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 .
Claim Rejections - 35 USC § 112
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.
Claim 34 is 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.
Claim 34 fails to include all the limitations of claim 19 upon which it depends in that it fails to include all the limitations regarding the dispenser/container, and only includes the limitations regarding the hair care composition whereas claim 19 also includes dispenser/container limitations.
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.
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 (i.e., changing from AIA to pre-AIA ) 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, 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.
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.
Claim(s) 19-34 is/are rejected under 35 U.S.C. 103 as being unpatentable over Snyder et al. (US 2015/0093420 A1; published 02 April 2015) in view of Glenn, JR. et al. (US 2015/0359725 A1; published 17 December 2015) and Wagner et al. (US 2015/0299400 A1; published 22 October 2015).
Snyder et al. discloses a hair conditioning composition comprising: a) a silicone polymer comprising: i. one or more quaternary groups; ii. at least one silicone block comprising greater than 200 siloxane units; iii. at least one polyalkylene oxide structural unit; and iv. at least one terminal ester group; wherein said silicone polymer has a viscosity of up to 100,000 mPas, wherein said silicone polymer is a pre-emulsified dispersion with a particle size of less than about 1 micron, and b) a gel matrix comprising: i. a cationic surfactant; ii. a high melting point fatty compound; and iii. an aqueous carrier (claim 1) wherein said silicone polymer is present in an amount of from about 0.05% to about 15% by weight of the composition (claim 3) wherein said silicone polymer is defined by a chemical structure corresponding to the instantly claimed polyorganosiloxane with constituent and number ranges overlapping (claims 6-10) wherein the composition is applied to hair for conditioning benefits (claim 14) wherein the composition is then rinsed from the hair (paragraph [0157]) wherein the composition may comprise about 50-90% water (paragraph [0107]) wherein the composition may comprise about 1.5-5% by weight of the cationic surfactant (paragraph [0095]) wherein the composition comprises about 2-20 wt% emulsifier for emulsion stability (paragraph [0085]) such as non-ionic emulsifier (paragraph [0084]) wherein the composition is stable over reasonable time under exposure to typical temperature conditions during storage (paragraph [0082]).
Snyder et al. does not disclose that the composition is in an aerosol dispenser with propellant as claimed, or that the emulsifier is as in claim 33, or about 130 to about 175 siloxane units as claimed.
Glenn, JR. et al. discloses treating hair with a concentrated conditioner (title) wherein a method includes dispensing a concentrated hair care composition from an aerosol foam dispenser as a dosage of foam, applying the foam to the hair, and rinsing the foam from the hair (abstract) wherein the aerosol container is under pressure with propellant (paragraph [0138]) wherein nonionic emulsifiers therein include condensation products of aliphatic alcohols with about 8-18 carbon atoms in straight chain or branched configuration with about 2-35 moles of ethylene oxide (paragraphs [0075]-[0077]).
It would have been prima facie obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to combine the teachings of Snyder et al. and Glenn, JR. et al., by placing the composition of Snyder et al. as discussed above in the aerosol foam dispenser with propellant of Glenn, JR. et al. as discussed above and to dispense and apply to hair and rinse off the composition as suggested by Glenn, JR. et al., and by using the condensation products of aliphatic alcohols with about 8-18 carbon atoms in straight chain or branched configuration with about 2-35 moles of ethylene oxide of Glenn, JR. et al. as the nonionic emulsifier therein, with a reasonable expectation of success. A person of ordinary skill in the art before the effective filing date of the claimed invention would have been motivated to do so to facilitate storage and dispensing and using from a dispenser known in the art for conditioner compositions, and to use a nonionic emulsifier known in the art for conditioner compositions, given that the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination per MPEP 2144.07.
Wagner et al. discloses rinse-off conditioners (claim 16) comprising polyorganosiloxane compounds (claims 4-7) wherein polyorganosiloxane compounds therein preferably have 1-250 siloxy units (paragraph [0101]).
It also would have been prima facie obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to combine the teachings of Snyder et al. and Wagner et al., by making the composition of Snyder et al. as discussed above with 1-250 siloxane units therein as suggested by Wagner et al., with a reasonable expectation of success. A person of ordinary skill in the art before the effective filing date of the claimed invention would have been motivated to do so to use a number of siloxane units in polyorganosiloxane compounds known in the art for conditioner compositions, given that the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination per MPEP 2144.07, and moreover a range (e.g., the number of siloxane units in polyorganosiloxane compounds known in the art for conditioner compositions) may be disclosed in multiple prior art references instead of a single prior art reference per MPEP 2144.05(I).
The ranges disclosed in the prior art as discussed above overlap the claimed ranges, and a prima facie case of obviousness exists where prior art and claimed ranges overlap per MPEP 2144.05(I).
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHAEL B. PALLAY whose telephone number is (571)270-3473. The examiner can normally be reached Monday through Friday from 8:30 AM to 5:00 PM Eastern Time.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sue Liu can be reached at (571)272-5539. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MICHAEL B. PALLAY/Primary Examiner, Art Unit 1617
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