DETAILED ACTION
Continued Examination Under 37 CFR 1.114
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 12-18-2025 has been entered.
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.
Claim(s) 1-16 rejected under 35 U.S.C. 103 as being unpatentable over Albrecht et al (2016/0120986) in view of Mathur et al (2016/0120803) is withdrawn.
Claim(s) 1-16 rejected under 35 U.S.C. 103 as being unpatentable overNADAU-FOURCADE (2016/0206590) in view of WO (2019/127001).
NADAU-FOURCADE discloses a composition that is a topical washing emulsion for treating skin, comprising: a) Benzoyl peroxide (BPO) b) At least one mild surfactant with cleaning and / or foaming properties compatible with BPO, selected from classes of anionic and / or non-ionic surfactants c) zinc gluconate d) dipotassium glycyrrhizate e) an oily phase f) at least one nonionic emulsifier from the family of sugar ester derivatives, and / or polyglycerol esters and / or twin surfactants (030-037). NADAU-FOURCADE discloses desirable foaming surfactants such sodium lauroyl glutamate, sodium cocoyl glycinate and alkyl sulfosuccinates, such as sodium dioctyl sulfosuccinate, alkyl ether sulfosuccinates, alkyl amido sulfosuccinates (047-055). NADAU-FOURCADE teach that said foaming surfactants are present from 0.2-20% actives and up to 10% by weight of the composition (063). In addition, it is suggested within the composition also comprises zinc gluconate. Zinc gluconate (also called zinc gluconium) is the zinc salt of gluconic acid. It is an ionic compound consisting of two moles of gluconate to one mole of zinc. Zinc gluconate is a popular way of administering zinc as a dietary supplement (066). Moreover, the concentration of zinc gluconate expressed by weight in relation to the total weight of the composition is between 0.1 and 1%, preferably between 0.15 and 0.3, and more preferably, 0.2 % (068). Notably, the composition of the invention is an oil-in-water emulsion, containing an aqueous phase with at least 5% water by weight of the total composition, and preferably between 5 and 90% (048) and also includes polyhydric alcohols such as glycerol or glycerin, the amount of polyol of the invention is between 0.1 and 40% by weight relative to the total weight of the composition (080-081). See claim 1.
NADAU-FOURCADE disclose all of the instantly required except the specific disodium lauryl sulfosuccinate surfactant and proportions of at least 20% by weight of said surfactants or 20.5% of total surfactants including anionic and amino based.
WO ‘001 disclose a makeup removing composition that comprises mixing water and the composition to deliver to the skin (page 24, lines 9-14) and comprising surfactants such as well-known anionic surfactants such as C6-C24 alkyl sulfosuccinates; C6-C24 acyl glutamates and C6-C24 acyl glycinates and mixtures thereof (page 17, lines 21-32 and page 20, lines 21-24).
It would have been obvious to the skill artisan in skin care, cleansing and make up removing to include anionic surfactants such as sulfosuccinates, glycinates and glutamates within the range of 20.5% by weight given the teachings of NADAU-FOURCADE and WO ‘001 where said surfactants are well known in the skin car and personal cleansing art for their foaming properties which is suggested in WO ‘001 and desired for formulation in the NADAU-FOURCADE composition. One skilled in the art, in the absence of a showing commensurate in scope with the claimed invention, would have been motivated to include the anionic surfactants as listed within their requisite proportions for the purpose of increasing foaming.
[W]hen a patent 'simply arranges old elements with each performing the same function it had been known to perform' and yields no more than one would expect from such an arrangement, the combination is obvious. [KSR Int'l Co. v.Teleflex Inc., 550 U.S. at 418 (quoting Sakraida v. Ag Pro, Inc., 425 U.S. 273,282 (1976).]
“The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages” Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382; In re Hoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969) Merck & Co. Inc. v. Biocraft Laboratories Inc., 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir.), cert. denied, 493 U.S. 975 (1989); In re Kulling, 897 F.2d 1147, 14 USPQ2d 1056 (Fed. Cir. 1990); and In re Geisler, 116 F.3d 1465, 43 USPQ2d 1362 (Fed. Cir. 1997).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to NECHOLUS OGDEN JR whose telephone number is (571)272-1322. The examiner can normally be reached 8-4:30 EST M-F.
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, Angela Brown-Pettigrew can be reached at 571-272-1498. 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.
/NECHOLUS OGDEN JR/Primary Examiner, Art Unit 1761