JDETAILED 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 statement filed January 17, 2025, fails to comply with the provisions of 37 CFR 1.98(a)(4) because it lacks the appropriate size fee assertion. It has been placed in the application file, but the information referred to therein has not been considered as to the merits.
Claim Status
Claims 1 – 20 are examined here-in.
Claim Objections
Claims 11, 12, 16, and 17 are objected to because of the following informalities:
In claims 11, 12, and 17 there should be a space between “sunflower” and “seedate”.
In line 2 of claim 16 there is no space between “glyoxylic” and “acid”, and “glycerin” is misspelled.
“Astrocaryum murumuru” and “Orbignya speciosa” are italicized throughout the claim set, however they are not italicized in claim 16. “Epilobium augustifolium”, “Serenoa serrulata”, “Opuntia ficus-indica”, “Butyrospermum parkii”, and “Lavandula angustifolia” which are also scientific names, are not italicized. This should be corrected for consistency throughout the claim set.
Various informalities appear throughout the claim set and Applicant is requested to carefully review and revise the claims as appropriate. The specific instances highlighted supra are merely exemplary and should be taken to represent a comprehensive list.
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.
Claims 11 – 20 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.
A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claims 11, 12, 16, and 17 recites the limitation Butyrospermum parkii followed by the more common (and broader) name of “shea” butter. The claims are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
Claim 16 also recites the limitation Lavandula angustifolia followed by the more common (and broader) name of “lavender”. The claims are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims. In other words, this claim is considered indefinite because it is not clear if the claim requires Lavandula angustifolia oil specifically or lavender oil in general.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1 and 2 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Kunin (US 2016/0022558 A1).
Kunin teaches compositions and methods for straightening hair (abstract).
Kunin teaches the hair treatment composition includes 1 to 15 percent by weight of a reducing agent, such as glyoxylic acid (paragraph 0009).
Kunin teaches the hair treatment composition includes 0.5 to 20 percent by weight protein fractions, such as sericin (paragraph 0010).
Kunin teaches the hair treatment composition includes 1 to 10 percent by weight emollient, which is preferably a polyol, such as glycerin to soften, moisturize, and lubricate the hair (paragraph 0011).
Kunin teaches 0.1 to 5 percent emulsifier (paragraph 0012).
Kunin teaches 0.1 to 5 percent by weight conditioning agents, such as cetrimonium chloride, behentrimonium chloride, and guar hydroxypropyltrimonium chloride, among others (paragraph 0016).
[AltContent: arrow][AltContent: textbox (Emollient)] Kunin’s example in Table 1 includes one or more conditioning agents (behentrimonium chloride, cetrimonium chloride), one or more emulsifying agents (PEG-40 hydrogenated castor oil), one or more emollients (glycerin) and one or more hair straightening complexes, including polycarbamate proteins, glyoxylic acid, sericin, and guar hydroxypropyltrimonium chloride (paragraph 0019). Although example 1 does not explicitly name a plant-based extract or botanical ingredient, fragrances are often plant-based, therefore the inclusion of fragrance is interpreted to fulfill this limitation. As such, Kunin’s example 1 anticipates instant claim 1.
The hair straightening complexes of example 1 are in an amount of 18.54%, falling within the claimed range of 15 to 35% wt. recited in instant claim 2. Specific examples in the prior art that fall within the claimed range are anticipatory according to MPEP 2131.03(ii).
However, in the event that the previous does not have sufficient specificity to rise to anticipation, claims 1 and 2 are also rejected under 35 U.S.C. 103 below.
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 non-obviousness.
Claims 1 and 2 are rejected under 35 U.S.C. 103 as being unpatentable over Kunin (as cited above).
For the purposes of this ground of rejection only, and purely arguendo, the examiner will take the position that Kunin does not teach a specific embodiment (i.e., preferred embodiment, working example, etc.) having all of the claimed elements arranged as required by claim 1 without resorting to some “picking and choosing” within the prior art disclosure. That being said, although Kunin thus would not be anticipatory by this interpretation of the facts, it nevertheless does fairly suggest the claimed invention, as shown below.
As discussed above, Kunin teaches compositions and methods for straightening hair (abstract).
Kunin teaches the hair treatment composition includes 1 to 15 percent by weight of a reducing agent, such as glyoxylic acid (paragraph 0009).
Kunin teaches the hair treatment composition includes 0.5 to 20 percent by weight protein fractions, such as sericin (paragraph 0010).
Kunin teaches the hair treatment composition includes 1 to 10 percent by weight emollient, which is preferably a polyol, such as glycerin to soften, moisturize, and lubricate the hair (paragraph 0011).
Kunin teaches 0.1 to 5 percent emulsifier (paragraph 0012).
Kunin teaches 0.1 to 5 percent by weight conditioning agents, such as cetrimonium chloride, behentrimonium chloride, and guar hydroxypropyltrimonium chloride, among others (paragraph 0016).
Kunin’s example in Table 1 includes one or more conditioning agents (behentrimonium chloride, cetrimonium chloride), one or more emulsifying agents (PEG-40 hydrogenated castor oil), one or more emollients (glycerin) and one or more hair straightening complexes, including polycarbamate proteins, glyoxylic acid, sericin, and guar hydroxypropyltrimonium chloride (paragraph 0019).
Kunin’s example in Table 2 includes a plant-based extract (Macadamia seed oil), one or more conditioning agents (behentrimonium chloride), one or more emulsifying agents (polysorbate 20), one or more emollients (dimethiconol), and one or more hair straightening complexes including sericin and guar hydroxypropyltrimonium chloride.
As discussed above, for the purposes of this ground of rejection only, and purely arguendo, the examiner will take the position that Kunin does not teach a specific embodiment having each of the claimed elements, however, claims 1 and 2 are rendered prima facie obvious over the teachings of Kunin, because it is prima facie obvious to combine prior art elements according to known methods, in order to yield predictable results (MPEP 2143(i)(a)). In the instant case, all the claimed elements (e.g., conditioning agents, emulsifying agents, emollients, hair straightening complexes) were known in the prior art (e.g., compositions for the hair) and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination yielded nothing more than predictable results (e.g., a composition for straightening hair) to one of ordinary skill in the art.
Kunin’s examples each include conditioning agents, emulsifying agents, and emollients (paragraph 0019, Table 2). Example 1 includes the combination of polycarbamate proteins, glyoxylic acid, sericin, and guar hydroxypropyltrimonium chloride (paragraph 0019), i.e. hair straightening complexes, but does not explicitly include a plant-based extract or botanical ingredient. Example 2 includes a plant-based extract as macadamia seed oil (Table 2). A person of ordinary skill in the art would be motivated to include the combination of hair straightening complexes as taught in example 1, in the composition of example 2, because Kunin teaches that glyoxylic acid is a reducing agent that is effective for straightening hair (paragraph 0020). As such, a person of ordinary skill in the art would expect that the inclusion of hair straightening complexes of example 1 in the composition of example 2 would result in a composition that is effective for straightening hair, thus reading on instant claim 1.
The hair straightening complexes of example 1 are in an amount of 18.54%, falling within the claimed range of 15 to 35% wt. recited in instant claim 2. Claimed ranges that overlap or lie inside ranges disclosed by the prior art are prima facie obvious according to MPEP 2144.05(i). In this case, the claimed ranges overlap the amount taught in example 1.
Claims 3 and 4 are rejected under 35 U.S.C. 103 as being unpatentable over Kunin (as cited above) in view of Candau (US 2011/0027202 A1).
Kunin’s teachings are discussed above.
Kunin does not teach that the plant-based extracts or botanical agents include aloe vera leaf juice, Canadian willowherb mixture, saw palmetto fruit extract solution, and bisabolol.
Candau teaches the missing elements of Kunin.
Candau teaches a cosmetic emulsion composition (abstract). Candau teaches aloe vera, Canadian willowherb extract and bisabolol as calmatives or anti-irritants (paragraphs 0209 – 0211). Candau teaches saw palmetto extract as an anti-seborrheic agent (paragraphs 0212, 0225, 0228).
The combination of Kunin and Candau’s teachings renders instant claims 3 and 4 prima facie obvious as combining prior art elements according to known methods to yield predictable results (MPEP 2143(i)(a)). A person of ordinary skill in the art would be motivated to modify Kunin’s composition to include aloe vera, Canadian willowherb, saw palmetto fruit extract, and bisabolol as taught by Candau because these ingredients have anti-irritant and anti-seborrheic properties (paragraphs 0209 – 0212, 0225, 0228). Anti-irritant and anti-seborrheic properties would be advantageous in a hair treatment composition to ensure that the other ingredients of the composition do not provide unwanted irritation, or block activity of the sebaceous glands (paragraphs 0209 – 0212). This combination is prima facie obvious according to MPEP 2143(i)(a) because this combination of known elements would yield predictable results of a hair treatment composition with anti-irritant and anti-seborrheic properties.
The combination of Kunin’s teachings for a hair straightening composition which includes
plant-based extracts, conditioning agents, emulsifying agents, emollients, and hair-straightening complexes (paragraphs 0019 – 0020, Table 2), with Candau’s teachings for plant-based extracts of aloe vera, Canadian willowherb extract, saw palmetto extract, and bisabolol as suitable for cosmetic compositions (paragraphs 0209 – 0212, 0225, 0228) reads on instant claim 3.
Candau does not explicitly teach the amounts of 47 to 53% wt. aloe vera leaf juice; 2 to 4% wt. Canadian willowherb mixture; 0.5 to 2.0 wt% saw palmetto fruit extract; or 0.3 to 1% wt. bisabolol, however, differences in concentration do not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration is critical according to MPEP 2144.05(ii)(a). The ingredients taught by Candau are known ingredients in the cosmetic art. The properties of the ingredients taught by Candau are also well-known (i.e. anti-irritant, anti-seborrheic), thus a person of ordinary skill in the art seeking to take advantage of these properties would recognize the amount of these ingredients as a result-effective variable. As such, the presence of these result-effective variables would be motivation for a person of ordinary skill in the art to optimize the amounts of these ingredients to obtain the desired result, which is prima facie obvious according to MPEP 2144.05(ii)(b). Thus claim 4 is prima facie obvious.
Claims 5 and 6 are rejected under 35 U.S.C. 103 as being unpatentable over Kunin (as cited above) in view of Candau (as cited above), further in view of Sabbagh (US 2005/0129644 A1), and further in view of Smith (Smith, N. “Palms and people in the Amazon” 2015, Chapters 10 and 17, p. 61 – 72, 131 – 145).
The combination of Kunin and Candau’s teachings is addressed above.
The combination of Kunin and Candau does not teach the inclusion of sodium gluconate, Astrocaryum murumuru seed butter, and Orbignya speciosa kernel oil mixture.
Sabbagh teaches a missing element of Kunin and Candau.
Sabbagh teaches hydroxycarboxylic acids and their salts as complexing agents in reducing compositions for bleaching or permanently reshaping hair (abstract).
Sabbagh teaches sodium gluconate as a complexing agent (paragraphs 0017 – 0022, 0031 – 0032). Sabbagh teaches sodium gluconate has complexing properties that reduce the risk of adverse effects associated with permanent reshaping compositions and methods, and that sodium gluconate is well tolerated by the skin, biodegradable, and relatively inexpensive (paragraph 0163).
Sabbagh teaches the inclusion of sodium gluconate in the amount of 0.001 to 10% by weight of the composition (paragraph 0181).
A person of ordinary skill in the art would be motivated to modify the combination of Kunin and Candau to include sodium gluconate as taught by Sabbagh because Sabbagh teaches sodium gluconate reduces the risk of adverse effects associated with permanent reshaping compositions and methods and is well tolerated by the skin, biodegradable, and relatively inexpensive (paragraph 0163). The combination of Kunin, Candau, and Sabbagh is prima facie obvious according to MPEP 2143(i)(a) because this combination of known elements would yield predictable results of a hair treatment composition with a complexing agent (sodium gluconate) to protect against adverse effects.
The combination of Kunin, Candau, and Sabbagh does not teach the inclusion of Astrocaryum murumuru seed butter and Orbignya speciosa kernel oil mixture.
Smith teaches the missing element of Kunin, Candau, and Sabbagh.
Smith teaches Astrocaryum murumuru have high oil content and have been used to make soaps, hair conditioners, and skin care products (page 69).
Smith teaches Orbignya speciosa is also known as Attalea speciosa or babaçu (p. 128). Smith teaches that babaçu oils are used in botanical-based hair conditioners and body oils (p. 136).
The combination of Kunin, Candau, Sabbagh, and Smith’s teachings renders instant claims 5 and 6 prima facie obvious as combining prior art elements according to known methods to yield predictable results (MPEP 2143(i)(a)). A person of ordinary skill in the art would be motivated to modify the combination of Kunin, Candau, and Sabbagh to include Astrocaryum murumuru and Orbignya speciosa oils because Smith teaches these oils are useful as hair conditioners (pages 69, 128, 136). Ingredients for hair conditioning would be advantageous in a hair treatment composition to promote smooth, strong feeling hair. The combination of Kunin, Candau, Sabbagh, and Smith is prima facie obvious according to MPEP 2143(i)(a) because this combination of known elements would yield predictable results of a hair treatment composition with natural conditioners.
The combination of Kunin’s teachings for a hair straightening composition which includes
plant-based extracts, conditioning agents, emulsifying agents, emollients, and hair-straightening complexes (paragraphs 0019 – 0020, Table 2), with Candau’s teachings for plant-based extracts of aloe vera, Canadian willowherb extract, saw palmetto extract, and bisabolol as suitable for cosmetic compositions (paragraphs 0209 – 0212, 0225, 0228), with Sabbagh’s teachings for sodium gluconate as a complexing agent (paragraphs 0031 – 0032, 0163), and Smith’s teachings for Astrocaryum murumuru and Orbignya speciosa oils as hair conditioners (p. 69, 136) reads on instant claim 5.
Sabbagh’s teaching for sodium gluconate in the amount of 0.001 to 10% by weight of the composition (paragraph 0181) overlaps on the instantly claimed range of 0.2 to 0.8% wt. as recited in instant claim 6. Claimed ranges that overlap teachings of the prior art are prima facie obvious according to MPEP 2144.05(i).
Kunin’s teachings for cetrimonium chloride and behentrimonium chloride in an amount of 0.1 to 5.0% by weight of the composition (paragraph 0016) overlaps on the instantly claimed ranges of 2.0 to 4.0% wt and 2.0 to 5.0% wt. as recited in claim 6.
Kunin’s teaching for glycerin in an amount of 1 to 10% by weight (paragraph 0011) overlaps on the instantly claimed range of 2.0 to 4.0% wt. as recited in claim 6.
Smith does not explicitly teach the amounts of about 1.0 to 2.0% wt. of Astrocaryum murumuru and Orbignya speciosa, however, differences in concentration do not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration is critical according to MPEP 2144.05(ii)(a). The ingredients taught by Smith are known ingredients in the cosmetic art. The properties of the ingredients taught by Smith are also well-known (i.e. conditioning), thus a person of ordinary skill in the art seeking to take advantage of these properties would recognize the amount of these ingredients as a result-effective variable. As such, the presence of these result-effective variables would be motivation for a person of ordinary skill in the art to optimize the amounts of these ingredients to obtain the desired result, which is prima facie obvious according to MPEP 2144.05(ii)(b). Thus the recitation for about 1.0 to 2.0% wt. of Astrocaryum murumuru and Orbignya speciosa in instant claim 6 is prima facie obvious.
Claims 7 and 8 are rejected under 35 U.S.C. 103 as being unpatentable over Kunin (as cited above), Candau (as cited above), Sabbagh (as cited above), Smith (as cited above), and further in view of Frushour (US 2021/0386658 A1).
Kunin, Candau, Sabbagh, and Smith’s teachings are discussed above.
The combination of Kunin, Candau, Sabbagh, and Smith does not teach the inclusion of iodopropynyl butylcarbamate, phenoxyethanol, and potassium sorbate as antimicrobials.
Frushour teaches the missing element of Kunin, Candau, Sabbagh, and Smith.
Frushour teaches iodopropynyl butylcarbamate, phenoxyethanol, and potassium sorbate as preservatives for use in cosmetic compositions (paragraph 0019). Frushour teaches preservatives can be included in a range from 0.0001 to 99.9% by weight of the composition (paragraph 0021).
The combination of Kunin, Candau, Sabbagh, Smith, and Frushour’s teachings renders instant claims 7 and 8 prima facie obvious as combining prior art elements according to known methods to yield predictable results (MPEP 2143(i)(a)). A person of ordinary skill in the art would be motivated to modify the combination of Kunin, Candau, Sabbagh, and Smith to include preservatives iodopropynyl butylcarbamate, phenoxyethanol, and potassium sorbate in order to prevent spoilage or degradation of the composition. The combination of Kunin, Candau, Sabbagh, Smith, and Frushour is prima facie obvious according to MPEP 2143(i)(a) because this combination of known elements would yield predictable results of a hair treatment composition with preservatives.
The combination of Kunin’s teachings for a hair straightening composition which includes
plant-based extracts, conditioning agents, emulsifying agents, emollients, and hair-straightening complexes (paragraphs 0019 – 0020, Table 2), with Candau’s teachings for plant-based extracts of aloe vera, Canadian willowherb extract, saw palmetto extract, and bisabolol as suitable for cosmetic compositions (paragraphs 0209 – 0212, 0225, 0228), with Sabbagh’s teachings for sodium gluconate as a complexing agent (paragraphs 0031 – 0032, 0163), with Smith’s teachings for Astrocaryum murumuru and Orbignya speciosa oils as hair conditioners (p. 69, 136), and with Frushour’s teachings for iodopropynyl butylcarbamate, phenoxyethanol, and potassium sorbate as preservatives (paragraph 0019) read on instant claim 7.
Frushour’s teaching that preservatives can be included in a range from 0.0001 to 99.9% by weight of the composition (paragraph 0021) overlaps on the instantly claimed ranges of 0.8 to 2.0% wt. iodopropynyl butylcarbamate and phenoxyethanol mixture and 0.2 to 1.0% wt. of potassium sorbate as recited in instant claim 8. Claimed ranges that overlap teachings of the prior art are prima facie obvious according to MPEP 2144.05(i).
Claims 9 and 10 are rejected under 35 U.S.C. 103 as being unpatentable over Kunin (as cited above), Candau (as cited above), Sabbagh (as cited above), Smith (as cited above), Frushour (as cited above) and further in view of Schroeder (US 2019/0184209 A1).
Kunin, Candau, Sabbagh, Smith, and Frushour’s teachings are discussed above.
The combination of Kunin, Candau, Sabbagh, Smith, and Frushour does not teach the inclusion of a mixture of polyquaternium-37, dicaprylyl carbonate, and lauryl glucoside.
Schroeder teaches the missing element of Kunin, Candau, Sabbagh, Smith, and Frushour.
Schroeder teaches the inclusion of oily components in a hair treatment composition (paragraph 0156). Schroeder teaches dicaprylyl carbonate as an oily component (paragraph 0154) in an amount of 0.01 to 3% by weight (paragraph 0156).
Schroeder teaches lauryl glucoside is an alkyl(oligo)glycoside which acts as a non-ionic surfactant or emulsifying agent in a composition (paragraphs 0075, 0084, 0094, 0098). Schroeder teaches that non-ionic surfactants contribute to stabilizing the composition, optimal foaming properties, and mildness and are suitable for inclusion in an amount of 0.01 to 3% by weight of the composition (paragraph 0073 – 0074).
Schroeder teaches polyquaternium 37 as a suitable cationic conditioning polymer for inclusion in the composition because it is a scalp soothing substance (paragraphs 0101, 0104, 0105, 0122). Schroeder teaches cationic conditioning polymers in a range of 0.01 to 3% by weight of the composition (paragraph 0124).
The combination of Kunin, Candau, Sabbagh, Smith, Frushour, and Schroeder’s teachings renders instant claims 9 and 10 prima facie obvious as combining prior art elements according to known methods to yield predictable results (MPEP 2143(i)(a)). A person of ordinary skill in the art would be motivated to modify the combination of Kunin, Candau, Sabbagh, Smith, and Frushour to include polyquaternium-37, dicaprylyl carbonate, and lauryl glucoside because Schroeder teaches these ingredients are stabilizing, have optimal foaming properties, and are soothing to the scalp (paragraph 0073 – 0074, 0101). The combination of Kunin, Candau, Sabbagh, Smith, Frushour, and Schroeder is prima facie obvious according to MPEP 2143(i)(a) because this combination of known elements would yield predictable results of a hair treatment composition with stabilizing and soothing ingredients.
The combination of Kunin’s teachings for a hair straightening composition which includes
plant-based extracts, conditioning agents, emulsifying agents, emollients, and hair-straightening complexes, including cetearyl alcohol (paragraphs 0019 – 0020, Table 2), with Candau’s teachings for plant-based extracts of aloe vera, Canadian willowherb extract, saw palmetto extract, and bisabolol as suitable for cosmetic compositions (paragraphs 0209 – 0212, 0225, 0228), with Sabbagh’s teachings for sodium gluconate as a complexing agent (paragraphs 0031 – 0032, 0163), with Smith’s teachings for Astrocaryum murumuru and Orbignya speciosa oils as hair conditioners (p. 69, 136), with Frushour’s teachings for iodopropynyl butylcarbamate, phenoxyethanol, and potassium sorbate as preservatives (paragraph 0019), and with Schroeder’s teaching for polyquaternium 37, dicaprylyl carbonate, and lauryl glucoside (0075, 0084, 0094, 0098, 0125, 0156) read on instant claim 9.
In Kunin’s table 2, cetearyl alcohol is included in an amount of 3.2%, which falls within the claimed range of 3 to 5% wt as recited in claim 10. Schroeder teaching for dicaprylyl carbonate as an oily component (paragraph 0154) in an amount of 0.01 to 3% by weight (paragraph 0156), lauryl glucoside in an amount of 0.01 to 3% by weight (paragraphs 0073 – 0075, 0084, 0094, 0098), and polyquaternium 37 in an amount of 0.01 to 3% by weight (paragraphs 0101, 0104, 0105, 0122, 0124) overlaps on the claimed range of about 1 to 3.5% wt. of a mixture of polyquaternium-37, dicaprylyl carbonate, and lauryl glucoside as recited in instant claim 10. Claimed ranges that overlap teachings of the prior art are prima facie obvious according to MPEP 2144.05(i).
Claims 11 – 20 are rejected under 35 U.S.C. 103 as being unpatentable over Kunin (as cited above), Candau (as cited above), Sabbagh (as cited above), Smith (as cited above), Frushour (as cited above), Schroeder (as cited above) and further in view of Shimizu (US 2007/0134192 A1).
Kunin, Candau, Sabbagh, Smith, Frushour, and Schroeder’s teachings are discussed above.
The combination of Kunin, Candau, Sabbagh, Smith, Frushour, and Schroeder does not teach the inclusion of dilinoleic acid / propanediol copolymer.
Shimizu teaches the missing element of Kunin, Candau, Sabbagh, Smith, Frushour, and Schroeder.
Shimizu teaches a cosmetic composition comprising at least one ester of dimerdilinoleic acid and a polyol (abstract). Shimizu teaches dimerdilinoleic acid and polyol gives the composition improved gloss-staying power and color-staying power (paragraphs 0010, 0011, 0119). Shimizu teaches the dimerdilinoleic acid with a polyol, which may be propanediol (paragraphs 0052 -0057, 0061 – 0069). Although Shimizu’s composition is for application to the skin and lips, a person of ordinary skill in the art would expect the gloss-staying and color-staying power to also work on hair, because skin, lips, and hair are all keratin-based. As such, a person of ordinary skill in the art would expect the inclusion of dimerdilinoleic acid / propanediol copolymer as taught by Shimizu to give a hair treatment composition additional long-lasting aesthetic properties.
The combination of Kunin, Candau, Sabbagh, Smith, Frushour, Schroeder, and Shimizu’s teachings renders instant claims 11 – 20 prima facie obvious as combining prior art elements according to known methods to yield predictable results (MPEP 2143(i)(a)). A person of ordinary skill in the art would be motivated to modify the combination of Kunin, Candau, Sabbagh, Smith, Frushour, and Schroeder to include dilinoleic acid/propanediol copolymer because Shimizu teaches the inclusion of a dimerdilinoleic acid /polyol copolymer leads to increased gloss-staying and color-staying power (paragraphs 0052 -0057, 0061 – 0069). The combination of Kunin, Candau, Sabbagh, Smith, Frushour, Schroeder, and Shimizu is prima facie obvious according to MPEP 2143(i)(a) because this combination of known elements would yield predictable results of a hair treatment composition with increased gloss-staying and color-staying power.
The combination of Kunin’s teachings for a hair straightening composition which includes
plant-based extracts, conditioning agents, emulsifying agents, emollients, and hair-straightening complexes, (paragraphs 0019 – 0020, Table 2), with Candau’s teachings for plant-based extracts of aloe vera, Canadian willowherb extract, saw palmetto extract, and bisabolol as suitable for cosmetic compositions (paragraphs 0209 – 0212, 0225, 0228), with Sabbagh’s teachings for sodium gluconate as a complexing agent (paragraphs 0031 – 0032, 0163), with Smith’s teachings for Astrocaryum murumuru and Orbignya speciosa oils as hair conditioners (p. 69, 136), with Frushour’s teachings for iodopropynyl butylcarbamate, phenoxyethanol, and potassium sorbate as preservatives (paragraph 0019), capric/caprylic triglycerides (paragraphs 0019, 0062, Table 3), prickly pear extract (paragraph 0029, claim 17), hydrogenated soybean oil (paragraph 0062), shea butter (paragraph 0062), sunflower seed oil (paragraph 0062), vegetable oil (paragraph 0062), with Schroeder’s teaching for polyquaternium 37, dicaprylyl carbonate, and lauryl glucoside (0075, 0084, 0094, 0098, 0125, 0156), ester oils are esters of fatty acids with fatty alcohols, listing linolenyl alcohol and linoleic acid as possible components (paragraphs 0148, 0150), and Shimizu’s teaching for a dimerdilinoleic acid / polyol copolymer (paragraphs 0052 – 0057, 0061 – 0069) read on instant claim 11.
Frushour’s teachings for capric/caprylic triglycerides (paragraphs 0019, 0062, Table 3) reads on MCT oil as recited in claim 11 because page 13 of the specification lists the ingredients of MCT oil as capric/caprylic triglycerides. Frushour’s teaching for prickly pear extract (paragraphs 0016, 0029, claim 17), hydrogenated soybean oil (paragraph 0062), shea butter (paragraph 0062), sunflower seed oil (paragraph 0062), and vegetable oil (paragraph 0062) read on prickly pear seed oil, soybean glycerides and butyrospermum parkii (shea) butter unsaponifiables mixture, phytosterol sunflower seedate, and hydrogenated vegetable glycerides as recited in instant claim 11.
Frushour does not explicitly teach the amounts of about 0.5 to 1.5% wt. MCT oil, 0.07 to 0.5% wt. prickly pear seed oil, about 0.5 to 1.0% wt. of soybean glycerides and butyrospermum parkii (shea) butter unsaponifiables mixture, about 0.2 to 0.8% wt. mixture of phytosterol sunflower sedate, and hydrogenated vegetable glycerides, however, differences in concentration do not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration is critical according to MPEP 2144.05(ii)(a). The ingredients taught by Frushour are known ingredients in the cosmetic art. The properties of the ingredients taught by Frushour are also well-known (i.e. conditioning, scent, oils), thus a person of ordinary skill in the art seeking to take advantage of these properties would recognize the amount of these ingredients as a result-effective variable. As such, the presence of these result-effective variables would be motivation for a person of ordinary skill in the art to optimize the amounts of these ingredients to obtain the desired result, which is prima facie obvious according to MPEP 2144.05(ii)(b). Thus claim 12 is prima facie obvious.
Schroeder’s teaching for an ester with linolenyl alcohol and linoleic acid as possible components as an oil, wax, or fat component in an amount of 0.01 to 3% by weight (paragraphs 0148, 0150, 0156) reads on “dimer dilinoleyl dimer dilinoleate” as recited in claim 11 and overlaps on the amount of 0.2 to 0.8% wt. as recited in claim 12.
Shimizu’s teaching for dimerdilinoleic acid and a polyol, which may be propanediol (paragraphs 0052 -0057, 0061 – 0069) reads on dilinoleic acid/propanediol copolymer as recited in claim 11. Although Shimizu’s composition is for application to the skin and lips, a person of ordinary skill in the art would expect the gloss-staying and color-staying power to also work on hair, because skin, lips, and hair are all keratin-based. As such, a person of ordinary skill in the art would expect the inclusion of dimerdilinoleic acid / propanediol copolymer as taught by Shimizu to give a hair treatment composition additional long-lasting aesthetic properties.
Although Shimizu does not explicitly teach the amounts of 0.2 to 0.8% wt. dilinoleic acid/propanediol copolymer, differences in concentration do not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration is critical according to MPEP 2144.05(ii)(a). The ingredients taught by Shimizu are known ingredients in the cosmetic art. The properties of the ingredients taught by Shimizu are also well-known (i.e. gloss-staying and color-staying power), thus a person of ordinary skill in the art seeking to take advantage of these properties would recognize the amount of these ingredients as a result-effective variable. As such, the presence of these result-effective variables would be motivation for a person of ordinary skill in the art to optimize the amounts of these ingredients to obtain the desired result, which is prima facie obvious according to MPEP 2144.05(ii)(b). Thus, the recitation for 0.2 to 0.8% wt. dilinoleic acid/propanediol copolymer in claim 12 is prima facie obvious.
Kunin’s teaching that a hair treatment composition further includes fragrances (paragraph 0015) and Frushour’s teaching for inclusion of a fragrance (paragraph 0016) including lavender (Lavandula angustifolia) oil or lemon oil (paragraph 0062) reads on claim 13’s recitation for a fragrance selected from a flower or citrus oil extract.
Kunin’s hair treatment composition smooths or straightens hair (abstract), reading on instant claim 14.
Kunin’s example 2 teaches hair treatment compositions in the form of a spray and in the form of a cream (paragraphs 0021 – 0022), reading on instant claim 15.
The combination of Kunin, Candau, Sabbagh, Smith, Frushour, Schroeder, and Shimizu’s teachings read on instant claim 16, as shown in the table below.
Claim 16
Reference
Water
Kunin paragraph 0013
Polycarbamide proteins
Kunin paragraph 0019
Glyoxylic acid
Kunin paragraph 0019
Cetearyl alcohol
Kunin paragraphs 0019 – 0020, Table 2
Glycerin
Kunin Table 1
Behentrimonium chloride
Kunin Table 1
Cetrimonium chloride
Kunin Table 1
Astrocaryum murumuru seed butter
Smith p. 69
Orbignya speciosa kernel oil
Smith p. 136
Sericin
Kunin paragraph 0019
Guar hydroxypropyltrimonium chloride
Kunin paragraph 0019
Epilobium angustifolium flower/leaf/stem extract
Candau’s Canadian willowherb extract paragraphs 0209 – 0212, 0225, 0228
Serenoa serrulata fruit extract
Candau’s saw palmetto extract paragraphs 0209 – 0212, 0225, 0228
Bisabolol
Candau paragraph 0209 – 0212, 0225, 0228
Opuntia ficus-indica seed oil
Frushour’s prickly pear extract paragraphs 0016, 0029, claim 17
Dimer dilinoleyl dimer dilinoleate
Schroeder paragraphs 0148, 0150, 0156
Soybean glycerides
Frushour paragraph 0062
Butyrospermum parkii (shea) butter unsaponifiables
Frushour paragraph 0062
Dilinoleic acid/propanediol copolymer
Shimizu paragraphs 0052 – 0057, 0061 – 0069
Phytosterol sunflower seedate
Candau’s sunflower seed oil paragraph 0062
Hydrogenated vegetable glycerides
Frushour paragraph 0062
Caprylic/capric triglyceride
Frushour paragraphs 0019, 0062, Table 3
Lavandula angustifolia (lavender) oil
Frushour paragraph 0062
Polyquaternium-37
Schroeder paragraphs 0075, 0084, 0094, 0098, 0125, 0156
Dicaprylyl carbonate
Schroeder paragraphs 0075, 0084, 0094, 0098, 0125, 0156
Lauryl glucoside
Schroeder paragraphs 0075, 0084, 0094, 0098, 0125, 0156
Potassium sorbate
Frushour paragraph 0019
Fragrance
Kunin paragraph 0015
Frushour paragraph 0016
Iodopropynyl butylcarbamate
Frushour paragraph 0019
Phenoxyethanol
Frushour paragraph 0019
Sodium gluconate
Sabbagh paragraphs 0031 – 0032, 0163
The combination of Kunin, Candau, Sabbagh, Smith, Frushour, Schroeder, and Shimizu does not teach combining the above ingredients in three separate parts as claimed, however, selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results according to MPEP 2144.04(iv)(c). Therefore, the claimed sequence of adding the prior art ingredients (where the ingredients are taught by Kunin, Candau, Sabbagh, Smith, Frushour, Schroeder, and Shimizu) as recited in claim 17 is prima facie obvious.
Frushour teaches mixing a formulation containing water, glycerin, caprylic/capric triglyceride, sunflower seed oil, fragrance, and excipients together at a temperature of 70 – 75 °C (Table 3). These ingredients overlap on the ingredients recited in the first and second parts of claim 17. Therefore, Frushour’s mixing temperature of 70 – 75 °C (Table 3) would reasonably be expected to be suitable for mixing each of the recited ingredients in claim 17, overlapping on the claimed range of 75 – 80 °C as recited in claim 18. Claimed ranges that overlap teachings of the prior art are prima facie obvious according to MPEP 2144.05(i).
As in the case of claim 17, above, the combination of Kunin, Candau, Sabbagh, Smith, Frushour, Schroeder, and Shimizu does not specifically teach cooling the mixture of first and second parts before the addition of the third part. However, differences in temperature will not support the patentability of subject matter unless there is evidence indicating the temperature is crucial (MPEP 2144.05(ii)(a)) and selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results according to MPEP 2144.04(iv)(c). Therefore, the claimed sequence of mixing the third solution after cooling of the first and second solution mixture as recited in claim 19 is prima facie obvious.
The combination of Kunin, Candau, Sabbagh, Smith, Frushour, Schroeder, and Shimizu does not specifically teach that the third part is heated to 45 °C for mixing, however, differences in temperature will not support the patentability of subject matter unless there is evidence indicating the temperature is crucial (MPEP 2144.05(ii)(a)). A person of ordinary skill in the art would have the necessary expertise to determine an optimal mixing temperature by taking into consideration the boiling and melting points of each ingredient. Furthermore, heating mixtures for mixing and dissolution is common practice. Therefore, the limitation of claim 20 for mixing the third part at 45 °C is prima facie obvious.
Conclusion
All claims are rejected. No claims are allowed.
Correspondence
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/TORIANA N. VIGIL/Examiner, Art Unit 1612
/SAHANA S KAUP/Supervisory Primary Examiner, Art Unit 1612
