DETAILED ACTION
Status of the Claims
Claims 1-14 and 18-23 are pending in this application. Claims 1-14 and 18-23 are under examination.
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 .
Rejections Maintained– Modified as Necessitated by Applicant’s Amendments
Claim Rejections - 35 USC § 112(b)
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 1-14 and 18-23 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.
Applicant amended instant claims 1 and 14 such that “a film-forming component consisting of” limitation is replaced with “one film-forming component, wherein the film-forming component consists of”. Applicant also amended instant claim 13 by adding “one film-forming component comprising” limitation in line 2 following “. . . composition comprising . . .”, deleted “a latex component consisting of” in line 4, and replaced “a film-forming component of the composition contains 100% by weight with respect to the weight of the film forming component of the at least one siloxysilicate resin and the latex component” limitation with “the film-forming component of the composition consists of the at least one siloxysilicate resin and the latex.”
Applicant’s amendments do not overcome the indefiniteness issues that were raised in the prior office action. Applicant has not resolved the issue of “comprising” following “consisting of” which was detailed in the prior office action and also copied below. In claims 1 and 14, even after new amendments, Applicant still claims “wherein the film-forming component consists of (i) latex comprising . . .”. In claim 13, Applicant still claims “wherein the film-forming component of the composition consist of the at least one siloxysilicate resin and the latex” (last 3 lines of the claim) and also claims “. . . latex comprising . . .” (line 5 of the claim).
In claims 1, 13 and 14, Applicant claims “a film-forming component consisting of (i) latex comprising . . .” which is indefinite. The transitional term "comprising", which is synonymous with "including," "containing," or "characterized by," is inclusive or open-ended and does not exclude additional, unrecited elements or method steps. MPEP 2111.03 I. The transitional phrase "consisting of" excludes any element, step, or ingredient not specified in the claim. MPEP 2111.03 II. Here, Applicant first closes the film forming component to the inclusion of materials other than those recited except for impurities ordinarily associated therewith. Then, Applicant opens it back up by using comprising language following the latex limitation, allowing additional ingredients to be present in the film-forming component. Thus, it is unclear what is allowed to be present (or being excluded) in the film-forming component. During examination, after applying the broadest reasonable interpretation consistent with the specification to the claim, if the metes and bounds of the claimed invention are not clear, the claim is indefinite and should be rejected. MPEP 2173.02 I. Here, due to the usage of “consisting of” followed by “comprising” transitional phrase, the metes and bounds of the claimed invention are not clear.
Claims 2-12 and 18-23 are also rejected for being dependent on an indefinite claim.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 1-14 and 18-23 are rejected under 35 U.S.C. 103 as being unpatentable over Li et al. (US patent no 8920787B2, pub. date 12/30/2014, previously cited), “Waterproof mascara” (https://cosmeticobs.com/en/articles/products-38/le-mascara-waterproof-2744, pub. date 3/4/2015, previously cited) and Pavlin et al. (US patent no 20060204461A1, pub. date 9/14/2006, previously cited), evidenced by ScienceDirect (Polyurethane Dispersion, ScienceDirect Topics, downloaded in April 2022, previously cited).
Applicant amended instant claims 1 and 14 such that “a film-forming component consisting of” limitation is replaced with “one film-forming component, wherein the film-forming component consists of”. Applicant also amended instant claim 13 by adding “one film-forming component comprising” limitation in line 2 following “. . . composition comprising . . .”, deleted “a latex component consisting of” in line 4, and replaced “a film-forming component of the composition contains 100% by weight with respect to the weight of the film forming component of the at least one siloxysilicate resin and the latex component” limitation with “the film-forming component of the composition consists of the at least one siloxysilicate resin and the latex.”
Regarding claims 1, 13 and 14, Li et al. teaches a mascara composition comprising “DI water”, “hydrogenated jojoba oil”, and film forming agent “styrene/acrylates/ammonium methacrylate copolymer” (styrene group in a latex) (example 3, claim 1). Li et al. also teaches a water-in-oil emulsion mascara composition since example 3 mascara composition includes ingredients such as “DI water”, waxes, and film forming agents such as “STYRENE ACRYLATES/AMMONIUM METHACRYLATE COPOLYMER”. There are components of water-in-oil mascara compositions that are waterproof or water resistant. Li et al. cites “According to a preferred embodiment of the present invention, compositions having improved cosmetic properties Such as, for example, improved waterproof characteristics, improved feel upon application (for example, texture, reduced drag or tackiness), increased anti-smudging” (C17, L27-30). Considering that, non-patent literature reference “Waterproof mascara” cites “Formulations of waterproof mascaras are mainly divided into two groups: single-phase anhydrous mascaras and water-in-oil emulsions. Other components of waterproof mascaras include waxes such as paraffin wax, carnauba wax or beeswax. Depending on the formula (emulsion or single phase), different types of gelling agents are used.” (“Waterproof mascara”). “Waterproof mascara” also discloses examples of waterproof mascara compositions such as “Mascara waterproof Europe emulsion 2014” and “Waterproof emulsion mascara USA 2014” that have common components such as the waxes being used and film forming agents such as “BUTYLENE/ETHYLENE/STYRENE COPOLYMER” (polymer latex with styrene group) and “water”. In contrast, “anhydrous mascara from the 80s” does not include water. Therefore, Li et al. is teaching water-in-oil mascara compositions. Regarding the new limitation of “a colloidal dispersion of particles of polymer in an aqueous liquid phase obtained by emulsion polymerization” for the latex to comprise, Li teaches Phase E (example 1) which is a latex hybrid (C18 line 29) which comprises “Polyurethane dispersion” and “STYRENE ACRYLATES/AMMONIUM METHACRYLATE COPOLYMER”. Evidentiary reference Sciencedirect teaches that “Polyurethane Dispersions PUD are binary colloidal systems formed by the particle dispersions in an aqueous phase” (page 1). Thus, it is concluded that the Li reference has the latex in aqueous liquid phase as a colloidal dispersion of particles of polymer. Evidentiary reference Sciencedirect also teaches surfactant for such dispersions and recites that they are used “in emulsion polymerization. Great attention should be paid to the amount and type of surfactant used to stabilize urethane dispersions. Internal or external surfactants for one-component PUD's are usually added at the minimum levels needed to get good stability of the dispersion” (page 2). Thus, it is concluded that Li’s collodial dispersion is formed via emulsion polymerization.
Regarding claims 2-3 and 20-21, Li et al. teaches a mascara composition comprising “STYRENE ACRYLATES/AMMONIUM METHACRYLATE COPOLYMER” (example 3, claim 1).
Regarding claims 5 and 14, Li et al. teaches a mascara composition comprising waxes “synthetic beeswax” (2.5%), “carnauba wax” (2.32%), “paraffin” (4.77%), and “Euphorbia Cerifera (Candelilla) wax” (0.57%) that all add up to 10.16% by weight with respect to total composition (example 3, claim 1).
Regarding claim 6, Li et al. teaches “at least one colorant” (claim 1) and the colorant “Black 2” (example 3).
Regarding claim 7, Li et al. teaches a mascara composition comprising “at least one silicate clay” (claim 3) as “lithium magnesium sodium silicate” (example 3).
Regarding claims 11, Li et al. teaches a mascara composition “wherein the composition is in the form of a mascara” (claim 1, Example 3).
Regarding claim 12, Li et al. teaches “a method of making up eyelashes comprising applying the composition of claim 1 to eyelashes” (claim 4).
Regarding claim 13, Li et al. teaches a mascara composition comprising “DI water”, “hydrogenated jojoba oil”, and “styrene/acrylates/ammonium methacrylate copolymer” (styrene group in a latex), waxes which are “synthetic beeswax”, “carnauba wax”, “paraffin”, and “Euphorbia Cerifera (Candelilla) wax”. Regarding the method of improving removal properties, Li et al. also cites “The present invention also relates to methods of improving the tackiness, comfort and removability properties of a composition for keratinous materials (hair, eyelashes, eyebrows)” (C2, L57-59).
Regarding claim 1, 13, and 14 Li et al. does not teach “about 2% to about 6% by weight with respect to the total weight of the composition of the polymer comprising at least one styrene group”, and “at least one siloxysilicate resin”.
Regarding claims 4, 8-10, 14, 18-19 and 22-23, Li et al. does not teach “trimethylsiloxysilicate” to be in the composition.
Regarding claim 4 and 22, “Waterproof mascara” teaches waterproof mascara composition “Waterproof emulsion mascara USA 2014” that comprises “TRIMETHYLSILOXYSILICATE”.
“Waterproof mascara” also teaches “water”, “SILICA SILYLATE” (a polymer and a film forming agent), waxes such as “COPERNICIA CERIFERA (CARNAUBA) WAX/CERA WAX/CERA CARNAUBA/CARNAUBA WAX…MICROCRYSTALLINE WAX/CERA MICROCRISTALLINA/WAX”, silicate clays such as “HECTORITE”, and colorants such as “MANGANESE VIOLET (CI 77742) YELLOW 5 LAKE (CI 19140) CHROMIUM OXIDE GREENS (CI 77288) CHROMIUM HYDROXIDE GREEN (CI 77289)”. Additionally, “Waterproof mascara” teaches another mascara composition “Mascara waterproof Europe emulsion 2014” which comprises oils such as “HYDROGENATED CASTOR OIL”, waxes such as “ORYZA SATIVA (RICE) BRAN WAX”, colorants such as “CI 77289 (CHROMIUM HYDROXIDE GREEN) - CI 77491, CI 77492”. “Mascara waterproof Europe emulsion 2014” also teaches different polymers of choice as a film forming agent such as “BUTYLENE/ETHYLENE/STYRENE COPOLYMER” and “ETHYLENE/PROPYLENE/STYRENE COPOLYMER” which are copolymers with styrene groups (“Waterproof mascara”). Based on geographical differences, there are different preferences for film forming agents and there doesn’t seem to be a criticality for any copolymers of choice.
Regarding claim 1, Pavlin et al. teaches a mascara composition comprising “trimethylsiloxysilicate” (a siloxysilicate), “isododecane” (a non-silicone oil), “Styrene-ethylene, butylene-styrene triblock copolymer” at “1.2” % weight of total composition, and “Styrene-ethylene propylene radial copolymer” at “1.2” % of total composition (which are latex polymers comprising styrene groups) (example 16, paragraph [0295], table 16), totaling 2.4% of total composition. Regarding the “film-forming component” limitation, Pavlin teaches that siloxysilicate and styrene containing polymer are both film-formers (para 214 and 117 respectively).
Regarding claims 8-10, 14, 18-19 and 23, Pavlin et al. teaches a mascara composition comprising “trimethylsiloxysilicate” at “7.0” % weight of total composition, “Styrene-ethylene, butylene-styrene triblock copolymer” at “1.2” % weight of total composition, and “Styrene-ethylene propylene radial copolymer” at “1.2” % of total composition (example 16, paragraph [0295], table 16). This leads to a 7:2.4 which is a 3.08:1 ratio for siloxysilicate resin to polymer comprising at least one styrene group.
Pavlin et al. also teaches a mascara composition comprising “waxes” at “16.8”% weight of total composition and “The present invention also provides a cosmetic process for caring for, making up or treating a keratin material comprising the application to at least one keratinous material of a cosmetic composition” (paragraph [0110]).
It would have been obvious to one in the art to use the teachings of “Waterproof mascara” to modify the mascara composition of Li et al. to include “trimethylsiloxysilicate” within the mascara composition. As mentioned above, trimethylsiloxysilicate is routinely used in mascara compositions as a film forming agent (“Waterproof mascara”). Li et al. uses “polyurethane” resin increases water resistance. Trimethylsiloxysilicate is often used for the same purpose. For example, “Waterproof mascara” cites “Resistant aqua type formulas, whose water resistance is further increased by a higher concentration of resins, polyurethane for example, and reinforced by hydrophobic resins such as alkylated PVP or silicone resins (trimethylsiloxysilicate).” Therefore, one skilled in the art would simply swap out “Polyurathane-35” in Li et al. (example 3) and replace it with trimethylsiloxysilicate with a reasonable expectation of success of film forming characteristics.
It would have been also obvious to one in the art to use the teachings of Pavlin et al. and modify the composition of Li et al. to produce the instant application composition and methods of use. One skilled in the art would use “Styrene-ethylene, butylene-styrene triblock copolymer” at “1.2” % weight of total composition, and “Styrene-ethylene propylene radial copolymer” at “1.2” % of total composition (example 16, paragraph [0295], table 16) (which total to 2.4% weight of total composition of polymer comprising styrene) to modify Li et al. styrene/acrylates/ammonium methacrylate copolymer at “12.5”%. Styrene group copolymer is being used as a film forming agent in Li et al. (C8, L56-60). It is being suggested to be used between “3 to 20% by weight” in the mascara composition. Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." (MPEP 2144 II). One skilled in the art would optimize the “3 to 20% by weight” in Li et al. and use “2% to about 6%” disclosed by the instant application which is taught by Pavlin et al. as 2.4% as described above. Additionally, it would have been also obvious for one in the art to use the teachings of Pavlin et al. and use a 3.08:1 ratio for siloxysilicate resin to polymer comprising at least one styrene group in the mascara composition (example 16, paragraph [0295], table 16). It is important for mascaras to be transfer resistant, therefore preventing smearing of the composition to the eyelids and transferring to the other areas around the eye. Pavlin et al. cites “In one aspect, the present invention provides a composition, preferably a transfer resistant composition, which may also be pliable and comfortable to wear upon application to skin or other substrate.” (paragraph [0173]). One in the art would desire such non-transferring features for their mascara composition and would therefore modify the composition in Li et al. with the specific “transfer resistant mascara composition” (example 16, paragraph [0295], table 16) that comprises 3:1 ratio for siloxysilicate resin to polymer comprising at least one styrene group.
Claims 1-8, 11-14 and 20-22 are rejected under 35 U.S.C. 103 as being unpatentable over Li et al. (US patent no 8920787B2, pub. date 12/30/2014, previously cited), “Waterproof mascara” (https://cosmeticobs.com/en/articles/products-38/le-mascara-waterproof-2744, pub. date 3/4/2015, previously cited) and Ashlee Sandler et al (US 20140286887 A1, publication date: 09/25/2014, previously cited), evidenced by ScienceDirect (Polyurethane Dispersion, ScienceDirect Topics, downloaded in April 2022, previously cited).
Regarding claims 1-8, 11-14 and 20-21, Li and “Waterproof Mascara” teach as discussed above.
Regarding claims 1, and 13-14, Li et al. and “Waterproof Mascara” do not teach “about 2% to about 6% by weight with respect to the total weight of the composition of the polymer comprising at least one styrene group”, and “at least one siloxysilicate resin”.
Regarding claims 4, 14 and 22, Li et al. does not teach “trimethylsiloxysilicate” to be in the composition.
Regarding claims 1, 4, 13-14 and 22, Sandler teaches cosmetic compositions comprising at least one hydrocarbon film-forming polymer, at least one silicone film-forming polymer (abstract) as a mascara (example 1) comprising trimethylsiloxysilicate at 2.5% and HYDROGENATED STYRENE METHYL STYRENE INDENE COPOLYMER at 5% (example 1) which are the film forming component of the mascara composition (claim 25).
It would have been obvious to one of ordinary skill in the art at the time of instant filing to have combined the teachings of Li and Sandler to arrive at the claimed invention. Sandler provides the motivation “by incorporating (1) at least one hydrocarbon film-forming polymer, (2) at least one silicone film-forming polymer, and (3) at least one microcrystalline wax into a cosmetic composition, a stable composition and cosmetic properties such as improved thickening or volume, and a smooth and homogeneous deposit” (para 5). Thus, one would be motivated to incorporate the teachings if Sandler into the teachings of Li with a reasonable expectation of successfully achieving a mascara composition with improves features disclosed by Sandler.
Claims 9-10, 18-19, and 23 in addition to claims 1 and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Li et al. (US patent no 8920787B2, pub. date 12/30/2014, previously cited), “Waterproof mascara” (https://cosmeticobs.com/en/articles/products-38/le-mascara-waterproof-2744, pub. date 3/4/2015, previously cited), Pavlin et al. (US patent no 20060204461A1, pub. date 9/14/2006, previously cited) and Ashlee Sandler et al (US 20140286887 A1, publication date: 09/25/2014, previously cited), evidenced by ScienceDirect (Polyurethane Dispersion, ScienceDirect Topics, downloaded in April 2022, previously cited).
Regarding claim 1, Li, “Waterproof mascara”, and Sandler teach as discussed above.
Regarding claims 9-10, 18-19, and 23, Li doesn’t teach siloxysilicate resin and Sandler doesn’t teach trimethylsiloxysilicate to styrene containing polymer ratio of the instant invention.
Regarding claims 9-10, 18-19, and 23, Pavlin et al. teaches a mascara composition comprising “trimethylsiloxysilicate” at “7.0” % weight of total composition, “Styrene-ethylene, butylene-styrene triblock copolymer” at “1.2” % weight of total composition, and “Styrene-ethylene propylene radial copolymer” at “1.2” % of total composition (example 16, paragraph [0295], table 16). This leads to a 7:2.4 which is a 3.08:1 ratio for siloxysilicate resin to polymer comprising at least one styrene group.
It would have been obvious to one of ordinary skill in the art at the time of instant filing to have combined the teachings of Li, “Waterproof mascara”, Pavlin and Sandler to arrive at the claimed invention. “Waterproof mascara” and Sandler motivations are discussed above. Pavlin et al. cites “In one aspect, the present invention provides a composition, preferably a transfer resistant composition, which may also be pliable and comfortable to wear upon application to skin or other substrate.” (paragraph [0173]). One in the art would desire such non-transferring features for their mascara composition and would therefore modify the composition in Li et al. with the specific “transfer resistant mascara composition” (example 16, paragraph [0295], table 16) that comprises 3:1 ratio for siloxysilicate resin to polymer comprising at least one styrene group. Sandler provides the motivation “by incorporating (1) at least one hydrocarbon film-forming polymer, (2) at least one silicone film-forming polymer, and (3) at least one microcrystalline wax into a cosmetic composition, a stable composition and cosmetic properties such as improved thickening or volume, and a smooth and homogeneous deposit” (para 5). Thus, one would be motivated to incorporate the teachings of Pavlin and Sandler into the teachings of Li with a reasonable expectation of successfully achieving a mascara composition with improves features of transfer resistance and as improved thickening or volume, and a smooth and homogeneous deposit.
Response to Arguments
Applicant’s arguments filed on 05/07/2025 have been fully considered but they are not persuasive.
Regarding the USC 112b rejection on record, Applicant argues the following:
“The one film forming component element in the pending claims identifies specific film formers present in the composition, not other effective film forming agents, while at the same time having no effect on the presence or types of ingredients which do not function as film formers. In the pending claims, the identified film formers are the latex and silioxysilicate resin in the claims. Excluded from the claims are, for example, Li's acrylic film formers.
Stated another way, under the all-elements rule, each element set forth in the claims must be present. This means that the identified film forming component element -- a film- forming component consisting of (i) latex comprising a colloidal dispersion of particles of polymer in an aqueous liquid phase obtained by emulsion polymerization, wherein the polymer comprises at least one styrene group, and (ii) at least one siloxysilicate resin - must be present.
A different film forming component containing different, effective film formers cannot be present -- if film-forming effective amounts of Li's acrylic film formers were added to the composition, such addition would change the film forming component element to a different film forming component than the one currently being claimed. Accordingly, contrary to the Office Action's assertions, additional functional film formers cannot randomly be added to the claimed compositions merely because "comprising" is the transition phrase used in the claims - adding such film formers would violate the all-elements rule as it would allow a different film forming component to be present in the claimed compositions.”
This argument is acknowledged but not found persuasive. While Applicant invokes an all-elements rule to exclude the presence of other film-forming agents only, this rule does not override the plain meaning of the transitional phrases “comprises” and “consisting of”. As explained in the body of the rejection, “consisting of” excludes any element, step, or ingredient not specified in the claim. Whereas, "comprising" is inclusive or open-ended and does not exclude additional, unrecited elements or method steps. Language such as “x” consisting of “a” and “b” wherein “b” comprises “d” is indefinite in this case because it is not clear what the metes and bounds of the claim is. In sum, because “comprising” allows for unrecited elements, and the claims do not affirmatively exclude other film formers, the current claim language introduces ambiguity.
Regarding the obviousness rejections on record, Applicant argues that Li cannot render the claimed invention obvious because Li’s compositions necessarily contain polyurethane latex acrylic film formers. This argument is not found convincing for the same reason above. The instant claims use the transitional phrase “comprising” which is open-ended and allows for additional elements. Applicant’s new amendments do not change the scope of the claim such that additional components such as polyurethane is excluded. Instant claim 1 still includes comprising language as “ . . . latex comprising . . .” and PTAB decision filed on 11/22/2024 had the same conclusion which stated:
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Applicant’s amendment do not change PTAB’s claim construction which allows extra ingredients such as polyurethane. Appellant’s arguments fail because the instant claims do allow polyurethane to be in the latex. During patent examination, the pending claims must be "given their broadest reasonable interpretation consistent with the specification." MPEP 2111. The transitional term "comprising", which is synonymous with "including," "containing," or "characterized by," is inclusive or open-ended and does not exclude additional, unrecited elements or method steps. MPEP 2111.03 I. Even though it seems Applicant is attempting to narrow the scope of the instant claims so that polymers that lack a styrene group are being excluded from the film-forming component, the “comprising” language that follows “a latex component” in the instantly claimed latex component is inclusive or open-ended and does not exclude additional, unrecited elements such as polyurethane. Examiner acknowledges that the instant claims’ film-forming component is limited to a latex component and at least one siloxysilicate resin. However, the instantly claimed latex component is inclusive of additional ingredients other than the polymer with a styrene group. Thus, even though Li requires polyurethane, Li does not teach away from the instant invention because the instant independent claims are construed such that additional elements such as polyurethane can be included in the latex component due to the instantly claimed “comprising” language following “a latex component” limitation.
Conclusion
No claims are allowed.
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/A.A./ Examiner, Art Unit 1613
/BRIAN-YONG S KWON/ Supervisory Patent Examiner, Art Unit 1613
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