DETAILED ACTION
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of t/e previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 2/26/2026 has been entered.
Status of Application
The Examiner acknowledges receipt of the amendments filed on 2/26/2026 wherein claim 4 has been amended.
Claims 4, 6-21 and 24-26 are presented for examination on the merits. The following rejections are made.
Response to Applicants’ Arguments
Applicant’s amendment filed 2/26/2026 overcomes regarding the rejection of claims 4, 6, 8-10, 21 and 25 made by the Examiner under 35 USC 103 over Yeongdeok (KR 2006267509; machine translation) in view of Brauer (EP 22006655; machine translation), Matsukawa et al. (US 2009/0223956), Oshita (JP 4531171) and Epstein et al. (US 5759557). This rejection has been withdrawn.
Applicant’s amendments filed 2/26/2026 overcomes the rejection of claim 7 made by the Examiner under 35 USC 103 over Yeongdeok (KR 2006267509; machine translation) in view of Brauer (EP 22006655; machine translation), Matsukawa et al. (US 2009/0223956), Oshita (JP 4531171) and Epstein et al. (US 5759557) further in view of Nahas et al. (US 2010/0197812). This rejection has been withdrawn.
Rejections
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 4, 6, 8-10, 21 and 25 is/are rejected under 35 U.S.C. 103 as being unpatentable over Yeongdeok (KR 2006267509; translation provided; of record) in view of Brauer (EP 22006655; translation provided; of record), Matsukawa et al. (US 2009/0223956; of record), Oshita (JP 4531171; translation provided), Mastin (US 2007/0251910) and Epstein et al. (US 5759557; of record).
Yeongdok is directed to a bottle for cosmetics made from aluminum having the following structure:
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. The container is to be made from a single metal material processed in to the container (see page 3) (see instant claim 4, A). The upper portion of the container is to possess an opening wherein the outer circumferential surface of is to possess a screw thread (A’) which can be coupled with a lid (D) (see page 3). It is presumed that the lid is to be threaded so as to interlock with the threaded outer surface of the container.
Although Yeongdeok implies that the lid is to have an inner threaded surface which is to come in to contact with an outer threaded portion of the container, Yeongdeok fails to explicitly teach as much.
Brauer is directed to a lid for closing a container opening. The lid is to have the following structure:
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wherein the lid possesses an inner threaded surface (D’) which is to contact an openings external threads (A’) (see page 5). Brauer teaches that their container and lid may both be made from metal and be used for carrying various compositions including cosmetics (see page 2). Thus, it would have been obvious to use a lid on Yeongdeok’s aluminum container wherein the lid used to seal the container possessed inner threads capable of interlocking with a container’s threaded opening so as to ensure a seal on the container and its contents.
Although Brauer suggests that both the lid and container may be made from metal, Yeongdeok and Bauer fail to teach the container and the lid as being made from the same metal.
Matsukawa provides a can container which may be used to house cosmetic formulations. It is taught that the can container and lid are to be metallic, such as aluminum (see [0026]). Thus, it would have been obvious to use aluminum for the container and the lid of Yeongdeok with a reasonable expectation for success as the selection of a known material based on its suitability for its intended use is indicia of obviousness. See MPEP 2144.07. Moreover, the container of Matsukawa is to possess a resin coating (i.e. a protective lining) on the surface to be contacted with the contents (see [0026]) (see instant claim 10). Providing such a coating is indicated as favorable to mitigate corrosion of the container as well as improve workability.
Yeongdeok fails to teach the diameter of the threaded portion of the container being the same as the diameter of an unthreaded portion of the container.
Oshita is directed to containers that may be filled with various materials including cosmetics. Oshita provides a container having the following structure:
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(see Fig. 14) where it is observed that the threaded opening is the same diameter as the nonthreaded portion of the container. Such a design choice would have been within the purview of an ordinarily skilled person. It is further noted that the selection of a container having a diameter of the threaded opening being the same as a diameter of an unthreaded portion is an aesthetic design choice which is a matter relating to ornamentation only and such ornamentation provides no mechanical function so as to patentably distinguish the claims from the prior art. See MPEP 2144.04(I).
Yeongdeok fails to teach the rotation thread of the closure on the container as being discontinuous.
Mastin is directed to a payload and dispensing apparatus having a container and lid having a threaded closure. The rotation thread of the closure may be continuous or discontinuous (see [0066]). Given that a screw thread may be continuous or discontinuous wherein both of which achieve the same net result of providing a secure means by which a lid can be connected to a container, the selection of either would be routine and result in a predictable outcome. See MPEP 2143(I)(A).
Yeongdeok fails to teach the composition held by the container as being an emulsion of one or more hydrophilic phases and one or more lipophilic phases, the lipophilic phase comprising a lipid, the lipid being isopropyl palmitate, the lipid having a viscosity of less than 15 mPas and a spreading value of at least 700 mm2/10 minutes (@ 25oC).
Epstein is directed to skin care compositions, such as creams and lotions, in the form of emulsions. The emulsion is to possess a hydrophilic and lipophilic phase (see instant claim 10). Excipients are to be included such as sunscreen actives (see column 6, line 39) (see instant claim 8), preservatives and emollients (see column 6, lines 7-10). Emollients are included to enhance the tactile properties of the composition and present in an amount of 1-8% by weight (see claim 23) (see instant claim 6). Exemplified emollients include isopropyl palmitate (see instant claim 21). Given that isopropyl palmitate is the species of lipid elected by Applicant is must possess the property of having a viscosity of less than 15 mPas and a spreading value of at least 700 mm2/10 minutes (@ 25oC) per instant claim 1. Thus, it would have been obvious to include the emulsion of Epstein in the container of Furakawa with a reasonable expectation in storing and dispensing said emulsion.
As it pertains to instant claim 25, this is a product by process limitation. Determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, which it currently is, then the claim is unpatentable even though the prior product was made by a different process. See MPEP 2113.
Therefore, the invention as a whole is prima facie obvious to one of ordinary skill in the art at the time the invention was filed, as evidenced by the references, especially in absence of evidence to the contrary.
Claim 7 is rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Yeongdeok (KR 2006267509; translation provided; of record) in view of Brauer (EP 22006655; translation provided; of record), Matsukawa et al. (US 2009/0223956; of record), Oshita (JP 4531171; translation provided), Mastin (US 2007/0251910) and Epstein et al. (US 5759557; of record) as applied to claims 4, 6, 8-10, 21 and 25 above, and further in view of Nahas et al. (US 2010/0197812).
Yeongdeok, Brauer, Matsukawa, Oshita, Mastin and Epstein fails to teach the emulsion as comprising a complexing agent.
Nahas is directed to compositions and methods for enhancing the stability of various compositions including cosmetics. Nahas composition is comprise a chelating agent (i.e. a complexing agent) such as EDTA. Nahas teaches that EDTA is a powerful chelator particularly useful in stabilizing oil and water containing emulsion systems (see [0011]). Thus, it would have been obvious to modify the combination of Yeongdeok, Brauer, Matsukawa, Oshita and Epstein to further include a chelating agent such as EDTA with a reasonable expectation for success in providing stability to the cosmetic system contained within the metal container.
Therefore, the invention as a whole is prima facie obvious to one of ordinary skill in the art at the time the invention was filed, as evidenced by the references, especially in absence of evidence to the contrary.
Claim 26 is rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Yeongdeok (KR 2006267509; translation provided; of record) in view of Brauer (EP 22006655; translation provided; of record), Matsukawa et al. (US 2009/0223956; of record), Oshita (JP 4531171; translation provided), Mastin (US 2007/0251910) and Epstein et al. (US 5759557; of record) as applied to claims 4, 6, 8-10, 21 and 25 above, and further in view of Wada (JP2000083724; translation provided).
Yeongdeok, Brauer, Matsukawa, Oshita, Mastin and Epstein fails to teach the diameter of the metal can being larger than the height of the metal can.
Wada is directed a container which may be used to hold cosmetic compositions wherein the container is shaped such that the diameter of the container is larger than the height. See Figures. Moreover, width to height ratio would of the container would be an aesthetic design choice as it is a matter relating to ornamentation only and such ornamentation provides no mechanical function so as to patentably distinguish the claims from the prior art. See MPEP 2144.04(I). See Also MPEP 2144.04(IV)(B) which states that the shape/configuration of a container is a matter of choice which a person of ordinary skill in the art would have found obvious to manipulate absent evidence otherwise.
Therefore, the invention as a whole is prima facie obvious to one of ordinary skill in the art at the time the invention was filed, as evidenced by the references, especially in absence of evidence to the contrary.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KYLE A PURDY whose telephone number is (571)270-3504. The examiner can normally be reached from 9AM to 5PM.
If attempts to reach the examiner by telephone are unsuccessful, the examiner's supervisor, Bethany Barham, can be reached on 571-272-6175. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/KYLE A PURDY/Primary Examiner, Art Unit 1611
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