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 .
DETAILED ACTION
Claims 1-19 are currently pending and a preliminary amendment to the claims filed on 08/19/2025 are acknowledged.
Priority
Applicant’s claim for the benefit of a prior-filed application under 35 U.S.C. 119(e) or under 35 U.S.C. 120, 121, or 365(c) is acknowledged.
Claim Rejections - 35 USC § 103
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.
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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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.
As indicated above, the present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claims 1-16 are rejected under 35 U.S.C. 103 as being unpatentable over Renock et al. (US2018/0110693A1).
Applicant claims the below claim 1 filed on 08/19/2025:
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Level of Ordinary Skill in the Art
(MPEP 2141.03)
MPEP 2141.03 (I) states: “The “hypothetical ‘person having ordinary skill in the art’ to which the claimed subject matter pertains would, of necessity have the capability of understanding the scientific and engineering principles applicable to the pertinent art.” Ex parte Hiyamizu, 10 USPQ2d 1393, 1394 (Bd. Pat. App. & Inter. 1988). The level of skill is that of a personal care haircare composition research scientist, as is the case here, then one can assume comfortably that such an educated artisan will draw conventional ideas from cosmetic, personal care composition, medicine, pharmacy, physiology and chemistry— without being told to do so.
In addition, the prior art itself reflects an appropriate level (MPEP 2141.03(II)).
Determination of the scope and content of the prior art (MPEP 2141.01); Ascertainment of the difference between the prior art and the claims(MPEP 2141.02) and Finding of prima facie obviousness Rational and Motivation (MPEP 2142-2143)
Renock discloses a dosage of foam designing hair conditioning benefit (see entire document), and thus, Renock teaches/suggests a haircare composition including conditioning composition; the dosage form comprises foam agent (=blowing agent), propellant, conditioning agent, and water wherein the conditioning agent includes silicones, its gum, conditioning oils, combinations (e.g., guar hydroxypropyltrimonium and dimethicone) (e.g., [0149] and Table 2) which reads on the claimed plural conditioning agents, the foaming agent and propellant include CFCs, HFCs, HFO and mixtures thereof ([0181]-[0182]) which reads on the claimed plural foaming agents, and the foaming agent can be a propellant ([0180]). With regard to the properties of conditioning agents and foaming agent as recited in instant claim 1, since Renock teaches the same ingredients as recited in instant claim 1, such properties would be implicit. Please see “if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present.” In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990) (instant claim 1); for example, as shown in Table 2, the water and dipropylene glycol read on the claimed aqueous package comprising water and alcohol, wherein the water is present in an amount of about 45-about 78% ([0081]) and alcohol (e.g., dipropylene glycol) can be present in an amount of 4% (Table 2), and therefore their ratio would be within or overlap the claimed ratio of about 12 to about 1 (instant claim 2); the composition further comprises alcohol, glycerin, diols, etc. ([0069]) and thus, the combination of glycerin and said dimethicone may read on the claimed hydrating component in the hair care composition; and Renock does not expressly teach the intended use and/or properties of hydrating and soothing effects instant claims 3-4, and however it would be obvious because both glycerin/silicone are used in haircare area as hydrating or humectant and soothing agent as evidenced by US6,723,309B1 (see Tables at col. 1-2: glycerin -humectant and silicone – conditioner) (instant claims 3-4); the conditioning agent includes materials that are used to give a particular conditioning benefit to hair and/or skin, and includes silicones, conditioning oils (e.g., hydrocarbon oils, polyolefin, and fatty esters) ([0148]) (e.g., PEG-8 dimethicone ([0080]) and the silicone conditioning agent is present in an amount of about 6 to about 18% ([0150]) that overlaps the instant range of at least 4%, and although Renock does not expressly teach the amount (at least 2.5% of glycerin), such amount would be optimized because glycerin is used as a humectant in the relevant field, and the amount varies depending on the intended hydration, relationship with other ingredients, formulation type, etc. in the absence of criticality evidence (instant claims 5-6); the foam agent contains e.g., hydrocarbons, chlorofluorocarbons, hydrofluorocarbons, hydrofluoroolefins, alkyl ethers, and compressed gasses ([0181]-[0182]), and the composition further comprises emulsifiers including mono- and di-glycerides, fatty alcohols, polyglycerol esters, propylene glycol esters, sorbitan esters and other emulsifiers known or otherwise commonly used to stabilization of cosmetics such as hair mousses ([0189]) such as water-soluble rice starch in an amount of about 0.05 to about 5% which overlaps the instant range of no greater than 4.5% ([0100]-[0101] and [0106]), and please note that the starch is known to present in the particulate form and one or more antimicrobial agent include oil of bitter orange ([0194]) and reads on the claimed preservatives, and thus, designing foaming active agent, emulsifier (=stabilizer for foam mousses), and preservatives would be obvious from the teachings of Renock (instant claims 7-8 and 11), and the starch is used as a foam stabilizer as evidenced by Zhang et al., “Effect of starch particles on foam stability and dilational viscoelasticity of aqueous-foam”, Chinese Journal of Chemical Engineering 23 (2015):276-280 (see e.g., abstract), and thus, Renock evidenced by Zhang teaches/suggests the stabilizer would be effective to increase smoothness, increase creaminess, and slow disintegration of the form while not absorbing oil from hair, and it is noted that the product and the properties are not separable. In this regard, please see In re Spada above (instant claims 9 and 10); the water can be present in an amount of about 45-about 78% ([0081]) which overlaps the instant range of about 60 to about 75%, the propellant reading on the gaseous package and/or foaming agent can be present in an amount of about 1 to about 10% ([0180]) that overlaps the instant range of about 3 to about 7% of foaming agent, the conditioning agent including silicone agent in an amount 0 to 20% ([0150]) that overlaps the instant range of about 5 to about 10%, and although Renock does not expressly teach the claimed amount (about 16%-about 24%) of propellant, it would be optimized to the claimed range without undue experimentation depending on intended purpose, increasing the volume, and lowering foam density, etc. unless criticality evidence of the claimed ranges is shown (instant claim 12); the compositions further comprise preservatives, perfumes, fragrances, plant extracts, cosmetic particles, absorbent particles, adhesive particles, etc., ([0190])(instant claim 13); the foam has density of about 0.35g/cm3 ([0020]) that overlaps the instant range of at least 0.3 g/cm3 (instant claim 14); the foam has a volume of about 5cm3 to about 70cm3 ([0017]) and a dosage of foam is stable when it substantially sustains its volume from the time of dispensing to its application onto the hair ([0212]) (instant claim 15). Further, since Renock teaches the same/similar composition, the conditioning effects would retain until next wash (average 1 or 2 days) including for at least 8 hours after applying that composition is applied to the hair, unless criticality evidence is shown. Please see In re Spada above (instant clam 16).
In light of the foregoing, instant claims 1-16 are obvious over Renock.
Claims 17-18 are rejected under 35 U.S.C. 103 as being unpatentable over Renock et al. (US2018/0110693A1) in view of Richardson (US2020/0390666A1).
Applicant claims the below claim 17 filed on 08/19/2025:
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Renock teaches the claimed conditioning composition comprising water, plural conditioning agents and foaming agents, and propellant as discussed above.
However, Renock does not expressly teach dry shampoo of instant claims 17-18. The deficiencies are cured by Richardson.
Richardson discloses a dry shampoo for cleaning dry hair and providing good cleaning performance of the upright mousse aerosols ([0009]) and the shampoo was applied two times to the hair ([0043]) (instant claims 17-18).
It would have been obvious to modify the conditioning method of Renock with dry shampoo for dry hair of Richardson in order to clean hair prior to conditioning composition of Renock. Please note that Renock teaches/suggests hair care composition including shampoo and conditioning composition, and the method can comprise providing a hair care composition, dispensing the hair care composition as foam, applying the composition to the hair, and rinsing the composition ([0212]) and thus, it would be obvious to applying a dry shampoo of Richardson and then applying the hair care composition of Renock having conditioning effects in order to enhance cleaning/conditioning effects.
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.
From the combined teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole was prima facie obvious to one of ordinary skill in the art at the time the invention was made, as evidenced by the combined references, especially in the absence of evidence to the contrary.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KYUNG S CHANG whose telephone number is (571)270-1392. The examiner can normally be reached M-F 8-5.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Yong (Brian-Yong) S Kwon can be reached at 571-272-0581. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/KYUNG S CHANG/ Primary Examiner, Art Unit 1613
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