DETAILED ACTION
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 .
Claim Status
Claims 1, 6-12, 15-20 and 23-25 are pending.
Claims 1, 12 and 25 are currently amended.
Claims 2-5, 13-14 and 21-22 have been canceled.
Claims 1, 6-12, 15-20 and 23-25 are currently under consideration.
Claims 1, 6-12, 15-20 and 23-25 are rejected.
Acknowledgement of Receipt
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 07/25/2025 has been entered.
Specification
The use of the term BELSIL TMS 803 (see Spec., pg. 12, line 21), which is a trade name or a mark used in commerce, has been noted in this application. The term should be accompanied by the generic terminology; furthermore the term should be capitalized wherever it appears or, where appropriate, include a proper symbol indicating use in commerce such as ™, SM , or ® following the term.
Although the use of trade names and marks used in commerce (i.e., trademarks, service marks, certification marks, and collective marks) are permissible in patent applications, the proprietary nature of the marks should be respected and every effort made to prevent their use in any manner which might adversely affect their validity as commercial marks.
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 (i.e., changing from AIA to pre-AIA ) 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.
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 (a) are summarized as follows:
Determining the scope and contents of the prior art.
Ascertaining the differences between the prior art and the claims at issue.
Resolving the level of ordinary skill in the pertinent art.
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. Applicants are 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.
Applicant Claims
The instant claims are directed to an oil powder foundation comprising: (a) spherical particles with a volume-weighted mean diameter of 5-20 µm; selected from urethane, acrylic, nylon, silicone, cellulose, silica, calcium carbonate powder, (b) 14-33% by mass titanium dioxide, (c) 3 to 30% by mass of a film-forming agent selected from trimethylsiloxysilicic acid, a sucrose fatty acid ester, a terpene resin, a rosin resin, a candelilla wax extract, a dextrin isostearate, denatured starch, (d) 5 to 50% by mass of a volatile oil agent, (e) a surfactant; 35 to 55% by mass spherical particles and titanium dioxide combined; mass ratio of the spherical particles to the titanium dioxide is 1.5:1 to 1:1.5 (instant claim 1). The claims are further directed to additional oil powder foundations in which one differs in the % by mass of volatile oil agent, i.e., 10 to 40% (independent instant claim 12) and the other in which the volatile oil is selected from the group consisting of a hydrocarbon oil, a silicone oil, and an ether (independent instant claim 25).
Claims 1, 6-12, 15-20 and 23-25 are rejected under 35 U.S.C. 103 as being unpatentable over Macchio (US 5023075 A, pub. 06/11/1991) and Macchio (US 5234682 A, pub. 08/10/1993) herein referenced Mac (I) and Mac (II), respectively, further in view of Denda (US 2020/0085710 A1, pub. 03/19/2020).
Mac (I) discloses a cosmetic comprising 10-90% by weight of a powder component and 1-10% by weight of a silicone oil component (abstract, col. 1, lines 49-51; claim 1). All the particles in the powder component are below 30 µm, and at least 50% of said particles are at an average particle size of 10 µm (col. 2, line 6). The powder component features nylon as one of the critical ingredients (col. 1, line 65) and contains by weight: 1-6% polyethylene, 1-10% polymethyl methacrylate, 5-25% nylon, and 25-75% fillers (col. 2, lines 10-13) to read on the nylon powder of element (a) of claim 1.
Regarding the diameter (i.e., 5-20 µm) limitation, volume-weighted mean diameter is defined as the average particle diameter (see instant Spec., pg. 6, lines 15-16). The cosmetic powders of Mac (I) contain 5-25% by weight of spherical nylon particles that have an average size of 10 µm (col 2, lines 43-44; claim 3). Nylon has the preferred ranged of 10-20% by weight and is preferably coated with lecithin to lower the surface energy of the nylon. Lecithin-coated nylon and lecithin-coated fillers make up 70% by weight of the particles (col. 2, lines 50-52). The lecithin coating on the nylon and fillers is typically 1-2% by weight; 0.2 to 5% is permissible (col. 3, line 4). Mac (I) provides Examples 1-5 where lecithin/nylon are present at 15% in powder cosmetic formulations. The inorganic pigments (i.e., TiO2) need not be lecithin coated (col. 3, line 8, 46).
Regarding element (b) of claim 1, Mac (I) discloses that the powder component may contain 25-75% by weight fillers which include titanium dioxide (TiO2) (col. 2, lines 12, 23; col. 5, line 9). The Cosmetic Concealer formulation has titanium dioxide/bismuth oxychloride at 20% (see Example 4) to fall within and overlap the claimed range of 14-33%. MPEP 2144.05 states that a prima facie case of obviousness exists in the case where the claimed ranges overlap or lie inside ranges disclosed by the prior art.
Regarding element (d) of claim 1 (i.e., volatile oil agent 5-50%), Mac (I) discloses a cosmetic powder comprising 1-10% by weight of a silicone oil component (col. 2, lines 5-6, claim 1). Examples 1-4 show the oil component (i.e., dimethicone, perfume oil) at about 4-7% (col. 4, lines 16, 37, 58; col. 5, line 12).
Regarding element (e) of claim 1 (i.e., 35-55%; particles to TiO2 ratio, 1.5:1-1:1.5), as mentioned above, the inorganic pigments (i.e., titanium dioxide) need not be lecithin coated (col 3, lines 8, 46). Mac (I) shows titanium dioxide/bismuth oxychloride ranging from 2-20% in Examples 1-4 (col. 4-5). With these amounts, Mac (I) shows a combined amount of spherical particles and titanium dioxide ranging from 25% to 43% to read on the claimed range (col. 4-5). Here, Mac (I) teaches a ratio from 11.5:1 to 1:1.15.
Regarding element (c) of claim 1 (i.e., 3-30% film-forming agent), Mac (I) teaches that a blend of low molecular weight fraction of dimethylpolysiloxane (i.e., dimethicone) and a high molecular weight fraction of dimethicone is present from 1-10% by weight ((col. 2, line 14; col. 3, line 12). Applicants describe dimethylpolysiloxane as a silicone compound used as a surface treatment for the powder (see Spec., pg. 9, lines 16, 22) or a solvent to dissolve film-forming agent, trimethylsiloxysilicic acid (see Spec., bridging pgs. 10-11).
Mac (I) does not explicitly teach the species of film-forming agent recited.
Mac (I) does not mention surfactant.
Mac (II) discloses cosmetic compositions containing 30-60% oils, 1-10% cosmetic waxes, and 30-60% of a powder phase (collectively spherical silica, particulate nylon, spherical powder, cosmetic coloring agents and spherical fillers), and the spherical component, i.e., constituents of the powder phase which are spherical or nearly spherical and have a particle size from 2-20 µm) makes up 0.1-60% by weight of the total composition (col. 1, line 42; col. 2, lines 20, 61-68). Mac (II) teaches 0.1-15% spherical silica, 0.1-20% nylon particles of less than 20 µm in diameter, 8-25% spherical powder, and 13-15% spherical fillers selected from the group consisting of titanium dioxide (col. 2, line 41; claim 1). Examples 1-3 and 5-6, show nylon (i.e., spherical particles) at 7% and titanium dioxide at 19%, 11%, 11%, 10%, 5% respectively, with ratios of nylon to titanium dioxide from 1.4:1 to 1:2.8 (Ex. 1 (1:2.75), Ex. 2-3 (1:1.6), Ex. 5 (1:1.4), Ex. 6 (1.4:1).
Regarding surfactants (i.e., claim 1.(e)), Mac (II) teaches that suitable wetting agents are surfactants with a HLB (hydrophilic-lipophilic balance) from 5-7 and that about 0.1-1.5% of wetting agent is suitable (col 3, lines 36-37).
Mac (II) teaches that the cosmetic waxes at approximately 1-10% are the cosmetic wax portion of the composition and candelilla wax is traditionally used (col. 2, lines 9, 12). Mac (II) provides formulations with candelilla wax (col. 4, lines 20, 38; Examples 1-6; claim 2). The candelilla wax of Mac (II) is taught in amount that is lower than the claimed range for film-forming agent (i.e., solid 3-30%).
Denda discloses an esterified product formed from a specific alcohol and a fatty acid, an oily moisturizer composed of said esterified product, and a topical skin composition containing said oily moisturizer ([0002], claim 1). Denda teaches applications include cosmetic powder foundations and sunscreen cosmetics ([0106]). The powder component includes nylon powder (i.e., spherical particles) and stearic acid-treated titanium dioxide ([0124], [0169] see Table 6).
The esterified product is mixed with other components: surfactants ([0098]), oily components e.g., candelilla wax, dextrin fatty acid esters, isohexadecyl alcohol (i.e., isohexadecane), and dimethylpolysiloxanes (i.e., volatile oil agent) ([0111]). Denda teaches film-forming polymer emulsion are 0.1 to 30% by mass of the makeup cosmetic ([0263]).
With respect to the species of film-forming agents claimed, Denda discloses candelilla wax at 2% in an oily concealer formulation ([0186], Table 9) and in an oily solid cosmetic at 4% ([0364], Table 42-1) where either titanium oxide powder and/or dimethylpolysiloxane is present. Denda discloses a KF-7312 series component in a formulation which is a trimethylsiloxysilicic acid solution ([0176], Table 8) which is present at 5.0% by mass ([0198], Table 12) to read on the solid of the film-forming agent range (i.e., 3-30%). Looking to the instant disclosure, Applicants identify commercially available products of trimethylsiloxysilicic acid belonging to the KF-7312 series (see Spec., pg. 12, lines 7-22). Denda discloses trimethoxysiloxy silicic acid in a sunscreen formulation ([0168], Table 6).
It would have been prima facie obvious to a person of ordinary skill in the art, ahead of the effective filing date of the claimed invention, to substitute one candelilla wax of Mac (II) with the specific trimethylsiloxysilicic acid of Denda for a similar purpose of film-forming. Simple substitution of one film-former for another is within the purview of the skilled artisan and would yield predictable results.
It would have been prima facie obvious to a person of ordinary skill in the art, ahead of the effective filing date of the claimed invention, to combine the teachings of Mac (I), Mac (II) and Denda with expected results. One would be motivated to do so with a reasonable expectation of success because both references enhance the smoothness of powder based cosmetic formulations. Critical to the invention of Mac (I) is the sphere-like shape of the microscopic nylon particles which lowers the surface energy of the powder thereby achieving excellent spreadability and pronounced softness (col. 2, lines 45-48).
While an objective of Mac (I) is to use emollient oils that can coat the skin with a light film to achieve optimal protection from the harmful effects of the environment and simultaneously allow the skin to breathe (col. 1, lines 54-57). Mac (II) provides surfactant which enhances solubility (col. 3, line 36) to suggest enhanced coverage. This would be further welcomed by Mac (I) who also aims to achieve high pigment load (col. 1, line 45). With these teachings in combination, a skilled artisan would expect enhanced smoothness (Mac (II) col. 1, lines 34-40) and a heightened impact of pigment (Mac (I) col. 1, line 45). To reiterate, Mac (II) teaches adding a mixture of light oils to effectively assist in solubilizing the cosmetic waxes, particularly if dimethicone is used (Mac (II), col. 2, lines 6-8). This teaching builds upon Mac (I) where dimethicone is utilized (Mac (I) claim 8). In addition, Denda improves upon both Mac (I) and (II) by providing an oil moisturizer that can maintain a moisture retention effect, not only in a state where the composition is applied to the skin, but even in those cases where, after application to the skin, some or most of the topical skin composition has been removed from the skin surface by sebum, perspiration, rubbing, and washing and the like ([0103]) to suggest long-lasting coverage thereby improving ease of use and efficiently protecting the skin.
Regarding the oil powder foundation of claim 12 (i.e., volatile oil 10-40%; particles and titanium dioxide 35-55%), as mentioned above, Mac (I) teaches that the silicone oil component is a blend of dimethyl polysiloxanes (dimethicone) oils from 1-10% to read on the lower end of the range limitation. Mac (II) discloses a cosmetic facial make up composition consisting of 30-60% light oils, cosmetic waxes, 0.1-15% of spherical silica particles at 2-20 µm, 0.1-20% of nylon particles at less than 20 µm, 8-25% of spherical powder particles, and 13-15% titanium dioxide (claim 1). An embodiment of the essential constituents are present in the following ranges of the total composition: spherical silica from 2-4%, particulate nylon from 6-8%, spherical powder 8-25%, light oils from 43-46% and cosmetic waxes from 6-8% (col. 4, lines 1-5). Titanium dioxide is a preferred spherical filler in the powder phase (col. 3, line 25; col. 4, line 16).
Specifically, regarding the 10-40% by mass volatile oil agent, Mac (II) teaches a preferred 43-46% light oils where the lower end of the range is close to the upper end of the claimed range for a volatile oil agent. Mac (II) provides examples where the volatile agent dimethicone is present at 15.5% (see Examples 1-6, col. 4-6). The light oils help solubilize wax (col. 1, line 68). MPEP 2144.05 states that a prior art reference that discloses a range that encompasses a somewhat narrower claimed range (i.e., 43-46% of Mac (II)), is sufficient to establish a prima facie case of obviousness.
Regarding claim 6 and claim 15 (i.e., boiling point 150 °C or higher), Applicants describe dimethylpolysiloxane (i.e., dimethicone) as an example of a volatile oil agent (see Spec., pg. 14, line 9). Mac (I) teaches that the oil component is a blend of dimethyl polysiloxanes (dimethicone) oils (col. 2, lines 13-14).
Regarding claim 7 and claim 16 (i.e., HLB of 10 or less), Mac (II) teaches that adding one or more wetting agents aids in pigment solubility (col. 3, lines 35-36). Mac (II) teaches that suitable wetting agents are surfactants which have an HLB from 5-7 (col. 3, lines 36-37).
Regarding claim 8 and claim 17, Mac (II) discloses a cosmetic facial makeup composition comprising cosmetic waxes which are waxes that are traditionally used in cosmetic formulations (abstract, col. 2, lines 11-12; claims 1 and 2).
Regarding claim 11 and claim 20 (i.e., free of water), Mac (I) and Mac (II) do not teach water in their compositions. Mac (II) provides facial make-up compositions that steer clearly away from water (col. 1, line 38). While Denda provides formulations that include water, to reiterate Denda is provided to read on the film-forming agent amount.
Regarding claims 9-10, 18-19, and 23-25, Mac (I) and Mac (II) do not teach the following : bentonite, polyhydric alcohol, and species of the volatile oil agent(s) i.e., hydrocarbon oil, silicone oil, and an ether oil.
Regarding the organic modified bentonite limitation, Applicants describe commercially available BENTONE 38 (di- stearyl dimethylammonium chloride-treated hectorite) as being preferred (see Spec., pg. 16, lines 10-14). Denda teaches esterified product mixed with other components which include surfactants, powder components, and thickeners ([0098]). The said thickeners may be bentonite and quaternary ammonium salt cation-modified bentonite ([0121]) and provides a formulation example for a foundation which shows polyether-modified silicone and “BENTONE 38” ([0188]).
Regarding polyhydric alcohol, Applicants disclose glycerol, i.e., component (h), as a polyhydric alcohol (see Spec., pg. 30, Table 5; pg. 32, A9). Denda discloses glycerol as an exemplary moisturizer ([0120]) and teaches that is widely used as a moisturizer ([0402]).
Regarding the volatile oil, Denda discloses that the amount of oily moisturizer in the cosmetic oil is from 0.1 to 100% by mass relative to the total mass of the cosmetic oil ([0143]). Example 2 shows a cosmetic oil using the esterified product with isododecane present at 10% ([0145], Table 2) to read on the hydrocarbon recited in the claims. Additionally, Denda discloses decamethylcyclopentasiloxane and fluorine-based oils, e.g., perfluoropolyether, as exemplary oily components ([0111], [0168] Table 6 component 5). As the species are taught by Denda, the properties recited (i.e., volatile at 25°C under 1 atm) will be met. See MPEP 2112.01.
It would have been prima facie obvious to a person of ordinary skill in the art, ahead of the effective filing date of the claimed invention, to use the modified bentonite, glycerol, and isododecane taught by Denda in the compositions of Mac (I) and Mac (II) with expected results. One would be motivated to do so because Denda teaches and suggests that by incorporating bentonite that moisture retention can be obtained ([0098]). The bentonite (i.e., BENTONE 38) taught by Denda ([0188]) complements Mac (I)’s teachings regarding viscosity (col. 2, line 40; claim 1) and Mac (II)’s goal to increase adherence (col. 3, line 11). Regarding the polyhydric alcohol limitation, Denda teaches that glycerol is a well-known and widely used as a moisturizer in the art and confirms this using electrical conductivity measurements ([0112], [0340], [0402], [0405]). Importantly Denda underscores the importance of balance of polar and non-polar (hydrocarbon-based) oils when formulating to achieve a moisture retention effect and a suppression of moisture transpiration from the skin ([0007]).
For the foregoing reasons the instant claims are rendered obvious by the teachings of the prior art.
Claims 1, 6-8, 20, 23 and 25 are rejected under 35 U.S.C. 103 as being unpatentable over Shirao et al. (US 2013/0209533, pub. 08/15/2013) herein referenced Shirao.
Shirao discloses a foundation which contains latent means for masking skin dullness at the time of application thereof to the skin by providing a solid powder cosmetic composition comprising the following ingredients (1) to (3): (1) an interference pearlescent pigment which has been combined with one or more materials selected from unit polymethylmethacrylate, silicon dioxide (silica), platy barium sulfate, zinc oxide, and aluminum chloride, in an amount of 1 to 8 mass %; (2) spherical powder particles which may include polymethylmethacrylate, polyamide resin (Nylon), urethane, silicone resin, silicon dioxide (silica), are in an amount of 8 to 30 mass % and (3) an oil having a viscosity of 500 to 100,000 cps (“high-viscosity oil”) in an amount of 1.5 to 5 mass %; based on the total amount of the composition ([0010-0014], claim 1).
Shirao discloses that the base material may be titanated mica (mica substrate coated with titanium dioxide and/or low-valence titanium oxide: also known as mica) ([0020]).
Shirao teaches that the particle size (mean particle size) of the spherical powder particles is particularly preferably 3 to 20 µm ([0023]).
Shirao provides examples where silica (i.e., silicon dioxide), are spherical powder particles having a mean particle size of 5 µm ([0023], [0057]) to fall within the claimed range. The sum of the spherical powder component (platy barium sulfate, silica, vinyl dimethicone/ methicone silsesquioxane crosspolymer, polymethylmethacrylate) in the examples is 18% while the sum of the titanium dioxide component is 18% to total 36%, and a ratio of spherical particles to titanium dioxide of 1:1 ([0055] Table 2, [0060] Table 3) to read on instant claim 1.
Shirao teaches that the high-viscosity oil preferably has a viscosity of 1,000 to 30,000 cps. ([0025]). Diisostearyl malate (2,000 cps) and glyceryl triisostearate (6,000 cps) are taught as examples ([0025]). Sorbitan sesquiisostearate is shown in Tables 2-4 and glyceryl triisostearate is shown in Table 4 ([0063]). Shirao discloses that when the oil is outside the range of 1.5 to 5 mass %, caking of the cosmetic product may occur, or imparting a good adhesion to the cosmetic product may be difficult and the interference color attributed to the composite pearlescent pigment is likely to be weakened ([0026]).
While sorbitan sesquiisostearate taught above, is a fatty acid ester derived from sorbitol (a sugar alcohol), it would have been prima facie obvious to a person of ordinary skill in the art, ahead of the effective filing date of the claimed invention, to substitute sorbitan sesquiisostearate of Shirao with sucrose fatty acid ester (derived from sugar, sucrose) for a similar purpose of film-forming. Simple substitution of one film-former for another is within the purview of the skilled artisan and would yield predictable results.
Shirao teaches that the cosmetic composition may further contain other ingredients employable in solid powder cosmetic compositions to include oils other than the (3) “high-viscosity oil” (higher alcohol, hydrocarbon oil, ester oil, polar oil, silicone oil, volatile oil, etc.) ([0028]). The cosmetic composition is a solid powder cosmetic composition that may be produced as foundation ([0029]). Shirao shows dimethicone (i.e., dimethylpolysiloxane) at 4% and 6% in example formulations ([0063], Table 4) to read on the claimed volatile oil agent, hydrocarbon oil, dimethylpolysiloxane claims. MPEP 2144.05 states that a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close.
Regarding claim 1.(e), Shirao teaches that the other ingredients (4) may include other ingredients such as a surfactant ([0028]).
Regarding claim 6, Shirao discloses dimethicone.
Regarding claim 7 (i.e., HLB 10 or less), considering that Shirao discloses a solid powder composition with high viscosity oil as a required component, it would have been obvious to one of ordinary skill in the art to apply the teaching of surfactant by Shirao and employ a surfactant with the appropriate oil solubility i.e., HLB. The adjustment of particular conventional conditions is deemed merely a matter of judicious selection and routine optimization which is well within the purview of the skilled artisan. Accordingly, this type of modification would have been well within the purview of the skilled artisan and no more than an effort to optimize results.
Regarding claim 8, Shirao discloses synthetic wax in the examples (Tables 2-4).
Regarding claim 11, Shirao does not require nor does it provide embodiments that comprise water.
It would have been prima facie obvious to a person of ordinary skill in the art, ahead of the effective filing date of the claimed invention, to utilize the composition taught by Shirao with expected results. One would be motivated to do so with a reasonable expectation of success because Shirao provides an embodiment of the cosmetic composition of the present invention is a solid powder cosmetic composition for preventing skin dullness emerging on the skin with the lapse of time ([0016]). In addition Shirao teaches a range amount of spherical powder particles that helps a foundation to stay on the skin and yet impart sufficient extendibility ([0024]).
Claims 9-10, 12, 15-20 and 24 are rejected under 35 U.S.C. 103 as being unpatentable over Shirao as applied to claims 1, 6-8, 20, 23 and 25 above, further in view of Han et al. (WO 2017057862 A1, pub. 04/06/2017, Patenscope MT) and Masachika (JP 2009173573 A, pub. 08/06/2009, Espacenet MT) herein referenced Han and Masa, respectively. Citations for Han and Masa are taken from the machine translated (MT) documents provided.
The teachings of Shirao above are incorporated herein.
Shirao does not teach organic modified bentonite, polyhydric alcohol, a volatile oil agent in an amount of 10 to 40% by mass (independent instant claim 12). While Shirao teaches and suggests a film-forming agent above, Han teaches the trimethylsiloxysilicic acid to also read on the claims.
Han discloses a makeup composition comprising: a silicate-based film-forming agent; a silsesquioxane-based film-forming agent; a plate powder; and a spherical powder, wherein a hydrocarbon oil is added to the mixture (abstract, [23], [58-59]). Han teaches that the composition can be freely used in all forms of make-up formulation to which the composition and effect of the composition can be applied ([65]).
Han teaches that the film-forming agent is trimethylsiloxysilicate and the spherical powder is at least one member selected from the group consisting of silica, polymethyl methacrylate, polyurethane, polymethylsilsesquioxane and nylon ([29]). Han teaches that the plate-like powder is at least one selected from the group consisting of talc, boron nitride, mica and sericite ([30]). Han teaches that the total content of the silicate-based film-forming agent and silsesquioxane-based film-forming agent is a makeup composition, characterized in that 10 to 40% by weight relative to the total weight of the composition ([32]). Han teaches that the silicate-based and silsesquioxane-based film-forming agent largely corresponds to a silicon-based film-forming agent ([75]). Han discloses that examples of the product of the silicone based resin include TMS -803 (trimethylsiloxysilicate) from Wacker-Belsil, and KF-7312K (trimethylsiloxysilicate & dimethicone) ([75]). Looking to the instant disclosure, Applicants disclose KF-7312K (dimethylpolysiloxane solution having a solid content of 60% by mass) and BELSIL TMS 803 (manufactured by Wacker Chemie AG) (see Spec., pg. 12, lines 11, 21). Han provides an exemplary embodiment with trimethylsiloxysilicate and the film-forming agents are shown total to an amount of about 10% (pg. 12).
Han discloses that the weight ratio of the spherical powder and the plate-shaped powder is 2:1 to 2:2 ([33]). The total content of the spherical powder and the plate-like powder is 30 to 95% by weight relative to the total weight of the composition ([34]). The oil contained in the makeup composition is 40% by weight or less based on the total weight of the composition ([35]).
Han teaches butylene glycol as a moisturizing agent ([122]) to read on the claimed polyhydric alcohol.
Han teaches dimethicone at 10 % to read on the 10-40% range (pg. 12).
Han does not teach bentonite.
Masa discloses a cosmetic composition that comprises a plate-like composite powder and a spherical composite powder, wherein the plate-like composite powder is a plate-like powder exhibiting an interference color, and the spherical composite powder has a refractive index of 1.40 to 1.60 (abstract, claim 1). Masa teaches that the spherical composite powder has a particle size of 2 to 20 μm (claim 3). The cosmetic composition comprises a ratio of the plate-like composite powder and the spherical composite powder in a range of 5: 1 to 1: 2 (claim 4).
Masa discloses that titanium oxide may be in the form of titanium oxide coated silica flakes and the core particles include inorganic and organic materials such as silicon dioxide, calcium carbonate, and nylon (pg. 2, para. 3). Masa teaches silicone oils, terpene hydrocarbon oils and candelilla wax (pg. 4, para. 1). Silicon dioxide spherical particles as core particles and titanium dioxide as a coating component are shown in an example (pg. 4, para. 2). Trimethylsiloxysilicic acid is present at 3% in an embodiment (pg. 5, para. 3).
Masa teaches titanium dioxide and bentonite as exemplary powders (pg. 4, para. 2). Bentonite is present in an embodiment (pg. 6, para. 2). While Masa does not explicitly teach organically modified bentonite, it would have been obvious to one of ordinary skill in the art to chemically treat the bentonite with a quaternary ammonium to adjust the hydrophobicity especially in a powder based cosmetic composition with oils to achieve a level of dispersal in accordance with the composition. The adjustment of particular conventional conditions is deemed merely a matter of judicious selection and routine optimization which is well within the purview of the skilled artisan. Accordingly, this type of modification would have been well within the purview of the skilled artisan and no more than an effort to optimize results.
It would have been prima facie obvious to a person of ordinary skill in the art, ahead of the effective filing date of the claimed invention, to use the trimethylsiloxysilicate, polyhydric alcohol, and 10% volatile oil taught by Han and the bentonite taught by Masa in the composition taught by Shirao with expected results. One would be motivated to do so with a reasonable expectation of success because all of the references are concerned with coverage, refractive index, and interference (see Shirao [0022], Han [4], and Masa pg. 1, para. 6, claim 2).
Han shows that the silicate-based film-forming agent, particularly when combined with a silsesquioxane-based film-forming agent form a formulation having appropriate rigidity and flexibility ([79]) and teaches an optimal range thereof to achieve the effect of preventing smearing and improving persistence of the cosmetic composition ([84]). The makeup composition of Han may be advantageously prepared with a small amount of oil without wax by mixing a film-forming agent and powder to achieve the property of effectively reducing smearing after application and improving stability of the formulation itself over time by environmental stimulation such as sebum, sweat, or temperature or humidity secreted from the skin itself, and is a concept distinguished from “smearing” ([62-63]). More importantly the film-forming agent component of Han provides an improved feeling in use of a makeup composition ([79]) which would be an advantage to Shirao wherein product was critiqued for caking and hardness ([0050], [0053]) along with dullness and diminished uniformity ([0054], claim 5).
Response to Arguments
Applicant's arguments filed 07/25/2025 have been fully considered but they are not persuasive.
Applicants argue that even if Macchio (I) discloses a film-forming agent in the recited amount, Macchio (I), Macchio (II), and Denda do not teach the film-forming agent recited in the amended claims and is silent on using a trimethylsiloxysilicic acid, a sucrose fatty acid ester, a terpene resin, a rosin resin, a candelilla wax extract, a dextrin isostearate, or a denatured starch in any form, much less as a film-forming agent (see Remarks, pg. 9, para. 2; pg. 10, para. 1-2).
The Examiner, in response, respectfully disagrees because Denda teaches and provides examples using trimethylsiloxysilicic acid ([0198], Table 12).
Applicants argue that the claimed film-forming agents would not coat the titanium dioxide particles in the same way lecithin coats the particles in the cited prior art. Applicants argue that Macchio (II) fails to remedy this deficiency of Macchio (I). (Remarks, pg. 9, para. 3).
The said lecithin coating may range from 0.2 to 5% (col. 3, line 4), and in Example 1 the amount is approximately 4% (5% x (nylon 15 + talc 44.5 + mica 15) = 3.75) or 4%. Denda teaches trimethylsiloxysilicic acid in an amount of 5% ([0198], Table 12).
Applicants argue that Itou’s films are formed by polymer emulsions of core-shell particles (Remarks, pg. 10, para. 3).
Itou is no longer relied upon.
Applicants argue that even if Ahn were to disclose an oil soluble silicone resin as a film-forming agent, it would not meet the amount claimed. Applicants argue that the silicone paste in the antiperspirant of Ahn is less than 1%; below the required 3 to 30% (pg. 11, para. 1).
Ahn is no longer relied upon.
For these reasons, Applicants’ arguments are found unpersuasive.
Conclusion
Claims 1, 6-12, 15-20 and 23-25 are rejected; no claims are currently allowable.
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/Karen Ketcham/Examiner, Art Unit 1614 /ALI SOROUSH/Supervisory Patent Examiner, Art Unit 1614