DETAILED ACTION
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicants’ submission filed on 8/17/26 has been entered.
Claim Interpretation
For claim interpretation purposes the Examiner notes the following. While claim 1 has been amended to include a mixed volume ratio of 1:20 to 20:1, note that formula-tion (ii) in claim 1 only requires an oil, as that is all that is required in the emulsified or non-emulsified oil based formulation. Also note that the components of (i) and (ii) are mixed in this claim. As such, the cosmetic product per se can contain only the O/W emulsion (which is open to an undisclosed amount of oil due to the comprising term) and oil. Given the fact that the O/W emulsion can contain oil as well, this limitation does not appear to provide any useful claim limitation. For instance, the formulation (ii) can be solely oil and the formulation (i) can contain any amount of oil as well (not limited to the oil in the O/W emulsion). Conversely, the formulation (ii) can contain an infinitesimal amount of oil and the remainder can be water such that the combination of (i) and (ii) contains an infinitesimal amount of oil. As can be seen from this analysis, this language allows for any amount of oil and the volume ratio does not provide much, if any, further limitation. This will be discussed further in the prior art rejections below.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1, 2, 4 to 7, 10, 11, 13 to 15, 17 to 19, 21, 22 are rejected under 35 U.S.C. 103 as being unpatentable over Xing et al. in view of Czech et al.
This rejection is maintained from the previous office actions.
Xing et al. teach a crosslinking polysiloxane personal care composition in which an unsaturated siloxane undergoes free radical polymerization in an emulsion in the presence of a surfactant. This also includes an organohydrogenpolysiloxane.
The surfactants include “any of those heretofore used in emulsion polymerization process”. Xing et al. also teach that the polymerization can occur in the presence of ethylene oxide/propylene oxide copolymers and non-reactive polyorganosiloxanes.
In support of these remarks the Examiner draws attention to paragraphs 4, 5, 33, 37 to 38, 42, 43 and 46 to 50.
While Xing et al. teach that the polymerization can take place in the presence of the genus of polymers including non-reactive polyorganosiloxanes and ethylene oxide/ propylene oxide copolymers (i.e. a polyether), they do not specifically teach polymeriza-tion in the presence of the species polyether modified polysiloxane.
Czech et al. teach a similar composition. They teach an emulsion polymerization process in the presence of silicone surfactant which is a polyether modified siloxane. See the teachings in column 3 of Czech et al.
As such one having ordinary skill in the art, having read that “any of those hereto-fore employed in emulsion polymer processes” (regarding the emulsifier selection) would have found it obvious to select the silicone surfactant in Czech et al. with the expectation of obtaining useful and predictable results. Applicants are merely using a known emulsifier in a known system for its known property. In this manner claim 1 is rendered obvious.
For claims 2, 17 and 18 see paragraphs 28 to 39 which show such formulas. See also Table 1. These sections disclose the corresponding alkenyl siloxanes found in the claims.
For claims 4 and 19, note that these structures correspond to the Silwet compounds found in Czech et al.
For claims 5 and 21, note that adjusting the amount of emulsifier in the polymerization and product of Xing et al. would have been obvious to one having ordinary skill in an effort to optimize the stability, particle size and the effects thereof on the final product and utility. When the general conditions of a claim are disclosed in the prior art, discov-ering the optimum or workable ranges involves only routine skill in the art.
For claim 6 see both compositions in paragraph 78 and 86 which include butyl-ene glycol and glycerine, both of which are humectants, such that the skilled artisan would have been motivated to include the known and common additives in the products therein.
For claim 7, see paragraph 59 which teaches such amounts.
For claims 10, 11, 13 to 15 note that the working examples all show compositions in which two formulations are admixed prior to use as a make-up of cosmetic composition. See also paragraphs 62 to 64 which teaches adding the emulsion found in Xing et al. to other formulations. Such an addition will necessarily require at least 2 containers for each component.
For claim 22, note the claim interpretation above which indicates that this mixing ratio does not instill any specific claim limitation to the claimed cosmetic product.
Response to Arguments
Consistent with the Examiner’s previous response to arguments, the remarks filed 8/19/26 are not persuasive of unobviousness. Once again applicants focus on the inverted form of the emulsion while the claimed cosmetic product comprises an oil in water emulsion, i.e. the non-inverted form of the emulsion. The inverted form a future intended use of the oil in water emulsion and does not further limit the cosmetic product as claimed.
To this end note that the claims directed to the cosmetic product containing the
inverted emulsions are not included in this rejection. That is, the product of claim 1 is directed to a different product than that in claim 8.
While the Examiner believes that the above statement covers all of the specific arguments provided by applicants, she will address each argument specifically for added clarity.
Regarding arguments involving the 1:20 to 20:1 mixing ratio, as noted above, since the amount oil and water in both of (i) and (ii) is undefined and inclusive of any amount this does not provide any specific limitation or requirement on the final cosmetic product.
Regarding the conductivity limitation, this is a limitation on the inverted emulsion rather than the cosmetic product as claimed.
Regarding motivation to increase the oil phase to invert the O/W emulsion in Xing et al., this future intended use clause need not be taught by Xing et al. for the claimed cosmetic product containing a non-inverted emulsion to be obvious.
The term “stable” is emphasized when discussing the teachings in Xing et al. but there is nothing to indicate that the emulsion in claim 1 is unstable. In fact there is nothing that indicates a difference between the emulsion in claim 1 and that in Xing et al. other than the selection of the surfactant.
Finally, when referring to Example 13, this is not persuasive of any criticality or unexpected difference in the emulsion in claim 1 over that in the prior art. Note that the claims state that the inversion occurs by increasing the volume of the oil phase. There is no specific amount of oil claimed that is necessary to result in this inversion. This one single example with one single amount and type of oil is not sufficient to establish that the emulsion of Xing et al. cannot be inverted. This single example is not commensur-ate in scope with the breadth of the claims.
In summary there simply is nothing that establishes unobviousness over the claimed cosmetic product and that in the modified prior art combination.
Claims 8 and 20 are objected to as being dependent on a rejected base claim but containing allowable subject matter. There is nothing in the prior art that teaches or suggests an inverted O/W emulsion (thus a W/O emulsion) in a cosmetic product as claimed. Furthermore there is nothing that would lead the skilled artisan to believe that such a W/O emulsion is inherently met if prepared by a different process.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MARGARET MOORE whose telephone number is (571)272-1090. The examiner can normally be reached on Monday to Friday, 10 am to 5 pm. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Heidi Kelly, can be reached at 571-270-1831.
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Mgm
9/13/26
/MARGARET G MOORE/Primary Examiner, Art Unit 1765
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