apparent to one of ordinary skill in the art whether the repeated entries are intentional (implying some special significance or different species) or errors, nor how they affect the scope of the permissible combinations. This redundancy creates ambiguity as to the exact group of compounds encompassed by the “comprises…..or combination thereof” language. Claim 17 also recites “The concentrated cleansing composition of Claim 3, wherein the co-surfactant comprises cocamidopropyl betaine, cocamidopropyl hydroxysultaine, lauryl hydroxysultaine, cocamide monoethanolamine, or a combination thereof.” The list in claims 3 and 17 include cocamidopropyl hydroxysultaine, lauryl hydroxysultaine, and cocamide monoethanolamine. These compounds do not fall within amphoteric types of surfactants such as amphoacetates/amphopropionates and betaines listed in claim 1 as co-surfactants. This renders claims 3 and 17 unclear.
Claim 14 recites “The concentrated cleansing composition of Claim 1, wherein the concentrated cleansing composition has a level of concentration of 2.5, as compared to a base, non-concentrated cleansing composition.” Claim 19 recites “The concentrated cleansing composition of Claim 14, wherein the level of concentration is 2.0, as compared to a non-concentrated cleansing composition.” Claims 14 and 19 are indefinite for at least the following reasons: a) the phrases “level of concentration of 2.5” and “the level of concentration is 2.0” are not defined by the claims or clearly linked to any measurable parameter in the specification (e.g., it does not specify whether it refers to a surfactant active matter ratio, dilution factor, viscosity ratio, total solids content, performance metrics such as foam volume or cleansing efficacy, or some other properties). A person of ordinary skill in the art would not be able to ascertain the metes and bounds of these limitations with reasonable certainty. b) the phrases “as compared to a base, non-concentrated composition” and “compared to a non-concentrated cleansing composition” lack objective standards or references. The claim and the specification do not define or describe what “base, non-concentrated composition” and “a non-concentrated cleansing composition” are )e.g., a specific formulation with particular surfactant levels, a commercial standard, or a hypothetical composition with defined % actives. Without any reference point, it is unclear how to determine or verify whether the claimed composition meets the 2.5 or 2.0 levels. For prior art rejection purpose the examiner interpreted the limitations to mean the concentrated cleansing composition is 2.5 or 2 times concentrated than a diluted form of the cleansing composition.
Claim 14 recites “The concentrated cleansing composition of Claim 1, wherein the concentrated cleansing composition has a level of concentration of 2.5, as compared to a base, non-concentrated cleansing composition.” Claim 19 recites “The concentrated cleansing composition of Claim 14, wherein the level of concentration is 2.0, as compared to a non-concentrated cleansing composition.” There is insufficient antecedent basis for “as compared to a non-concentrated cleansing composition” in claim 14.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 3, 14, 17, and 19 are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
A dependent claim must be narrower than the independent claim from which it depends. Claim 1 recites “4 to 8% by weight based on the total weight of the concentrated cleansing composition of a co-surfactant comprising sodium acyl amphoacetate, sodium acyl amphopropionate, disodium acyl amphodiacetate, disodium acyl amphodipropionate, betaine, or a combination thereof;”. However, claim 3 which depends from claim 1 purports to narrow this to specific species reciting “wherein the co-surfactant comprises sodium lauroamphoacetate, sodium cocoamphoacetate, sodium lauroamphoacetate, sodium cocoamphoacetate, cocodimethyl carboxymethyl betaine, cocamidopropyl betaine, laurylamidopropyl betaine, cocamidopropyl hydroxysultaine, lauryl hydroxysultaine, cocamide monoethanolamine, or a combination thereof.”. Claim 17 which depends from claim 3 recites “The concentrated cleansing composition of Claim 3, wherein the co-surfactant comprises cocamidopropyl betaine, cocamidopropyl hydroxysultaine, lauryl hydroxysultaine, cocamide monoethanolamine, or a combination thereof.” However, the examiner notes that due to the internal duplicates/redundancies in claim 1 and the inclusion of “or combination thereof” in claims 3 and 17 without clear narrowing scope, claims 3 and 17 do not properly further limit the claims where they depend from in all respects. For example, the repeated amphoacetates add no additional limitation; cocamidopropyl hydroxysultaine, lauryl hydroxysultaine, cocamide monoethanolamine do not fall squarely within clam 1’s recited co-surfactant groups (which is limited to amphoteric types of surfactants such as amphoacetates/amphopropionates and betaines). Cocamidopropyl hydroxysultaine, lauryl hydroxysultaine, and cocamide monoethanolamine are not amphoacetates/amphopropionates or betaines. Their inclusion broaden claim 1 directly or indirectly rather than narrowing the claim. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
A dependent claim must include all the limitations of the claim from which it depends and must further limit that claim by adding a specific narrowing limitation. Claim 1 recites a concentrated cleansing composition with specific ranges for anionic surfactant (17-20%), co-surfactant (4-8%), sensory modifying agent (0.05-2.0%), thickening agent, water (30-85%), and pH (3-6). Claim 14 introduces the functional/relative limitation of a “level of concentration of 2.5, as compared to a base, non-concentrated composition.”. However, this does not further limit claim 1 because it fails to add any concrete structural, compositional, or quantitative narrowing to the components already recited in claim 1(e.g., it does not specifiy how the “2.5” level modifies or restricts the surfactant percentages, water content, or other ingredients). Furthermore the phrase level of concentration of 2.5” is not tied to any particular parameter aleardy present in claim 1 (such as total surfactant actives, dilution ratio, viscosity, or performance), nor does it exclude any embodiments otherwise falling within claim 1. Even furthermore, without a clear definition or reference standard for the “base, non-concentrated composition”, the limitation does not create a narrower subset of compositions; it merely appends an ambiguous comparative statement that does not restrict the scope of claim 1. As a result, claim 14 does not comply with the statutory requirement that dependent claim further limit the claim from which it depends. (See MPEP 2173.05(n) and 608.01(n) regarding improper dependent claims that fail to narrow the parent or base claim.)
A dependent claim must narrow the scope of the independent or parent claim. Claim 14 already recites a “level of concentration of 2.5, as compared to a base, non-concentrated composition.” Claim 19 merely substitute different numerical value “2.0” and slightly rephrases the reference “a non-concentrated cleansing composition” vs. “a base, non-concentrated cleansing composition” without adding any further structural, compositional, or functional limitation to the underlying concentrated cleansing composition of claim 1 via claim 14. Because the ”level of concentration” phrase itself is indefinite in claim 14 as described above, and claim 19 does not cure or add narrowing elements that resolve or further restrict the scope in definite manner, claim 19 fails to properly further limit the parent claim. The mere change in the numerical value does not create a narrower, definite subset of compositions when the base metric remains ambiguous.
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.
Claims 1-11 and 14-19 are rejected under 35 U.S.C. 103 as being unpatentable over Botto et al. (US 2019/0365622) in view of Cornwell et al. (US 2019/0070087, IDS reference, 19 November 2024).
Applicants’ claim
Applicants claim a concentrated cleansing composition comprising the components as recited in claim 1. Dependent claims thereof recite additional features.
Determination of the Scope and Content of the Prior Art
(MPEP 2141.01)
Botto et al. teach concentrated rinse-off cleansing compositions, that include a high concentration of surfactants and conditioning agent(s). Conventional hair cleansing compositions are formulated with a high percentage of water, which in turn reduces the amount of cleansing and conditioning agents in the compositions. The rinse off cleansing compositions of the instant case are in a concentrated form. These concentrated compositions perform better than traditional cleansing compositions such as shampoos, even when used in very small amounts. Compared to the amounts of traditional shampoos needed to cleanse the hair, half the amount (and even less than half the amount) of the concentrated cleansing compositions of the instant case can be used while achieving superior results compared to the traditional shampoos (paragraph 0005). Obtaining a concentrated rinse-off cleansing composition is not as simple as merely increasing the total amount of surfactants and conditioning agents in a composition. A concentrated rinse-off cleansing composition should be effective, stable, and have a pleasing texture, but obtaining a concentrated cleansing composition having these properties is difficult. The inventors discovered a unique balance of different surfactants of varying ionicities that can be used in high concentrations with conditioning agents to form surprisingly effective cleansing compositions that are robust, stable, and safe, and have pleasant rheological properties. The concentrated cleansing compositions provide, for example, good foaming, lather, distribution, detangling, shine, smoothness, discipline, and improved shaping to hair (paragraph 0006). The concentrated rinse-off cleansing compositions of the instant disclosure typically include:
(a) about 20 to about 65 wt. % of a surfactant system comprising:
(i) about 15 to about 50 wt. % of one or more anionic surfactants selected from: (i-a) alkyl sulfates, alkyl ether sulfates, salts thereof, or a mixture thereof; and (i-b) optionally, one or more non-sulfate anionic surfactants;
(ii) about 2 to about 20 wt. % of one or more alkyl polyglucosides; and
(iii) about 2 to about 20 wt. % of one or more amphoteric surfactants;
(b) about 0.1 to about 10 wt. % of one or more conditioning agents; and
(c) about 35 to about 80 wt. % of water; wherein all weight percentages are based on the total weight of the cleansing composition (see paragraph 0008).
Botto et al. teach on paragraph 0256 that in yet another embodiment, the cleansing compositions include:
(a) about 25 to about 65 wt. %, preferably about 30 to about 60 wt. %, more preferably about 30 to about 55 wt. % of a surfactant system comprising:
(i) about 10 to about 50 wt. %, preferably about 15 to about 40 wt. %, more preferably about 20 to about 35 wt. % of one or more anionic surfactants selected from:
(i-a) about 5 to about 50 wt. %, preferably about 5 to about 40 wt. %, more preferably about 5 to about 30 wt. % of one or more alkyl sulfates, alkyl ether sulfates, salts thereof, or a mixture thereof, preferably sodium lauryl sulfate and/or sodium laureth sulfate; and
(i-b) optionally, about 0.1 to about 30 wt. %, preferably about 0.5 to about 20 wt. %, more preferably about 1 to about 10 wt. % of one or more non-sulfate anionic surfactants, for example, one or more non-sulfate anionic surfactants selected from alkyl sulfonates, alkyl sulfosuccinates, alkyl sulfoacetates, acyl isethionates, alkoxylated monoacids, acyl amino acids such as acyl taurates, acyl glycinates, acyl glutamates, acyl sarcosinates, salts thereof, and a mixture thereof;
(ii) about 2 to about 20 wt. %, more preferably about 2 to about 15 wt. %, or more preferably about 5 to about 12 wt. % of one or more alkyl polyglucosides selected from lauryl glucoside, octyl glucoside, decyl glucoside, coco glucoside, and a mixture thereof, preferably decyl glucoside;
(iii) about 2 to about 20 wt. %, preferably about 2 to about 15 wt. %, more preferably about 4 to about 12 wt. % of one or more betaines selected from coco betaine, cocamidopropyl betaine, lauryl betaine, laurylihydroxy sulfobetaine, lauryldimethyl betaine, behenyl betaine, capryl/capramidopropyl betaine, stearyl betaine, and a mixture thereof. Non-limiting examples of sultaines include cocamidopropyl hydroxysultaine, lauryl hydroxysultaine, and a mixture thereof, preferably coco betaine and/or cocamidopropyl betaine; and
(b) about 0.1 to about 10 wt. %, preferably about 0.5 to about 8 wt. %, more preferably about 0.5 to about 5 wt. % of one or more polyquaterniums and/or one or more cationic guar gum derivatives, preferably polyquaternium-7, polyquaternium-10, hydroxypropyl guar hydroxypropyltrimonium chloride, or a mixture thereof; and
(c) about 35 to about 75 wt. %, more preferably, about 45 to about 75 wt. %, or more preferably about 50 to about 70 wt. % of water.
The cleansing compositions of the instant disclosure are particularly useful for cleansing and conditioning hair. The compositions exhibit good cleansing ability, lather, foaming and foam stability, and conditioning properties. Additionally, the cleansing compositions provide a variety of desirable styling benefits to the hair, for example, smoothness, detangling, and shine. Accordingly, the cleansing compositions may be used in methods for cleansing hair, methods of conditioning hair, and methods for imparting smoothness, detangling, and/or shine to hair (paragraph 0023).
Regarding anionic surfactants Botto et al. teach in some instances, anionic surfactants are the predominant type of surfactants in the surfactant system (i.e., there is a higher percentage of these surfactant(s) than any other single surfactant type in the cleansing composition). Moreover, in some instances, the total amount of anionic surfactants in the surfactant system is higher than the total amount of all other surfactant types in the surfactant system including the alkyl polyglucosides, amphoteric surfactants, and nonionic surfactants. In other words, the phrase “all other surfactants” means any and all surfactants in the cleansing composition other than anionic surfactants (paragraph 0038). The total amount of anionic surfactants in the cleansing compositions can vary but typically ranges from about 10 to about 50 wt. %, based on the total weight of the cleansing composition. In some cases, the total amount of anionic surfactants in the cleansing composition may be from about 10 to about 45 wt. %, from about 10 to about 50 wt. %, from about 10 to about 40 wt. %, from about 10 to about 35 wt. %, from about 10 to about 30 wt. %, about 10 to about 25 wt. %, about 10 to about 20 wt. %, from about 15 to about 50 wt. %, from about 15 to about 45 wt. %, from about 15 to about 40 wt. %, from about 15 to about 35 wt. %, or from about 15 to about 30 wt. %, from about 15 to about 25 wt. %, about 20 to about 50 wt. %, about 20 to about 45 wt. %, about 20 to about 40 wt. %, or about 20 to about 35 wt. %, based on the total weight of the cleansing composition (paragraph 0039). The total amount of alkyl sulfates, alkyl ether sulfates, and/or salts thereof in the cleansing compositions can vary but typically ranges from about 5 to about 50 wt. %, based on the total weight of the cleansing composition. In some cases, the total amount of alkyl sulfates, alkyl ether sulfates, and/or salts thereof in the cleansing composition may be from about 5 to about 45 wt. %, from about 5 to about 30 wt. %, from about 5 to about 25 wt. %, from about 5 to about 20 wt. %, from about 5 to about 15 wt. %, from about 10 to about 45 wt. %, from about 10 to about 50 wt. %, from about 10 to about 40 wt. %, from about 10 to about 35 wt. %, from about 10 to about 30 wt. %, about 10 to about 25 wt. %, about 10 to about 20 wt. %, from about 15 to about 50 wt. %, from about 15 to about 45 wt. %, from about 15 to about 40 wt. %, from about 15 to about 35 wt. %, or from about 15 to about 30 wt. %, or from about 15 to about 25 wt. %, based on the total weight of the cleansing composition (paragraph 0042). Non-limiting examples of alkyl sulfate and alkyl ether sulfate salts include sodium lauryl sulfate (SLS), sodium dodecyl sulfate (SDS), sodium lauryl ether sulfate (SLES), ammonium lauryl sulfate, and ammonium laureth sulfate. Non-limiting examples of non-sulfate anionic surfactants include alkyl sulfonates, alkyl sulfosuccinates, alkyl sulfoacetates, acyl isethionates, alkoxylated monoacids, acyl amino acids such as acyl taurates, acyl glycinates, acyl glutamates, acyl sarcosinates, salts thereof, and a mixture thereof. Alkyl sulfonate include, for example, C8-C16 alkyl benzene sulfonates, C10-C20 paraffin sulfonates, C10-C24 olefin sulfonates, and salts thereof (paragraph 0018). Useful alkyl sulfates include C8-18 alkyl sulfates, more preferably C12-18 alkyl sulfates, preferably in the form of a salt with a solubilizing cation such as sodium, potassium, ammonium or substituted ammonium. Examples are sodium lauryl sulfate (SLS) or sodium dodecyl sulfate (SDS). Useful alkyl ether sulfates include those having the formula: RO(CH2CH2O)nSO3M; wherein R is an alkyl or alkenyl having from 8 to 18 (preferably 12 to 18) carbon atoms; n is a number having an average value of greater than at least 0.5, preferably between 1 and 3, more preferably between 2 and 3; and M is a solubilizing cation such as sodium, potassium, ammonium or substituted ammonium. An example is sodium lauryl ether sulfate (SLES) (paragraph 0043). Non-limiting examples of acyl isethionates include sodium isethionate, sodium cocoyl isethionate, sodium lauroyl methyl isethionate, and sodium cocoyl methyl isethionate (paragraph 0066). Non-limiting examples of acyl glycinates include sodium cocoyl glycinate, sodium lauroyl glycinate, sodium myristoyl glycinate, potassium lauroyl glycinate, and potassium cocoyl glycinate, and in particular sodium cocoyl glycinate (paragraph 0090). Non-limiting examples of acyl glutamates include dipotassium capryloyl glutamate, dipotassium undecylenoyl glutamate, disodium capryloyl glutamate, disodium cocoyl glutamate, disodium lauroyl glutamate, disodium stearoyl glutamate, disodium undecylenoyl glutamate, potassium capryloyl glutamate, potassium cocoyl glutamate, potassium lauroyl glutamate, potassium myristoyl glutamate, potassium stearoyl glutamate, potassium undecylenoyl glutamate, sodium capryloyl glutamate, sodium cocoyl glutamate, sodium lauroyl glutamate, sodium myristoyl glutamate, sodium olivoyl glutamate, sodium palmitoyl glutamate, sodium stearoyl glutamate, sodium undecylenoyl glutamate, triethanolamine mono-cocoyl glutamate, triethanolamine lauroylglutamate, and disodium cocoyl glutamate. In some cases, sodium stearoyl glutamate is particularly preferred (paragraph 0094). Non-limiting examples of acyl sarcosinates include potassium lauroyl sarcosinate, potassium cocoyl sarcosinate, sodium cocoyl sarcosinate, sodium lauroyl sarcosinate, sodium myristoyl sarcosinate, sodium oleoyl sarcosinate, sodium palmitoyl sarcosinate, and ammonium lauroyl sarcosinate (paragraph 0098).
Regarding amphoteric surfactants Botto et al. the total amount of amphoteric surfactant(s) in the cleansing compositions may vary but is typically from about 2 to about 25 wt. %, based on the total weight of the cleansing composition. In some instance, the total amount of amphoteric surfactant(s) in the cleansing composition is from about 2 to about 20 wt. %, from about 2 to about 15 wt. %, from about 2 to about 10 wt. %, from about 3 to about 25 wt. %, from about 3 to about 20 wt. %, from about 3 to about 15 wt. %, from about 3 to about 10 wt. %, or from about 4 to about 11 wt. %, based on the total weight of the cleansing composition (paragraph 0108). Amphoteric surfactants include, for example, betaines, alkyl sultaines, alkyl amphoacetates, amphoproprionates, salts thereof, and a mixture thereof. Non-limiting examples betaines include coco betaine, cocamidopropyl betaine, lauryl betaine, laurylihydroxy sulfobetaine, lauryldimethyl betaine, behenyl betaine, capryl/capramidopropyl betaine, stearyl betaine, and a mixture thereof. Non-limiting examples of sultaines include cocamidopropyl hydroxysultaine, lauryl hydroxysultaine, and a mixture thereof. A non-limiting example of an alkyl amphoacetate salt includes sodium lauroamphoacetate. Non-limiting examples of amphopropionates include cocoamphopropionate, cornamphopropionate, salts thereof, and a mixture thereof (paragraph 0020). More specific examples include, but are not limited to cocamidopropyl hydroxysultaine, lauryl hydroxysultaine, and a mixture thereof (paragraph 0116). A more specific, but non-limiting example, is sodium lauroamphoacetate (paragraph 0120). Non-limiting examples of amphopropionates include cocoamphopropionate, caprylamphopropionate, cornamphopropionate, caproamphopropionate, oleoamphopropionate, isostearoamphopropionate, stearoamphopropionate, lauroamphopropionate, salts thereof, and a mixture thereof (paragraph 0124).
Regarding sensory modifying agent Botto et al. teach the total amount of conditioning agent(s) in the cleansing compositions can vary but is typically from about 0.1 to about 10 wt. %, based on the total weight of the cleansing composition. In some instances, the total amount of conditioning agent(s) in the cleansing compositions is from about 0.1 to about 8 wt. %, from about 0.1 to about 6 wt. %, from about 0.1 to about 5 wt. %, from about 0.1 to about 3 wt. %, from about 0.5 to about 10 wt. %, from about 0.5 to about 8 wt. %, from about 0.5 to about 6 wt. %, from about 0.5 to about 5 wt. %, or from about 0.5 to about 3 wt. %, based on the total weight of the cleansing composition (paragraph 0134). Non-limiting examples of conditioning agents include cationic polymers, non-silicone fatty compounds, silicones, cationic proteins, cationic protein hydrolysates, oils, esters oils, alkyl amines, and a mixture thereof. (paragraph 0135).
Regarding thickening agents Botto et al. teach the hair-treatment compositions may contain one or more thickening agents (also referred to as thickeners or viscosity modifying agents). Many thickening agents are water-soluble, and increase the viscosity of water or form an aqueous gel when dispersed/dissolved in water. The aqueous solution may be heated and cooled, or neutralized, for forming the gel, if necessary. The thickening agent may be dispersed/dissolved in an aqueous solvent that is soluble in water, e.g., ethyl alcohol when it is dispersed/dissolved in water (paragraph 0198). The total amount of thickening agent(s) in the cleansing compositions, if present, may vary but are typically in an amount of from about 0.01 to about 10 wt. %, from based on the total weight of the cleansing composition. In some instances, the total amount of thickening agent in the cleansing composition is from about 0.01 to about 8 wt. %, from about 0.01 to about 6 wt. %, from about 0.01 to about 5 wt. %, from about 0.05 to about 10 wt. %, from about 0.05 to about 8 wt. %, from about 0.05 to about 6 wt. %, from about 0.05 to about 5 wt. %, from about 0.1 to about 10 wt. %, from about 0.1 to about 8 wt. %, from about 0.1 to about 6 wt. %, or from about 0.1 to about 5 wt. %, based on the total weight of the cleansing composition (paragraph 0199). Non-limiting examples of thickening agents include xanthan gum, guar gum, biosaccharide gum, cellulose, acacia Seneca gum, Sclerotium gum, agarose, pechtin, gellan gum, hyaluronic acid. In some instances, the one or more thickening agents may include polymeric thickening agents, for example, those selected from the group consisting of ammonium polyacryloyldimethyl taurate, ammonium acryloyldimethyltaurate/VP copolymer, sodium polyacrylate, acrylates copolymers, polyacrylamide, carbomer, and acrylates/C10-30 alkyl acrylate crosspolymer (paragraph 0200). Other thickening and gelling agents useful herein include materials which are primarily derived from natural sources. Nonlimiting examples of these gelling agent gums include acacia, agar, algin, alginic acid, ammonium alginate, amylopectin, calcium alginate, calcium carrageenan, carnitine, carrageenan, dextrin, gelatin, gellan gum, guar gum, guar hydroxypropyltrimonium chloride, hectorite, hyaluronic acid, hydrated silica, hydroxypropyl chitosan, hydroxypropyl guar, karaya gum, kelp, locust bean gum, natto gum, potassium alginate, potassium carrageenan, propylene glycol alginate, Sclerotium gum, sodium carboxymethyl dextran, sodium carrageenan, tragacanth gum, xanthan gum, biosacharide gum, and mixtures thereof (paragraph 0215).
Regarding silicones Botto et al. teach the conditioning agent(s) of the cleansing compositions may optionally include one or more silicones. Nonetheless, as mentioned throughout the instant disclosure, in some instances the cleansing compositions are free or essentially free of silicones. In other words, one or more of the following silicones may be optionally included or optionally excluded from the cleansing compositions (paragraph 0165). Silicones include, but are not limited to, polyorganosiloxanes, polyalkylsiloxanes, polyarylsiloxanes, polyalkarylsiloxanes, polyestersiloxanes, and a mixture thereof. Non-limiting examples include dimethicone, cyclomethicone (cyclopentasiloxane), amodimethicone, trimethyl silyl amodimethicone, phenyl trimethicone, trimethyl siloxy silicate, polymethylsilsesquioxane and a mixture thereof (paragraph 0166). In some instances, the cleansing compositions include (or exclude) one or more silicones selected from the group consisting of polydimethylsiloxanes (dimethicones), polydiethylsiloxanes, polydimethyl siloxanes having terminal hydroxyl groups (dimethiconols), polymethylphenylsiloxanes, phenylmethylsiloxanes, amino functional polydimethylsiloxane (amodimethicone), non-ionic dimethicone copolyols, dimethicone copolyol esters, dimethicone copolyol quaternium nitrogen containing compounds, dimethicone copolyol phosphate esters, and mixtures thereof (paragraph 0167).
Regarding cationic polymers Botto et al. teach suitable cationic conditioning polymers include, for example, copolymers of vinyl monomers having cationic amine or quaternary ammonium functionalities with water soluble spacer monomers such as (meth)acrylamide, alkyl and dialkyl (meth)acrylamides, alkyl (meth)acrylate, vinyl caprolactone and vinyl pyrrolidine. The alkyl and dialkyl substituted monomers preferably have C1-C7 alkyl groups, more preferably C1-C3 alkyl groups. Other suitable spacers include vinyl esters, vinyl alcohol, maleic anhydride, propylene glycol and ethylene glycol (paragraph 0140). Other cationic conditioning polymers that can be used include polysaccharide polymers, such as cationic cellulose derivatives and cationic starch derivatives. Cationic cellulose is available from Amerchol Corp. (Edison, N.J., USA) in their Polymer JR (trade mark) and LR (trade mark) series of polymers, as salts of hydroxyethyl cellulose reacted with trimethyl ammonium substituted epoxide (referred to as Polyquaternium-10). Another type of cationic cellulose includes the polymeric quaternary ammonium salts of hydroxyethyl cellulose reacted with lauryl dimethyl ammonium-substituted epoxide (referred to as Polyquaternium-24). These materials are available from Amerchol Corp. (Edison, N.J., USA) under the tradename Polymer LM-200 (paragraph 0147). Other cationic conditioning polymers that can be used include cationic guar gum derivatives, such as guar hydroxypropyltrimonium chloride (paragraph 0148).
Regarding the pH of the concentrated cleansing composition Botto et al. teach the cationic charge density is suitably at least 0.1 meq/g, preferably above 0.8 or higher. In some instances, the cationic charge density does not exceed 3 meq/g, or does not exceed 2 meq/g. The charge density can be measured using the Kjeldahl method and can be within the above limits at the desired pH of use, which will in general be from about 3 to 9 and preferably between 4 and 8 (paragraph 0138). Botto et al. teach on paragraph 0281 that a consumer qualitative study was carried out to determine the properties and benefits of the inventive shampoo of Example 1 (Formulation 1 of Example 1). Consumers (n=50 women) were instructed to use the inventive shampoo for one week according to their regular shampooing schedule except that the consumers were instructed to cleanse their hair using only half as much of the inventive shampoo than they would normally use when shampooing with their traditional shampoo. The consumers reported that the inventive shampoo provided the following positive cleansing attributes:
Favorable texture
Good spreadability and foaming
Cleans without leaving a residue
Non-stripping feel
Leaves hair shiny, soft, light, and voluminous
Hair is easy to manage, comb, blow-dry, and style
The results confirm that the inventive shampoo is indeed “concentrated” because it provided cleansing attributes of a traditional shampoo when used at half the amount of a traditional shampoo. The results also show that the inventive shampoo provides a variety of cleansing attributes that consumers find desirable (paragraph 0281).
Regarding humectants Botto et al. teach the cleansing compositions may optionally include one or more water-soluble solvents. The term “water-soluble solvent” is interchangeable with the term “water-miscible solvent” and means a compound that is liquid at 25° C. and at atmospheric pressure (760 mmHg), and it has a solubility of at least 50% in water under these conditions. In some cases, the water soluble solvents has a solubility of at least 60%, 70%, 80%, or 90% (paragraph 0218). The total amount of water-soluble solvents in the cleansing compositions, if present, may vary but are typically in an amount of about 0.01 to about 25 wt. %, based on the total weight of the cleansing composition. In some instances, the total amount of water-soluble solvents may be from about 0.01 to about 20 wt. %, about 0.01 to about 15 wt. %, about 0.01 to about 10 wt. %, about 0.01 to about 5 wt. %, about 0.1 to about 25 wt. %, about 0.1 to about 20 wt. %, about 0.1 to about 15 wt. %, about 0.1 to about 10 wt. %, about 0.1 to about 5 wt. %, based on the total weight of the cleansing composition (paragraph 0219). Non-limiting examples of water-soluble solvents include, for example, organic solvents such as glycerin, alcohols (for example, C1-12, C1-10, C1-8, or C1-4 alcohols), polyols (polyhydric alcohols), glycols, and a mixture thereof (paragraph 0220). As examples of organic solvents, non-limiting mention can be made of monoalcohols and polyols such as ethyl alcohol, isopropyl alcohol, propyl alcohol, benzyl alcohol, and phenylethyl alcohol, or glycols or glycol ethers such as, for example, monomethyl, monoethyl and monobutyl ethers of ethylene glycol, propylene glycol or ethers thereof such as, for example, monomethyl ether of propylene glycol, butylene glycol, hexylene glycol, dipropylene glycol as well as alkyl ethers of diethylene glycol, for example monoethyl ether or monobutyl ether of diethylene glycol. Other suitable examples of organic solvents are ethylene glycol, propylene glycol, butylene glycol, hexylene glycol, propane diol, and glycerin. The organic solvents can be volatile or non-volatile compounds (paragraph 0221). Polyhydric alcohols are useful. Examples of polyhydric alcohols include glycerin, ethylene glycol, diethylene glycol, triethylene glycol, propylene glycol, dipropylene glycol, tripropylene glycol, 1,3-butanediol, 2,3-butanediol, 1,4-butanediol, 3-methyl-1,3-butanediol, 1,5-pentanediol, tetraethylene glycol, 1,6-hexanediol, 2-methyl-2,4-pentanediol, polyethylene glycol, 1,2,4-butanetriol, 1,2,6-hexanetriol, and a mixture thereof. Polyol compounds may also be used. Non-limiting examples include the aliphatic diols, such as 2-ethyl-2-methyl-1,3-propanediol, 3,3-dimethyl-1,2-butanediol, 2,2-diethyl-1,3-propanediol, 2-methyl-2-propyl-1,3-propanediol, 2,4-dimethyl-2,4-pentanediol, 2,5-dimethyl-2,5-hexanediol, 5-hexene-1,2-diol, and 2-ethyl-1,3-hexanediol, and a mixture thereof (paragraph 0223). The above teachings read on humectants and the respective amounts as recited in claims 8-9.
Ascertainment of the Difference Between Scope of the Prior Art and the Claims
(MPEP 2141.02)
Botto et al. do not specifically teach the inclusion of hair repair agents and their amounts as recited in claim 10 and the list recited in claim 11. These deficiencies are cured by the teachings of Cornwell et al.
Cornwell et al. teach a method of protecting the internal protein of hair from damage, comprising the step of applying, to the hair, a hair treatment composition comprising a lactone, a disaccharide, an inorganic salt and an organic acid or salt thereof, having a pH in the range of from 3 to 6.5, prior to the application of a damage insult to the hair, and a use of such a hair treatment composition, in the treatment of hair, to protect hair from damage (see abstract and claim 1). The method of claim 1, wherein the hair treatment composition is a rinse off hair treatment composition (see claim 6). The method of claim 1, wherein the lactone is a delta lactone selected from gluconolactone, galactonolactone, glucuronolactone, galacturonolactone, gulonolactone, ribonolactone, saccharic acid lactone, pantoyllactone, glucoheptonolactone, mannonolactone, galactoheptonolactone and mixtures thereof (see claim 8). The method of claim 8, wherein the lactone is gluconolactone (see claim 9). The method of claim 1, wherein the disaccharide comprises of pentose or hexose sugars (see claim 10). The method of claim 10, wherein the disaccharide is trehalose (see claim 11). The method of claim 1, wherein the inorganic salt is sodium sulphate (see claim 12). The method of claim 1, wherein the hair treatment composition comprises a gluconolactone, trehalose, sodium sulphate and an organic acid or salt thereof, and wherein the pH of the composition is in the range of from 3 to 6.5 to protect the internal protein of hair from damage (see claim 13). Preferably, the total level of glucanolactone, trehalose and sodium sulphate is from 0.005 to 5 wt %, more preferably 0.2 to 5 wt % by total weight of the composition. Where the composition for use in the present invention is a shampoo, the preferred level is from 0.005 to 4 wt %, more preferably from 0.6 to 4 wt %, by total weight of the shampoo. Where the composition is a conditioner, the preferred level is from 0.005 to 3 wt %, more preferably from 0.2 to 3 wt %, by total weight of the conditioner (paragraph 0055). The composition for use in the invention is preferably applied to the hair multiple times, to give a progressive increase in protection of the protein (paragraph 0018). In the method of the invention, the step of applying, to the hair, a hair treatment composition comprising a lactone, a disaccharide, an inorganic salt and an organic acid or salt thereof, having a pH in the range of from 3 to 6.5, is performed multiple times, preferably from 2 to 50 times, more preferably from 5 to 30 times, most preferably from 10 to 20 times Paragraph 0019). Cornwell et al. teach that shampoo compositions for use in the invention are generally aqueous, i.e. they have water or an aqueous solution or a lyotropic liquid crystalline phase as their major component (paragraph 0069). Suitably, the shampoo composition will comprise from 50 to 98%, preferably from 60 to 90% water by weight based on the total weight of the composition (paragraph 0070). Shampoo compositions according to the invention will generally comprise one or more anionic cleansing surfactants which are cosmetically acceptable and suitable for topical application to the hair (paragraph 0071). Typical anionic cleansing surfactants for use in shampoo compositions for use in the invention include sodium oleyl succinate, ammonium lauryl sulphosuccinate, sodium lauryl sulphate, sodium lauryl ether sulphate, sodium lauryl ether sulphosuccinate, ammonium lauryl sulphate, ammonium lauryl ether sulphate, sodium dodecylbenzene sulphonate, triethanolamine dodecylbenzene sulphonate, sodium cocoyl isethionate, sodium lauryl isethionate, lauryl ether carboxylic acid and sodium N-lauryl sarcosinate (paragraph 0073). The total amount of anionic cleansing surfactant in shampoo compositions for use in the invention generally ranges from 0.5 to 45%, preferably from 1.5 to 35%, more preferably from 5 to 20% by total weight anionic cleansing surfactant based on the total weight of the composition (paragraph 0076). The composition can include co-surfactants, to help impart aesthetic, physical or cleansing properties to the composition (paragraph 0078). An example of a co-surfactant is a nonionic surfactant, which can be included in an amount ranging from 0.5 to 8%, preferably from 2 to 5% by weight based on the total weight of the composition (paragraph 0079). A preferred example of a co-surfactant is an amphoteric or zwitterionic surfactant, which can be included in an amount ranging from 0.5 to about 8%, preferably from 1 to 4% by weight based on the total weight of the composition (paragraph 0087). Examples of amphoteric or zwitterionic surfactants include alkyl amine oxides, alkyl betaines, alkyl amidopropyl betaines, alkyl sulphobetaines (sultaines), alkyl glycinates, alkyl carboxyglycinates, alkyl amphoacetates, alkyl amphopropionates, alkylamphoglycinates, alkyl amidopropyl hydroxysultaines, acyl taurates and acyl glutamates, wherein the alkyl and acyl groups have from 8 to 19 carbon atoms. Typical amphoteric and zwitterionic surfactants for use in shampoos for use in the invention include lauryl amine oxide, cocodimethyl sulphopropyl betaine, lauryl betaine, cocamidopropyl betaine and sodium cocoamphoacetate (paragraph 0088). A particularly preferred amphoteric or zwitterionic surfactant is cocamidopropyl betaine (paragraph 0089). Mixtures of any of the foregoing amphoteric or zwitterionic surfactants may also be suitable. Preferred mixtures are those of cocamidopropyl betaine with further amphoteric or zwitterionic surfactants as described above. A preferred further amphoteric or zwitterionic surfactant is sodium cocoamphoacetate (paragraph 0090). Cationic polymers are preferred ingredients in a shampoo composition for use in the invention for enhancing conditioning performance (paragraph 0092). Cationic polymer will generally be present in a shampoo composition for use in the invention at levels of from 0.01 to 5%, preferably from 0.05 to 1%, more preferably from 0.08 to 0.5% by total weight of cationic polymer based on the total weight of the composition (paragraph 0109). Conditioner compositions will typically comprise one or more cationic conditioning surfactants which are cosmetically acceptable and suitable for topical application to the hair (paragraph 0114). Suitable cationic conditioning surfactants for use in conditioner compositions according to the invention include cetyltrimethylammonium chloride, behenyltrimethylammonium chloride, cetylpyridinium chloride, tetramethylammonium chloride, tetraethylammonium chloride, octyltrimethylammonium chloride, dodecyltrimethylammonium chloride, hexadecyltrimethylammonium chloride, octyldimethylbenzylammonium chloride, decyldimethylbenzylammonium chloride, stearyldimethylbenzylammonium chloride, didodecyldimethylammonium chloride, dioctadecyldimethylammonium chloride, tallowtrimethylammonium chloride, dihydrogenated tallow dimethyl ammonium chloride (e.g., Arquad 2HT/75 from Akzo Nobel), cocotrimethylammonium chloride, PEG-2-oleammonium chloride and the corresponding hydroxides thereof. Further suitable cationic surfactants include those materials having the CTFA designations Quaternium-5, Quaternium-31 and Quatemium-18. Mixtures of any of the foregoing materials may also be suitable (paragraph 0118). In conditioners for use in the invention, the level of cationic conditioning surfactant will generally range from 0.01 to 10%, more preferably 0.05 to 7.5%, most preferably 0.1 to 5% by total weight of cationic conditioning surfactant based on the total weight of the composition (paragraph 0137).
Finding of Prima Facie Obviousness Rational and Motivation
(MPEP 2142-2143)
It would have been prima facie obvious to a person of ordinary skill before the effective filing date of the instant invention to modify the teachings of Botto et al. by incorporating hair repairing agents such as gluconolactone (delta lactone), trehalose, sodium sulphate in amounts as recited because Cornwell et al. teach a method of protecting the internal protein of hair from damage, comprising the step of applying, to the hair, a hair treatment composition comprising a lactone, a disaccharide, an inorganic salt and an organic acid or salt thereof, having a pH in the range of from 3 to 6.5, prior to the application of a damage insult to the hair, and a use of such a hair treatment composition, in the treatment of hair, to protect hair from damage (see abstract and claim 1). The method of claim 1, wherein the hair treatment composition is a rinse off hair treatment composition (see claim 6). The method of claim 1, wherein the lactone is a delta lactone selected from gluconolactone, galactonolactone, glucuronolactone, galacturonolactone, gulonolactone, ribonolactone, saccharic acid lactone, pantoyllactone, glucoheptonolactone, mannonolactone, galactoheptonolactone and mixtures thereof (see claim 8). The method of claim 8, wherein the lactone is gluconolactone (see claim 9). The method of claim 1, wherein the disaccharide comprises of pentose or hexose sugars (see claim 10). The method of claim 10, wherein the disaccharide is trehalose (see claim 11). The method of claim 1, wherein the inorganic salt is sodium sulphate (see claim 12). The method of claim 1, wherein the hair treatment composition comprises a gluconolactone, trehalose, sodium sulphate and an organic acid or salt thereof, and wherein the pH of the composition is in the range of from 3 to 6.5 to protect the internal protein of hair from damage (see claim 13). Preferably, the total level of glucanolactone, trehalose and sodium sulphate is from 0.005 to 5 wt %, more preferably 0.2 to 5 wt % by total weight of the composition. Where the composition for use in the present invention is a shampoo, the preferred level is from 0.005 to 4 wt %, more preferably from 0.6 to 4 wt %, by total weight of the shampoo. Where the composition is a conditioner, the preferred level is from 0.005 to 3 wt %, more preferably from 0.2 to 3 wt %, by total weight of the conditioner (paragraph 0055) One of ordinary skill in the art would have been motivated to include the hair repairing agents in amounts as recited because Cornwell et al. teach that the composition containing the hair repairing agents give a progressive increase in protection of the protein in hair (paragraph 0018). In the method of the invention, the step of applying, to the hair, a hair treatment composition comprising a lactone, a disaccharide, an inorganic salt and an organic acid or salt thereof, having a pH in the range of from 3 to 6.5, is performed multiple times, preferably from 2 to 50 times, more preferably from 5 to 30 times, most preferably from 10 to 20 times Paragraph 0019). Cornwell et al. teach that shampoo compositions for use in the invention are generally aqueous, i.e. they have water or an aqueous solution or a lyotropic liquid crystalline phase as their major component (paragraph 0069). Suitably, the shampoo composition will comprise from 50 to 98%, preferably from 60 to 90% water by weight based on the total weight of the composition (paragraph 0070). Shampoo compositions according to the invention will generally comprise one or more anionic cleansing surfactants which are cosmetically acceptable and suitable for topical application to the hair (paragraph 0071). Typical anionic cleansing surfactants for use in shampoo compositions for use in the invention include sodium oleyl succinate, ammonium lauryl sulphosuccinate, sodium lauryl sulphate, sodium lauryl ether sulphate, sodium lauryl ether sulphosuccinate, ammonium lauryl sulphate, ammonium lauryl ether sulphate, sodium dodecylbenzene sulphonate, triethanolamine dodecylbenzene sulphonate, sodium cocoyl isethionate, sodium lauryl isethionate, lauryl ether carboxylic acid and sodium N-lauryl sarcosinate (paragraph 0073). The total amount of anionic cleansing surfactant in shampoo compositions for use in the invention generally ranges from 0.5 to 45%, preferably from 1.5 to 35%, more preferably from 5 to 20% by total weight anionic cleansing surfactant based on the total weight of the composition (paragraph 0076). The composition can include co-surfactants, to help impart aesthetic, physical or cleansing properties to the composition (paragraph 0078). An example of a co-surfactant is a nonionic surfactant, which can be included in an amount ranging from 0.5 to 8%, preferably from 2 to 5% by weight based on the total weight of the composition (paragraph 0079). A preferred example of a co-surfactant is an amphoteric or zwitterionic surfactant, which can be included in an amount ranging from 0.5 to about 8%, preferably from 1 to 4% by weight based on the total weight of the composition (paragraph 0087). Examples of amphoteric or zwitterionic surfactants include alkyl amine oxides, alkyl betaines, alkyl amidopropyl betaines, alkyl sulphobetaines (sultaines), alkyl glycinates, alkyl carboxyglycinates, alkyl amphoacetates, alkyl amphopropionates, alkylamphoglycinates, alkyl amidopropyl hydroxysultaines, acyl taurates and acyl glutamates, wherein the alkyl and acyl groups have from 8 to 19 carbon atoms. Typical amphoteric and zwitterionic surfactants for use in shampoos for use in the invention include lauryl amine oxide, cocodimethyl sulphopropyl betaine, lauryl betaine, cocamidopropyl betaine and sodium cocoamphoacetate (paragraph 0088). A particularly preferred amphoteric or zwitterionic surfactant is cocamidopropyl betaine (paragraph 0089). Mixtures of any of the foregoing amphoteric or zwitterionic surfactants may also be suitable. Preferred mixtures are those of cocamidopropyl betaine with further amphoteric or zwitterionic surfactants as described above. A preferred further amphoteric or zwitterionic surfactant is sodium cocoamphoacetate (paragraph 0090). Cationic polymers are preferred ingredients in a shampoo composition for use in the invention for enhancing conditioning performance (paragraph 0092). Cationic polymer will generally be present in a shampoo composition for use in the invention at levels of from 0.01 to 5%, preferably from 0.05 to 1%, more preferably from 0.08 to 0.5% by total weight of cationic polymer based on the total weight of the composition (paragraph 0109). Conditioner compositions will typically comprise one or more cationic conditioning surfactants which are cosmetically acceptable and suitable for topical application to the hair (paragraph 0114). Suitable cationic conditioning surfactants for use in conditioner compositions according to the invention include cetyltrimethylammonium chloride, behenyltrimethylammonium chloride, cetylpyridinium chloride, tetramethylammonium chloride, tetraethylammonium chloride, octyltrimethylammonium chloride, dodecyltrimethylammonium chloride, hexadecyltrimethylammonium chloride, octyldimethylbenzylammonium chloride, decyldimethylbenzylammonium chloride, stearyldimethylbenzylammonium chloride, didodecyldimethylammonium chloride, dioctadecyldimethylammonium chloride, tallowtrimethylammonium chloride, dihydrogenated tallow dimethyl ammonium chloride (e.g., Arquad 2HT/75 from Akzo Nobel), cocotrimethylammonium chloride, PEG-2-oleammonium chloride and the corresponding hydroxides thereof. Further suitable cationic surfactants include those materials having the CTFA designations Quaternium-5, Quaternium-31 and Quatemium-18. Mixtures of any of the foregoing materials may also be suitable (paragraph 0118). In conditioners for use in the invention, the level of cationic conditioning surfactant will generally range from 0.01 to 10%, more preferably 0.05 to 7.5%, most preferably 0.1 to 5% by total weight of cationic conditioning surfactant based on the total weight of the composition (paragraph 0137). The selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination in Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945). The examiner notes that the amounts of ingredients are classic result effective variables that a person of ordinary skill in the art in formulation science would routinely optimize and adjust. Furthermore, in the case where the claimed amounts of active and other ingredients and weight ratios "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). Similarly, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985). Furthermore, differences in concentration or any measurable parameters will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration 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." In re Aller, 220 F.2d 454, 456, 105 USPQ 233,235 (CCPA 1955). One of ordinary skill in the art would have had a reasonable expectation of success in combining the teachings of Botto et al. and Cornwell et al. because both references teach substantially similar hair care compositions containing substantially similar ingredients as described in detail above.
In light of the forgoing discussion, the Examiner concludes that the subject matter defined by the instant claims would have been obvious within the meaning of 35 USC 103. Therefore, the invention as a whole was prima facie obvious to one of ordinary skill in the art before the effective filing date of the instant invention, as evidenced by the references, especially in the absence of evidence to the contrary.
Conclusion
No claims are allowed.
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/TIGABU KASSA/Primary Examiner, Art Unit 1619
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