DETAILED ACTION
Continued Examination
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 02/25/2026 has been entered.
Previous Rejections
Applicant’s arguments, filed February 25, 2026, have been fully considered. Rejections and/or objections not reiterated from previous office actions are hereby withdrawn. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application.
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.
Claims 1, 3-7, 9, 11-12, and 18-22 are rejected under 35 U.S.C. 103 as being as being obvious over Traynor et al. (US 2017/0216164 A1) and evidenced by “Phenyl sulphonate” (PubChem).
Regarding claim 1, Traynor discloses a composition with cosmetic applications [Abstract] such as topical application to the skin [0129]. Traynor discloses the composition includes alkane sulfonates of the form R1SO3M, as a surfactant wherein R1 is an alkyl chain from about 8 to about 24 carbon atoms, and M is a water-soluble cation such as sodium [0151]. The composition includes additional agents such as the colorant, dihydroxyacetone, which are present in the composition in an amount of 0.1-25 wt.% [0065] [0089] [0113]. The composition also includes the carrier, benzyl alcohol [0038]. Traynor also discloses the composition includes phenyl sulfonate [0083] and propylene glycol [0115] (1,2-propanediol).
Traynor is not believed to be anticipatory because Traynor could be construed as not clearly and unequivocally disclosing the claimed invention or directing those skilled in the art to the claimed invention without any need for picking, choosing and combining various disclosures not directly related to each other by the teachings of the cited reference. Namely, one skilled in the art would need to choose an alkane sulfonate surfactant [0151], dihydroxyacetone [0089], benzyl alcohol [0038], phenyl sulfonate [0083], and propylene glycol [0115] to formulate the composition.
Nevertheless, claim 1 is rendered prima facie obvious over the teachings of Traynor, because it is prima facie obvious to combine prior art elements according to known methods, to yield predictable results. In the instant case, all the claimed elements (e.g., alkyl sulfonate surfactant, dihydroxyacetone, benzyl alcohol, phenyl sulfonate, and propylene glycol) were known in the prior art (e.g., Traynor) and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination yielding nothing more than predictable results (e.g., a topical skincare composition) to one of ordinary skill in the art. MPEP 2143.A.
In regards to the amount of the reducing sugar (dihydroxyacetone), in the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. See MPEP 2144.05 A.
Traynor does not specifically state that the phenyl sulfonate has a topical polar surface area of less than 100 Å2; but as evidenced by the PubChem reference, phenyl sulphonate has a topological polar surface area of 68.6 Å2 (pg. 5).
Claim 3 is rendered prima facie obvious because Traynor discloses the composition includes alkane sulfonates of the form R1SO3M, as a surfactant wherein R1 is an alkyl chain from about 8 to about 24 carbon atoms, and M is a water-soluble cation such as sodium [0151].
Claim 4 is rendered prima facie obvious because Traynor discloses the alkane sulfonate as a surfactant, which may be present in the composition in an amount of 0.1 to 25 wt.% [0144] [0151]. The composition includes additional agents such as the colorant, dihydroxyacetone, which are present in the composition in an amount of 0.1-25 wt.% [0065] [0089] [0113]. The weight ratio of the alkyl sulfonate to the reducing sugar, dihydroxyacetone, as recited in claim 4 would be achieved by one of ordinary skill in the art through routine optimization. See MPEP 2144.05(II)(A).
Claim 5 is rendered prima facie obvious because Traynor discloses the colorant, dihydroxyacetone [0065] [0089].
Claims 6-7 are rendered prima facie obvious because Traynor discloses the carrier, benzyl alcohol [0038].
Claim 9 is rendered prima facie obvious because Traynor discloses propylene glycol [0115] (1,2-propanediol).
Claim 11 is rendered prima facie obvious because Traynor discloses phenyl sulfonate [0083].
Claim 12 is rendered prima facie obvious because Traynor discloses the alkane sulfonate as a surfactant, which may be present in the composition in an amount of 0.1 to 25 wt.% [0144] [0151]. Phenyl sulfonate is disclosed as a deodorant [0083], which is an additional agent present in the composition in an amount of 0.1-25 wt.% [0065] [0113]. The weight ratio of the alkyl sulfonate to the aromatic sulfonate as recited in claim 12 would be achieved by one of ordinary skill in the art through routine optimization. See MPEP 2144.05(II)(A).
Regarding claims 18-22, phenyl sulfonate is disclosed as a deodorant [0083], which is an additional agent present in the composition in an amount of 0.1-25 wt.% [0065] [0113]. A prima facie case of obviousness exists because of overlap, as previously discussed.
Claims 1 and 23 are rejected under 35 U.S.C. 103 as being as being obvious over Traynor et al. (US 2017/0216164 A1) and evidenced by “Naphtholsulfonate” (PubChem, sodium 1-naphthol-4-sulfonate).
The disclosure of Traynor was previously discussed. Traynor also discloses the composition includes a naphtholsulfonate or salt thereof as an active agent [0106].
Claim 1 is rendered prima facie obvious over the teachings of Traynor, because it is prima facie obvious to combine prior art elements according to known methods, to yield predictable results. In the instant case, all the claimed elements (e.g., alkyl sulfonate surfactant [0151], dihydroxyacetone [0089], benzyl alcohol [0038], naphtholsulfonate [0106], and propylene glycol [0115]) were known in the prior art (e.g., Traynor) and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination yielding nothing more than predictable results (e.g., a topical skincare composition) to one of ordinary skill in the art. MPEP 2143.A.
Traynor does not specifically state that the naphtholsulfonate or salt thereof has a topical polar surface area of less than 100 Å2; but as evidenced by the PubChem reference “Naphtholsulfonate”, sodium 1-naphthol-4-sulfonate has a topological polar surface area of 85.8 Å2 (pg. 8), therefore, naphtholsulfonates or salts thereof generally taught by Traynor would be reasonably be expected to have a topical polar surface area of less than 100 Å2, as recited in claim 1.
Regarding claim 23, in regards to the alkyl sulfonate being sodium 1-octane sulfonate, Traynor discloses alkane sulfonates of the form R1SO3M, as a surfactant wherein R1 is an alkyl chain from about 8 to about 24 carbon atoms, and M is a water-soluble cation such as sodium [0151]. There is an obviousness of species when the prior art teaches genus. See MPEP 2144.08. In regards to the aromatic sulfonate being sodium 2-naphthalenesulfonate, a prima facie case of obviousness may be made when there is close structural similarity between chemical compounds. See MPEP 2144.09. In the instant case, a naphtholsulfonate or salt thereof as taught by Traynor, has close structural similarity to sodium 2-naphthalenesulfonate, as claimed. It would be reasonably expected that the compounds would have similar utilities as an active agent in the composition as taught by Traynor [0106], based on their close structural similarities.
Response to Arguments/Assertion of Unexpected Results
Applicant's arguments filed 02/25/2026 have been fully considered but they are not persuasive.
Applicants argues at pg. 8 that the presently claimed compositions provide unexpected improvements in self-tanning. The applicant has submitted “the Declaration of Cordeiro” to support this position. Applicant argues that the samples which contain both (B) an optionally substituted C8-12 alkyl sulfonate and (E) an aromatic sulfonate exhibit an improvement in tanning effect compared to samples which contain either component alone.
The Examiner has fully reviewed and considered the declaration submitted on 02/25/2026. The results show that composition comprising 5 wt.% dihydroxyacetone (DHA) + 2 wt.% sodium 2-naphthalenesulfonate (NSA) + 2 wt.% sodium 1-octanesulfonate (SOS) show an improved tanning effect as compared to compositions with only DHA, DHA+SOS, or DHA+NSA. These are the same components and weight percentages used in Examples 10-13 (Table 2; Figure 6A) of the specification which the Examiner agreed showed unexpected results over the prior art (final rejection dated 08/28/2025).
However, the claims are still not “commensurate in scope” with the showing. See MPEP § 716.02(d). The Applicant has demonstrated an improved tanning effect, but this is only shown with the specific combination and amounts of components (5 wt.% dihydroxyacetone + 2 wt.% sodium 2-naphthalenesulfonate + 2 wt.% sodium 1-octanesulfonate). It is unclear that a composition containing these specific components and in these specific percentages would be reasonably representative of compositions containing other components and in differing amounts, falling within the broader scope currently claimed. Claim 23 is commensurate in scope in regards to the recited components, but is not commensurate in scope in regards to the amounts of the components. As discussed above, unexpected results were only shown with 5 wt.% dihydroxyacetone + 2 wt.% sodium 2-naphthalenesulfonate + 2 wt.% sodium 1-octanesulfonate. It is unclear that a composition containing these specific percentages would be reasonably representative of compositions containing differing amounts, falling within the broader scope currently claimed.
Terminal Disclaimer
The terminal disclaimer filed on August 5, 2025 disclaiming the terminal portion of any patent granted on this application which would extend beyond the expiration date of 17/997,134 has been reviewed and is accepted. The terminal disclaimer has been recorded.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Ashlee E Wertz whose telephone number is (571)270-7663. The examiner can normally be reached Monday - Friday, 8 AM - 5 PM.
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/ASHLEE E WERTZ/Examiner, Art Unit 1612
/SAHANA S KAUP/Supervisory Primary Examiner, Art Unit 1612