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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 12/08/2025 has been entered.
Status of the Claims
Claims 21 and 23-30 are pending in a Response of 12/08/2025.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 12/08/2025 was filed after the mailing date of the Final Rejection on 06/06/2025. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Withdrawn objection/ rejections:
Applicant's amendments and arguments filed 12/08/2025 are acknowledged and have been fully considered. The Examiner has re-weighed all the evidence of record. Any rejection and/or objection not specifically addressed below are herein withdrawn.
The following rejection and/or objection are either reiterated or newly applied. They constitute the complete set of rejection and/or objection presently being applied to the instant application.
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 of this title, 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.
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.
As indicated above, the present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claims 21 and 23-30 are rejected under 35 U.S.C. 103(a) as being unpatentable over Rajkhowa et al., “Ultrafine wool powders and their bulk properties”, Powder Technology, vol. 224, 2012-07, pages 183-188 in view of Kelly et al. (US2006/0165635A1).
Applicant claims teaches the below claim 21 filed on 12/08/2025:
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Level of Ordinary Skill in the Art
(MPEP 2141.03)
MPEP 2141.03 (I) states: “The “hypothetical ‘person having ordinary skill in the art’ to which the claimed subject matter pertains would, of necessity have the capability of understanding the scientific and engineering principles applicable to the pertinent art.” Ex parte Hiyamizu, 10 USPQ2d 1393, 1394 (Bd. Pat. App. & Inter. 1988). The level of skill is that of a cosmetic, paint, ink research scientist, as is the case here, then one can assume comfortably that such an educated artisan will draw conventional ideas from cosmetic, paint, ink and chemistry— without being told to do so.
In addition, the prior art itself reflects an appropriate level (MPEP 2141.03(II)).
Determination of the scope and content of the prior art
(MPEP 2141.01); Ascertainment of the difference between the prior art and the claims (MPEP 2141.02) and Finding of prima facie obviousness
Rational and Motivation (MPEP 2142-2143)
Rajkhowa discloses wool keratin powder may be utilized in advanced applications, e.g., composite materials, biomedical and cosmetics, coating materials, and personal care formulation (see abstract and 1. Introduction on page 183, left and right columns); the wool fiber has diameter of 15.5 microns (see 2.1 materials on page 184); Rajkhowa discloses a method for preparing wool powder comprises chopping wool keratin fibres to form snippets of 19.7 to 496.2microns which overlaps the instant range less than about 5 mm average length (see Fig. 1) which reads on the claimed step a), wet milling the chopped snippets to form a slurry which reads on the claimed step b), spray drying the slurry produced to recover the wool keratin powder which reads on the claimed step c) wherein the obtained wool keratin powder has d(0.1)microns of 1.9 and grinding the wool keratin powder which reads on the claimed d) (abstract and 2.2 powder production on page 184, left column); since this prior art teaches/suggests wool keratin powder is made without any solvent, the processed wool keratin powder is insoluble; the obtained wool keratin powder has d(0.1)µm of 0.73 which may overlap the instant range of less than 1.9 microns, d(0.5)µm of 1.5 which may overlap the instant range of less than 10 microns or 4.8 microns or, d(0.9)µm of 4.1 which may overlap the instant range of less than 9.8 microns (Fig. 1 on page 185) (instant claims 21 (in part), instant claims 23-24, and instant claims 27-30).
However, Rajkhowa does not expressly teach the steps e) and f) of instant claim 21. The deficiencies are cured by Kelly.
Kelly discloses personal care formulations containing keratin protein fraction that derived from wool, animal fibers, or other mammalian sources ([0059]) and the keratin protein fraction is provided in the form of dry powder (Table 3); wherein the personal care formulations include mascara, hair conditioner, shampoo, moisturizing cream, foaming bath gel, nail polish, liquid foundation, lipstick, etc. ([0026]); in one embodiment, the nail polish first coating composition ([0105]-[0108]), mascara composition ([0110]) or liquid foundation ([0111]), each comprises keratin fraction dry powder, excipients such as sodium, sodium lauryl sulfate, wax, gum, stearaeth-10, dye or pigment, etc. ([0107]-[0108] and [0110]-[0111]). Although Kelly does not expressly teach dyeing the keratin fractions with a soluble dye and adding the excipients in a timely manner to obtain dyed nail polish coating composition, since Kelly teaches mixture of keratin fraction and excipients, the steps of dyeing and adding would be implicit. Further, the order in which you mix them is insignificant absent unexpected results of such dyeing/adding order. In this regard, please see MPEP 2144.03 IV: “See also In re Burhans, 154 F.2d 690, 69 USPQ 330 (CCPA 1946) (selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results); In re Gibson, 39 F.2d 975, 5 USPQ 230 (CCPA 1930) (Selection of any order of mixing ingredients is prima facie obvious.).” (instant claim 21 – steps e-f)).
It would have been obvious to modify the teachings of Rajkhowa with the steps of dyeing the wool keratin fiber and adding excipients in order to produce the dyed coating composition as taught by Kelley.
Although the applied art does not expressly teach solubility in water of instant claim 25 and regain rate of instant claim 26, such properties would be implicit because the applied art in combination would achieve the claimed invention. That is, the claimed features are a natural result of the combination of elements. Net MoneyIN, Inc. v. VeriSign, Inc., 545 F.3d 1359, 1371 (Fed. Cir. 2008). (inherency is limited when applied to obviousness and is present only when the limitation at issue is the “natural result” of the combination of prior art elements; quoting In re Oelrich, 666 F.2d 578, 581 (CCPA 1981)) (instant claims 25-26).
In light of the foregoing, instant claims 21 and 23-30 are obvious over Rajkhowa in view of Kelley.
Response to Arguments
Applicant’s arguments have been fully considered, but are not moot in view of newly applied reference of Kelley.
Conclusion
All examined claims are rejected.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KYUNG S CHANG whose telephone number is (571)270-1392. The examiner can normally be reached M-F 8-5.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Yong (Brian-Yong) S Kwon can be reached at 571-272-0581. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/KYUNG S CHANG/Primary Examiner, Art Unit 1613