DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after September 12, 2022, is being examined under the first inventor to file provisions of the AIA .
Status of the Application
Receipt is acknowledged of Applicants’ claimed invention filed on 09/12/2022 in the matter of Application N° 17/911,030. Said documents are entered on the record. The Examiner further acknowledges the following:
The present application, filed on or after September 12, 2022, is being examined under the first inventor to file provisions of the AIA .
Thus, claims 1-20 represent all claims currently under consideration.
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 1-20 are rejected under 35 U.S.C. 103 as being unpatentable over Trajano et al. (WO2019036774A1) and Kropke et al. (DE 10351859), and Kalafsky et al, (WO 2002043656).
Regarding claim 1, Trajano et al. disclose an emulsion of water and oil (See page 5, lines 1-2, and page 2, lines 12-14). At least one solid lipid substance, such as glyceryl stearate (See page 4, line 9 and page 6, line 24. Additionally, at least one liquid oil-soluble active ingredient, like octocrylene, is present in amounts ranging from 0.1% to 10% (See to lines 8, 31, and 14 on pages 4, 5, and 6 (as required by instant claim 2). Comprising between 0.1% to about 5% by weight of the total weight of the composition (See page 6, line 27, and 30-31 (as required by instant claim 3). Additionally, Trajano et al. disclose a repellent sunscreen formulation that includes N, N-diethyl-m-toluamide (DEET and an emulsifying system, as well as its uses. The invention’s composition may also include any common cosmetically acceptable substance, such as extra sunscreen, Fragrance or perfume, and combination of these (See abstract and page 7, lines 25-28 (as required by instant claims 4, 5 and 7). Trajano et al. disclose wherein hydrophilic sunscreens maybe suitable additions. Both organic and inorganic ones are possible (See page 8 lines 1 and 2 (as required by instant claim 6). Trajano et al. disclose glyceryl stearate, which can be a vegetable or non-vegetable glyceride, is mixed in an emulsifying system (See page 4, line 10). Synthetic wax, which is regarded as a non-vegetable wax, is one example of a suitable polymer (See page 8, lines 7 and 8 (as required by instant claim 8). Trajano et al. disclose an oil-miscible co-solvent such as phenoxyethanol (See page 8, lines 9 and 10), and silicones mineral oil (See page 8, line 29 (as required by instant claim 9). Trajano et al. disclose wherein the stabilizer is chosen from zinc oxide (See page 2, line 10), and silica and mixtures thereof (See page 8, line 4 (as required by instant claim 10). Trajano et al. disclose the oil in water emulsion comprising a glyceryl stearate (See page 4, line 9), C10-C30 alkyl acrylate cross polymer, mixtures thereof (See page 8 lines 7 and 8 (as required by instant claim 11). Trajano et al. teach the repellent agent N, N-diethyltoluamide used in the amount comprised between 2% to about 10% (See page 7, lines 14-15, and lines 17-18). And wherein the composition in accordance with any of the aforementioned claims, wherein it additionally includes cosmetically acceptable elements chosen from other fragrances, perfumes, and mixes thereof (See page 15, lines 22-25 (as required by instant claim 18).
Kropke et al. teach vegetable, animal, mineral, and petrochemical waxes are the group of fat and/or wax components that can be chosen to be employed in accordance with the invention. Carnauba wax, rice germ oil wax, jojoba wax, shea butter, and bees wax are all included in the invention (See paragraph 35).
Regarding claim 10, Kropke et al. teach zinc oxides can also be used in the form of commercially available oily or aqueous predispersions. Zinc oxide particles and predispersions of zinc oxide particles which are suitable according to the invention are distinguished by a primary particle size of <300 nm (See paragraph 101). Polar oils are for example, those from the group of lecithins and fatty acid triglycerides, namely the triglycerol esters of saturated and / or unsaturated branched (See paragraph 33). The compounds mentioned in this claim are widely recognized in the industry and have been utilized in emulsion formulations (See to Kalafsky et al.). which also addresses compositions that comprise insect repellents). The method offered is regarded as a random change of the previous art since their addition does not appear to be connected with an unexpected technical result.
Regarding claim 17, Kropke et al. teach malic acid (See paragraph 85), zinc (See paragraph 83), and citric acid (See paragraph 85).
Regarding claim 19, Kropke et al. disclose vegetable waxes, animal waxes, mineral waxes, and petrochemical waxes are the group of fat and/or wax components that can be chosen in accordance with the invention. The invention includes beeswax, jojoba wax, shea butter, carnauba wax, and rice germ oil wax (See paragraph 35).
Regarding claim 20, Kropke et al. teach Further advantageous according to the invention Repellents are coconut oil (See paragraph 24). The Water phase of the preparation according to the invention can be beneficial usual contain cosmetic excipients, such as alcohols, in particular such low C number, preferably propylene glycol, ethanol and / or Isopropanol (See paragraph 51). According to the invention, the preparation according to the invention can advantageously contain moisturizing or moistening agents. Advantageous moistening or moisturizing agents (so-called moisturizers) for the purposes of the present invention are, for example, glycerol, and butylene glycol (See paragraph 101).
It would have been obvious to one of ordinary skill in the art, at the time of the invention, to substitute or supplement the synthetic/non-vegetable wax of Trajano et al. with any of the vegetable, animal, mineral, or petrochemical waxes taught by Kropke. The references address the same purpose, providing wax-based structuring agents and oily phases in personal care/cosmetic compositions, and the waxes taught by Kropke et al. are recognized equivalents to the wax materials in Trajano et al.
Kalafsky et al. teach the present composition may include one or more of the following additional ingredients comprising viscosity modifiers (See paragraph 21). The present composition may also comprise a gelling agent such as hydroxyethyl cellulose (See paragraph 18).
It would have been obvious to one of ordinary skill in the art, at the time of the invention, to modify the composition of Trajano et al. by incorporating the vegetable, animal, mineral, or petrochemical waxes taught by Kropke et al. Trajano and Kropke et al. are directed to similar cosmetic/oily compositions, and Kropke expressly identifies these waxes as suitable alternatives within the same class of fat/wax structuring materials. The substitution or supplementation of Trajano’s synthetic (non-vegetable) wax with any of the waxes of Kropke represents a routine selection of known, functionally equivalent materials, expected to yield predictable improvements or adjustments to texture, hardness, spreadability, and stability (MPEP 2143; 2144, routine optimization).
Furthermore, it would have been obvious to include the viscosity modifiers/gelling agents taught by Kalafsky, such as hydroxyethyl cellulose into the modified Trajano et al./Kropke et al. composition. As Kalafsky teaches, such agents are commonly used in cosmetic formulations to adjust viscosity, enhance stability, and achieve desirable rheological properties. The inclusion of a known viscosity modifier in a formulation already containing oils and waxes would have represented a predictable, routine formulation adjustment that one of ordinary skill would employ to achieve the desired consistency and physical characteristics.
Response to Arguments
Applicant's arguments filed February 19, 2026 have been fully considered but they are not persuasive.
First, glyceryl stearate is most certainly a glyceride. Because vegetable or non-vegetable covers all possibilities, the glyceryl stearate reads on the glyceride ingredient.
Kropke et al. disclose cosmetic oil-in-water emulsion compositions containing lipid materials suitable for forming a dispersed oil phase. Specifically, Kropke et al. teach numerous waxes and lipid materials including vegetable waxes, animal waxes, mineral waxes, petrochemical waxes, candelilla wax, carnauba wax, Japan wax, rice germ wax, sugar cane wax, berry wax, jojoba wax, beeswax, lanolin, paraffin waxes, microcrystalline waxes, hydrogenated vegetable oils, triglycerides, fatty acids, fatty acid esters, glycol esters, and glyceryl tribehenate (paragraphs 35-36). These materials correspond to the claimed vegetable waxes, non-vegetable waxes, vegetable glycerides, and non-vegetable glycerides.
Kropke et al. further disclose oil phase components including polar oils, lecithins, fatty acid triglycerides, and other oil-soluble ingredients suitable for incorporation into cosmetic emulsions (paragraph 33). Such oil soluble ingredients are recognized in the cosmetic formulation art as hydrophobic compounds having Log P values greater than 0.5.
Kropke et al. additionally disclose aqueous phase components including propylene glycol, ethanol, isopropanol (See paragraph 51), glycerol, and butylene glycol (See paragraph 101), as well as various cosmetic excipients and moisturizers suitable for stabilizing oil-in-water emulsions. Kropke et al. further teach citric acid and malic acid (See paragraph 85), zinc compounds including zinc oxide dispersions (See paragraph 83), and aqueous and oily predispersions of zinc oxide particles.
The compounds recited in the presently claimed composition are well known ingredients conventionally employed in cosmetic oil-in-water emulsion systems. Kropke et al. disclose the same classes of lipid materials, oil-soluble active ingredients, and aqueous phase excipients as presently claimed and teach their incorporation into emulsion formulations for tropical application.
Kropke et al. fail to expressly disclose that the liquid oil-soluble active ingredient possesses a Log P greater than 0.5 as presently recited. However, Trajano et al. disclose oil-in-water emulsion compositions comprising at least one liquid oil-soluble active ingredient, such as octocrylene, in amounts ranging from about 0.1 wt.% to about 10 wt.%, including about 0.1 wt.% to about 5 wt.% based on the total weight of the composition.
Octocrylene is a hydrophobic oil-soluble active ingredient recognized in the art as having a Log P value significantly greater than 0.5 Thus, Trajano et al. teach the claimed limitation requiring a liquid oil-soluble active ingredient having a Log P greater than 0.5.
It would have been obvious to one of ordinary skill in the art at the time the invention was made to incorporate the oil-soluble active ingredients taught by Trajano et al., including octocrylene, into the emulsion compositions of Kropke et al. because both references are directed to topical oil-in water emulsion formulations containing oil-phase active ingredients and cosmetic excipients. The substitution or incorporation of a known oil soluble active ingredient into the emulsion system of Kropke et al. would have merely involved the predictable use of prior-art elements according to their established functions, yielding no more than predictable results.
Conclusion
THIS ACTION IS MADE FINAL. 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Kimberly Barber whose telephone number is (703) 756-5302. The examiner can normally be reached on Monday through Friday from 6:30 AM to 3:30 PM EST.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Robert A. Wax, can be reached at telephone number (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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/KIMBERLY BARBER/Examiner, Art Unit 1615
/Robert A Wax/Supervisory Patent Examiner, Art Unit 1615
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