Patent Application 15962351 - COMPOSITIONS WITH A THICKENING POLYMER

Title: COMPOSITIONS WITH A THICKENING POLYMER

Application Information

Invention Title: COMPOSITIONS WITH A THICKENING POLYMER
Application Number: 15962351
Submission Date: 2025-05-13T00:00:00.000Z
Effective Filing Date: 2018-04-25T00:00:00.000Z
Filing Date: 2018-04-25T00:00:00.000Z
National Class: 424
National Sub-Class: 047000
Examiner Employee Number: 86350
Art Unit: 1613
Tech Center: 1600

Rejection Summary

102 Rejections: 0
103 Rejections: 5

Cited Patents

The following patents were cited in the rejection:

US 0161802🔗
US 0348884🔗

Office Action Text

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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 10/21/2024 has been entered.
Election/Restrictions
Claims 21, 39-40 and 43-46 withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected group and/or species, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 12/19/2018.
Response to Arguments
All of Applicants arguments filed 310/21/2024 have been fully considered and are not persuasive.
103 Rejection Over Hilvert, Bhandary, Wood and Harrison
In summary, on pages 12-16 Applicant argues that the Examiner previously asserted that the composition of Hilvert comprises cocomonoethanolamide and therefore maintained their arguments that cocomonoethanolamide does not have an alkyl chain of less than C12.
This is not persuasive as the current rejections of record do not discuss coconomoethanolamide in any way. While the Examiner may have mentioned cocomonoethanolamide in previous rejections, the examiner is no longer relying on cocomonoethanolamide in the current rejections to make obvious the claimed surfactant. The fact that Hilvert teaches that cocomonoethanolamide could also be used in the composition is irrelevant as the instant claims do not exclude the presence of surfactants having an alkyl chain of less than 12, so long as the claimed surfactants are also present.
In summary, on pages 16-18, Applicant argues that the references cited do not establish a prima facie case of obviousness and the prior art fails to teach all the limitations claimed. Applicant cited anticipation case law.
This is not persuasive as the Examiner has pointed out the specific teachings in the prior art references which relate to each if the claim elements, thus a prima facie case of obviousness has been established. Aside from general arguments, Applicant has not pointed to any evidence of record nor persuasive argued that the Examiner’s finding are in error. Applicant’s reliance of anticipation case law is not persuasive as the rejection is based on obviousness.
In summary, on pages 18-21, Applicant argues that the compositions of the prior art are SLS based surfactant systems and these types of systems only lose their ability to be thickened by addition of NaCL when a surfactant of low micellar stability is also present. No low micellar stability surfactants are disclosed in the compositions of the prior art. Example 9 of Hilvert does not teach the presence of this type of surfactant and the composition of Hilvert are expected to thicken upon addition of NaCl.
Applicant arguments are not persuasive as the teachings of Hilvert are not limited to example 9, as discussed in the rejection “While example 9 exemplifies the use of sodium lauryl sulfate, Hilvert teaches that a variety of anionic detersive surfactants can be used and teaches dioctyl sodium sulfosuccinate and sodium lauryl sulfate to be art recognized equivalent anionic detersive surfactants, therefore, 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 substitute sodium lauryl sulfate with dioctyl sodium sulfosuccinate with a reasonable expectation of success. One of skill in the art would have a reasonable expectation of success because the simple substitution of one known element for another would have yielded predictable results to one of ordinary skill in the art at the time of the invention.” As such Hilvert makes obvious the inclusion of a required surfactant as recited by instant claim 1 and therefore the composition claimed and the composition of the prior art is expected to have the same properties absent evidence to the contrary.
On page 21, Applicant points to various examples in the specification that show that the claimed thickening polymers can improve the viscosity of the composition which cannot be thickened properly using NaCl.
This is not persuasive as Hilvert makes obvious the claimed thickening polymer and Applicants have not compared the instant invention to the closest prior art. The data presented is also not commensurate in scope with the claims.
Applicant argues on pages 21-69 that the Examiner cannot use hindsight reasoning to make obvious the instant claims, there must be a line of reasoning.
As for the assertion that the rejection is based on hindsight, as noted in MPEP 2145, any obviousness rejection is in a sense necessarily a reconstruction based on hindsight reasoning and is not improper if it takes into account only knowledge within the level of ordinary skill in the art at the time the claimed invention was made. Appellant has provided no evidence that the rejection is not based on knowledge available to those of ordinary skill in the art. Regarding the Examiner picking and choosing, this is also not persuasive as Ex. 9 of Hilvert teaches the bulk structural requirements of the claims and the additional references provide specific motivation or suggestion to modify the art as suggested by the Examiner. Aside from general arguments, Applicant has not pointed to any evidence of record nor persuasive argued that the Examiner’s finding are in error.
Applicant argues that they have demonstrated with evidence that that it is not obvious to simply combine two equivalent compositions. Any such combination as asserted in the Office Action is hindsight reconstruction based on the present invention, which is impermissible.
This is not persuasive as Applicant has not pointed to any evidence of record and attorney arguments are not evidence.
103 Rejection Over Hilvert, Bhandary, Sharma, Carbopol, Wood and Harrison.
Many of applicant arguments regarding this rejection are identical to the arguments presented against the Hilvert, Bhandary, Wood and Harrison rejection. Arguments which are identical are not persuasive for the reasons discussed above.
Applicant argues that the Carbopol technical data sheet provides no teaching regarding which thickening agents may provide advantageous properties in the context of compositions with low micelle stability. There is nothing in the reference to suggest using Carbopol to solve the objective problem of viscosity not responding to NaCl.
This is not persuasive, the fact that the inventor has recognized another advantage (i.e. specific viscosity modification) which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985). While Carbopol technical data sheet does not attempt to solve the objective problem of the instant invention it has been held that a prior art reference must either be in the field of the inventor’s endeavor or, if not, then be reasonably pertinent to the particular problem with which the inventor was concerned, in order to be relied upon as a basis for rejection of the claimed invention. See In re Oetiker, 977 F.2d 1443, 24 USPQ2d 1443 (Fed. Cir. 1992). In this case, the Carbopol technical data sheet is in the same field of endeavor as the instant claims are directed to hair care and Carbopol is directed to polymers suitable for use in personal care formulation.
On page 36 Applicant argues that working examples 15-16 and 29-30 in the specification show that it would have been obvious to introduce thickening polymers as claimed with the expectation of providing good deposition of antidandruff agents and which has improved viscosity.
Applicant data is not persuasive as it is not commensurate in scope with the instant claims and there is no proper side by side comparison of the instant invention and the closest prior art (i.e. Hilvert). Furthermore when comparing the instant example to the comparative examples, more than one variable has been changes thus it’s unclear from the data what is responsible for the difference in properties. The data presented also lacks a nexus to the claimed invention as the claims require only 3 ingredients, however, all the examples presented have 10+ ingredients.
103 Rejection Over Hilvert, Bhandary, Wood, Harrison and Wittersheim
All of applicant’s arguments regarding this rejection are identical to the arguments presented against the Hilvert, Bhandary, Wood and Harrison rejection. Applicant did not provide specific arguments against the Examiner’s position that Wittersheim provides motivation to use the claimed hair care composition with an applicator. Therefore, Applicant’s arguments are not persuasive for the same reasons as discussed above with respect to the Hilvert, Bhandary, Wood and Harrison rejection.
103 Rejection Over Hilvert, Bhandary, Wood, Harrison and Jayaswal.
All of applicant’s arguments regarding this rejection are identical to the arguments presented against the Hilvert, Bhandary, Wood and Harrison rejection. Applicant did not provide specific arguments against the Examiner’s position that Jayaswal provides motivation to use the claimed hair care composition with an applicator. Therefore, Applicant’s arguments are not persuasive for the same reasons as discussed above with respect to the Hilvert, Bhandary, Wood and Harrison rejection.
103 Rejection Over Hilvert, Bhandary, Wood, Harrison and Flammer.
All of applicant’s arguments regarding this rejection are identical to the arguments presented against the Hilvert, Bhandary, Wood and Harrison rejection. Applicant did not provide specific arguments against the Examiner’s position that Flammer provides motivation to use the claimed hair care composition with an applicator. Therefore, Applicant’s arguments are not persuasive for the same reasons as discussed above with respect to the Hilvert, Bhandary, Wood and Harrison rejection.

Claim Objections
Claim 14 is objected to because of the following informalities: Claim 14 recites “polyethylene oxide,;polypropylene oxide” use of both “,” and “;” is inappropriate. Appropriate correction is required.
Claim 48 objected to because of the following informalities: Claim 48 recites “one or more surfactants a surfactant or combination of surfactants” instead of simply saying “one or more surfactants selected from…” Appropriate correction is required.

Specification
The use of the term carbomer, which is a trade name or a mark used in commerce, has been noted in this application. The term should be accompanied by the generic terminology; furthermore the term should be capitalized wherever it appears or, where appropriate, include a proper symbol indicating use in commerce such as ™, SM , or ® following the term.
Although the use of trade names and marks used in commerce (i.e., trademarks, service marks, certification marks, and collective marks) are permissible in patent applications, the proprietary nature of the marks should be respected and every effort made to prevent their use in any manner which might adversely affect their validity as commercial marks.

Claim Rejections - 35 USC § 112(a)
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.

The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.

Claim 48 is rejected under 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph, as based on a disclosure which is not enabling. The disclosure does not enable one of ordinary skill in the art to practice the invention without the presence of low micellar stability surfactants as recited by instant claim 1, which is/are critical or essential to the practice of the invention but not included in the claim(s). See In re Mayhew, 527 F.2d 1229, 188 USPQ 356 (CCPA 1976). Claim 48 as written requires only a single surfactant, such as SLS, and as stated by Applicant in the response filed 10/21/2024 (pg.18-19), SLS systems are unable to achieve the claimed property unless a surfactant with low micellar stability as required by claim 1 is present as supported by the originally filed specification and examples 8-10. Claim 48 does not require any of the surfactant of claim 1 stated by Applicant to be low micellar stability surfactants
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.

Claims 2-3, 10-12, 14, 24, 26, 28-29 and 41 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 2 recites “other related derivatives” of PVP, cellulose, guar and starch. The term “derivative” is indefinite because it is unclear how far one can deviate from the parent compound without the “derivative” being so far removed therefrom as to be a completely different compound. The specification fails to provide a limiting definition of the above phrases.
Claim 3 contains the trademark/trade name carbomer. Where a trademark or trade name is used in a claim as a limitation to identify or describe a particular material or product, the claim does not comply with the requirements of 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph. See Ex parte Simpson, 218 USPQ 1020 (Bd. App. 1982). The claim scope is uncertain since the trademark or trade name cannot be used properly to identify any particular material or product. A trademark or trade name is used to identify a source of goods, and not the goods themselves. Thus, a trademark or trade name does not identify or describe the goods associated with the trademark or trade name. In the present case, the trademark/trade name is used to identify/describe crosslinked acrylic polymers and, accordingly, the identification/description is indefinite.
Claims 10-12 recite “one or more surfactants” it is unclear if this is referring back to the surfactants of claim 1 or if the claim is referring to a new grouping of surfactants. For purposes of examination the claim is interpreted as reciting “the one or more surfactants” and referring back to those recited in claim 1.
Claims 14 recites “one or more thickening agents” it is unclear if this is referring back to the thickening agents of claim 1 or if the claim is referring to a new grouping of thickening agents. For purposes of examination the claim is interpreted as reciting “the one or more thickening agents” and referring back to those recited in claim 1.
Claim 14 recites “derivatives” of PVP, cellulose, guar and starch. The term “derivative” is indefinite because it is unclear how far one can deviate from the parent compound without the “derivative” being so far removed therefrom as to be a completely different compound. The specification fails to provide a limiting definition of the above phrases.
Claims 24, 26 and 28-29 recite the limitation "the surfactant soluble antidandruff" however claim 1 recites “one or more surfactants”, thus it’s unclear if the claim is referring back to one, more than one or all surfactants. There is insufficient antecedent basis for this limitation in the claim.
Claims 41 recite the limitation "the scalp health agent" however claim 38 recites “one or more scalp health agent”, thus it’s unclear if the claim is referring back to one, more than one or all the scalp health agents. There is insufficient antecedent basis for this limitation in the claim.

Maintained Claim Rejections - 35 USC § 103
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.
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 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.
Claims 1-2, 4-13, 15-18, 22-25, 28-29, 31-38 and 48 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hilvert (US 2014/0348884), Bhandary (WO 98/23258), Wood (US 8,388,699) and Harrison (US 6,642,194).
Hilvert discloses a shampoo composition with improved hair feel, comprising associative thickeners, anionic surfactants and polyDADMAC (Abs).
The composition is taught to comprise 5-20% of a detersive surfactant; 0.05-3% associated thickeners; 0.05-5% polyquaternium-6 and water (Hilvert – claim 1).
Hilvert teaches the associative thickener to be polyethylene glycol distearate.
Example 9 of Hilvert discloses a composition comprising:
6% Sodium lauryl sulfate;
10% sodium laureth-3 sulfate – reading on instant claims 22 and 48;
Dimethicone – reading on instant claims 36-37;
Salicylic acid – scalp health agent, reading on instant claim 38;
2% PEG 150 distearate – reading on associative polymer thickener of instant claims 1c, 2 and 7-9;
Polyquaternium-6 – reading on instant claim 34, etc.
Regarding claim 23: Hilvert teaches that in addition to the anionic detersive surfactants, additional surfactants such as anionic, zwitterionic, amphoteric or other additional surfactants can be added to the composition [0033-0034]. Examples 1-8 and 10 show cocamidopropyl betaine to be a suitable surfactant for use and shows that this can be used in amounts as low as .75% and has high of 2.00%, therefore, it would have been prima facie obvious to add cocamidopropyl betaine to composition 9 with a reasonable expectation of success.
Regarding claims 1a and 10-12: While example 8 exemplifies the use of sodium lauryl sulfate, Hilvert teaches that a variety of anionic detersive surfactants can be used and teaches dioctyl sodium sulfosuccinate and sodium lauryl sulfate to be art recognized equivalent anionic detersive surfactants, therefore, 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 substitute sodium lauryl sulfate with dioctyl sodium sulfosuccinate with a reasonable expectation of success. One of skill in the art would have a reasonable expectation of success because the simple substitution of one known element for another would have yielded predictable results to one of ordinary skill in the art at the time of the invention.
As recognized by MPEP §2144.06, it is prima facie obvious to substitute art-recognized equivalents, and an express suggestion to substitute one equivalent component or process for another is not necessary to render such substitution obvious. In re Fout, 675 F.2d 297, 213 USPQ 532 (CCPA 1982).
While Hilvert exemplifies the use of 6% of these surfactants, Hilvert teaches these surfactants to provide cleaning performance and aid in the formation of the lyotropic crystalline phase, therefore, thus showing it to be a result-effective variable and a skilled artisan would have been motivated to optimize the amounts of detersive surfactants used to obtain a desire cleaning effect.
Hilvert also teaches that the composition can comprise benefit agents such as gel networks (reading on instant claim 35), thickeners and anti-dandruff actives.
Hilvert teaches the shampoo formulations to be in the form of pourable liquids (reading on elected compositional form) [0082].
Regarding claims 1 and 31-33: Hilvert teaches that the shampoo have a pH ranging from 3-9, preferably 4-8 [0073].
However, Hilvert does not teach the composition to comprise piroctone olamine as recited by instant claims 1b, 24-25 and 28-29.
Bhandary teaches hair shampoo compositions comprising 2-50% of surfactants, polyethyleneimine and 0.1-3% piroctone olamine (Abs). Bhandary exemplifies a shampoo composition comprising sodium laureth sulfate as the surfactant.
Bhandary teaches that piroctone olamine is available under the brand Octopirox and is considered substantive to scalp and hair and is a known antidandruff agent and is used in rinse off products (Pg. 6).
It would have been prima facie obvious to a person of skill in the art before the effective filing date of the claimed invention to modify the teachings of Hilvert with those of Bhandary and add 0.1-3% of octopirox to the shampoo composition of Hilvert to provide the composition with antidandruff properties. One of skill in the art would have a reasonable expectation of success as Hilvert teaches that antidandruff agents can be effectively added and Bhandary taches that Octopirox is a well-known antidandruff agent and can be successfully used in shampoo compositions comprising SLES.
However, the above references do not teach the composition to also comprise sodium C10-15 pareth-n sulfate where n is between 0.5-3.5 and the alkyl chain can be linear of branched, elected species.
Wood teaches a hair composition which can comprise anionic surfactants such as sodium C10-15 paerth-3 sulfate and sodium laureth sulfate (Col. 5, lines 45-60).
Harrison teaches that sodium C10-15 pareth sulfate is an anionic surfactants suitable for use in cleansing compositions (Abs and Col. 4, lines 40-45).
It would have been prima facie obvious for a skilled artisan before the effective filing date of the claimed invention to add sodium C10-15 paerth-3 sulfate to the composition of Hilvert along with SLES as both are taught by the prior art to be anionic surfactants suitable for use in cleansing compositions and in hair and its prima facie obvious to combine two functionally equivalent composition each taught by the prior art to be used for the same purpose in order to create a 3rd composition for the same purpose.
Instant claim 1 requires “thickening polymers that are able to raise the viscosity of the formulation to at least 3000 cps at 2s-1…” as the prior art makes obvious the claimed composition and the claimed thickening polymer, antidandruff agent and surfactant(s), the composition claimed and the composition of the prior art are expected to have the same properties absent evidence to the contrary, therefore, the carbomer in Hilvert is able to raise the viscosity of the formulation to at least 3000cps and the composition without the thickening polymer rise unable to be thickened above 3000cps with sodium chloride salt.
Regarding claims 4-6 and 13: These claims recite “where one or more thickening polymers are able to raise the viscosity…” and “wherein the composition without the thickening polymer…” The prior art makes obvious the claimed thickening polymers and the claimed surfactants, therefore as a compound and its properties are inseparable the thickening polymer of the prior art is capable of raising the viscosity as claimed.
Regarding claims 15-18: The prior makes obvious the structural limitations being claimed, therefore, the composition claimed and the composition of the prior art is expected to have the same properties absent evidence to the contrary.
MPEP 2112.01 II cites ““Products of identical chemical composition cannot have mutually exclusive properties.” A chemical composition and its properties are inseparable. Therefore, 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)”

Claims 1-18, 22-25, 28-29, 31-38 and 48 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hilvert (US 2014/0348884), Bhandary (WO 98/23258), Sharma (WO 2015/033351), Carbopol Aqua SF-1 Technical Data Sheet, Wood (US 8,388,699) and Harrison (US 6,642,194).
Hilvert discloses a shampoo composition with improved hair feel, comprising associative thickeners, anionic surfactants and polyDADMAC (Abs).
The composition is taught to comprise 5-20% of a detersive surfactant; 0.05-3% associated thickeners; 0.05-5% polyquaternium-6 and water (Hilvert – claim 1).
Hilvert teaches the associative thickener to be polyethyleneglycol distearate.
Example 9 of Hilvert discloses a composition comprising:
6% Sodium lauryl sulfate;
10% sodium laureth-3 sulfate – reading on instant claim 22 and 48;
Dimethicone – reading on instant claims 36-37;
Salicylic acid – scalp health agent, reading on instant claim 38;
2% PEG 150 distearate – reading on elected polyethylene glycol of instant claim 14;
Polyquaternium-6 – reading on instant claim 34, etc.
Regarding claim 23: Hilvert teaches that in addition to the anionic detersive surfactants, additional surfactants such as anionic, zwitterionic, amphoteric or other additional surfactants can be added to the composition [0033-0034]. Examples 1-8 and 10 show cocamidopropyl betaine to be a suitable surfactant for use and shows that this can be used in amounts as low as .75% and has high of 2.00%, therefore, it would have been prima facie obvious to add cocamidopropyl betaine to composition 9 with a reasonable expectation of success.
Regarding claims 1a and 10-12: While example 9 exemplifies the use of sodium lauryl sulfate, Hilvert teaches that a variety of anionic detersive surfactants can be used and teaches dioctyl sodium sulfosuccinate and sodium lauryl sulfate to be art recognized equivalent anionic detersive surfactants, therefore, 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 substitute sodium lauryl sulfate with dioctyl sodium sulfosuccinate with a reasonable expectation of success. One of skill in the art would have a reasonable expectation of success because the simple substitution of one known element for another would have yielded predictable results to one of ordinary skill in the art at the time of the invention.
As recognized by MPEP §2144.06, it is prima facie obvious to substitute art-recognized equivalents, and an express suggestion to substitute one equivalent component or process for another is not necessary to render such substitution obvious. In re Fout, 675 F.2d 297, 213 USPQ 532 (CCPA 1982).
While Hilvert exemplifies the use of 6% of this surfactants, Hilvert teaches these surfactants to provide cleaning performance and aid in the formation of the lyotropic crystalline phase, therefore, thus showing it to be a result-effective variable and a skilled artisan would have been motivated to optimize the amounts of detersive surfactants used to obtain a desire cleaning effect.
Hilvert also teaches that the composition can comprise benefit agents such as gel networks (reading on instant claim 35), thickeners and anti-dandruff actives.
Hilvert teaches the shampoo formulations to be in the form of pourable liquids (reading on elected compositional form) [0082].
Regarding claims 31-33: Hilvert teaches that the shampoo have a pH ranging from 3-9, preferably 4-8 [0073] and viscosity of 4000-20,000 cP [0085].
However, Hilvert does not teach the composition to comprise piroctone olamine as recited by instant claims 24-25 and 28-29.
Bhandary teaches hair shampoo compositions comprising 2-50% of surfactants, polyethyleneimine and 0.1-3% piroctone olamine (Abs). Bhandary exemplifies a shampoo composition comprising sodium laureth sulfate as the surfactant.
Bhandary teaches that piroctone olamine is available under the brand Octopirox and is considered substantive to scalp and hair and is a known antidandruff agent and is use in rinse off products (Pg. 6).
It would have been prima facie obvious to a person of skill in the art before the effective filing date of the claimed invention to modify the teachings of Hilvert with those of Bhandary and add 0.1-3% of octopirox to the shampoo composition of Hilvert to provide the composition with antidandruff properties. One of skill in the art would have a reasonable expectation of success as Hilvert teaches that antidandruff agents can be effectively added and Bhandary taches that Octopirox is a well-known antidandruff agent and can be successfully used in shampoo compositions comprising SLES.
However, the above references does not teach the composition to comprise an acrylate thickening polymer as elected (Carbopol Aqua SF-1) and reading on claims 1-3 and 7-9.
Sharma teaches antidandruff compositions which comprise antidandruff agents, surfactants such as SLES and rheology modifiers such as Carbopol Aqua SF-1 (Example 4) in amounts ranging from 0-10% (Pg. 9) and exemplifies the use of 6, 7 and 9%.
The Carbopol technical data sheet (TSD) teaches Carbopol Aqua SF-1 to be a rheology modifier that provides the convenience of a liquid while delivering benefits to surfactants-based cleansing products. Carbopol Aqua SF-1 was specifically designed to impart efficient suspending and stabilizing, as well as thickening properties to formulations containing high level of surfactants and have low pH. Insoluble and difficult-to-stabilize ingredients such as silicones can be co-emulsified and stabilized. Finally, Carbopol Aqua SF-1 polymer has the remarkable ability to enhance the pearlescent appearance of surfactant formulations, such as shampoos.
It would have been prima facie obvious to a person of skill in the art before the effective filing date of the claimed invention to modify the teachings of Hilvert with those of Carbopol and add 0-10% of Carbopol Aqua SF-1 to the shampoo composition of Hilvert to provide the composition enhanced properties such as efficient suspending, thickening and stabilization. One of skill in the art would have a reasonable expectation of success as Hilvert teaches that thickening agents can be effectively added and Sharma teaches that Carbopol Aqua SF-1 is a well-known rheology modifier and can be successfully used in shampoo compositions comprising SLES and antidandruff agents.
However, the above references do not teach the composition to also comprise sodium C10-15 pareth-n sulfate where n is between 0.5-3.5 and the alkyl chain can be linear of branched.
Wood teaches a hair composition which can comprise anionic surfactants such as sodium C10-15 paerth-3 sulfate and sodium laureth sulfate (Col. 5, lines 45-60).
Harrison teaches that sodium C10-15 pareth sulfate is an anionic surfactants suitable for use in cleansing compositions (Abs and Col. 4, lines 40-45).
It would have been prima facie obvious for a skilled artisan before the effective filing date of the claimed invention to add sodium C10-15 paerth-3 sulfate to the composition of Hilvert along with SLES as both are taught by the prior art to be anionic surfactants suitable for use in cleansing compositions and in hair and its prima facie obvious to combine two functionally equivalent composition each taught by the prior art to be used for the same purpose in order to create a 3rd composition for the same purpose.
Instant claim 1 requires “thickening polymers that are able to raise the viscosity of the formulation to at least 3000 cps at 2s-1…” as the prior art makes obvious the claimed composition and the claimed thickening polymer, antidandruff agent and surfactant, the composition claimed and the composition of the prior art are expected to have the same properties absent evidence to the contrary, therefore, the carbomer as made obvious above is able to raise the viscosity of the formulation to at least 3000cps and the composition without the thickening polymer rise unable to be thickened above 3000cps with sodium chloride salt.
Regarding claims 4-6 and 13: These claims recite “where one or more thickening polymers are able to raise the viscosity…” and “wherein the composition without the thickening polymer…” The prior art makes obvious the claimed thickening polymers and the claimed surfactants, therefore as a compound and its properties are inseparable the thickening polymer of the prior art is capable of raising the viscosity as claimed.
Regarding claims 15-18: The prior makes obvious the structural limitations being claimed, therefore, the composition claimed and the composition of the prior art is expected to have the same properties absent evidence to the contrary.
MPEP 2112.01 II cites ““Products of identical chemical composition cannot have mutually exclusive properties.” A chemical composition and its properties are inseparable. Therefore, 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)”

Claims 1-2, 4-13, 15-18, 22-25, 28-29, 31-38, 47 and 48is/are rejected under 35 U.S.C. 103 as being unpatentable over Hilvert (US 2014/0348884), Bhandary (WO 98/23258), Wood (US 8,388,699) and Harrison (US 6,642,194), as applied to claims 1-2, 4-13, 15-18, 22-25, 28-29, 31-38 and 48 above and further in view of Wittersheim (US 4,309,119).
As discussed above, Hilvert and Bhandary make obvious the limitations of claims 1-2, 4-13, 15-18, 22-25, 28-29, 31-38 and 48, however, they do not teach the composition to be applied using an applicator.
Wittersheim discloses an applicator device for cosmetic preparation wherein the cosmetic preparation can be applied to the body part being treated, in quantities controllable by means of a self-closing valve (Abs).
It would have been prima facie obvious to a person of skill in the art before the effective filing date of the claimed invention to modify the teachings of Hilvert and Bhandary with those Wittersheim and use the device of Wittersheim to apply the composition (which for a system) made obvious above as Wittersheim is capable of being used with cosmetic preparation and allow for controlled quantities of the composition to be applied. One of skill in the art would have a reasonable expectation of success as its prima facie obvious for a person of skill in the art to pursue the known options within his or her own technical grasp to achieve the predictable result of formulating a cosmetic for topical application to a subject.

Claims 1-2, 4-13, 15-18, 22-25, 26-27, 28-29, 31-38, 42 and 48 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hilvert (US 2014/0348884), Bhandary (WO 98/23258), Wood (US 8,388,699) and Harrison (US 6,642,194), as applied to claims 1-2, 4-13, 15-18, 22-25, 28-29, 31-38 and 48 above and further in view of Jayaswal (WO 2015/055432).
As discussed above, Hilvert and Bhandary make obvious the limitations of claims 1-2, 4-13, 15-18, 22-25, 28-29, 31-38 and 48, however, they do not teach the composition to comprise climbazole.
Jayaswal discloses a hair care composition comprising a cationic deposition polymer and discrete dispersed droplets of a water-insoluble conditioning agent (Abs).
Example 9-10 of Jayaswal disclose compositions comprising: Sodium laureth sulfate, cocoamidopropyl betaine , cationic polymer, guar hydroxypropyltrimonium chloride, dimethicone/dimethiconol, perfume, etc.
Jayaswal teaches that sodium lauryl ether sulfate (also known as sodium laureth sulfate), where n=1-3 is preferred, reading on elected species.
Jayaswal teaches that preferred hair composition comprise antidandruff agents such as azole based antifungal agents (i.e. climbazole as seen in the example above), octopirox, methyl pyrithione salts, selenium sulfide and mixtures thereof.
In view of these teachings, 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 modify the teachings of the above references and substitute octopirox (i.e. piroctone olamine) with climbazole in the composition made obvious above, as its prima facie obvious to substitute one art recognize equivalent for another as they are each taught to be used for the same purpose. One of skill in the art would have a reasonable expectation of success because the simple substitution of one known element for another would have yielded predictable results to one of ordinary skill in the art at the time of the invention.
As recognized by MPEP §2144.06, it is prima facie obvious to substitute art-recognized equivalents, and an express suggestion to substitute one equivalent component or process for another is not necessary to render such substitution obvious. In re Fout, 675 F.2d 297, 213 USPQ 532 (CCPA 1982).
Regarding claim 42: Hilvert teaches that additional cosmetic ingredients such as perfumes can be added [0058], thus the addition of a perfume to the composition made obvious above is prima facie obvious as it is specifically contemplated and would yield no more than one would expect from such an arrangement, however, Hilvert does not teach the amounts in which this can be used.
Jayaswal teaches the addition of perfumes and demonstrates these to be used in amounts of 0.7%, therefore, 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 modify the teachings of the above references and use .7% of perfume as taught by Jayaswal as its prima facie obvious for a skill artisan to pursue the known options within his or her own technical grasp to achieve the predictable result of formulating a hair care product, such as a shampoo, with a perfume. One of skill in the art would have a reasonable expectation of success as both Hilvert and Jayaswal teach hair care compositions comprising anionic cleansing surfactants and ,any other overlapping ingredients, such as cocoamidopropyl betaine ,cationic polymers , guar hydroxypropyltrimonium chloride, dimethicone/dimethiconol, etc.,

Claims 1-2, 4-13, 15-18, 22-25, 28-29, 31-38, 41 and 48 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hilvert (US 2014/0348884), Bhandary (WO 98/23258), Wood (US 8,388,699) and Harrison (US 6,642,194), as applied to claims 1-2, 4-13, 15-18, 22-25, 28-29, 31-38 and 48 above and further in view of Flammer (US 2003/0161802).
As discussed above, Hilvert and Bhandary make obvious the limitations of claims 1-2, 4-13, 15-18, 22-25, 28-29 and 31-38, however, they do not teach the composition to comprise menthol.
Flammer teaches anti-dandruff and anti-itch compositions comprising an antidandruff agent, a cooling sensate material and a cooling sensate (Abs). Flammer teaches that there is an unexpected advantage in using menthol in combinations with cooling sensate enhancers with antidandruff substances. Benefits include substantial soothing effect, deep-cleaned effect, cooling effect and/or significantly enhanced “menthol/medicated” aroma [0009-0016].
It would have been prima facie obvious to a person of skill in the art before the effective filing date of the claimed invention to modify the teachings of the above references with those of Flammer and add menthol and a cooling sensate enhancer as Flammer teaches that these components in combination with antidandruff substances provides enhanced benefits such as substantial soothing effect and menthol aroma. Absent evidence to the contrary, one of skill in the art would have a reasonable expectation of success as both Flammer and Hilvert teach shampoos for personal care which can be applied to hair (Flammer – claims 12 and [0069]).
Conclusion
No claims are allowable.
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/JENNIFER A BERRIOS/ Primary Examiner, Art Unit 1613