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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 09/12/2025 has been entered.
Status of Claims
The amendments and arguments filed on 09/12/2025 are acknowledged and have been fully considered. Claims 1, 3-4, and 18-19 have been amended. Claims 11-12 have been withdrawn. Applicants’ amendments are supported by the originally filed disclosure.
No new matter has been added.
Thus, claims 1-10 and 13-20 will be examined on the merits herein.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 10/16/2025 is being considered by the examiner. The submission is in compliance with the provisions of 37 CFR 1.97.
Rejections Maintained and Made Again in view of Applicant’s Amendments
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.
The factual inquiries 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.
Claims 1-8, 10, and 17-20 are rejected under 35 U.S.C. 103 as being unpatentable over Dussaud et al (US 20180346653 A1).
Regarding instant claims 1, 3-5, and 17-19, Dussaud discloses aqueous compositions for hair treatment, comprising polyorganosiloxanes A) having di- and trihydroxy-substituted aromatic groups and at least one surfactant B) selected from cationic surfactants B1) and anionic surfactants B2) in a certain weight ratio of the surfactant B) to the polyorganosiloxane A), and said aqueous compositions having a certain pH (abstract). Dussaud teaches the aqueous composition for hair treatment according to the invention comprises water, preferably in an amount of at least 1 weight-%, more preferably at least 5 weight-%, more preferably at least 10 weight-%, more preferably at least 15 weight-%, more preferably at least 20 weight-%, and preferably up to 95 weight-%, more preferably up to 90 weight-%, more preferably up to 85 weight-%, more preferably up to 80 weight-%, more preferably up to 75 weight-%, more preferably up to 70 weight-%, based on the total weight of the aqueous compositions ([0012]). Dussaud teaches the term “organic diluents or solvents” refers to substances that may be used in particular to dilute/solvatize the at least one polyorganosiloxane in addition to water in the aqueous compositions ([0191]). Suitable organic solvents are e.g., 2-methyl-1,3-propanediol, mono and dialcohols or the ethers and esters thereof, in particular mono-C1-C3-alkyl ether, ethanol ([0191]). Generally, the addition of certain amounts of short chained alcohols improves the homogeneity of the formulations and the penetration of the formulations into the hair ([0191]). Dussaud discloses an “emollient” is a material that protects the skin against wetness or irritation, softens, smoothes, supples, coats, lubricates, moisturizes, protects and/or cleanses the skin ([0193]). Emollients include for example: a silicone compound, i.e. dimethicones, cyclomethicones, preferred D5 and D6 cyclosiloxanes, dimethicone copolyols or mixtures of cyclomethicones and dimethicone/vinyldimethicone cross polymer, polyols such as sorbitol, glycerin, propylene glycol, ethylene glycol, polyethylene glycol, caprylyl glycol, polypropylene glycol, 1,3-butane diol, hexylene glycol, isoprene glycol, xylitol, ethylhexyl palmitate, a triglyceride such as caprylic/capric triglyceride ([0193]). Dussaud teaches propylene glycol mono methyl ether may be used in the composition with Example 16 (F18) ([0300]). See par. [0082] of the instant application, which establishes such compounds as a suitable compound Y. Dussaud teaches one or more tannins, specifically gallotannins, ellagitannins, complex tannins, condensed tannins, i.e., tannic acid and its other forms quercitannic acid and gallotannic acid may be used ([0207]; Examples). The most preferred tannin is tannic acid ([0212]). Dussaud discloses formulations may also comprise one or more additional auxiliaries, i.e., pH adjusting agents as described below, such acids, bases and buffers to adjust the pH value, gelling agents ([0218]). Dussaud teaches the aqueous optionally comprise at least one or more additional additive, selected from: C) organic diluents or solvents (also referred to as non-aqueous diluent C)), D)proteins, preferably keratin, E) emollients or fatty substances, F) preservatives, G) skin protecting ingredients, H) conditioning agents, I) oxidizing agents, J) reducing agents, K) tannins, L) metal salts, M) further auxiliaries selected from pH adjusting agents, thickeners, lipids, amino acids, sugars, fragrances, sunscreen agents, vitamins, pearlescent agents, gelling agents ([0178]- [0189]) . Dussaud discloses nonionic surfactant, including ethylene oxide (EO), propylene oxide (PO) and butylene oxide (BO) containing linear or branched C8 to C50 fatty alcohol and fatty acid based emulsifiers (i.e. at least one (poly)glycerolated and/or polyoxyalkylenated nonionic compound Y) ([0147]- [0162]). The components as taught by Dussaud with the same tannic acid and the same compound Y in the same ethanol, the same tannic acid and the same compound Y would have the same property of forming a coating agent after application to the keratin material.
Regarding instant claim 2, Dussaud discloses the preparations may be in the form of a (aerosol) spray, (aerosol) foam, gel, gel spray, cream, lotion, liquid, serum or a wax, mousse, shampoo, such as pearl shampoo, anti-frizz shampoo etc. ([0247]).
Regarding instant claim 6, Dussaud discloses that the aqueous compositions at 20°C have a pH of less than 7, preferably less than 6, more preferably less than 5, and preferably more than 2 (claim 1, [0010]).
Regarding instant claim 7, Dussaud teaches hair treatment formulations may also comprise one or more additional auxiliaries, fillers, nacres, colorants and in particular pigments and dyes, including hair dyeing agents, all kinds of bioactive phytochemicals, and also mixtures thereof ([0218]). Dussaud teaches and suggest colorings/colorants to be an optional component. Thus, it is well within the purview of the skilled artisan to form compositions that are color-free. One would be motivated to do so with a reasonable expectation of success of preventing from altering the visual color characteristics of a color cosmetic composition.
Regarding instant claim 8 and 10, Dussaud discloses one or more reducing agent may be included in the hair treatment formulations with the proviso that oxidizing agents and reducing agents are not present simultaneously in a given formulation ([0203]). Specific examples of suitable reducing agents thus include sodium metabisulfite (sulfur-containing antioxidants), potassium metabisulfite, sodium sulfite, potassium sulfite, sodium thiosulfate, potassium thiosulfate, ammonium bisulfite, ammonium sulfite, ammonium metabisulfite, MEA sulfite, MEA metabisulfite, potassium bisulfite, sodium bisulfite, ammonium bisulfite, sodium hydrosulfite, potassium hydrosulfite, ammonium hydrosulfite, anhydrous sodium sulfite, diammonium sulfite ([0205]). Dussaud discloses chelating agents such as Schiff-Base or enamine group, carboxylic acid or carboxylate group, sulfonic acid or sulfonate group, sulfuric acid half ester or sulfate group ([0030]- [0036]). Dussaud discloses thickeners (such as polysaccharide thickeners, starch, modified starches, xanthan, gellan, carrageenan, pullulan, cellulose, cellulose derivatives, polyacrylic acids, polyacrylates copolymers, polyacrylamides, pectins, clays, fumed silica) ([0218]).
Regarding instant claim 20, Dussaud teaches the hair treatment formulations comprising one or more additional auxiliaries such as lipids, amino acids, sugars, vitamins, antioxidants (see entire document, for instance [0178], [0218])
Claims 1-8 ,10 and 17-20 are rejected under Dussaud et al. Dussaud et al does not teach within a single embodiment in order to anticipate but renders obvious the instant claims. As such it would be obvious at the time the invention was filed to rearrange the components of Dussaud et al and obtain a composition as claimed. MPEP 2123(I) states that “[a] reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art, including nonpreferred embodiments.” Where, as here, the specific combination of features claimed is disclosed within the broad teachings of the reference, but the reference does not disclose the specific combination of variables (for example, silica silylate), in a specific embodiment or in a working example, “picking and choosing” within several variables does not necessarily give rise to anticipation. Corning Glass Works v. Sumitomo Elec., 868 F.2d 1251, 1262 (Fed. Circ. 1989).
However, "when a patent simply arranges old elements with each performing the same function it had been known to perform and yields no more than one would expect from such an arrangement, the combination is obvious". KSR v. Teleflex, 127 S.Ct. 1727, 1740 (2007) (quoting Sakraida v. A.G. Pro, 425 U.S. 273, 282 (1976). "[W]hen the question is whether a patent claiming the combination of elements of prior art is obvious", the relevant question is "whether the improvement is more than the predictable use of prior art elements according to their established functions." (Id.). Addressing the issue of obviousness, the Supreme Court noted that the analysis under 35 USC 103 "need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ." KSR v. Teleflex, 127 S.Ct. 1727, 1741 (2007). The Court emphasized that "[a] person of ordinary skill is ... a person of ordinary creativity, not an automaton." Id. at 1742.
Based on the foregoing teachings of the reference, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention was made to rearrange the disclosed elements and embodiments of Dussaud et al. to prepare the claimed composition. Such a rearrangement by a person of ordinary skill in the art who is not an automaton to yield the instantly claimed compositions and methods is within the purview of the ordinary skilled artisan upon reading Dussaud et al., as cited above, and would yield predictable results.
Claims 1-10 and 13-20 are rejected under 35 U.S.C. 103 as being unpatentable over Dussaud et al (US 20180346653 A1) as applied to claims 1-8, 10, and 17-20 above, and further in view of FAIG et al (US 20210401702 A1).
The teachings of Dussaud et al have been set forth above. However, Dussaud et al is silent to silica silylate. FAIG et al remedies this deficiency.
FAIG discloses a cosmetic composition providing a unique tactile sensation (abstract). Suitable nonionic emulsifiers (compound Y) include those chosen from polyglyceryl 10-stearate, polyglyceryl-3-caprate, polyglyceryl-3-diisostearate, polysorbate 20, or a mixture thereof and water (claims 1, 6, [0016]). FAIG teaches one or more nonionic emulsifier having an HLB of 10 ([0046]). FAIG teaches the water-soluble solvent is a monoalcohol ([0118]). Non-limiting examples of monoalcohols include ethanol ([0118]). FAIG discloses the active agent may be an antioxidant selected from the group of flavonoids ([0164]). The antioxidant may be a tannin ([0171]).
Regarding instant claim 9, FAIG teaches that suitable mattifying agents include but are not limited to the following: aluminum starch octenylsuccinate, methyl methacrylate crosspolymers, polymethylsilsesquioxane, cellulose, and silica silylate ([0016]). FAIG discloses mattifying agents (also referred to as “mattifying fillers”) refer to material that gives the complexion more transparency and a hazy effect and provides skin with a natural and desirable appearance, without conferring on it a greasy, gleaming and shiny appearance ([0055]). To do this, these materials are often absorbent fillers such as talc, silica, kaolin or fillers having light scattering optical properties, which properties are known under the name “soft focus” effect ([0055]). In addition to reducing the shine or oiliness, mattifying agents can contribute to the overall texture and thickness of a cosmetic composition. Mattifying agents are often (but not always) particulate material or powders ([0055]). Suitable mattifying agents include but are not limited to the following: aluminum starch octenylsuccinate, methyl methacrylate crosspolymers, polymethylsilsesquioxane, cellulose, and silica silylate ([0057]).
Regarding instant claim 8 and 10, FAIG teaches the cosmetic composition may include chelating agents ([0183]). Non-limiting examples of chemical chelating agents include pentasodium ethylenediamine tetramethylene phosphonate, tetrasodium pyrophosphate ([0184]). FAIG discloses “anti-wrinkle active” refers to a natural or synthetic compound producing a biological effect, such as the increased synthesis and/or activity of certain enzymes, when brought into contact with an area of wrinkled skin, this has the effect of reducing the appearance of wrinkles and/or fine lines ([0155]). Exemplary anti-wrinkle actives may be chosen from: desquamating agents, anti-glycation agents, inhibitors of NO-synthase, agents stimulating the synthesis of dermal or epidermal macromolecules and/or preventing their degradation, agents for stimulating the proliferation of fibroblasts and/or keratinocytes, or for stimulating keratinocyte differentiation reducing agents; muscle relaxants and/or dermo-decontracting agents, anti-free radical agents, and mixtures thereof ([0155]). Examples of such compounds are: adenosine and its derivatives and retinoids (such as, retinol palmitate and retinol), ascorbic acid and its derivatives such as magnesium ascorbyl phosphate and ascorbyl glucoside; nicotinic acid and its precursors such as nicotinamide; ubiquinone; glutathione ([0155]). FAIG teaches vitamin C and derivatives may be used, including ascorbic acid, sodium ascorbate, and the fat-soluble esters tetrahexyldecyl ascorbate and ascorbyl palmitate, magnesium ascorbyl phosphate, ascorbyl-glucoside ([0159]). The increased glutathione peroxidase activity protects the skin from oxidative damage ([0161]). FAIG discloses the antioxidant may be a Tannin ([0171]). Tannins include: Tannin, Terflavin B, Glucogallin, Dgallic acid, and Quercitannic acid ([0171]). The antioxidant may be: S-Allyl cysteine, Glutathione, and sulfur-based antioxidants such as Methionine ([0175]).
Regarding instant claim 7, FAIG teaches additional components may be added during the time of emulsification or after ([0194]). For example, certain fragrances, colorings, exfoliants, active ingredients, etc., may be added to the aqueous phase, the fatty phase, or after emulsification ([0194]). FAIG discloses all components and elements positively set forth in this disclosure can be negatively excluded from the claims ([0233]). In other words, the cosmetic compositions of the instant disclosure can be free or essentially free of all components and elements positively recited throughout the instant disclosure ([0233]). FAIG teaches and suggest colorings/colorants to be an optional component. Thus, it’s in the purview of the skilled artisan to form compositions that are color-free.
Regarding instant claim 9, FAIG teaches suitable mattifying agents include but are not limited to the following: aluminum starch octenylsuccinate, methyl methacrylate crosspolymers, polymethylsilsesquioxane, cellulose, and silica silylate ([0016]). FAIG discloses mattifying agents (also referred to as “mattifying fillers”) refer to material that gives the complexion more transparency and a hazy effect and provides skin with a natural and desirable appearance, without conferring on it a greasy, gleaming and shiny appearance ([0055]). To do this, these materials are often absorbent fillers such as talc, silica, kaolin or fillers having light scattering optical properties, which properties are known under the name “soft focus” effect ([0055]). In addition to reducing the shine or oiliness, mattifying agents can contribute to the overall texture and thickness of a cosmetic composition. Mattifying agents are often (but not always) particulate material or powders ([0055]). Suitable mattifying agents include but are not limited to the following: aluminum starch octenylsuccinate, methyl methacrylate crosspolymers, polymethylsilsesquioxane, cellulose, and silica silylate ([0057]).
Regarding instant claim 13-17, FAIG discloses that the cosmetic compositions of the instant disclosure typically include: (a) about 0.1 to about 10 wt. % of a nonionic emulsifier ([0008]- [0009]). FAIG teaches suitable nonionic emulsifiers include those chosen from polyglyceryl 10-stearate, polyglyceryl-3-caprate, polyglyceryl-3-diisostearate, polysorbate 20, or a mixture thereof (claims 1, 6, [0016]). This range overlaps with the range in the instant claims. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists (MPEP 2144.05). Therefore, it would be well within the purview of the skilled artisan to manipulate amounts of components within said ranges by routine experimentation, with a reasonable expectation of success.
Dussaud discloses a gel composition comprising at least one polyphenol X comprising at least two different phenol groups; at least one nonionic compound Y which is a surfactant having a hydrophilic-lipophilic balance (HLB) greater than or equal to 7, has at least one carbon chain having at least 8 carbon atoms, and has at least one (poly)glycerolated chain and/or polyoxyalkylenated chain; and a solvent system comprising (water in an amount of at least about 10% by weight with respect to the total weight of the composition; and at least one C2-C5 monoalcohol in an amount effective to inhibit formation of a precipitate of compound X and compound Y in the composition prior to application. FAIG teaches cosmetic compositions comprising compound X and compound Y as well as “soft focusing” effect of silica silylate, chelating agent, antioxidants, flavonoids, and sulfur-based antioxidants. Thus, it would have been prima facie obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the composition as described by Dussaud et al with the composition of FAIG et al. One would be motivated to do so with a reasonable expectation of success combining prior art elements according to known methods to yield predictable results to form a product with excellent staying power notably the color of the makeup on keratin materials (skin, lips, nails, hair, eyelashes, eyebrows) which may extend the duration of the cosmetic composition on keratin materials.
Therefore, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention was made to rearrange the disclosed elements and embodiments of Dussaud et al., to include a silica silylate, filler to prepare the claimed composition. Such a rearrangement by a person of ordinary skill in the art who is not an automaton to yield the instantly claimed compositions and methods is within the purview of the ordinary skilled artisan upon reading Dussaud et al., as cited above, and would yield predictable results.
Response to Arguments
Applicant's arguments filed 09/12/2025 have been fully considered but they are not persuasive. Applicants argue, “the type of composition in Dussaud vs. that of the pending claims are different, and these two different types of compositions possess different functionality. Finally, the ingredients used to achieve the desired concepts and functionalities are different (charged surfactants in Dussaud vs. nonionic surfactants + monoalcohol in the pending claims).” The Examiner respectfully notes that the prior art is not required to have the same motivation as Applicant, wherein in the instant Application, the prior art provides motivation for the modifications. Further, “the reason or motivation to modify the reference may often suggest what the inventor has done, but for a different purpose or to solve a different problem. It is not necessary that the prior art suggest the combination to achieve the same advantage or result discovered by Applicant” (MPEP 2144 (IV)). MPEP 2144.04 states: “Omission of an element and its function is obvious if the function of the element is not desired." In the instant case Dussaud et al. teach compositions comprising:
(a) tannic acid (i.e. at least one polyphenol X comprising at least two different phenol groups) and tannins in a preferred concentration range from 0 to 5% ([0233]), (see entire document, for instance 0207-0212; Examples);
(b) a nonionic surfactant, including ethylene oxide (EO), propylene oxide (PO) and butylene oxide (BO) containing linear or branched C8 to C50 fatty alcohol and fatty acid based emulsifiers (i.e. at least one (poly)glycerolated and/or polyoxyalkylenated nonionic compound Y) (see entire document, for instance 0147-0162);
(c) a solvent system comprising (i) water in an amount of at least about 10% by weight with respect to the total weight of the composition; and (ii) ethanol (i.e. at least one C2-C5 monoalcohol) (e.g. paragraph 0191 and 0225); and gelling agents (e.g. paragraphs 0178, 0218 and 0247).
Dussaud et al disclose the preparations may be in particular in the form of a (aerosol) spray, (aerosol) foam, gel, gel spray, cream, lotion, liquid, serum or a wax, mousse, shampoo, such as pearl shampoo, anti-frizz shampoo etc. (see entire document, for instance [0247]). Dussaud teaches the hair treatment formulations comprising one or more auxiliaries such as lipids, amino acids, sugars, vitamins, antioxidants (a one cosmetic or dermatological active agent) (see entire document, for instance [0178], [0218]).
Applicants argue the "functionality of ingredients in the pending claims inhibiting precipitation prior to application while allowing coating agent formation after application". The Examiner respectfully notes that the components as taught by Dussaud with the same tannic acid and the same compound Y in the same ethanol, the same tannic acid and the same compound Y would have the same property of forming a coating agent after application to the keratin material.
Applicants argue, ‘consisting essentially of' in claim 1, the specification does contain a clear indication of what the basic and novel properties actually are. Specifically, pars. 48 and 49. Dussaud teaches a need for long term stable, easy to prepare and easy to use compositions which are in addition robust towards the presence of other performance ingredients and which provide a hair strengthening benefit and a hair coloration benefit ([0006]). Dussaud discloses organic solvents such as ethanol ([0191]). Dussaud teaches solvents in a concentration range from 0 to 95%, preferably 0.1 to 95% ([0221]) which fall within the claimed ranges for C2-C5 monoalcohol. The instant specification teaches monoalcohol(s) is/are present in the compositions of the present invention in amounts ranging from about 5% to about 75% ([00124]). It is noted that claim 1 teaches the presence of C2-C5 monoalcohol in an amount effective to inhibit formation of a precipitate of compound X and compound Y in the composition prior to application. Thus, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention was made to rearrange the disclosed elements and embodiments of Dussaud et al. to achieve the "basic and novel property" associated with the instant compositions to inhibit the formation of a precipitate of compound X and compound Y.
New Rejection
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1,3-4 and 6 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-2,5,8,13-15,32, and 34-35. of copending Application No. 18/256,765. This is a provisional nonstatutory double patenting rejection.
The copending claims are directed to a process for coating keratin materials, notably for care and/or makeup, more particularly for makeup, which consists in applying to said materials a coating agent formed in situ by hydrogen bonding interaction of at least one polyphenol X comprising at least two different phenol groups with at least one monoglycerolated and/or polyglycerolated polyoxyalkylenated nonionic compound Y with a molar mass greater than 200 g/mol. The polyphenol X is chosen from catechin tannins, notably chosen from gallotannins and ellagitannins. The polyphenol X is tannic acid. The compound(s) Y are chosen from fatty acid esters of polyglycerol, in particular polyglyceryl-10 caprate, polyglyceryl-10 laurate; polyethylene glycols such as PEG-180; PEG-40 hydrogenated castor oil; polysorbates, in particular polysorbate 80; polyoxyalkylenated ester waxes such as polyoxyethylenated (120 OE) jojoba wax; and mixtures thereof. The water is present in a concentration of greater than 30% by weight. The pH of composition (A) and/or of composition (B) is less than 8.0, more preferentially less than 7.0, more particularly ranging from 2 to 6. The hydrogen bonding-inhibiting agent is chosen from organic solvents that are capable of breaking hydrogen bonding, in particular chosen from monoalcohols including from 2 to 8 carbon atoms, and more particularly ethanol.
While the copending claims teach all of the instantly claimed elements, the teaching does not rise to the level of statutory double patenting.
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the instantly claimed invention, by doing no more than following the guidance provided in the copending claims to arrive at the instantly claimed invention. One would have been motivated to do so since the copending claims expressly teach the instantly claimed elements and the instantly claimed orientation of said elements, wherein by simply following the guidance of the copending claims one would arrive at the instantly claimed invention.
Claims 1 and 4 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1,5,11,15-18,25 and 34-35 of copending Application No. 18/256,753. This is a provisional nonstatutory double patenting rejection.
The copending claims are directed to a process for making up keratin material, comprising successively applying to said material, independently of the order: a) a coat comprising at least one coating agent formed by hydrogen bonding interaction of at least one polyphenol X comprising at least two different phenol groups with at least one compound Y comprising at least two functional groups Gy, which may be identical or different, which are capable of forming at least two hydrogen bonds with said phenol groups of said polyphenol. The polyphenol X is tannic acid. The compound(s) Y are nonionic. A coat formed by applying onto the keratin material, i) simultaneously; or ii) in the form of an extemporaneous mixture at the time of use; or iii) successively, irrespective of the order: 1) at least one composition (A) comprising, in a physiologically acceptable medium, at least one polyphenol X as defined according to claim 1; and 2) at least one composition (B) comprising, in a physiologically acceptable medium, at least one compound Y .one aqueous phase (water). At least one monoalcohol including from 2 to 8 carbon atoms.
While the copending claims teach all of the instantly claimed elements, the teaching does not rise to the level of statutory double patenting.
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the instantly claimed invention, by doing no more than following the guidance provided in the copending claims to arrive at the instantly claimed invention. One would have been motivated to do so since the copending claims expressly teach the instantly claimed elements and the instantly claimed orientation of said elements, wherein by simply following the guidance of the copending claims one would arrive at the instantly claimed invention.
Claims 1-8 and 10 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-2, and 4-11. of copending Application No. 19/338,274. This is a provisional nonstatutory double patenting rejection.
The copending claims are directed to a method of making up keratinous material comprising applying a color coat composition and a composition comprising (a) at least one polyphenol X comprising at least two different phenol groups; (b) at least one (poly)glycerolated and/or polyoxyalkylenated nonionic compound Y; (c) a solvent system comprising (i) water in an amount of at least about 10% by weight with respect to the total weight of the composition; and (ii) at least one C2-C5 monoalcohol in an amount effective to inhibit formation of a precipitate of compound X and compound Y in the composition prior to application; (d) at least one chelating agent; and (e) at least one ascorbic acid compound to the keratinous material. The composition is in the form of a gel composition. The at least one (poly)glycerolated and/or polyoxyalkylenated nonionic compound Y has a molar mass greater than 200 g/mo. The at least one polyphenol compound X is tannic acid. The at least one C2- C5 monoalcohol is ethanol. The at least one ascorbic acid compound is ascorbyl glucoside. The at least one ascorbic acid compound is ascorbic acid. The composition has a pH which is less than 7. The at least one polyphenol compound X is tannic acid, the at least one C2-C5 monoalcohol is ethanol, the at least one ascorbic acid compound is ascorbyl glucoside, wherein the composition has a pH which is less than 7 and wherein the composition is in the form of a gel composition. The composition is substantially free of coloring agents.
While the copending claims teach all of the instantly claimed elements, the teaching does not rise to the level of statutory double patenting.
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the instantly claimed invention, by doing no more than following the guidance provided in the copending claims to arrive at the instantly claimed invention. One would have been motivated to do so since the copending claims expressly teach the instantly claimed elements and the instantly claimed orientation of said elements, wherein by simply following the guidance of the copending claims one would arrive at the instantly claimed invention.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JANET JOSEPH whose telephone number is (571)270-1372. The examiner can normally be reached Monday and Thursday 0730-1730 Eastern.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Bethany Barham, can be reached at (571)272-6175. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/JANET JOSEPH/Patent Examiner, Art Unit 1611
/TREVOR LOVE/Primary Examiner, Art Unit 1611