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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 6/11/2026 has been entered.
Election/Restrictions
Claims 8-9, 14 and 16 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected group and/or species, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 7/25/2025.
Response to Arguments
All of Applicant arguments filed 6/112026 have been fully considered.
Applicant arguments that Chabrillangeas does not teach the inclusion of linear esters (iii) as newly amended are persuasive, as such new rejections are presented below which address the newly added limitation.
New Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-6, 10-13 and 15 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claims 1 and 13 recite “room temperature (25°C)”, phrase (25°C) renders the claim indefinite because it is unclear whether the limitations inside the parenthesis are part of the claimed invention. See MPEP § 2173.05(d).
Claims 2-6, 10-11 and 15 are rejected in view of their dependency on claim 1 as they do not cure the deficiencies of claim 1 and therefore are deficient for the same reasons.
New 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.
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.
Claim(s) 1-6, 10-13 and 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Chabrillangeas (US 2018/0318186), Arditty (US 2012/0093560), Candau (US 2005/0008588) and CN107951770, as evidenced by Avena Labs. CN’770 and Avena Labs are newly cited.
Chabrillangeas discloses cosmetic compositions for hair and skin (Abs and [0066]).
Example 3, Composition II, of Chabrillangeas discloses an O/W emulsion comprising:
- 1.5% cetyl alcohol (a solid alcohol of formula R-OH, wherein R is a C16 alkyl group) – reading on instant claims 1(i), 2-3 and 13(i);
- 0.3% of disodium stearoyl glutamate – reading on amino acid surfactant of instant claims 1(ii), 4-6, 13(ii) and 15, wherein Z=C17 linear alkyl group, X=H, n=0, Y=(CH2)2C(O)OM, M=Na;
- 1% polyacryloyldimethyl ammonium taurate (Hostacerin AMPS, an AMPS homopolymer which is crosslinked and neutralized as evidenced by the filed specification page 10) – reading on instant claims 1(iii), 10 and 13(iii) and the elected species;
Regarding claim 11: Example 3 teaches the aqueous phase to make up 82.65% of the composition.
Regarding claim 12: Example 3 teaches the fatty phase to make up 17.35% of the composition.
Chabrillangeas does not teach the inclusion of an optionally crosslinked copolymer of AMPS and polyoxyethylene alkyl methacrylate, however, Chabrillangeas does exemplify compositions comprising Simulgel 600 (i.e. an AMPS copolymer) and Hostacerin AMPS (i.e. AMPS homopolymer).
Arditty teaches cosmetic applications and teaches the use of hydrophilic gelling agents such as AMPS, AMPS and acrylamide copolymers of the Sepigel or Simulgel type and copolymers of AMPS and polyoxyethylene alkyl methacrylate [0188].
Candau teaches cosmetic compositions [0002] which comprise hydrophilic thickeners such as Simulgel 600 and Hostacerin AMPS [0309].
As demonstrated by Arditty and Candau, Simulgel 600, Hostacerin AMPS and copolymer of AMPS and polyoxyethylene alkyl methacrylate are all hydrophilic gelling/thickening agents suitable for use in cosmetic compositions (i.e. art recognized equivalency).
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 modify the teachings of Chabrillangeas with those of Candua and Arditty. A skilled artisan would have recognized that Hostacerin AMPS and Simulgel 600 as taught by Chabrillangeas are known in the cosmetics arts to be hydrophilic thickening agents and a skilled artisan would have been motivated to use both a copolymer of APMS and polyoxyethylene alkyl methacrylate in the example 3 of Chabrillangeas as this agent is taught to be equivalent to Hostacerin AMPS and Simulgel 600 and its prima facie obvious to combine two art recognized equivalents each taught individually by the prior art to form a new composition for the same purpose.
However, the above reference do not teach the composition to comprise a linear ester as required by instant claims 1(iii) and 13(iii).
CN’770 teaches an eye cream formulation and teaches the inclusion of 0.1-5% of emollient [0011], suitable emollients include myristyl myristate, this is considered a high-end skin softener [0015]. As evidenced by Avena Lab, myristyl myristate has a melting point of 37-55° and is solid at room temperature (reading on reversible solid/liquid change) and is shown in the spec to be a suitable linear ester for use.
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 modify the teachings of the above references with those of CN’770 and add 01-5% of a high end skin softener such as myristal myristate as this is taught to be a suitable emollient for use in skin cosmetics which provide softening and Chabrillangeas expresses a desire for soft skin ([0021] and working examples) and teaches that fatty substances including waxes, pasty fatty compounds and gums can be added [0079].
Claim(s) 1-6, 10-13 and 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Chabrillangeas (US 2018/0318186), Arditty (US 2012/0093560), Candau (US 2005/0008588) and CN107951770, as evidenced by Avena Labs, as applied to claims 1-6, 10-13 and 15 above, further in view of Simonnet (US 2015/0290109) and EP2335677.
As discussed above, the above references make obvious the limitations of claims 1-6, 10-13 and 15, however, Chabrillangeas does not teach the elected sodium stearoyl glutamate wherein Z=C17 linear alkyl group, X=H, n=0, Y=(CH2)2C(O)OH, M=Na.
Chabrillangeas teaches that emulsifying the co-emulsifying surfactants can be used, these are preferably anionic or nonionic surfactants [0099].
Simonnet teaches composition for application to the hair or skin. These can comprise anionic surfactants which are preferably disodium stearoyl glutamate and sodium stearoyl glutamate, selected from a finite number of options [0381].
EP’677 cosmetic compositions and teaches glutamic acid salts of formula R-CONH-C(COOM)-C2R4-COOM with R being alkyl groups having 8-22 carbons such as stearoyl are emulsifying surfactants. Sodium stearoyl glutamate is preferred [0072-0073], but disodium stearoyl glutamate is embraced.
It would have been prima facie obvious to a person of ordinary skill in the art before the effective filing date to modify the teachings of the above references with those of Simonnet and EP’677. One of skill in the art would have been motivated to substitute disodium stearoyl glutamate with an equivalent emulsifying anionic surfactant, sodium stearoyl glutamate, as both of these are taught by the prior art to be equivalent surfactants personal care compositions and its prima facie obvious to substitute one equivalent for the other as they are both taught by the prior art to be used for the same purpose.
Conclusion
No claims are allowable.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Jennifer A Berrios whose telephone number is (571)270-7679. The examiner can normally be reached Monday-Thursday from 9am-4pm and Friday 9am-3:30pm.
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/JENNIFER A BERRIOS/Primary Examiner, Art Unit 1613
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