DETAILED ACTION
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Election/Restrictions
Claims 8-13 are withdrawn from further consideration pursuant to 37 CFR
1.142(b) as being drawn to a nonelected invention, there being no allowable generic or
linking claim. Election was made without traverse.
Claims 1-5, 7, 17-20 and 22-23 are generic to the following disclosed patentably distinct species: silica, titania, alumina, zirconia, ceria, iron oxide zinc oxide, indium oxide, tin oxide and chromium oxide as disclosed in the instant specification. The species are independent or distinct because of their chemical, structural and mechanical differences as the metal elements in the species are distinct and different. See MPEP § 806.04(b), § 806.04(f) and § 806.04(h). In addition, these species are not obvious variants of each other based on the current record. Claim 21 affirmatively
recites metal oxide being silica; therefore, silica is deemed constructively elected as the
species for examination on the merit.
Upon the allowance of a generic claim, applicant will be entitled to consideration
of claims to additional species which depend from or otherwise require all the limitations
of an allowable generic claim as provided by 37 CFR 1.141.
Claim Rejections - 35 USC § 103
Claims 1-5, 7, 17-21 and 23 stand rejected under 35 U.S.C. 103 as being
unpatentable over KR-101683774 ("KR'774").
Claim 1: KR'774 teaches a porous microspheres having an average diameter
from 0.1 to 2 µm (translation copy, page 4, 4th paragraph) which overlaps the claimed
range of 0.5 to 50 µm; therefore, it would have been obvious to select the overlapping
range. The porous microspheres have more than one population of pores each having
an average pore diameter, wherein each population has a different average pore
diameter, and wherein the porous microspheres are formed from silica (KR'774,
translation copy, page 4, 5th paragraph). In particular, KR’774 teaches the production of hierarchical porous silica having two distinct pore sizes, average pore size of 50-200 nm and average pore size of 200 nm or larger (See KR’774, Example 3 and Figure 10; or translation copy, page 14). The porous silica microspheres are said to be
suitable as an adsorbent (translation copy, page 2, first paragraph) and thus would have
been obvious to the POSITA that they are useful in cosmetic formulation.
Claim 2: The pores of each microsphere are distributed throughout the volume
of the microsphere (KR'774, translation copy, page 4, 5th paragraph)..
Claims 3-4: A formulation containing the silica microspheres inherently exhibits a
color observable by the human eye and/or angle-independent color.
Claim 5: The silica has a first average pore diameter 50-200 nm and
second pore size of 200-1500 nm (translation copy, page 4, 4th-5th paragraphs and page 14, Example 3), which overlap the claimed range from about 75 nm to about 999 nm.
Claim 7: The porous microspheres are made by suspension atomizing in the
presence of a surfactant (KR'774, translation copy, page 4, last four paragraphs);
therefore, the microspheres are inherently monodisperse.
Claim 17: KR'774 teaches a porous microspheres having an average diameter
from 0.1 to 2 µm (translation copy, page 4, 4th paragraph) which overlaps the claimed
range of 0.5 to 50 µm; therefore, it would have been obvious to select the overlapping
range. The porous microspheres have more than one population of pores each having
an average pore diameter, wherein each population has a different average pore
diameter, and wherein the porous microspheres are formed from silica (KR'774,
translation copy, page 4, 5th paragraph). The porous silica are said to be used in
various fields including cosmetic formulation (adsorbent), security application (sensor),
or medical application (drug delivery) (KR'774, page 2, first paragraph).
Claim 18: The pores of each microsphere are distributed throughout the volume
of the microsphere (KR'774, translation copy, page 4, 5th paragraph)..
Claim 19: A formulation containing the silica microspheres such as cosmetic or
drug delivery (see claim 17 above) inherently exhibits angle-independent color.
Claims 20 and 23: KR’774 teaches the production of hierarchical porous silica having two distinct pore sizes, average pore size of 50-200 nm and average pore size of 200 nm or larger (See KR’774, Example 3 and Figure 10; or translation copy, page 14), which meet the claimed ranges of 100 nm-999 nm (claim 20) and 100-700 nm (claim 23).
Claim 21: The porous microspheres are silica (See claim 17 above).
Claim 22 stand rejected under 35 U.S.C. 103 as being unpatentable over KR'774 as applied to claims 1-5, 7, 17-21 and 23 above, and further in view of KIM
(Advanced Powder Technology 28 (2017) 406-410).
KR’774 teaches the porous microspheres of the claimed invention, and in particular, silica microspheres, as discussed above. However, KR’774 does not teach light absorbing agent in the microspheres. Kim teaches that CeO2 functions as visible and UV light absorbing for silica particles (Kim, page 406, left column); therefore, it would have been obvious to the POSITA to utilize CeO2 as visible light and UV light absorbers in a silica-containing light absorbent formulation. Kim teaches the CeO2 can be present from 0.25 to 1.5 wt% of silica microspheres (Kim, page 410, left column), which would fall neatly within the claimed range of 0.1 to 40 wt%.
Response to Arguments
Applicant argues that KR’774 teaches microspheres wherein the smaller pore sizes are mesopores which have an average pore size of 2-50 nm which is smaller than the claimed range. However, the silica spheres having mesopores are ultra small silica nanospheres which are one embodiment disclosed in KR’774; however, there are other embodiments teaching larger silica, i.e. hierarchical porous silica spheres, having diverse pore diameters wherein the smaller pore diameter is 20-200 nm (See Example 3, page 14 of the translation copy and also Figure 10 of KR’774).
Applicant's arguments filed December 16, 2026 have been fully considered but they are not persuasive for the reasons discussed above.
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
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supervisor, Alicia Chevalier can be reached at 571-272-1490. The fax phone number for
the organization where this application or proceeding is assigned is 571-273-8300.
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/HOA (Holly) LE/
Primary Examiner, Art Unit 1788