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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 1/28/2026 has been entered.
Status of the Claims
Claims 36-55 are pending and under current examination. Claims 1-35 are canceled.
Withdrawn Claim Rejections
All rejections pertaining to claims 16-35 are moot because the claims are cancelled in the amendments to the claims filed 1/28/2026.
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.
Claim 40 is 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.
Claim 40 does not contain the word “and” before the last element of the Markush group. This renders the claim indefinite because it fails to define a closed group. Please refer to MPEP 2173.05(h):
“When materials recited in a claim are so related as to constitute a proper Markush group, they may be recited in the conventional manner, or alternatively. For example, if ‘wherein R is a material selected from the group consisting of A, B, C and D’ is a proper limitation, then “wherein R is A, B, C or D” shall also be considered proper.”
In this case, it is not clear whether claim 40 excludes all of the listed substances, or only one substance must be absent from compositions within the scope of the invention.
Claim 55 provides for a method of stabilizing the odor of a cosmetic O/W emulsion without reciting any active method steps. Since the claim does not set forth any steps involved in the method/process, it is unclear what method/process applicant is intending to encompass. A claim is indefinite where it does not recite positive steps delimiting how this method is actually practiced.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 45 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claim 45 recites the limitation “further comprises cetearyl alcohol”. The independent claim 36 recites “wherein the emulsion further comprises…and/or (ii) cetearyl alcohol…”, therefore the limitation “further comprises cetearyl alcohol” recited in claim 45 fails to further limit the subject matter of the claim upon which it depends. This objection may be obviated by amending claim 45 to read “comprises cetearyl alcohol”. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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 36, 37, 39-41, and 45-47 are rejected under 35 U.S.C. 103 as being unpatentable over Teckenbrock (U.S. Patent Application No. 2009/0047226, publication date: 2/19/2009, of record) in view of Humblebee and Me (A Quick Guide to Cetearyl Alcohol & Liquid Oil Ratios, available 2018), as evidenced by My Tree Says (HLB Values of Oils/Lipids, available 5/29/2019, of record ).
Determination of the scope and the content of the prior art
(MPEP §2141.01)
Regarding claims 36 and 45, Teckenbrock teaches a cosmetic oil-in-water emulsion [0015] that may contain hydroxypropyl starch phosphate as a polysaccharide [0042] and citronellol, linalool, or limonene as a perfume in the composition. Mixtures of different odorants that together produce an attractive fragrance note are used [0177]. The polysaccharide is present from 0.01 to 1.0 wt.% [0047]. Teckenbrock also teaches that the oil-in-water emulsions are characterized in that it contains at least one nonionic emulsifier having an HLB value in the range of 3 to 6 [0059]. It is noted that Teckenbrock is silent with regards to carbomers, parabens, methylisothiazolinone, and DMDM hydantoin and therefore reads on the “free from carbomers, … parabens, methylisothiazolinone, chloromethylisothiazolinone, DMDM hydantoin…” limitation of instant claim 26. The cosmetic composition embraced by Teckenbrock may also contain polyacrylates as a carrier for monomers, oligomers and polymers of amino acids in preferred embodiments [0108]. The Examiner interprets the term “preferred embodiments” in Teckenbrock to encompass an embodiment of the composition that does not contain polyacrylates. Polyethylene glycol ethers and esters are listed in a large group of suitable oil-in-water emulsifiers for the composition [0068], but are not a required component of the invention. The Examiner therefore interprets the teachings of Teckenbrock to encompass an embodiment of the composition that does not contain polyethylene glycol ether and polyethylene glycol esters. Teckenbrock also teaches that the shelf stability of the oil-in-water emulsions can be increased by the addition of at least one nonionic emulsifier with an HLB value in the range from 12 to 18 [0063].
Regarding claim 37, Teckenbrock teaches a cosmetic oil-in-water emulsion [0015] that may contain citronellol, linalool, or limonene as a perfume in the composition. Mixtures of different odorants that together produce an attractive fragrance note are used [0177].
Regarding claim 39, Teckenbrock teaches that the fragrance component is present in a total quantity from 0.00001-4wt%, based on the entire composition [0183].
Regarding claim 40, Teckenbrock teaches that the cosmetic composition may optionally [0017] contain 3-(4'-methylbenylidene)-D,L-camphor, 2-hydroxy-4-methoxybenzophenone, cinnamic acid esters, diphenylacrylic acid esters, salicylic acid homomethyl ester as UV filtering substances [0160]. The Examiner interprets the term “preferred embodiments” in Teckenbrock to encompass an embodiment of the composition that does not contain 3-(4'-methylbenylidene)-D,L-camphor, 2-hydroxy-4-methoxybenzophenone, cinnamic acid esters, diphenylacrylic acid esters, salicylic acid homomethyl ester, or polyethylene glycol ethers or esters.
Regarding claim 41, it is noted that Teckenbrock is silent with regards to mineral oils, silicone oils, and mineral waxes and therefore reads on the “free from mineral oils, silicone oils, and mineral waxes” limitation of instant claim 41.
Regarding claim 46, Teckenbrock teaches that the composition may contain xanthan gum [0042].
Regarding claim 47, it is noted that Teckenbrock is silent with regards to atranol, chloroatranol and hydroxyisohexyl 3-cyclohexene carboxaldehyde and therefore reads on the “does not contain atranol, chloroatranol and hydroxyisohexyl 3-cyclohexene carboxaldehyde ” limitation of instant claim 47.
Ascertainment of the Difference Between Scope of the Prior Art and the Claims
(MPEP §2141.02)
Regarding claims 36 and 45, Teckenbrock does not teach the inclusion of glyceryl stearate SE, sodium cetearyl sulfate, cetearyl alcohol, dicaprylyl ether, or cetyl palmitate. However, this deficiency is cured by Humblebee & Me and My Tree Says.
Humblebee & Me teaches that cetearyl alcohol is used to stabilize emulsions (pg. 4). My Tree Says teaches that cetearyl alcohol has an HLB value of 15.5 (pg. 2).
Finding of a Prima Facie Obviousness Rationale and Motivation
(MPEP §2142-2143)
Regarding claim 36 and 45, based on these teachings , it would have been prima facie obvious to one of ordinary skill in the art, at the time the invention was made, to substitute equivalents, each of which is taught by the prior art to be useful for the same purpose (the emulsifiers listed by Teckenbrock and cetearyl alcohol for the purpose of stabilizing an oil-in-water emulsion). See MPEP 2144.06 (II).
Claims 38, 42, and 48-50 are rejected under 35 U.S.C. 103 as being unpatentable over Teckenbrock (U.S. Patent Application No. 2009/0047226, publication date: 2/19/2009, of record) in view of Humblebee and Me (A Quick Guide to Cetearyl Alcohol & Liquid Oil Ratios, available 2018), as evidenced by My Tree Says (HLB Values of Oils/Lipids, available 5/29/2019, of record ), as applied to claims 36, 37, 39-41, and 45-47 above, and further in view of Pruns (U.S. Patent Application No. 2018/0243189, publication year: 2018).
Determination of the scope and the content of the prior art
(MPEP §2141.01)
Regarding claim 38, Teckenbrock teaches that perfumes, perfume oils, or perfume oil constituents can be used as fragrance components [0177].
Regarding claim 42, Teckenbrock teaches that the composition may include benzyl alcohol as a fragrance [0181]. The fragrance may be present from 0.00001 to 4 wt.% [0183].
Regarding claims 48-50, Teckenbrock teaches the relevant limitations of claim 36 as described above.
Ascertainment of the Difference Between Scope of the Prior Art and the Claims
(MPEP §2141.02)
Regarding claim 38, Teckenbrock does not teach the inclusion of coumarin. However, this deficiency is cured by Pruns.
Pruns teaches an oil-in-water cosmetic emulsion [0036] that may contain perfume substances including linalool, coumarin, d-limonene, and hydroxycitronellol [0232].
Regarding claim 42, Teckenbrock does not teach the inclusion of 4-hydroxyacetophenone. However, this deficiency is cured by Pruns.
Pruns teaches an oil-in-water cosmetic emulsion [0036] may contain 0.01 to 10% by weight 4-hydroxyacetophenone [0044]. Pruns also teaches that a product with 4-hydroxyacetophenone is protected against phase separation for a longer time and/or at higher temperatures than a product without 4-hydroxyacetophenone [0039]. If the product with 4-hydroxyacetophenone contains a perfume component or a cosmetic fragrance component this agent is protected against chemical decomposition for a longer time and/or at higher temperatures and/or at a higher dose of light than a product without 4-hydroxyacetophenone [0041].
Regarding claims 48-50, Teckenbrock does not teach the inclusion of dicaprylyl ether or cetyl palmitate in the oil-in-water emulsion. However, this deficiency is cured by Pruns.
Pruns teaches an oil-in-water cosmetic emulsion [0036]. The oily phase may contain dicaprylyl ether [0136] and cetyl palmitate [0135]. The oil phase may contain any mixtures of the oil and wax components [0135].
Finding of a Prima Facie Obviousness Rationale and Motivation
(MPEP §2142-2143)
Regarding claim 38, based on these teachings, it would have been prima facie obvious to one of ordinary skill in the art, at the time the invention was made, to substitute equivalents, each of which is taught by the prior art to be useful for the same purpose (the perfumes taught by Teckenbrock and the coumarin taught by Pruns for the purpose of perfuming a cosmetic oil-in-water emulsion). See MPEP 2144.06 (II).
Regarding claim 42, it would have been prima facie obvious to one of ordinary skill in the art of filing to include 4-hydroxyacetophenone in the composition disclosed by Teckenbrock in a composition within the range embraced by the instant claims. One would have understood in view of Pruns that 4-hydroxyacetophenone may be added to a cosmetic oil-in-water emulsion at weight in order to increase the stability of the emulsion and the fragrance components within. It would have been obvious to include such a component in the oil-in-water emulsion taught by Teckenbrock. One of ordinary skill in the art of filing would have been motivated to include 4-hydroxyacetophenone in order to impart increased stability to the emulsion and fragrance components contained within the emulsion. The artisan of ordinary skill in the art would have had reasonable expectation of success because Pruns teaches that a cosmetic oil-in-water emulsion may contain 4-hydroxyacetophenone at concentrations of 0.01 to 10% by weight.
Regarding claims 48-50, based on these teachings, it would have been prima facie obvious to one of ordinary skill in the art, at the time the invention was made, to substitute equivalents, each of which is taught by the prior art to be useful for the same purpose (the oil phase of Teckenbrock and the oil phase of Pruns as the oily phase of a cosmetic oil-in-water emulsion). See MPEP 2144.06 (II).
Claim 43 is rejected under 35 U.S.C. 103 as being unpatentable over Teckenbrock (U.S. Patent Application No. 2009/0047226, publication date: 2/19/2009, of record) in view of Humblebee and Me (A Quick Guide to Cetearyl Alcohol & Liquid Oil Ratios, available 2018), as evidenced by My Tree Says (HLB Values of Oils/Lipids, available 5/29/2019, of record ), as applied to claims 36, 37, 39-41, and 45-47 above, and further in view of Lawan et. al. (Journal of Health Research, pg. 1-3; publication year: 2009, of record).
Determination of the scope and the content of the prior art
(MPEP §2141.01)
Teckenbrock teaches that phenoxyethanol may be present in the composition as a germ-inhibiting or antimicrobial substance [0078]. Teckenbrock also teaches that preservatives may be included in the composition [0203].
Ascertainment of the Difference Between Scope of the Prior Art and the Claims
(MPEP §2141.02)
Teckenbrock does not teach that ethylhexylglycerin may be included in the composition or a weight percentage of phenoxyethanol that may be present in the composition. However, this deficiency is cured by Lawan.
Lawan teaches that ethylhexylglycerin is a cosmetic preservative (pg. 1 Abstract).
Finding of a Prima Facie Obviousness Rationale and Motivation
(MPEP §2142-2143)
It would have been prima facie obvious to one of ordinary skill in the art at the time of filing to include ethylhexylglycerin in the cosmetic composition embraced by Teckenbrock. One would have understood in view of Lawan that ethylhexylglycerin is suitable for inclusion in cosmetics as a preservative. It would have been obvious to include ethylhexylglycerin as a preservative in the cosmetic composition embraced by Teckenbrock. The artisan of ordinary skill would have had reasonable expectation of success because Teckenbrock teaches that preservatives may be included in the cosmetic composition. See MPEP 2144.07.
The weight percentage of ethylhexylglycerin and phenoxyethanol is clearly a result effective parameter that a person of ordinary skill in the art would routinely optimize. Optimization of parameters is a routine practice that would be obvious for a person of ordinary skill in the art to employ and would reasonably expect success. It would have been customary for an artisan of ordinary skill to determine the optimal weight percentage in order to best achieve the desired results as such would provide advantageous preservative effect. It would have been prima facie obvious to one of ordinary skill in the art at the time of the invention to engage in routine experimentation to determine optimal or workable ranges that produce expected results. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F. 2d 454, 105 USPQ 233 (CCPA 1955). In the instant case, Teckenbrock teaches that the composition may contain additives such as preservatives and that phenoxyethanol may act as a germ-inhibiting substance [0078]. Lawan teaches that ethylhexylglycerin is a cosmetic preservative (pg. 1 Abstract). The Examiner considers it prima facie obvious to optimize the weight percentage, absent unexpectedly superior properties of the claimed invention. In the instant case, one of ordinary skill in the art would have recognized that the amount of ethylhexylglycerin and phenoxyethanol would have a direct effect on the preservation of the cosmetic emulsion and therefore be an optimizable variable.
Claim 44 is rejected under 35 U.S.C. 103 as being unpatentable over Teckenbrock (U.S. Patent Application No. 2009/0047226, publication date: 2/19/2009, of record) in view of Humblebee and Me (A Quick Guide to Cetearyl Alcohol & Liquid Oil Ratios, available 2018), as evidenced by My Tree Says (HLB Values of Oils/Lipids, available 5/29/2019, of record ), as applied to claims 36, 37, 39-41, and 45-47 above, and further in view of Burgo (U.S. Patent Application No. 2019/0241491, publication year: 2019).
Determination of the scope and the content of the prior art
(MPEP §2141.01)
Teckenbrock teaches that the cosmetic composition may contain germ-inhibiting or antimicrobial substances [0078] or preservatives [0203].
Ascertainment of the Difference Between Scope of the Prior Art and the Claims
(MPEP §2141.02)
Teckenbrock does not teach that the inclusion of a diol substance in the cosmetic composition. However, this deficiency is cured by Burgo.
Burgo teaches that bio-1,2-alkanediols such as 1,2-octanediol and 1,2-decanediol [0010] may be used as alternative preservation systems for use in personal care compositions [0002]. The alternative preservation systems include consumer-friendly, paraben-free materials that move away from traditional preservation or antimicrobials towards “natural” and “sustainable” formulations [0009].
Finding of a Prima Facie Obviousness Rationale and Motivation
(MPEP §2142-2143)
It would have been prima facie obvious to one of ordinary skill in the art at the time of filing to include 1,2-octanediol or 1,2-decanediol in the cosmetic composition embraced by Teckenbrock. One would have understood in view of Burgo that 1,2-octanediol and 1,2-decanediol may act as a preservative in personal care formulations. It would have been obvious to include 1,2-octanediol or 1,2-decanediol as a preservative or antimicrobial agent in the cosmetic composition embraced by Teckenbrock. One would have been motivated to include 1,2-octanediol or 1,2-decaneciol in the cosmetic composition embraced by Teckenbrock in order to move away from traditional preservation or antimicrobials and towards “natural” and “sustainable” formulations [0009]. The artisan of ordinary skill would have had reasonable expectation of success because Teckenbrock teaches that antimicrobial agents and preservatives may be included in the cosmetic composition. See MPEP 2144.07.
Claims 48-54 are rejected under 35 U.S.C. 103 as being unpatentable over Teckenbrock (U.S. Patent Application No. 2009/0047226, publication date: 2/19/2009, of record) in view of Humblebee and Me (A Quick Guide to Cetearyl Alcohol & Liquid Oil Ratios, available 2018), as evidenced by My Tree Says (HLB Values of Oils/Lipids, available 5/29/2019, of record), as applied to claims 36, 37, 39-41, and 45-47 above, and further in view of Riedel (U.S. Patent Application No. 2003/0165551, publication year: 2003), as evidenced by CosmetoScope (Glyceryl Stearate SE, available 2/29/2020, of record) .
Determination of the scope and the content of the prior art
(MPEP §2141.01)
Teckenbrock teaches that the cosmetic composition may contain germ-inhibiting or antimicrobial substances [0078] or preservatives [0203].
Regarding claims 48-54, Teckenbrock teaches the relevant limitations of claim 36 as described above. Teckenbrock also teaches that the oil-in-water emulsions may contain at least one nonionic emulsifier having an HLB in the range from 3 to 6 [0058] and at least one nonionic emulsifier having an HLB value in the range from 12 to 18 [0063].
Ascertainment of the Difference Between Scope of the Prior Art and the Claims
(MPEP §2141.02)
Regarding claims 48-50 and 54, Teckenbrock does not teach the inclusion of dicaprylyl ether or cetyl palmitate in the oil-in-water emulsion. However, this deficiency is cured by Riedel.
Riedel teaches a cosmetic oil-in-water emulsion [0001]. The oily phase may contain dicaprylyl ether [0091] and cetyl palmitate [0090]. The oil phase may contain any mixtures of the oil and wax components [0090].
Regarding claims 51-54, Teckenbrock does not teach the inclusion of glyceryl stearate SE or sodium cetearyl sulfate. However, this deficiency is cured by Riedel and CosmetoScope. Riedel teaches a cosmetic oil-in-water emulsion [0001]. The cosmetic emulsion may contain one or more O/W emulsifiers including sodium cetylstearyl sulphate and glyceryl stearate SE [0098]. In order to be able to ensure the metastability of emulsions, emulsifiers are usually necessary [0013]. CosmetoScope teaches that glyceryl stearate SE has an HLB value of 5.8 and is suitable to prepare oil in water emulsions (pg. 2).
Finding of a Prima Facia Obviousness Rationale and Motivation
(MPEP §2142-2143)
Regarding claims 48-50 and 54, based on these teachings, it would have been prima facie obvious to one of ordinary skill in the art, at the time the invention was made, to substitute equivalents, each of which is taught by the prior art to be useful for the same purpose (the oil phase of Teckenbrock and the oil phase of Riedel as the oily phase of a cosmetic oil-in-water emulsion). See MPEP 2144.06 (II).
Regarding claims 51-54, based on these teachings, it would have been prima facie obvious to one of ordinary skill in the art, at the time the invention was made, to substitute equivalents, each of which is taught by the prior art to be useful for the same purpose (the emulsifiers listed by Teckenbrock and the glyceryl stearate SE and/or sodium cetearyl sulfate taught by Riedel for the purpose of stabilizing a cosmetic oil-in-water emulsion). See MPEP 2144.06 (II).
Claim 55 is rejected under 35 U.S.C. 103 as being unpatentable over Teckenbrock (U.S. Patent Application No. 2009/0047226, publication date: 2/19/2009, of record) in view of Humblebee and Me (A Quick Guide to Cetearyl Alcohol & Liquid Oil Ratios, available 2018) and AkzoNobel R&D (O/W Emulsion for Ethnic Hair Car, publication date: 4/1/2009, of record), as evidenced by My Tree Says (HLB Values of Oils/Lipids, available 5/29/2019, of record).
Determination of the scope and the content of the prior art
(MPEP §2141.01)
All of the relevant limitations of the instant claim 55 have been rendered obvious as set forth in the rejection of claim 36 above except the method of stabilizing the odor of a cosmetic O/W emulsion.
Ascertainment of the Difference Between Scope of the Prior Art and the Claims
(MPEP §2141.02)
Teckenbrock does not teach a method for stabilizing the odor of stabilizing the odor of a cosmetic O/W emulsion. However, this deficiency is cured by AkzoNobel R&D.
AkzoNobel R&D teaches that hydroxypropyl starch phosphate stabilizes emulsion cosmetics (pg. 1, third paragraph).
Finding of a Prima Facie Obviousness Rationale and Motivation
(MPEP §2142-2143)
It would have been prima facie obvious to one of ordinary skill in the art of filing that the hydroxypropyl starch phosphate that may be present in the cosmetic composition embraced by Teckenbrock serves to stabilize the emulsion itself, and therefore stabilizes the odor of the emulsion. One would have understood in view of AkzoNobel R&D that hydroxypropyl starch phosphate may be used in cosmetic compositions to help stabilize emulsions. It would have been obvious that stabilizing an emulsion by addition of hydroxypropyl starch phosphate would also serve to stabilize the odor of the emulsion since the perfumes are contained within the emulsion. The artisan of ordinary skill in the art of filing would have had reasonable expectation of success because Teckenbrock teaches that hydroxypropyl starch phosphate may be present in the cosmetic emulsion. See MPEP 2144.07.
Furthermore, the cosmetic emulsion embraced by Teckenbrock is substantially identical in composition to the cosmetic emulsion embraced by the instant claim, therefore the function of the hydroxypropyl starch phosphate in stabilizing the odor of the emulsion is inherent in the cosmetic emulsion embraced by Teckenbrock. See MPEP 2112.01 (I).
Response to Arguments
Applicant's arguments filed 1/28/2026 have been fully considered but they are not persuasive.
On page 8, Applicant argues that while Teckenbrock does not explicitly require polyethylene glycol ethers and esters, it must not be overlooked that all of the exemplified emulsions of Teckenbrock contain polyethylene glycol ethers and/or esters. Therefore, it would not be obvious to exclude polyethylene glycol ethers and/or esters from the emulsions.
This is not persuasive because disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments. In re Susi, 440 F.2d 442, 169 USPQ 423 (CCPA 1971). See MPEP2123(II).
With regard to Applicant’s argument that the examiner has not explained why one of ordinary skill wishing to add an emulsifier with the preferred HLB value according to Tekcenbrock wold not choose from the dozens of suitable emulsifiers with an HLB set forth in the table at pages 5-7, the examiner reminds Applicant that it is well settled that substituting known equivalents was prima facie obvious. See MPEP 2144.06. Also, the Examiner directs attention to Merck &Co. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Circ. 1989), which states with regards to its more than 1200 combinations: that the prior art “discloses a multitude of effective combinations does not render any particular formulation less obvious. This is especially true because the claimed composition is used for the identical purpose taught by the prior art.” Furthermore, it is noted that Applicants do not identify any secondary consideration demonstrating criticality or anything unexpected about the absence of polyethylene glycol ethers and/or esters from the emulsions.
Applicant’s arguments with respect to the rejection of claims 28 and 33 are moot because the claims are cancelled in the amendments to the claims filed 1/28/2026.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ELIZABETH ANNE MEYERS whose telephone number is (571)272-2271. The examiner can normally be reached Monday-Friday 8am-5pm ET.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Ali Soroush can be reached at 571-272-9925. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
ELIZABETH ANNE MEYERSExaminer, Art Unit 1617
/KATHERINE PEEBLES/Primary Examiner, Art Unit 1617