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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________________
`
`
`CONOPCO, INC. dba UNILEVER
`Petitioner
`
`v.
`
`THE PROCTER & GAMBLE COMPANY
`Patent Owner
`
`U.S. Patent No. 6,974,569
`_____________________
`
`Inter Partes Review Case No. Unassigned
`_____________________
`
`DECLARATION OF ARUN NANDAGIRI
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`

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`Inter Partes Review of USPN 6,974,569
`Declaration of Arun Nandagiri (UNL 1043)
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`
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`TABLE OF CONTENTS
`
`I. 
`II. 
`III. 
`IV. 
`V. 
`VI. 
`VII. 
`VIII. 
`IX. 
`X. 
`
`XI. 
`
`XII. 
`
`XIII. 
`
`XIV. 
`
`XV. 
`
`XVI. 
`
`Introduction ............................................................................................... 3 
`My Background and Qualifications .......................................................... 4 
`List of Documents I Considered in Formulating My Opinion .................. 7 
`Person of Ordinary Skill in the Art ......................................................... 10 
`The '569 Patent Specification .................................................................. 11 
`The Claims of the '569 patent .................................................................. 12 
`State of the Art as of May 3, 1999 .......................................................... 16 
`Summary Chart of Analysis Over the Art ............................................... 24 
`The Basis of my Analysis with Respect to Obviousness ........................ 24 
`Ground 1: Claims 16 and 20 – 22 would have been obvious over
`Kanebo and Kalla .................................................................................... 25 
`Ground 2: Claim 27 would have been obvious over Kanebo, Kalla
`and Evans ................................................................................................. 40 
`Ground 3: Claims 20 - 22 Would Have Been Obvious to a POSA
`Over Kanebo, Sime and Hoshowski Hair Care ....................................... 43 
`Ground 4: Claims 14 and 16 would have been Obvious over
`Kanebo, Sime and Cardin. ....................................................................... 48 
`Ground 5: Claims 20 and 21 Would Have Been Obvious Over
`Kanebo, Cseh and Cosemedia ................................................................. 51 
`Ground 6: Claims 24 and 25 Would Have Been Obvious Over
`Kanebo and Cothran ................................................................................ 53 
`Ground 7: Claim 13 Would Have Been Obvious Over Kanebo,
`Ramachandran and Hoeschele ................................................................. 57 
`XVII.  Ground 8: Claims 31 and 33 Would Have Been Obvious Over
`Kanebo, Ramachandran and Bar-Shalom ............................................... 59 
`XVIII.  Ground 9: Claims 20 - 22 would have been obvious over Reid,
`Sime and Cardin ...................................................................................... 62 
`Objective Indicia of Nonobviousness ...................................................... 71 
`Conclusion ............................................................................................... 74 
`
`XIX. 
`XX. 
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`I, Arun Nandagiri, hereby declare as follows.
`I.
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`Inter Partes Review of USPN 6,974,569
`Declaration of Arun Nandagiri (UNL 1043)
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`Introduction
`1.
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`I am over the age of eighteen (18) and otherwise competent to make
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`this declaration.
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`2.
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`I have been retained as an expert witness on behalf of CONOPCO, INC.
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`(UNILEVER) for the above-captioned inter partes review (IPR). I am being
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`compensated for my time in connection with this IPR at my standard legal
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`consulting rate, which is $290 per hour. I understand that the petition for inter
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`partes review involves U.S. Patent No. 6,974,569 ("the '569 patent"), UNL 1001,
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`which resulted from U.S. Application No. 09/558,465 ("the '465 application"),
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`filed on April 25, 2000, and alleging a priority date of May 3, 1999. The '569
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`patent names David Scott Dunlop, Roberta Atwood Boyd, Susan Marie Guskey,
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`James Robert Schwartz, and Anthony Raymond Marchetta as inventors. The '569
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`patent issued on December 13, 2005, from the '465 application. I further
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`understand that, according to the USPTO records, the '569 patent is currently
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`assigned to the Procter & Gamble Company ("P&G").
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`3.
`
`I submitted a Declaration dated August 14, 2013 in IPR2013-00505,
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`which also involved review of the '569 patent. IPR as to some of the claims of the
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`'569 patent was instituted by the U.S. Patent and Trademark Office on February 12,
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`2014.
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`4.
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`In preparing this Declaration, I have reviewed the '569 patent and
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`Inter Partes Review of USPN 6,974,569
`Declaration of Arun Nandagiri (UNL 1043)
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`considered each of the documents cited herein, in light of general knowledge in the
`
`art. In formulating my opinions, I have relied upon my experience, education and
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`knowledge in the relevant art. In formulating my opinions, I have also considered
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`the viewpoint of a person of ordinary skill in the art ("POSA") (i.e., a person of
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`ordinary skill in the field of shampoos and conditioners, defined further below in
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`Section IV) prior to May 3, 1999.
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`II.
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`My Background and Qualifications
`5.
`
`I am an expert in the field of shampoos and conditioners, including
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`anti-dandruff conditioning shampoos. I have more than 30 years' experience in
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`formulating shampoos and conditioners and have been personally involved in the
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`formulation of hundreds of hair care products. I received my Masters of Science
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`degree in Pharmacy from Andhra University, India where master's thesis was
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`entitled "Manufacture of Antibiotics." Additionally, I received my Masters of
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`Science degree in Pharmacy Administration from Brooklyn College of Pharmacy
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`in 1972. From 1970-1972, I was an aerosol chemist at Block Drug company, where
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`I worked with aerosol shampoos and hairsprays.
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`6.
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`From 1972 to 1975, I was a Senior Scientist for the Hair Care and
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`Antiperspirants division of Beecham, Inc. From 1975 to 1982, I was Group Leader
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`of the Hair Care and Antiperspirants division of Shulton, Inc. At both of these
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`4
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`positions, I was involved in formulating shampoos and conditioners, and was
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`Inter Partes Review of USPN 6,974,569
`Declaration of Arun Nandagiri (UNL 1043)
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`involved in selecting formulation components and testing of conditioning
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`properties. As a Group Leader at Shulton, I also had a group of formulation
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`chemists reporting to me.
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`7.
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`From 1982 to 1989, I was Director of Research and Development for
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`Playtex-Jhirmack, Inc. As Director, I created, planned, delegated and coordinated
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`all research and development activities for the U.S. and Canadian markets. I was
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`actively involved in formulating all types of hair care products, including
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`shampoos and conditioners. In my role in creating shampoo and conditioner
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`formulations, I was involved in determining which components to use in the
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`formulations and at what concentrations. At Playtex-Jhirmack, I worked with anti-
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`dandruff shampoos, including shampoos containing zinc pyrithione ("ZPT") and
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`coal tar.
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`8.
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`In 1989, I joined Helene Curtis Industries, Inc., which was acquired
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`by Unilever in 1996. I was Director of the Hair Care Research and Development
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`division of Helene Curtis, and then Unilever, from 1989 to 2000. In this position, I
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`managed and directed all development products in hair shampoos, conditioners and
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`other hair products. I coordinated research activities associated with hair care
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`products and managed a staff of up to 40 scientists, stylists and administrators. I
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`also interacted with research and development personnel to create shampoo and
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`conditioning formulations. I also was involved with research and formulation of
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`Inter Partes Review of USPN 6,974,569
`Declaration of Arun Nandagiri (UNL 1043)
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`anti-dandruff shampoos.
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`9.
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`From 2000 to 2003, I was Director of Hair Care Projects of Unilever
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`de Argentina. In this position, I was on a global team managing Unilever's hair
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`care products around the world. I successfully expanded Unilever's hair care
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`market share in Latin America and established an independently functioning
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`research team.
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`10.
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`In 2003, I founded Bria Research Labs, a personal care consulting and
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`contract business. Bria Research Labs provides hair care product development and
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`testing services to the personal care industry. I am actively in charge of all of the
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`activities of Bria Research Labs, which include: developing customize shampoo
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`and conditioner formulations; substantiating product claims via hair swatch testing;
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`salon testing of products; providing small scale manufacturing on site; and
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`supporting large scale manufacturing. As founder of Bria, I have been involved in
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`multiple projects formulating shampoos and conditioners from scratch in order to
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`meet client needs. I personally formulated hundreds of shampoo and conditioner
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`formulations and also developed several test methods to evaluate the performance
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`of these products in the laboratory and salon.
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`11. Accordingly, I am an expert in the field of shampoos and conditioners
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`Inter Partes Review of USPN 6,974,569
`Declaration of Arun Nandagiri (UNL 1043)
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`and I was an expert in this field prior to May 3, 1999. My full background is
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`detailed in my curriculum vitae. UNL 1004.
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`III.
`
`List of Documents I Considered in Formulating My Opinion
`12.
`
`In formulating my opinion, I have considered
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`the following
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`documents:
`
`Unilever
`Exhibit #
`
`Description
`
`1001
`
`1002
`1005
`
`1006
`
`Dunlop et al., U.S. Patent No. 6,974,569, "Shampoos Providing a
`Superior Combination Anti-Dandruff Efficacy and Condition,"
`(filed April 25, 2000; issued December 13, 2005)
`File history of U.S. Patent No. 6,974,569
`Kanebo, Ltd., Japanese Application No. 9-188614, "Composition
`having Pearl Lustre," (filed January 9, 1996; laid open July 22,
`1997) (Japanese)
`Kanebo, Ltd., Japanese Application No. 9-188614, "Composition
`having Pearl Lustre," (filed January 9, 1996; laid open July 22,
`1997) (English translation)
`1007 Marsh et al., U.S. Patent No. 7,481,846, "Method of Rapid Hair
`Dyeing," (filed September 22, 2005; issued January 27, 2009)
`Bowser et al., U.S. Patent No. 5,723,112, "Pyrithione Containing
`Hair Treatment Composition," (filed July 9, 1996; issued March 3,
`1998)
`Evans et al., WO 97/14405, "Conditioning Shampoos Containing
`Polyalkylene Glycol," (filed October 15, 1996; published April 24,
`1997)
`Bartolo et al., U.S. Patent No. 5,202,048, "Personal Cleansing
`Product with Odor Compatible Bulky Amine Cationic Polymer
`with Reduced Odor Characteristics," (filed December 30, 1991;
`issued April 13, 1993)
`
`1009
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`1010
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`1012
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`
`7
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`Unilever
`Exhibit #
`
`Inter Partes Review of USPN 6,974,569
`Declaration of Arun Nandagiri (UNL 1043)
`
`Description
`
`1013
`
`1014
`
`1015
`
`1018
`
`1019
`
`1020
`
`1021
`
`1022
`
`Coffindaffer et al., U.S. Patent No. 5,624,666, "Anti-Dandruff
`Shampoos with Particulate Active Agent and Cationic Polymer,"
`(filed January 20, 1995; issued April 29, 1997)
`Cardin et al., U.S. Patent No. 5,104,645, "Antidandruff Shampoo
`Compositions," (filed February 2, 1990; issued April 14, 1992)
`Schwen et al., WO 95/03319, "Cyproterone Acetate Thioacetate,"
`(filed July 13, 1994; published on February 2, 1995)
`Reid et al., U.S. Patent No. 5,085,857, "Conditioning Shampoo
`Comprising a Surfactant, a Non-Volatile Silicone Oil and Guar
`Hydroxypropyltromium Chloride as a Cationic Conditioning
`Polymer," (filed December 3, 1990; issued February 4, 1992)
`Drakoff, U.S. Patent No. 3,964,500, "Lustering Shampoo
`Containing a Polysiloxane and a Hair-Bodying Agent," (filed June
`18, 1975; issued June 22, 1976)
`Shin et al., U.S. Patent No. 5,886,031, "Hair-Care Cosmetic
`Compositions Having Dandruff Formation-Suppressing Effect,"
`(filed May 22, 1997; issued March 23, 1999)
`Hoshowski et al., U.S. Patent No. 5,137,715, "Hair Shampoo-
`Conditioner Composition," (filed December 7, 1990; issued
`August 11, 1992)
`Liu et al., U.S. Patent No. 5,456,851, "Ketoconazole Shampoo
`Containing Butylated Hydroxytouluene or Butylated
`Hyrdoxyanisole," (filed April 7, 1994; issued October 10, 1995)
`1023 Woods, G.L. and Washington, J.A., "Antibacterial Susceptibility
`Tests: Dilution and Disk Diffusion Methods," Manual of Clinical
`Microbiology Sixth Edition: 1327-1341 (1995)
`Garcia, M.L. and Diaz, J., "Combability Measurements on Human
`Hair," J. Soc. Cosmet. Chem. 27: 379-398 (1976)
`Specification sheet for Polydimethylsiloxane, Food & Agriculture
`Organization of the United Nations, Joint FAO/WHO Expert
`Committee on Food Additives, 69th Meeting, Monograph 5, June
`2008
`Embrechts et al., European Patent Application No. 0 872 230,
`"Compositions containing an antifungal and cationic agent," (filed
`April 14, 1997; published October 21, 1998)
`
`1024
`
`1025
`
`1026
`
`
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`Unilever
`Exhibit #
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`Inter Partes Review of USPN 6,974,569
`Declaration of Arun Nandagiri (UNL 1043)
`
`Description
`
`1027
`
`1028
`
`1029
`1030
`
`1031
`
`1032
`
`1033
`
`1034
`
`1035
`
`1036
`
`1037
`
`1038
`
`1040
`1042
`
`Somasundaran et al., WO 96/03972, "Deposition of Materials to
`Surfaces Using Zwitterionic Carrier Particles," (filed July 8, 1995;
`pulished February 15, 1996)
`Sime, U.S. Patent No. 5,037,818, "Washing Composition for the
`Hair," (filed July 26, 1998; issued August 6, 1991)
`Data sheet for Zinc Pyrithione, Arch Chemicals, Inc., 3 pages
`Gibson, U.S. Patent No. 5,015,470, "Cosmetic Composition,"
`(filed December 17, 1987; issued May 14, 1991)
`Kalla et al., WO 97/26854, "Shampoo Compositions with
`Improved Deposition of Antimicrobial Agents," (filed January 6,
`1997; published on July 31, 1997)
`Hoshowski, M.A., "Conditioning of Hair," Chapter 4 in Hair and
`Hair Care, Johnson, D.H., ed., pp. 65-104, Marcel Drekker, Inc.
`(1997)
`Ramachandran, et al., U.S. Patent No. 5,900,393, "Scalp Care
`Products Containing Anti Itching/Anti Irritant Agents," (filed June
`24, 1996; issued May 4, 1999)
`Bar-Shalom, et al., U.S. Patent No. 5,618,798, "Use of Sucralfate
`to Treat Baldness," (filed May 23, 1994; issued April 8, 1997)
`European Patent Application 00928693.1-2108 / 1181008, Letter
`from the proprietor of the patent on November 8, 2012, The
`Procter & Gamble Company response to European Oppositions
`Hoeschele, J.D., et al., "In Vitro Analysis of the Interaction
`between Sucralfate and Ketoconazole," Antimicrobial Agents and
`Chemotherapy 38(2):319-325 (1994)
`Staudigel et al., U.S. Publication No. 2013/0089587, "Personal
`Care Compositions and Methods of Making Same," (filed October
`5, 2012; issued April 11, 2013)
`Patent Owner's Preliminary Response Pursuant to 37 C.F.R. §
`42.107 in Case IPR2013-00510, Patent 6,649,155, Conopco, Inc.
`dba Unilever v. The Procter & Gamble Company, Paper No. 7,
`filed November 18, 2013
`Product data sheet for COSMEDIA™ Guar C261
`Cseh, U.S. Patent No. 4,676,978, "Shampoo," (filed January 27,
`1986; issued June 30, 1987)
`
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`Unilever
`Exhibit #
`1044
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`1045
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`Inter Partes Review of USPN 6,974,569
`Declaration of Arun Nandagiri (UNL 1043)
`
`Description
`
`Cothran et al., WO 96/32919, "Shampoos with Insoluble Silicone
`Conditioning Agent and Cationic Polymer," (filed March 27,
`1996; published on October 24, 1996)
`Uchiyama et al., WO 97/14406, "Conditioning Shampoo
`Compositions Having Improved Stability," (filed October 16,
`1996; published April 24, 1997)
`
`
`IV.
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`Person of Ordinary Skill in the Art
`13.
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`I understand that a person of ordinary skill in the art is a hypothetical
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`person who is presumed to be aware of all pertinent art, thinks along conventional
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`wisdom in the art, and is a person of ordinary creativity. A person of ordinary skill
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`in the art ("POSA") of anti-dandruff conditioning shampoos would have had
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`knowledge of the scientific literature concerning use of surfactants as conditioners,
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`as of 1999. A POSA as of 1999 would typically have (i) a Ph.D. or M.S. degree in
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`pharmacy, physical chemistry (colloidal chemistry), chemistry or biochemistry (or
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`a related field) with at least a 2-3 years of experience in the development of
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`shampoo and conditioner formulations, or (ii) a B.S. in pharmacy, chemistry or
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`biochemistry (or a related field) with significant practical experience (4 or more
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`years) in the development of shampoo and conditioner formulations. A POSA may
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`work as part of a multi-disciplinary team and draw upon not only his or her own
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`skills, but also take advantage of certain specialized skills of others in the team, to
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`solve a given problem. For example, a formulator, a colloidal chemist and a
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`Inter Partes Review of USPN 6,974,569
`Declaration of Arun Nandagiri (UNL 1043)
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`surfactant specialist be part of the team.
`
`V.
`
`The '569 Patent Specification
`14. This declaration is being submitted together with a petition for inter
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`partes review of claims 13, 14, 16, 20 – 22, 24, 25, 27, 31 and 33 of the '569
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`patent.
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`15.
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`I have considered the disclosure and file history of the '569 patent in
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`light of general knowledge in the art as of the earliest alleged priority date of the
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`'569 patent, May 3, 1999.
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`16. The
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`'569 patent is directed to anti-dandruff and conditioning
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`shampoos. UNL 1001, Abstract. The '569 patent alleges that the shampoo
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`compositions "provide a superior combination of anti-dandruff efficacy and
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`conditioning…." UNL 1001, Abstract. The '569 patent states that:
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`Disclosed are shampoo compositions that provide a
`superior combination of anti-dandruff efficacy and
`conditioning, and a method of cleansing and conditioning
`the hair comprising applying to the hair and scalp an
`amount of said compositions. The anti-dandruff and
`conditioning shampoos comprise: (A) from about 5% to
`about 50%, by weight, of an anionic surfactant; (B) from
`about 0.01% to about 10%, by weight, of a non-volatile
`conditioning agent; (C) from about 0.1% to about 4%, by
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`Inter Partes Review of USPN 6,974,569
`Declaration of Arun Nandagiri (UNL 1043)
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`weight, of an anti-dandruff agent; (D) from about 0.02%
`to about 5%, by weight, of at least one cationic polymer;
`and
`(E) water. The compositions
`(A) have a
`bioavailability/coverage index value, as defined herein,
`of at least about 1.25; (B) have a first conditioning index
`value, as defined herein, of less than or equal to about
`1.0; (C) have a second conditioning index value, as
`defined herein, of at least about 1.5; and (D) have a
`minimal inhibitory concentration index value, as defined
`herein, of at least about 0.125.
`
` UNL 1001, Abstract.
`
`VI.
`
`The Claims of the '569 patent
`17. Claim 1 of the '569 patent is directed to:
`
`1. A shampoo composition comprising:
`a) from about 5% to about 50%, by weight, of an anionic
`surfactant;
`b) from about 0.01% to about 10%, by weight, of a non-
`volatile conditioning agent;
`c) from about 0.1% to about 4%, by weight, of an anti-
`dandruff particulate;
`d) from about 0.02% to about 5%, by weight, of a
`cationic polymer;
`e) water;
`f) from about 0.1% to about 10%, by weight of the
`composition, of a suspending agent; wherein said
`composition:
`i. has a bioavailability/coverage index value, of at least
`about 1.25;
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`Inter Partes Review of USPN 6,974,569
`Declaration of Arun Nandagiri (UNL 1043)
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`ii. has a first conditioning index value, of less than or
`equal to about 1.0;
`iii. has a second conditioning index value, of at least
`about 1.5; and
`iv. has a minimal inhibitory concentration index value, of
`at least about 0.125.
`
`
`18. The claim term "bioavailability/coverage index value" encompasses
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`results obtained in skin disk diffusion assays that were well known in 1999. See
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`UNL 1023, 1337-1340. The '569 patent discloses a testing method where skin
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`disks treated with shampoo compositions are contacted with agar plates and the
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`average area colonized on the plate is assessed. UNL 1001, 34:42-36:10 The
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`bioavailability/coverage test disclosed in the '569 patent is comparable to skin disk
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`diffusion tests known in the art, such as those disclosed in Woods and Shin. UNL
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`1023, 1337-1340; UNL 1020, 7:19-37. For example, Woods discloses "Disk
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`Diffusion Testing" measuring the zone of inhibition around a disk treated with an
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`antimicrobial agent. UNL 1023, 1337, col. 1. And Shin discloses a method where
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`skin discs treated with shampoo are then contacted with agar plates, followed by
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`measurement of the inhibition zone after inhibition of the plate. UNL 1020, 7:19-
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`37.
`
`19. The claim term "first conditioning index value" encompasses results
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`obtained in combing force assays that were well known in 1999. See UNL 1024;
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`UNL 1021, 25:36-61. The '569 patent discloses a testing method where the force
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`neded to pull a comb through a swatch of hair is measured by a force transducer.
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`Inter Partes Review of USPN 6,974,569
`Declaration of Arun Nandagiri (UNL 1043)
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`UNL 1001, 37:31-38:58. The first conditioning index test disclosed in the '569
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`patent is comparable to combing force tests known in the art, such as those
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`disclosed in Garcia and Hoshowski. UNL 1024; UNL 1021, 25:36-61. Garcia
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`discussed an "instrumental method for MEASURING the effect of cosmetic
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`products or any other treatment of the COMBABILITY of HUMAN HAIR." UNL
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`1024, Abstract. And Hoshowski discusses a "combing study measures the energy
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`required to comb through a hair tress to compare the energy required to comb
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`through an untreated tress to the energy required to comb through a tress treated
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`with a composition of the present invention." UNL 1021, 25:43-48.
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`20. The claim term "second conditioning index value" encompasses
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`results obtained in clean hair feel assays that were well known in 1999. See UNL
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`1021, 22:12-44. Hoshowski discloses tests in which trained panelists evaluate the
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`hair for different properties, including "wet feel." UNL 1021, 22:28-43. The '569
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`patent discloses a testing method where a panel of testers evaluates the clean hair
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`feel of swatches of hair by touch. UNL 1001, 40:28-42:11. The second
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`conditioning index test disclosed in the '569 patent is comparable to clean hair feel
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`tests known in the art, such as that disclosed in Hoshowski. UNL 1021, 22:12-44.
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`21. The claim term "minimal inhibitory concentration index value"
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`encompasses results obtained in minimal inhibitory concentration ("MIC") assays
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`that were well known in 1999. See UNL 1020, 6:59-7:17. The '569 patent discloses
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`Inter Partes Review of USPN 6,974,569
`Declaration of Arun Nandagiri (UNL 1043)
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`a standard MIC assay for determining the minimal concentration at which an agent
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`prevents antimicrobial growth. UNL 1001, 42:50-43:11. The MIC test disclosed in
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`the '569 patent is comparable to MIC tests known in the art, such as those disclosed
`
`in Shin. UNL 1020, 6:59-7:17.
`
`22. Claim 12 recites that the "anti-dandruff particulate is a zinc salt of 1-
`
`hydroxy-2-pyridinethione." It is clear from the specification of the '569 patent and
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`the use of this term in the art that a zinc salt of 1-hydroxyl-2-pyridinethione is
`
`equivalent to "zinc pyrithione". For example, the '569 patent states that the
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`preferred anti-dandruff agent is the zinc salt of 1-hydroxy-2-pyridinethione, which
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`is "(known as 'zinc pyridinethione' or 'ZPT')." UNL 1001, 16:55-59. The Example
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`formulations use the term zinc pyrithione and state in a footnote "ZPT having an
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`average particle size of 2.5 μm, available from Arch/Olin." UNL 1001, 32:30-51,
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`fn. 4. When referring to the anti-dandruff agent later in the '569 patent, the term
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`"zinc pyrithione" is used. The '569 patent states: "[i]t is also contemplated that
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`when the anti-dandruff particulate employed is zinc pyrithione, and/or if other
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`optional hair growth regulating agents are employed, the shampoo compositions of
`
`the present invention, may, provide for the regulation of growth of the hair." UNL
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`1001, 31:41-45. Thus, the '569 patent uses the terms "zinc salt of 1-hydroxy-2-
`
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`15
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`

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`
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`pyridinethione," "ZPT," and "zinc pyrithione" as all referring to the same chemical
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`Inter Partes Review of USPN 6,974,569
`Declaration of Arun Nandagiri (UNL 1043)
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`compound.
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`23. Some of the challenged claims recite molecular weights of cationic
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`polymers. A POSA would also understand that the specification of the '569 patent
`
`does not provide a specific method for measuring molecular weights of polymers.
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`24. Any term I have not expressly defined above, I have given its plain
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`and ordinary meaning under a broadest reasonable claim construction.
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`VII.
`
`State of the Art as of May 3, 1999
`25. Anti-dandruff shampoos having good conditioning properties were
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`known before 1999. Anti-dandruff agents, such as ZPT, had already been
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`formulated into conditioning shampoos, as evidenced by the disclosures of, for
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`example, Kanebo (UNL 1006), Sime (UNL 1028), Reid (UNL 1018) and Evans
`
`(UNL 1010).
`
`26. As shown by the references discussed herein, the process of
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`formulating a conditioning anti-dandruff shampoo was well understood by 1999.
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`Conditioning hair involves depositing a cationic polymer along the length of the
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`anionically charged hair shaft in an amount sufficient to make the hair feel
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`conditioned without causing the hair to feel unclean. UNL 1032 68-69. Effective
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`conditioning while maintaining a good clean feeling is often accomplished by
`
`
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`16
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`
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`using cationic conditioning polymers with molecular weights ("MWs") less than
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`Inter Partes Review of USPN 6,974,569
`Declaration of Arun Nandagiri (UNL 1043)
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`700,000 g/mol1.
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`27. Treating the hair and scalp for dandruff involves depositing an
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`antimicrobial agent, such as ZPT and ketoconazole, along the length of the hair
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`shaft and on the scalp. The anti-dandruff agents approved for use in the U.S. in
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`1999, including ZPT, are insoluble and generally suspended in formulations to
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`allow for their deposition on the hair and scalp. See, e.g., UNL1009, 1:15-2:25. It
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`was known as of 1999 that water soluble cationic deposition aids could be used to
`
`enhance the deposition of insoluble anti-dandruff agents on the hair and scalp. See,
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`e.g., UNL 1009, 4:62-67.
`
`28.
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`It was also well known in 1999 to use coacervate conditioning
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`systems to deliver both conditioners and anti-dandruff agents to the hair and scalp.
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`As discussed in U.S Patent 3,964,500, coacervate silicone polymer systems have
`
`been used in shampoos since at least 1976. See UNL 1019, 3:11-18. Kanebo
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`discloses coacervate systems containing anionic surfactant, silicone conditioning
`
`agent, anti-dandruff agent and cationic polymer. UNL1006, [0037], pp. 10-11. A
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`POSA would have understood that Kanebo discloses a combination of ingredients
`
`that would form coacervates upon dilution in water, leading to enhanced deposition
`
`of both conditioning and anti-dandruff agents.
`
`1 All molecular weights referred to are in g/mol unless otherwise noted.
`
`
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`17
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`29.
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`It was further well known by 1999 to use polyalkylene glycols to
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`Inter Partes Review of USPN 6,974,569
`Declaration of Arun Nandagiri (UNL 1043)
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`enhance the spreadability of shampoos on the hair. For example, Evans teaches:
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`"[i]t has also been found that these selected polyalkylene glycols, when added to a
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`silicone-containing shampoo composition, enhance spreadability of the shampoo
`
`compositions in hair. Enhanced spreading of the shampoo composition during
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`application provides consumers with a perception of enhanced conditioning
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`performance." UNL 1010, 20.
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`30. Exemplary relevant art that published before May 3, 1999 includes the
`
`references described below.
`
`31. Kanebo. Kanebo is Japanese Patent Application No. 08/019,389.
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`Kanebo was filed January 9, 1996 and published July 22, 1997.2 Kanebo is entitled
`
`"Composition Having Pearl Lustre." Kanebo discloses anti-dandruff conditioning
`
`shampoos containing 10.0% of the anionic surfactant ammonium lauryl sulphate,
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`5.0% of the conditioning agent dimethyl polysiloxane, 0.5% of the anti-dandruff
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`agent zinc pyrithione, 1.0% of the cationic polymer Catinal HC-200, 0.1% of the
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`polyethylene glycol Polyox WSR-301 and water3. UNL1006, [0037], pp. 10-11.
`
`
`2 A certified English translation of Kanebo is provided as UNL 1006. All
`citations will be made to the English translation.
`3 Unless otherwise noted, percentage values referred to are percent by
`weight.
`
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`18
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`32. Reid. Reid is U.S. Patent 5,085,857. Reid was filed December 3, 1990
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`Inter Partes Review of USPN 6,974,569
`Declaration of Arun Nandagiri (UNL 1043)
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`and issued February 4, 1992. Reid is entitled "Conditioning shampoo comprising a
`
`surfactant, a non-volatile silicone oil and guar hydroxypropyltrimonium chloride as
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`a cationic conditioning polymer." Reid discloses shampoo compositions containing
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`anionic surfactant, cationic conditioning polymer, non-volatile silicon conditioning
`
`agent, water and an antidandruff agent. UNL 1018, 5:15-16, 8:11-21.
`
`33. Cseh. Cseh is U.S. Patent 4,676,978. Cseh was filed January 27, 1986
`
`and issued June 30, 1987. Cseh discloses shampoos containing the cationic guar
`
`derivative Cosmedia® Guar C 261. UNL 1042 2:15-17.
`
`34. Cosmedia. Cosmedia is Product Data Sheet COSMEDIA® GUAR
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`C261 and was published in 1997. Cosmedia discloses that the cationic guar
`
`derivative Guar C261 has a "Molecular weight approx. 220,000 g/mol." UNL
`
`1040.
`
`35. Sime. Sime is U.S. Patent 5, 037,818. Sime was filed July 26, 1988
`
`and issued August 6, 1991. Sime is entitled "Washing Composition for the Hair."
`
`Sime discloses washing compositions, including shampoos, containing cationic
`
`guar derivatives having a molecular weight from about 2,000 to about 3,000,000
`
`and charge densities from 0.1 to 1.0 meq/g. UNL 1028, 2:27-42; 8:Experiment 2.
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`Sime discloses compositions containing cationic guar derivatives, such as
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`JAGUAR C13 and JAGUAR C17. UNL 1028, 43-59.
`
`
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`19
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`
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`36. Hoshowski Hair Care. Hoshowski Hair Care is Chapter 4 of Hair
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`Inter Partes Review of USPN 6,974,569
`Declaration of Arun Nandagiri (UNL 1043)
`
`and Hair Care, Dale Johnson, ed., is titled "Conditioning of Hair," and was written
`
`by Myra A. Hoshowski. Hoshowski Hair Care is copyrighted 1997. Hoshowski
`
`Hair Care is part of a general manual of shampoo formulation. Hoshowski Hair
`
`Care discusses the general properties of hair conditioners. Hoshowski Hair Care
`
`teaches that "[g]uar hydroxyl propyltrimonium chloride is an excellent thickener
`
`which disperses easily in water, in pH-stable over a wide range, and is compatible
`
`with surfactants and salts. Guar gums are available in a variety of viscosities and
`
`degrees of quaternization, offering the cosmetic chemist formulation flexibility."
`
`UNL 1032, 76.
`
`37. Kalla. Kalla
`
`is International Application Publication Number
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`WO97/26854 to Kalla et al. Kalla was filed January 6, 1997 and published July 31,
`
`1997. Kalla is entitled "Shampoo Compositions with Improved Deposition of
`
`Antimicrobial Agents." Kalla discloses "antidandruff shampoo compositions with
`
`improved deposition of antimicrobial agents, which compositions comprise (a) …
`
`anionic surfactant, … (b) … an antimicrobial agent; (c) … a suspending agent; (d)
`
`… a cationic guar polymer having a charge density of from about 0.01 meq/g to
`
`about 3 meq/gm; and (e) … water…." UNL 1031, Abstract.
`
`38. Cothran. Cothran is International Application Publication Number
`
`WO96/32919 to Cothran et al. Cothran was filed March 27, 1996 and published
`
`
`
`20
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`

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`
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`October 24, 1996. Cothran is entitled "Shampoos With Insoluble Silicone
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`Inter Partes Review of USPN 6,974,569
`Declaration of Arun Nandagiri (UNL 1043)
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`Conditioning Agent and Cationic Polymer." Cothran discloses anti-dandruff
`
`shampoos comprising antionic surfactant, silicone conditioning agent and a
`
`cationic polymer for stabilizing the silicone conditioning agent. UNL 1044,
`
`Abstract.
`
`39. Ramachandran. Ramachandran is U.S. Patent No. 5,900,393 to
`
`Ramachandran et al. Ramachandran was filed June 24, 1996 and issued May 4,
`
`1999. Ramachandran is entitled "Scalp Care Products Containing Anti Itching /
`
`Anti Irritant Agents." Ramachandran discloses anti-dandruff shampoos containing
`
`ketoconazole, selenium sulfide, zinc pyrithione, coal tar, sulfur and mixtures
`
`thereof. UNL 1033, 4: 59-64.
`
`40. Bar-Shalom. Bar-Sh