DETAILED ACTION
Status of the Application
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claims 27-28 are withdrawn.
Claims 1-26 are pending and represent all claims currently under consideration.
Response to Amendment
The amendment filed 07/29/2025 has been entered.
Claims 1-2, 7, 9, 12-23, and 25-26 were amended. No new material was added.
Applicant’s amendments have overcome the previous objections to the specification, and claims 7 and 14-16, and the rejections under 35 U.S.C. 112(b) to claims 1-2, 7, 9, 17, 20-21, 24, and 26.
The rejection of claims 11-16, 18-19, 22-23, and 25 under 35 U.S.C. 112(b) has been maintained.
The rejection of claims 1-4, 6, 11, 17-18, and 20-26 on the ground of non-statutory double patenting has been maintained.
The rejections of claims 1-26 under 35 U.S.C. 103 has been modified and maintained.
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Should applicant desire to obtain the benefit of foreign priority under 35 U.S.C. 119(a)-(d) prior to declaration of an interference, a certified English translation of the foreign application must be submitted in reply to this action. 37 CFR 41.154(b) and 41.202(e).
Failure to provide a certified translation may result in no benefit being accorded for the non-English application.
Claims 1-26 are considered to have an effective filing date of 06/17/2021.
Information Disclosure Statement
The information disclosure statements filed 05/28/2025, 08/13/2025, and 08/26/2025 have been considered.
Response to Arguments
The Applicant’s Remarks and the Declaration under 37 CFR 1.132 filed 07/29/2025 is insufficient to overcome the rejection of claims 1-26 based upon Lu, further in view of Gros, as set forth in the last Office action because: the facts presented are not germane to the rejection at issue. The Declaration offers Comparative Examples 10-11 as evidence to overcome the rejection (Remarks, pages 14-15; Declaration, pages 1-2). However, Comparative Example 10 had a ratio of emollient:interface-active substance of 40:1, and Comparative Example 11 had a ratio of 2:3 (Declaration, page 2), which both fall outside of the claimed range. Lu exemplifies a composition comprising a ratio of di-propylene glycol (i.e., an emollient) to Pluronic® F 127 (i.e., a surfactant; Lu, column 1, line 53) of 4:12 or 1:3 (Lu, column 28, example 2), which lies within the claimed range. An affidavit or declaration under 37 CFR 1.132 must compare the claimed subject matter with the closest prior art to be effective to rebut a prima facie case of obviousness. See MPEP 716.02(e).
Regarding the rejection of claims 11-16, 18-19, 22-23, and 25 under 35 U.S.C. 112(b), Applicant argues that a person of ordinary skill in the art would understand what is meant by “dispensing vessel b3)” and “dispensing vessel b4)”. This argument is not persuasive, because “b3)” is used to define “any dispensing vessel” or “any further dispensing vessel” throughout the claims, suggesting one or more dispensing vessels would be referred to as “b3)”, while “b4)” is used to define an optional “dispensing vessel” or “further dispensing vessel”. It is not clear whether a “further dispensing vessel” would be considered to be “b3)” or “b4)”, as no distinction between the two is provided.
Applicant argues that Lu and Gros do not disclose a method as claimed. Specifically, Applicant states that Lu does not disclose a separate base mixture that is mixed with an active cosmetic ingredient and rather discloses thermo-reversible hydrogel compositions (Remarks, page 13). This argument is not persuasive, Lu teaches a gel form hydrogel is a preferred composition for cosmetic products (Lu, column 2, lines 38-39) and teaches a preparation wherein salicylic acid (i.e., the active cosmetic ingredient) is mixed into an already prepared homogenous solution (i.e., the base mixture; Lu, column 28, example 2). Further, as stated previously, Gros teaches a capsule 7 (i.e., vessel b1 comprising a base mixture as claimed; Gros, column 5, line 24) which houses a cosmetic oil (i.e., a suitable emollient as defined by the instant specification, page 4, line 28) or texturizing agent such as xanthan gum (i.e., a suitable rheology modifier as defined by the instant specification, page 17, line 20; Gros, column 5, line 21) and an emulsifier (i.e., an interface-active substance as defined by the instant specification, page 4, line 33; Gros, column 5, lines 17-19), which would form the “separate base mixture”, and a cosmetic active ingredient capsule 8 (Gros, column 5, line 27) and teaches forced flow of the content of the capsules (i.e., dispensing; Gros, column 5, lines 65-66) to create the cosmetic product from a mixture in the container 11 (Gros, column 6, line 30).
Applicant argues that Lu and Gros do not disclose the base mixture in the ratio as claimed (Remarks, page 13). This argument is not persuasive, because Lu teaches a cosmetic composition (i.e., formulation; Lu, abstract) comprising a cosmetic active agent (Lu, claim 8) and at least one from the group of an emollient, a surfactant (i.e., an interface-active substance as defined by the instant specification, page 4, line 33), and a rheology modifier (Lu, claim 11) in the claimed ratios as discussed below, resulting in the base mixture as claimed.
Applicant states that dipropylene glycol is not an emollient according to the present invention (Remarks, page 13-14). This argument is not persuasive, because dipropylene glycol is known in the art to be an emollient, as evidenced by Gray (US 10052357 B2; column 5, line 3).
Applicant argues that Klein and Sun do not provide any guidance or motivation to arrive at a method of producing a cosmetic formulation as claimed, and therefore, one of ordinary skill in the art would not have arrived at the claimed invention by combining the disclosures of Lu, Gros, Klein, and/or Sun (Remarks, page 14). This argument is not persuasive, because as stated previously, all the references are in the same field of preparation of cosmetic compositions. Lu and Gros teach the invention of the independent claim 1, and Lu teaches the preparation of such pharmaceutic compositions may be accomplished with reference to known methods in the industry (Lu, column 16, line 10). Gros and Klein both teach the methods offer the user the ability to choose a desired final composition (i.e., personalization; Gros, column 1, lines 26-37; Klein, column 1, lines 9-11). It would have been obvious to modify Gros to utilize additional dispensers as taught by Klein, because Klein teaches the amounts can all be formulated to meet the customer’s needs (Klein, column 12, line 13). Further, it would have been obvious to modify the bar code taught by Gros to utilize a QR code as taught by Sun, because Sun teaches a barcode and a QR code as alternative methods for controlling the cosmetic device (Sun, claim 3).
Maintained 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.
Claims 11-16, 18-19, 22-23, and 25 are 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.
Regarding claims 11-16, 18-19, 22-23, and 25, it is unclear what the difference is between the term “dispensing vessel b3)” and “dispensing vessel b4)”.
Maintained Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-4, 6, 11, 17-18, and 20-26 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 21, 24-25, 27, 31, 33, and 35-38 of copending Application No. 18/010,220 (reference application).
Although the claims at issue are not identical, they are not patentably distinct from each other. This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Regarding claim 1, the reference application teaches a method of producing a sunscreen (i.e., a cosmetic formulation) controllable by and/or according to the wishes of the end user of the sunscreen, in a device having a mixing device a) and at least one dispensing device b) equipped with at least 2 dispensing vessels, in which the base mixture is present in one of the dispensing vessels bl) and the active cosmetic ingredients suitable for personalization in the other of the dispensing vessels b2), in which the contents of the dispensing vessels bl) and b2) are emptied into the mixing device a) and mixed in the mixing device, wherein the contents of the dispensing vessel bl) comprising the base mixture are emptied into the mixing device together with at least one emollient, at least one interface-active substance and at least one UV filter, wherein the contents of the dispensing vessel bl) also comprise at least one rheology modifier (reference application, claim 21), wherein the ratio is as claimed (reference application, claim 27).
Regarding claim 2, the reference application teaches all the elements of the current invention as applied to claim 1. The reference application further teaches the base mixture comprises at least one emollient selected from the group formed by esters of C2-C12 dicarboxylic acids with linear or branched alcohols having 1 to 22 carbon atoms, mono- and/or dicarbonates of linear or branched C6-C22 fatty alcohols, hydrocarbons, esters of linear C6-C22 fatty acids with linear or branched C6-C22 fatty alcohols, liquid mono-/di-/triglyceride mixtures based on C6-C18 fatty acids, vegetable fats and oils, and Guerbet alcohols based on fatty alcohols having 6 to 18 carbon atoms (reference application, claim 24).
Regarding claim 3, the reference application teaches all the elements of the current invention as applied to claim 1. The reference application further teaches the base mixture comprises at least one from the group comprising nonionic and anionic interface-active substance (reference application, claim 25).
Regarding claim 4, the reference application teaches all the elements of the current invention as applied to claim 1. The reference application further teaches the base mixture comprises at least one from the group comprising cationic and amphoteric (i.e., ampholytic) interface-active substance (reference application, claim 25).
Regarding claim 6, the reference application teaches all the elements of the current invention as applied to claim 1. The reference application further teaches the base mixture has a ratio of emollient:(interface-active substance + rheology modifier) in the range from 1:10 to 10:1 (reference application, claim 27).
Regarding claim 11, the reference application teaches all the elements of the current invention as applied to claim 1. The reference application further teaches the dispensing device is equipped with a further dispensing vessel b3) and optionally dispensing vessel b4) (reference application, claim 31).
Regarding claim 17, the reference application teaches all the elements of the current invention as applied to claim 1. The reference application further teaches the device additionally includes a water tank c) (reference application, claim 33).
Regarding claim 18, the reference application teaches all the elements of the current invention as applied to claim 17. The reference application further teaches the contents from dispensing vessels bl) and b2) and optionally b3) and optionally b4) are emptied into the mixing device a) and mixed with the water from the water tank c) (reference application, claim 33).
Regarding claim 20, the reference application teaches all the elements of the current invention as applied to claim 1. The reference application further teaches the mixing in the mixing device a) is conducted in a mixing vessel a1) having a lowerable (i.e., retractable) stirrer at the base of the mixing vessel (reference application, claim 35).
Regarding claim 21, the reference application teaches all the elements of the current invention as applied to claim 18. The reference application further teaches the mixing in the mixing device a) is conducted in a mixing vessel a1) where the stirrer at the base of the mixing vessel a1) is lowered (i.e., retracted) and the mixing vessel is closed (reference application, claim 35).
Regarding claim 22, the reference application teaches all the elements of the current invention as applied to claim 1. The reference application further teaches the dispensing vessels b1), b2) and any b3) and optionally b4), before being emptied into the mixing vessel a1), are heated in a heating system d) (reference application, claim 36).
Regarding claim 23, the reference application teaches all the elements of the current invention as applied to claim 11. The reference application further teaches the dispensing vessels b1), b2), any b3) and any b4) are capsules (reference application, claim 37).
Regarding claim 24, the reference application teaches all the elements of the current invention as applied to claim 1. The reference application further teaches the device is controlled by information or data transmitted electronically to the device or end user, preferably by means of a QR code (reference application, claim 38).
Regarding claim 25, the reference application teaches all the elements of the current invention as applied to claim 1. The reference application further teaches the end user provides the dispensing device b) with the dispensing vessels b1), b2) and any b3) and optionally b4), preferably in accordance with the information or data transmitted electronically to the end user (reference application, claim 38).
Regarding claim 26, the reference application teaches all the elements of the current invention as applied to claim 1. The reference application further teaches the device is controlled by information or data transmitted electronically to the device or end user, preferably by means of a QR code and the method temperatures of the heating system for the dispensing vessels and/or the amounts of water are controlled by means of the water tank via information/data on the outer wall of the dispensing vessels (reference application, claim 38).
Modified/Maintained 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.
Claims 1-10, 17, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Lu (US 9592295 B2), further in view of Gros (US 11654406 B2). Lu and Gros were previously cited by the Examiner.
Regarding claim 1, Lu teaches a cosmetic composition (i.e., formulation; Lu, abstract) comprising a cosmetic active agent (Lu, claim 8) and at least one from the group of an emollient, a surfactant (i.e., an interface-active substance as defined by the instant specification, page 4, line 33), and a rheology modifier (Lu, claim 11), and exemplifies a composition comprising a ratio of di-propylene glycol (i.e., an emollient) to Pluronic® F 127 (i.e., a surfactant; Lu, column 1, line 53) of 4:12 or 1:3 (Lu, column 28, example 2), which lies within the claimed range. Lu does not teach the specific method of producing such a composition, but does teach the preparation of such pharmaceutic compositions may be accomplished with reference to known methods in the industry (Lu, column 16, line 10).
Gros teaches the production of a cosmetic product (i.e., formulation) using a mixing system (Gros, abstract) which is controllable by a user (Gros, column 9, lines 3-5). Gros teaches the mixing system comprises a mixing device (Gros, claim 1) and a container for dispensing the cosmetic product (i.e., a dispensing device; Gros, column 11, lines 42-45). Gros teaches a capsule 7 (i.e., vessel b1 comprising a base mixture as claimed; Gros, column 5, line 24) which houses a cosmetic oil (i.e., a suitable emollient as defined by the instant specification, page 4, line 28) or texturizing agent such as xanthan gum (i.e., a suitable rheology modifier as defined by the instant specification, page 17, line 20; Gros, column 5, line 21) and an emulsifier (i.e., an interface-active substance as defined by the instant specification, page 4, line 33; Gros, column 5, lines 17-19) and a cosmetic active ingredient capsule 8 (i.e., vessel b2 as claimed; Gros, column 5, line 27) and teaches forced flow of the content of the capsules (i.e., dispensing; Gros, column 5, lines 65-66) to create the cosmetic product from a mixture in the container 11 (i.e., mixed in the mixing device; Gros, column 6, line 30). As above, Gros teaches a cosmetic oil (i.e., a suitable emollient as defined by the instant specification, page 4, line 28) or texturizing agent such as xanthan gum (i.e., a suitable rheology modifier as defined by the instant specification, page 17, line 20; Gros, column 5, line 21) as reasonable alternatives. It would be prima facie obvious to combine equivalents taught by the prior art to be useful for the same purpose in order to form a composition to be used for the very same purpose. See MPEP § 2144.06(I).
Lu and Gros are considered to be analogous to the claimed invention, because both are in the same field of cosmetic preparations. It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the teachings of Lu to utilize the production method taught by Gros, because Lu teaches the preparation of such pharmaceutic compositions may be accomplished with reference to known methods in the industry (Lu, column 16, line 10) and Gros teaches the method to offer the user the ability to choose a desired final composition (i.e., controllable by the end user; Gros, column 1, lines 26-37).
Regarding claim 2, Lu and Gros together teach all the elements of the current invention as applied to claim 1. Lu further teaches emollients to include hydrocarbons (Lu, column 23, line 43).
Regarding claim 3, Lu and Gros together teach all the elements of the current invention as applied to claim 1. Lu teaches the surfactant (i.e., interface-active substance) can be a nonionic or an anionic surfactant (Lu, column 23, lines 50-51).
Regarding claim 4, Lu and Gros together teach all the elements of the current invention as applied to claim 1. Lu teaches the surfactant (i.e., interface-active substance) can be a cationic or ampholytic surfactant (Lu, column 23, lines 50-51).
Regarding claim 5, Lu and Gros together teach all the elements of the current invention as applied to claim 1. Lu teaches rheology modifiers to include carbomers (i.e., an anionic polymer suitable rheology modifier as defined by the instant specification, page 19, lines 3-5; Lu, column 24, line 9).
Regarding claim 6, Lu and Gros together teach all the elements of the current invention as applied to claim 1. Lu teaches a composition comprising a ratio of di-propylene glycol (i.e., an emollient) to Pluronic® F 127 (i.e., a surfactant; Lu, column 1, line 53) and Laponite® XLG (i.e., a rheology modifier; Lu, column 24, line 11) of 3:(8+2) or 3:10 (Lu, column 30, example 6), which lies within the claimed range.
Regarding claim 7, Lu and Gros together teach all the elements of the current invention as applied to claim 1. Lu teaches a composition (Lu, column 30, example 6) comprising di-propylene glycol (i.e., an emollient) in 3% by weight, Pluronic® F 127 (i.e., a surfactant; Lu, column 1, line 53) in 8% by weight, Laponite® XLG (i.e., a rheology modifier; Lu, column 24, line 11) in 2% by weight, Vitamin E (i.e., a cosmetic active ingredient; Lu, column 18, line 62) in 0.1% by weight, preservatives (i.e., cosmetic auxiliaries and additives as defined in the instant specification, page 22, line 27) in 0.3%, and water in 70% by weight (Lu, column 30, example 6), which all lie within the claimed weight ranges
Regarding claim 8, Lu and Gros together teach all the elements of the current invention as applied to claim 1. Lu teaches a composition comprising di-propylene glycol (i.e., an emollient) in 3% by weight, Pluronic® F 127 (i.e., a surfactant; Lu, column 1, line 53) in 8% by weight, Laponite® XLG (i.e., a rheology modifier; Lu, column 24, line 11) in 2% by weight (i.e., all the components of the base mixture of claim 1), resulting in a total of 15% by weight, which lies within the claimed range. Gros teaches a capsule 7 (i.e., vessel b1 comprising a base mixture as claimed; Gros, column 5, line 24) which houses a cosmetic oil (i.e., a suitable emollient as defined by the instant specification, page 4, line 28) or texturizing agent such as xanthan gum (i.e., a suitable rheology modifier as defined by the instant specification, page 17, line 20; Gros, column 5, line 21) and an emulsifier (i.e., an interface-active substance as defined by the instant specification, page 4, line 33; Gros, column 5, lines 17-19). It would have been prima facie obvious to one of ordinary skill in the art to use the ingredients in the amounts taught by Lu in the base mixture of vessel b1 as taught by Gros, because Lu teaches the preparation of such pharmaceutic compositions may be accomplished with reference to known methods in the industry (Lu, column 16, line 10) and Gros teaches the method to offer the user the ability to choose a desired final composition (i.e., personalization; Gros, column 1, lines 26-37).
Regarding claim 9, Lu and Gros together teach all the elements of the current invention as applied to claim 1. Lu teaches a composition comprising menthol (i.e., a perfume oil as defined by the instant specification, page 33, line 6; Lu, column 31, example 9) as a therapeutic (i.e., active) ingredient (Lu, column 17, line 27). Gros teaches a cosmetic active ingredient capsule 8 (i.e., vessel b2 as claimed; Gros, column 5, line 27). It would have been prima facie obvious to one of ordinary skill in the art to use the ingredients in the amounts taught by Lu in the active ingredient mixture of vessel b2 as taught by Gros, because Lu teaches the preparation of such pharmaceutic compositions may be accomplished with reference to known methods in the industry (Lu, column 16, line 10) and Gros teaches the method to offer the user the ability to choose a desired final composition (i.e., personalization; Gros, column 1, lines 26-37).
Regarding claim 10, Lu and Gros together teach all the elements of the current invention as applied to claim 1. Lu teaches a composition comprising minoxidil (i.e., an active) as a therapeutic (i.e., active) ingredient (Lu, column 17, line 15) in 1.5% (Lu, column 33, example 14), which lies within the claimed range. Gros teaches a cosmetic active ingredient capsule 8 (i.e., vessel b2 as claimed; Gros, column 5, line 27). It would have been prima facie obvious to one of ordinary skill in the art to use the ingredients in the amounts taught by Lu in the active ingredient mixture of vessel b2 as taught by Gros, because Lu teaches the preparation of such pharmaceutic compositions may be accomplished with reference to known methods in the industry (Lu, column 16, line 10) and Gros teaches the method to offer the user the ability to choose a desired final composition (i.e., personalization; Gros, column 1, lines 26-37).
Regarding claim 17, Lu and Gros together teach all the elements of the current invention as applied to claim 1. As above, Lu teaches the preparation of such pharmaceutic compositions may be accomplished with reference to known methods in the industry (Lu, column 16, line 10) and Gros teaches the system for manufacturing the cosmetic product comprises a liquid reservoir for water (i.e., a water tank; Gros, column 1, line 40). It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the teachings of Lu to utilize the production method taught by Gros, because Lu teaches the preparation of such pharmaceutic compositions may be accomplished with reference to known methods in the industry (Lu, column 16, line 10) and Gros teaches the method to offer the user the ability to choose a desired final composition (i.e., personalization; Gros, column 1, lines 26-37).
Regarding claim 20, Lu and Gros together teach all the elements of the current invention as applied to claim 1. As above, Lu teaches the preparation of such pharmaceutic compositions may be accomplished with reference to known methods in the industry (Lu, column 16, line 10) and Gros teaches a mixing device comprising a controlled moving plate 4 and a mixing member 12 (i.e., a stirrer), a container 11 (i.e., a mixing vessel a1), and a support base 25 (Gros, column 6, lines 20-44). Gros teaches the mixing member 12 connects to the support base 25 (Gros, figure 4) and to the bottom of the container 11 (Gros, figure 3) and that the base is translatable (i.e., retractable) to bring the opening of the container 11 closer to the moving plate 4 (Gros, column 6, lines 54-57), and further teaches the closing of the container 11 (Gros, column 11, line 46). It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the teachings of Lu to utilize the production method taught by Gros, because Lu teaches the preparation of such pharmaceutic compositions may be accomplished with reference to known methods in the industry (Lu, column 16, line 10) and Gros teaches the method to offer the user the ability to choose a desired final composition (i.e., personalization; Gros, column 1, lines 26-37).
Claims 11-16, 18-19, 21-23, and 25 are rejected under 35 U.S.C. 103 as being unpatentable over Lu (US 9592295 B2) and Gros (US 11654406 B2) as applied to claims 1-10, 17, and 20, further in view of Klein (US 5163010 A). Lu, Gros, and Klein were previously cited by the Examiner.
Regarding claim 11, Lu and Gros together teach all the elements of the current invention as applied to claim 1. Lu and Gros do not teach four dispensing vessels. Klein teaches an apparatus (i.e., device) for formulating a cosmetic product (Klein, abstract) comprising four reservoirs 22 in the dispensing means 18 (i.e., four dispensing vessels as claimed; Klein, figure 1; column 3, lines 6-9).
Lu, Gros, and Klein are considered to be analogous to the claimed invention, because all are in the same field of cosmetic preparations. It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the teachings of Lu to utilize the production methods taught by Gros and Klein, because Lu teaches the preparation of such pharmaceutic compositions may be accomplished with reference to known methods in the industry (Lu, column 16, line 10) and Gros and Klein both teach the methods offer the user the ability to choose a desired final composition (i.e., personalization; Gros, column 1, lines 26-37; Klein, column 1, lines 9-11). It would have been obvious to modify Gros to utilize additional dispensers as taught by Klein, because Klein teaches the amounts of the four solutions being dispensed can all be formulated to meet the customer’s needs (Klein, column 12, line 13).
Regarding claim 12, Lu, Gros, and Klein together teach all the elements of the current invention as applied to claim 11. Lu teaches a composition comprising menthol (i.e., a perfume oil as defined by the instant specification, page 33, line 6; Lu, column 31, example 9) as a therapeutic (i.e., active) ingredient (Lu, column 17, line 27). Klein teaches the mixtures in the four reservoirs each contain chemically active agents (Klein, column 4, line 34). It would have been prima facie obvious to one of ordinary skill in the art to use the ingredients taught by Lu in the active ingredient mixture of any of the four reservoirs as taught by Klein, because Lu teaches the preparation of such pharmaceutic compositions may be accomplished with reference to known methods in the industry (Lu, column 16, line 10) and Gros and both teach the methods offer the user the ability to choose a desired final composition (i.e., personalization; Gros, column 1, lines 26-37; Klein, column 1, lines 9-11).
Regarding claim 13, Lu, Gros, and Klein together teach all the elements of the current invention as applied to claim 11. Lu teaches a composition comprising menthol in 0.5% (i.e., a perfume oil as defined by the instant specification, page 33, line 6; Lu, column 31, example 9) as a therapeutic (i.e., active) ingredient (Lu, column 17, line 27), which lies within the claimed range. Klein teaches the mixtures in the four reservoirs each contain chemically active agents (Klein, column 4, line 34). It would have been prima facie obvious to one of ordinary skill in the art to use the ingredients taught by Lu in the claimed amount in the active ingredient mixture of any of the four reservoirs as taught by Klein, because Lu teaches the preparation of such pharmaceutic compositions may be accomplished with reference to known methods in the industry (Lu, column 16, line 10) and Gros and both teach the methods offer the user the ability to choose a desired final composition (i.e., personalization; Gros, column 1, lines 26-37; Klein, column 1, lines 9-11).
Regarding claim 14, Lu and Gros together teach all the elements of the current invention as applied to claim 1. Lu teaches a composition comprising an emollient in preferably 0.01-20% (Lu, column 23, lines 19-20), overlapping the claimed range of 10-60% by weight; a humectant in preferably about 0.5-25% which can be sorbitol (i.e., a suitable nonionic interface-active substance as defined in the instant specification, page 9, line 24; Lu, column 22, lines 49-51), overlapping the claimed range of 1-20% by weight; a surfactant which can be anionic in preferably 0.1-10% (Lu, column 23, lines 49-59), overlapping the claimed range of 1-20% by weight; a rheology modifier in preferably 0.01-6% (Lu, column 24, lines 6-8), overlapping the claimed range of 1.5-8%; and a cosmetic active ingredient which can be a UV absorbent (i.e., UV filter; Lu, column 19, line 44) in preferably about 0.1-50% (Lu, column 18, lines 50-51), overlapping the claimed range of 5-50%. The combined ranges of the anionic and nonionic interface-active substances of 0.6-35% overlaps with the claimed range of 3-30%. 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(I). Lu teaches preservatives (i.e., cosmetic auxiliaries and additives as defined in the instant specification, page 22, line 27) in 0.2% as an example (Lu, column 29, example 3), which lies within the claimed range; and water in 40.1% as an example (Lu, column 30, example 8), which is reasonably close to the claimed range of 0-40%. A prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. See MPEP §2144.05(I). Gros does not teach further dispensing vessels b3 and b4. As above, Klein teaches four reservoirs 22 in the dispensing means 18 (i.e., four dispensing vessels as claimed; Klein, figure 1; column 3, lines 6-9) and further teaches each solution is capable of interacting to form a cosmetic product (Klein, column 14, lines 57-60), suggesting any of the ingredients could be placed into any of the containers. It would have been obvious to modify the method taught by Gros to utilize additional dispensers (i.e., capsules) as taught by Klein, because Klein teaches the amounts of the four solutions being dispensed can all be formulated to meet the customer’s needs (Klein, column 12, line 13).
Regarding claim 15, Lu and Gros together teach all the elements of the current invention as applied to claim 1. Lu teaches a composition comprising an emollient in preferably 0.01-20% (Lu, column 23, lines 19-20), overlapping the claimed range of 15-75% by weight; a humectant in preferably about 0.5-25% which can be sorbitol (i.e., a suitable nonionic interface-active substance as defined in the instant specification, page 9, line 24; Lu, column 22, lines 49-51), overlapping the claimed range of 0.5-15% by weight; a surfactant which can be anionic in preferably 0.1-10% (Lu, column 23, lines 49-59), overlapping the claimed range of 0.5-15% by weight; a rheology modifier in preferably 0.01-6% (Lu, column 24, lines 6-8), overlapping the claimed range of 2-30%; a cosmetic active ingredient in preferably about 0.1-50% (Lu, column 18, lines 50-51), overlapping the claimed range of 0-25%; preservatives (i.e., cosmetic auxiliaries and additives as defined in the instant specification, page 22, line 27) in 0.2% as an example (Lu, column 29, example 3), which lies within the claimed range; and water in 40.1% as an example (Lu, column 30, example 8), which lies within the claimed range. The combined ranges of the anionic and nonionic interface-active substances of 0.6-35% overlaps the claimed range of 1-20%. 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(I). Gros does not teach further dispensing vessels b3 and b4 As above, Klein teaches four reservoirs 22 in the dispensing means 18 (i.e., four dispensing vessels as claimed; Klein, figure 1; column 3, lines 6-9) and further teaches each solution is capable of interacting to form a cosmetic product (Klein, column 14, lines 57-60), suggesting any of the ingredients could be placed into any of the containers. It would have been obvious to modify the method taught by Gros to utilize additional dispensers (i.e., capsules) as taught by Klein, because Klein teaches the amounts of the four solutions being dispensed can all be formulated to meet the customer’s needs (Klein, column 12, line 13).
Regarding claim 16, Lu and Gros together teach all the elements of the current invention as applied to claim 1. Lu teaches a composition comprising an emollient in preferably 0.01-20% (Lu, column 23, lines 19-20), overlapping the claimed range of 0.5-10% by weight; a surfactant (i.e., an interface-active substance) in preferably 0.1-10% (Lu, column 23, lines 49-59), overlapping the claimed range of 3-20% by weight; a rheology modifier in preferably 0.01-6% (Lu, column 24, lines 6-8), overlapping the claimed range of 3-20%; a cosmetic active ingredient in preferably about 0.1-50% (Lu, column 18, lines 50-51), overlapping the claimed range of 0-25%; preservatives (i.e., cosmetic auxiliaries and additives as defined in the instant specification, page 22, line 27) in 0.2% as an example (Lu, column 29, example 3), which lies within the claimed range; and water in 40.1% as an example (Lu, column 30, example 8), which lies within the claimed range. 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(I). Gros does not teach further dispensing vessels b3 and b4 As above, Klein teaches four reservoirs 22 in the dispensing means 18 (i.e., four dispensing vessels as claimed; Klein, figure 1; column 3, lines 6-9) and further teaches each solution is capable of interacting to form a cosmetic product (Klein, column 14, lines 57-60), suggesting any of the ingredients could be placed into any of the containers. It would have been obvious to modify the method taught by Gros to utilize additional dispensers (i.e., capsules) as taught by Klein, because Klein teaches the amounts of the four solutions being dispensed can all be formulated to meet the customer’s needs (Klein, column 12, line 13).
Regarding claim 18, Lu and Gros together teach all the elements of the current invention as applied to claim 1. As above, Lu and Gros do not teach four dispensing vessels, but Gros does teach the system for manufacturing the cosmetic product comprises a liquid reservoir for water (i.e., a water tank; Gros, column 1, line 40) and the contents of the capsules 7 and 8 are transferred (i.e., emptied into) to the mixing device container 11 with water (Gros, column 6, lines 25-26). As above, Klein teaches four reservoirs 22 in the dispensing means 18 (i.e., four dispensing vessels as claimed; Klein, figure 1; column 3, lines 6-9). It would have been obvious to modify the method taught by Gros to utilize additional dispensers (i.e., capsules) as taught by Klein, because Klein teaches the amounts of the four solutions being dispensed can all be formulated to meet the customer’s needs (Klein, column 12, line 13).
Regarding claim 19, Lu and Gros together teach all the elements of the current invention as applied to claim 1. As above, Lu and Gros do not teach four dispensing vessels, but Lu does teach water in 40.1% (Lu, column 30, example 8), which lies within the claimed range of at least 35% by weight and Gros teaches the system for manufacturing the cosmetic product comprises a liquid reservoir for water (i.e., a water tank; Gros, column 1, line 40) and the contents of the capsules 7 and 8 are transferred (i.e., emptied into) to the mixing device container 11 with water (Gros, column 6, lines 25-26). As above, Klein teaches four reservoirs 22 in the dispensing means 18 (i.e., four dispensing vessels as claimed; Klein, figure 1; column 3, lines 6-9). It would have been obvious to modify the method taught by Lu and Gros to utilize additional dispensers (i.e., capsules) as taught by Klein, because Klein teaches the amounts of the four solutions being dispensed can all be formulated to meet the customer’s needs (Klein, column 12, line 13).
Regarding claim 21, Lu and Gros together teach all the elements of the current invention as applied to claim 18. As above, Lu teaches the preparation of such pharmaceutic compositions may be accomplished with reference to known methods in the industry (Lu, column 16, line 10) and Gros teaches a mixing device comprising a controlled moving plate 4 and a mixing member 12 (i.e., a stirrer), a container 11 (i.e., a mixing vessel a1), and a support base 25 (Gros, column 6, lines 20-44). Gros teaches the mixing member 12 connects to the support base 25 (Gros, figure 4) and to the bottom of the container 11 (Gros, figure 3) and that the base is translatable (i.e., retractable) to bring the opening of the container 11 closer to the moving plate 4 (Gros, column 6, lines 54-57), and further teaches the closing of the container 11 (Gros, column 11, line 46). Lu and Gros do not teach four dispensing vessels, but Gros does teach the dispensing vessels as capsules (Gros, column 5, lines 65-66). Klein teaches an apparatus (i.e., device) for formulating a cosmetic product (Klein, abstract) comprising four reservoirs 22 in the dispensing means 18 (i.e., four dispensing vessels as claimed; Klein, figure 1; column 3, lines 6-9). It would have been obvious to modify the method taught by Gros to utilize additional dispensers (i.e., capsules) as taught by Klein, because Klein teaches the amounts of the four solutions being dispensed can all be formulated to meet the customer’s needs (Klein, column 12, line 13).
Regarding claim 22, Lu and Gros together teach all the elements of the current invention as applied to claim 1. As above, Lu and Gros do not teach four dispensing vessels, but Gros does teach the system for manufacturing the cosmetic product comprises a liquid reservoir for water (i.e., a water tank; Gros, column 1, line 40) and the contents of the capsules 7 and 8 are transferred (i.e., emptied into) to the mixing device container 11 with water (Gros, column 6, lines 25-26). Gros further teaches a heater arranged such that the capsule is heated when housed in the capsule compartment before expulsion of the content (i.e., the capsule compartment is a heating system and the composition is heated before being emptied into a mixing vessel; Gros, column 12, lines 47-53). As above, Klein teaches four reservoirs 22 in the dispensing means 18 (i.e., four dispensing vessels as claimed; Klein, figure 1; column 3, lines 6-9). It would have been obvious to modify the method taught by Gros to utilize additional dispensers (i.e., capsules) as taught by Klein, because Klein teaches the amounts of the four solutions being dispensed can all be formulated to meet the customer’s needs (Klein, column 12, line 13).
Regarding claim 23, Lu, Gros, and Klein together teach all the elements of the current invention as applied to claim 11. As above, Lu and Gros do not teach four dispensing vessels, but Gros does teach the dispensing vessels as capsules (Gros, column 5, lines 65-66). Klein teaches an apparatus (i.e., device) for formulating a cosmetic product (Klein, abstract) comprising four reservoirs 22 in the dispensing means 18 (i.e., four dispensing vessels as claimed; Klein, figure 1; column 3, lines 6-9). It would have been obvious to modify the method taught by Gros to utilize additional dispensers (i.e., capsules) as taught by Klein, because Klein teaches the amounts of the four solutions being dispensed can all be formulated to meet the customer’s needs (Klein, column 12, line 13).
Regarding claim 25, Lu and Gros together teach all the elements of the current invention as applied to claim 1. Gros teaches capsules 7 (i.e., vessel b1 comprising a base mixture as claimed; Gros, column 5, line 24) and 8 (i.e., vessel b2 as claimed; Gros, column 5, line 27) and teaches forced flow of the content of the capsules (i.e., dispensing; Gros, column 5, lines 65-66). Gros further teaches the user houses the capsule 7 (Gros, column 8, line 53) and capsule 8 in the appropriate support (i.e., the end user provides the dispensing device with the dispensing vessels; Gros, column 8, line 65). Gros further teaches the system for manufacturing the cosmetic product comprises a bar code or any other identification means able to be read by a detection means in order to determine the type and amount of each ingredient (i.e., in accordance with data transmitted electronically; Gros, column 9, lines 14-22). As above, Lu and Gros do not teach four dispensing vessels as claimed. Klein, however, teaches four reservoirs 22 in the dispensing means 18 (i.e., four dispensing vessels as claimed; Klein, figure 1; column 3, lines 6-9). It would have been obvious to modify the method taught by Gros to utilize additional dispensers (i.e., capsules) as taught by Klein, because Klein teaches the amounts of the four solutions being dispensed can all be formulated to meet the customer’s needs (Klein, column 12, line 13).
Claims 24 and 26 are rejected under 35 U.S.C. 103 as being unpatentable over Lu (US 9592295 B2) and Gros (US 11654406 B2) as applied to claims 1-10, 17, and 20, further in view of Sun (KR 20190058953 A). Lu, Gros, and Sun were previously cited by the Examiner.
Regarding claim 24, Lu and Gros together teach all the elements of the current invention as applied to claim 1. As above, Lu teaches the preparation of such pharmaceutic compositions may be accomplished with reference to known methods in the industry (Lu, column 16, line 10) and Gros teaches the system for manufacturing the cosmetic product comprises a bar code or any other identification means able to be read by a detection means in order to determine the type and amount of each ingredient (Gros, column 9, lines 14-22), but does not specifically state the code is a QR code. Sun teaches an apparatus for manufacturing customized cosmetics wherein ingredients are injected and stirred based on user selection (Sun, abstract). Sun teaches the user can control the apparatus (i.e., device) using a barcode or QR code (Sun, claim 3).
Lu, Gros, and Sun are considered to be analogous to the claimed invention, because all are in the same field of cosmetic preparations. It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the teachings of Lu to utilize the production methods taught by Gros, because Lu teaches the preparation of such pharmaceutic compositions may be accomplished with reference to known methods in the industry (Lu, column 16, line 10) and Gros teaches the method offers the user the ability to choose a desired final composition (i.e., personalization; Gros, column 1, lines 26-37). It would have been obvious to modify the bar code taught by Gros to utilize a QR code as taught by Sun, because Sun teaches a barcode and a QR code as alternative methods for controlling the cosmetic device (Sun, claim 3).
Regarding claim 26, Lu and Gros together teach all the elements of the current invention as applied to claim 1. Gros teaches the system for manufacturing the cosmetic product comprises a liquid reservoir for water (i.e., a water tank; Gros, column 1, line 40) and the contents of the capsules 7 and 8 are transferred (i.e., emptied into) to the mixing device container 11 with water (Gros, column 6, lines 25-26). Gros further teaches a heater arranged such that the capsule is heated when housed in the capsule compartment before expulsion of the content (i.e., the capsule compartment is a heating system and the composition is heated before being emptied into a mixing vessel; Gros, column 12, lines 47-53). Gros further teaches the barcode allows the system to calculate the necessary vo