DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . 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.
Status of the Claims
The response and amendment filed 11/21/2025 is acknowledged.
Claims 1, 10-12, 15-16, 18-19, and 24-25 are pending.
Claim 25 is new.
Claim 24 remains withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 08/12/2024.
Claims 11-12 and 15 remain withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected species, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 08/12/2024.
Note on claim 15: Although claim 15 remains withdrawn, it is noted that claim 15 depends from canceled claim 14.
Claims 1, 10, 16, 18-19, and 25 are treated on the merits in this action.
The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application. Rejections not reiterated herein have been withdrawn.
Claim Interpretation
The claimed invention includes the limitation of wherein the personal care composition is a mousse.
Mousse is interpreted to read on a foam since the prior art considers foam and mousse to refer to the same composition form. See Schmidt, US 5002680, e.g., c1:44-46.
Response to Arguments
Applicant’s arguments with respect to claim(s) 1, 10, 16, 18-19 and 25 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
New grounds of rejection are required to address the new limitation of wherein the personal care composition is a mousse.
Rejections Addressing Applicant’s Amendment
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1, 10, 16, 18-19, and 25 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Fares, WO 2018175836 A1.
Fares teaches skin care compositions comprising a (ii) 0.1 wt. % to 10 wt. % of a terpolymer of vinyl pyrrolidone/acrylic acid/lauryl methacrylate having a relative viscosity of at least 3.3 cps; and (iii) 0.1 wt. % to 20 wt. % of at least one cosmetically/dermatologically acceptable skin care additive (Fares, e.g., Title, Abstract, claims).
Fares exemplifies compositions comprising a lamellar gel and the terpolymer:
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As evident from the table (Fares, e.g., pg. 30-32, 0096-0099, Table 3) the terpolymer is present in an amount in the claimed range and has a viscosity in the claimed range, e.g., at least 3.3 cps (Fares, e.g., claim 1).
At least one sunscreen active is present. The composition further comprises an additional additive as per claim 25, e.g., methylparaben (preservative), carbomer (thickener), ceteareth-20. Fares, e.g., Table 3 teaches the lamellar gel - containing glyceryl stearate, behenyl alcohol, palmitic acid, stearic acid, lauryl alcohol, myristyl alcohol and cetyl alcohol - is present in an amount of 4.00%. At least the combination of cetyl alcohol and lauryl alcohol (fatty alcohols) and palmitic acid and stearic acid (fatty acids) meets the lamellar gel limitations of claim 1.
Fares teaches the composition having the form of a foam (Fares, e.g., claims 6, 16, 28, 39, 0050 and 0014). Mousses are named in 0050. None of Fares’ exemplified compositions are in the form of a foam. However, the skilled artisan would have at once envisaged Fares’ exemplified compositions in the form of a mousse or foam because Fares claims the compositions in the form of a foam.
Applicable to claim 19: the weight average molecular weight of terpolymer employed in skincare and sunscreen composition would include from 150,000 to 300,000 Daltons (Fares, e.g., 0011, and claims 13, 24, 35).
Fares anticipates the subject matter of instant claims 1, 10, 16, 18-19, and 25.
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 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.
Claims 1, 10, 16, 18-19, and 25 are rejected under 35 U.S.C. 103 as being unpatentable over Fares, WO 2018175836 A1 and Mohammadi, US 6264964.
This rejection is made in the alternative in the event that it is found that the skilled artisan would not have at once envisaged Fares’ compositions in the form of a foam or mousse.
The teachings of Fares enumerated above apply here.
None of Fares’ exemplified compositions are in the form of a foam.
Mohammadi teaches cosmetic skin compositions in the form of a foaming mousse (Mohammadi, entire document, e.g., Abstract, claims). Mohammadi teaches mousse compositions offer desirable silky skinfeel and are easy to dispense (Mohammadi, e.g., example 11).
It would have been obvious before the effective filing date of the presently claimed invention to formulate compositions taught and exemplified by Fares’ comprising 0.1 wt. % to 10 wt. % of a terpolymer of vinyl pyrrolidone/acrylic acid/lauryl methacrylate having a relative viscosity of at least 3.3 cps; a lamellar gel and 0.1 wt. % to 20 wt. % of at least one cosmetically/dermatologically acceptable skin care additive exemplified in Fares as a foaming mousse composition with a reasonable expectation of success. The skilled artisan would have been motivated to do so for the silky skinfeel and ease of dispensing reported by Mohammadi and to realize the foam compositions suggested by Fares. The skilled artisan would have had a reasonable expectation of success because Fares suggests the compositions may be formulated as a foam or mousse.
Accordingly, the subject matter of claims 1, 10, 16, 18-19, and 25 would have been prima facie obvious before the effective filing date of the presently claimed invention, absent evidence to the contrary.
Claims 1, 10, 16, 18, and 25 are rejected under 35 U.S.C. 103 as being unpatentable over Rerek, US 6368607 and Rigoletto, US 6451299 B1 as evidenced by Escalol 557, Pubchem, 2024, and WO 200174312 A2 (Snyder).
Claim 1 is directed to a composition, comprising: 0.1 wt. % to 10 wt.% of a terpolymer of vinyl pyrrolidone/acrylic acid/lauryl methacrylate having a relative viscosity of at least 3.3 cps; and ii. at least one lamellar gel. The claims do not state the conditions under which the viscosity of at least 3.3 cps is determined, i.e., concentration of terpolymer, solvent, or temperature. The viscosity of a polymer will also vary depending on polymer molecular weight and proportions of monomers. The claimed polymer does not state a specific proportion of monomers or molecular weight. Therefore, a prior art terpolymer having the recited monomers is considered to have the recited properties.
Rigoletto, US 6451299 teaches personal care compositions, e.g., hair or skin care (Rigoletto, e.g., ¶ spanning c1-c2), wherein the composition comprises a polyvinylpyrrolidone/acrylic acid/lauryl methacrylate terpolymer range of monomer ratios typically 20–90 wt.% VP, 1–55 wt. % AA and 1-25 wt. % LM. Preferably the terpolymer has about 50–75% VP, 15–30% M and 5-15% LM. See Rigoletto, e.g., c2:15-40. This terpolymer appears to have the same monomer ratio as the terpolymer disclosed in the specification, e.g., ¶ 0031. Since Rigoletto’s terpolymer has the same monomers and monomer ratio, it is assumed the viscosity is the same as or similar to that claimed. Rigoletto teaches compositions having the terpolymer in an amount within the claimed range, e.g., 0.5%, 1%, 2%, 3% (Rigoletto, e.g., c4: table 4). Rigoletto teaches the terpolymer improves the humidity resistance, easy application, non-tacky feel, no residue or flaking, and easy removal (Rigoletto, e.g., c1:10-29, Example 1, Fig. 10, ¶ spanning c7-c8). Terpolymer containing compositions also offer rheology benefits which enable flexibility in product form selection which are easily dispensed (Rigoletto, e.g., c4:64-67), enable the formation of clear compositions, and enables thickening with a wide variety of ingredients (Rigoletto, e.g., c7: 20-52). Rigoletto teaches sunscreens and UV absorbers (Rigoletto, e.g., c1:30-44). Rigoletto does not expressly teach the composition comprising a lamellar gel.
Rerek, US 6368607 teaches personal care compositions featuring a lamellar gel network comprising a cationic swellant and a blend of emulsifiers (Rerek, e.g., Abstract, examples, claims). The lamellar gel network including a cationic swellant enables a skin feel of lubricity and emollience, which provides excellent skin coverage, effective skin conditioning, long lasting barrier enhancement, moisturization even without added moisturizer, and can deliver active substances, e.g., sunscreens to the skin surface providing excellent, long-lasting protection (Rerek, e.g., c2:5-29).
Applicable to claim 1: Rerek teaches lamellar gel compositions comprising glycerol stearate, cetyl alcohol (C8-C24 fatty alcohol), behenyl alcohol (C8-C24 fatty alcohol), and a mixture of palmitic and stearic acids which are C8-C24 fatty acids (Rerek, e.g., c3:27-34 and claim 10). Rerek teaches lamellar gel compositions comprising blends of ricinoleyl monomaleate triglyceride, cetyl alcohol, stearyl alcohol, glycerol stearate (c8-c24 fatty acid ester). See Rerek, e.g., example 4.
Rerek does not expressly teach compositions comprising 0.1 wt. % to 10 wt.% of a terpolymer of vinyl pyrrolidone/acrylic acid/lauryl methacrylate having a relative viscosity of at least 3.3 cps
It would have been obvious before the effective filing date of the presently claimed invention to combine the teachings of Rigoletto and Rerek to arrive at a composition as claimed with a reasonable expectation of success. Both Rigoletto and Rerek teach personal care compositions for applying actives such as sunscreens to skin. The skilled artisan would have been motivated to modify Rigoletto’s terpolymer containing compositions with a lamellar gel for improved skin feel of lubricity and emollience, excellent skin coverage, effective skin conditioning, long lasting barrier enhancement, moisturization even without added moisturizer, improved delivery of sunscreens to the skin, and excellent, long-lasting protection in the same way suggested by Rerek. Alternatively, the skilled artisan would have been motivated to modify Rerek’s lamellar gel containing compositions with Rigoletto’s terpolymer for humidity resistance, easy application, non-tacky feel, easy removal and/or rheology benefits which enable flexibility in product form selection which are easily dispensed in the same way suggested by Rigoletto. The skilled artisan would have had a reasonable expectation of success because both documents teach compositions improved for applying active to skin or hair, e.g., sunscreens.
Rerek teaches the lamellar gel network comprising fatty alcohols and fatty acids or fatty acid ester (Rerek, e.g., c2:31-c3:26, examples, and claims).
The combined teachings of Rerek and Rigoletto do not expressly teach the composition is in the form of a mousse.
However, compositions in the form of a mousse were known alternatives formulation forms of creams and gels. Snyder teaches cream, gel and mosses are desirable since the consumer can easily control the amount and distribution of the composition (Snyder, e.g., pg. 2:3-7).
Applicable to new claim 25: Rerek teaches compositions further comprising a thickening agent (Rerek, e.g., c3:35-42) and diluents (Rerek, e.g., c7:example 7, water).
Applicable to claim 10: Rerek teaches lamellar gel compositions comprising a cationic quaternary compound, e.g., palmityl/stearyl amidopropyl dimethyl 2-hydroxy ethyl ammonium chloride (Rerek, e.g., ¶ spanning c2-c3 and examples “SAQ” and claims). Example lamellar gel compositions include cetyl alcohol, palmitic acid, stearic acid, glyceryl stearate (Rerek, e.g., examples 1-30). Rerek teaches compositions comprising ricinoleyl monomaleate triglyceride which is an esterified oil (Rerek, e.g., example 4). Rerek teaches personal care compositions, e.g., sunscreen, comprising the lamellar gel in an amount of 3.0% (Rerek, e.g., example 30). This is a clearly disclosed value within the range of from about 1.00% to about 20.00%.
Applicable to claims 13-14 and 20: Rerek teaches sunscreen compositions comprising at least one sunscreen agent in an amount of 3.0%, and an additional sunscreen agent in an amount of, e.g., 7.5% (Rerek, e.g., example 30: Escalol 557 in an amount of 7.5% and Escalol 567 in an amount of 3.0%). Applicable to claim 21, at least Escalol 557 is 2-ethylhexyl-p-methoxycinnamate. See Escalol 557, Pubchem, 2024.
Accordingly, the subject matter of claims 1, 10, 16, 18, and 25 would have been prima facie obvious before the effective filing date of the presently claimed invention, absent evidence to the contrary.
Claims 1, 10, 16, 18-19 and 25 are rejected under 35 U.S.C. 103 as being unpatentable over Rerek, US 6368607 and Rigoletto, US 6451299 B1 as evidenced by Escalol 557, Pubchem, 2024, and further in view of Zhou, US 20160008257.
The combined teachings of Rerek and Rigoletto enumerated above are reiterated here.
The combined teachings of Rerek and Rigoletto do not expressly teach the composition in the form of a mousse.
The combined teachings of Rerek and Rigoletto do not expressly teach wherein the terpolymer has a molecular weight ranging from about 150,000 to about 300,000 daltons.
However, Zhou teaches cosmetic compositions comprising an anionic polymer having a molecular weight ranging from 100,000 to 5,000,000 daltons (Zhou, e.g., claim 1), wherein the anionic polymer is vinylpyrrolidone/acrylates/lauryl methacrylate copolymer (Zhou, e.g., claim 9). The polymer is useful in cosmetic compositions comprising cosmetically acceptable additives such as UV protectants (Zhou, e.g., claim 15).
Zhou teaches the composition in the form of a mousse (Zhou, e.g., claim 23, 0067, example 1).
It would have been prima facie obvious before the effective filing date of the presently claimed invention to utilize modify compositions comprising a vinylpyrrolidone/acrylates/lauryl methacrylate copolymer in compositions suggested by the combined teachings of Rerek and Rigoletto by selecting a vinylpyrrolidone/acrylates/lauryl methacrylate copolymer having a molecular weight in the range suggested by Zhou with a reasonable expectation of success. The skilled artisan would have been motivated to select a vinylpyrrolidone/acrylates/lauryl methacrylate copolymer having a molecular weight ranging from 100000 to 5000000 because Zhou suggests vinylpyrrolidone/acrylates/lauryl methacrylate copolymer having a molecular weight in this range are effective for applying cosmetically acceptable additives used by Rerek and Rigoletto, e.g., UV protecting agent in similar cosmetic compositions. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976). Here the claimed molecular weight range is within the range suggested by Zhou, and there does not appear to be any evidence of record that the claimed range is critical or offers unexpected results.
It would have been obvious before the effective filing date of the presently claimed invention to formulate the composition in the form of a mousse with a reasonable expectation of success. The skilled artisan would have been motivated to formulate the composition in the form of a mousse because Zhou teaches compositions in the form of a mouse have a rich texture and spread easily. The skilled artisan would have had a reasonable expectation of success because Zhou teaches compositions containing the same terpolymer employed by Rigoletto may be formulated as a mousse having a foam mousse structure.
Accordingly, the subject matter of instant claim 1, 10, 16, 18-19 and 25 would have been obvious to one skilled in the art, absent evidence to the contrary.
Conclusion
No claim is allowed.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to WILLIAM A CRAIGO whose telephone number is (571)270-1347. The examiner can normally be reached on Monday - Friday, 9am - 6pm, PDT.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Robert A WAX can be reached on 571-272-0623. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/WILLIAM CRAIGO/Examiner, Art Unit 1615
/SUSAN T TRAN/Primary Examiner, Art Unit 1615