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 .
Status of Claims
Claims 1, 4, 6-8 and 10-12 are pending. Claims 11 and 12 are newly added.
Claims 2-3, 5 and 9 are canceled. Claim 1 is amended.
Claim 10 is withdrawn as being drawn to a non-elected invention, there being no linking claim.
Claims 1, 4 and 6-8 and 11-12 are examined on their merits.
Previous Rejections
Rejections and/or objections not reiterated from previous office actions are hereby withdrawn as are those rejections and/or objections expressly stated to be withdrawn. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application.
Rejections Withdrawn
Claim Rejections - 35 USC § 112(b)
In light of the amendments to the claims the rejection of claims 1, 5 and 8 under 35 U.S.C. 112(b), as being indefinite for failing to particularly point out and distinctly claim the subject matter which applicant regards as the invention is withdrawn.
In light of the amendments to the claims the rejection of claim 8 under 35 U.S.C. 112(b), as being indefinite for failing to particularly point out and distinctly claim the subject matter which applicant regards as the invention is withdrawn.
Rejections Maintained/New Rejections
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 of this title, 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.
The rejection of claim 1, 4 and 6-8 and newly applied to claims 11-12 under 35 U.S.C. 103 as being unpatentable over Blaker et al. WO 2010/058148 (5/27/2010) (2/24/2023 IDS) in view of Heath et al. AU 2014/342046 (4/21/2016) are maintained.
Blaker et al. (Blaker) teaches that its invention relates to a particle stabilized dispersed phase emulsion comprising a dispersed phase which constitutes 30% or more of the emulsion. Baker teaches that it relates to hydrophobized renewable organic nanoparticle stabilized emulsions templates, the uses thereof and polymeric foams produced from these emulsion. (See Abstract and page 1).
Specifically, Blaker teaches a water-in-oil emulsion comprising (b) silylated cellulose polymer which is a bacterial cellulose silylated with isopropyl dimethylchlorosilane, which comprise (a) oils such as fatty alcohols and pigments such as titania (i.e. TiO2). (See Blaker page 10, Example 1 and claims 9, 13 and 15.) Blaker teaches oil-in-water emulsions as well. (See Example 5).
The fatty alcohol is a natural fatty alcohol. (See Blaker claim 13 and page 5). Blaker teaches water-in-oil emulsions in which the water phase, the dispersed phase is 30% or more of the composition, preferably 30% to 95%. (See page 6). The oily phase can be 5-70% and hydrophobized organic particles are suspended in the continuous oily phase. (See page 6). 5-70% overlaps with the 75 to 99.9 wt% called in instant claim 1a for of the oil.
The oil can be a fatty alcohol from coconut oil such as lauryl alcohol. (See page 5). Lauryl alcohol is a fatty alcohol with 12 carbons. A C12 linear alcohol falls within the C8-30 linear alcohol called for in instant claim 1a. Blaker teaches a composition comprising the emulsion and the oil and polymer which has a carrier of water, which is a cosmetically acceptable carrier as called for in instant claim 6. (See Table 1).
Blaker teaches that the polymer can be bacterial cellulose. (See page 10-11 and Example 1). Blaker teaches that the hydrophobized bacterial cellulose can be present in an amount of 0.5 wt%. (See Figure 9 and Figure 9 description). Blaker teaches that 0.5 wt% hydrophobized bacterial cellulose can stabilize the emulsion. (See Figure 9 and Figure 9 description). 0.5 wt% falls within the 0.1 to 25 wt% called for in claim 1b.
The product of the reaction of the bacterial cellulose with isopropyl dimethylchlorosilane falls within the formula in claim 4 when R1 is methyl in two instances, methyl being also a C1 alkyl group as called for in instant claim 1 and 4. (See Example 1). In the third instance R1 is isopropyl which is a C3 alkyl group as called for in instant claim 1 and 4.
Titania (titanium dioxide) is a color ingredient and it is an inorganic pigment as called for in instant claim 6. It is titanium dioxide as called for in instant claims 7 and 8.
Blaker does not teach the molecular weight of the cellulose or iron oxide. This deficiency is made up for with the teachings of Heath et al.
Heath et al. (Heath) teaches hair cosmetic compositions for shaving that comprise water, one or more lipophilic skin conditioning agents, one or more thickening agents, one of more emulsifying agent and one or more lubricants. (See Abstract). The composition provides comfort and moisturization during the shave. (See Abstract).
Heath teaches that suitable lubricants include lubricous polymers that may have a molecular weight between about 300,000 and 15,000,000 Daltons and include celluloses. (See page 7). A molecular weight between about 300,000 and 15,000,000 Daltons overlaps with the molecular weight average of 50,000 to 1,500,000 called for in instant claim 1. Heath thus teaches that celluloses with a molecular weight of 300,000 and 15,000,000 are suitable for use in a cosmetic emulsion.
Heath teaches that opacifiers may be added to its compositions and titanium oxide and iron oxide are such opacifiers. Heath also teaches that combinations of opacifiers can be used. (See page 9, final paragraph). Iron oxide is called for in claim 8.
It would have been prima facie obvious for one of ordinary skill in the art before the earliest effective filing date making the Blaker water-in-oil emulsion of 0.5% silylated bacterial cellulose, titanium dioxide, water and 5-70% lauryl alcohol to use bacterial celluloses with a molecular weight of 300,000 and 15,000,000 as taught by Heath in order to have celluloses that are suitable for use in a cosmetic emulsion and that can be lubricious polymers that can moisturize the skin when these size celulloses are hydrophobized (silylated).
It would have been prima facie obvious for one of ordinary skill in the art before the earliest effective filing date making the Blaker water-in-oil emulsion of 0.5% silylated bacterial cellulose, titanium dioxide, water and 5-70% lauryl alcohol to add iron oxide in order to have an opacifier in the composition as taught by Heath.
Claims 1, 4, 6-8 and 11-12 are rejected under 35 U.S.C. 103 as being unpatentable over Fack et al. WO 2015/091337 (6/25/2015) in view of Blaker et al. WO 2010/058148 (5/27/2010) (2/24/2023 IDS) and Heath et al. AU 2014/342046 (4/21/2016)
Fack et al. (Fack) teaches a dying composition that is rich in fatty substances for dying keratin fibers. (See Abstract). Fack teaches that the total amount of fatty substances in the composition is greater than or equal to 70% by weight in the composition. (See Abstract). Fack teaches that the compositions have oxidative dyes and it is possible to add regular hair dyes to this composition. (See ).
Fack teaches that its composition is a very effective hair dye, especially for the coverage of white hairs, has uniformity to its dying, is easy to mix and apply, and minimizes damage to the keratin during the dying process. The composition has at least one fatty substance, at least one oxyethyleneated non-ionic surfactant, at least one cationic polymer, at least one cationic polymer and the total amount of fatty substances amounts to equal to or greater than 70%. The fatty substances are preferably oils and can be fatty alcohols. (See Fack claims 4 and 6). The composition can also contain cellulose derivatives. (See Fack claim 13).
Greater than 70% overlaps with the 75 to 99.9% called for in instant claim 1. Greater than 70% overlaps with the 80 to 99.7% called for in instant claim 11 and also overlaps with the 85 to 99.6% called for in instant claim 12. Fatty alcohols are called for in instant claim 1.
Fack teaches derivatized cellulose but does not teach a thickening polymer. This deficiency is made up for in the teachings of Blaker and Heath.
Blaker et al. (Blaker) teaches that its invention relates to a particle stabilized dispersed phase emulsion comprising a dispersed phase which constitutes 30% or more of the emulsion. Baker teaches that it relates to hydrophobized renewable organic nanoparticle stabilized emulsions templates, the uses thereof and polymeric foams produced from these emulsion. (See Abstract and page 1).
Specifically, Blaker teaches a water-in-oil emulsion comprising (b) silylated cellulose polymer which is a bacterial cellulose silylated with isopropyl dimethylchlorosilane, which comprise (a) oils such as fatty alcohols and pigments such as titania (i.e. TiO2). (See Blaker page 10, Example 1 and claims 9, 13 and 15.) Blaker teaches oil-in-water emulsions as well. (See Example 5).
Blaker teaches that the polymer can be bacterial cellulose. (See page 10-11 and Example 1). Blaker teaches that the hydrophobized bacterial cellulose can be present in an amount of 0.5 wt%. (See Figure 9 and Figure 9 description). Blaker teaches that 0.5 wt% hydrophobized bacterial cellulose can stabilize the emulsion. (See Figure 9 and Figure 9 description). 0.5 wt% falls within the 0.1 to 25 wt% called for in claim 1b. 0.5 wt% falls within the 0.3 to 20 wt% called for in claim 11. 0.5 wt% falls within the 0.4 to 15 wt% called for in claim 12.
The product of the reaction of the bacterial cellulose with isopropyl dimethylchlorosilane falls within the formula in claim 4 when R1 is methyl in two instances, methyl being also a C1 alkyl group as called for in instant claim 1 and 4. (See Example 1). In the third instance R1 is isopropyl which is a C3 alkyl group as called for in instant claim 1 and 4.
Titania (titanium dioxide) is a color ingredient and it is an inorganic pigment as called for in instant claim 6. It is titanium dioxide as called for in instant claims 7 and 8.
Heath et al. (Heath) teaches hair cosmetic compositions for shaving that comprise water, one or more lipophilic skin conditioning agents, one or more thickening agents, one of more emulsifying agent and one or more lubricants. (See Abstract). The composition provides comfort and moisturization during the shave. (See Abstract).
Heath teaches that suitable lubricants include lubricous polymers that may have a molecular weight between about 300,000 and 15,000,000 Daltons and include celluloses. (See page 7). A molecular weight between about 300,000 and 15,000,000 Daltons overlaps with the molecular weight average of 50,000 to 1,500,000 called for in instant claim 1. Heath thus teaches that celluloses with a molecular weight of 300,000 and 15,000,000 are suitable for use in a cosmetic emulsion.
Heath teaches that opacifiers may be added to its compositions and titanium oxide and iron oxide are such opacifiers. Heath also teaches that combinations of opacifiers can be used. (See page 9, final paragraph). Iron oxide is called for in claim 8.
It would have been prima facie obvious for one of ordinary skill in the art before the earliest effective filing date making the Fack composition of greater than 70 wt% fatty alcohol to add 0.5% silylated bacterial cellulose, titanium dioxide and make the fatty alcohol be lauryl alcohol as taught by Blaker to use bacterial celluloses with a molecular weight of 300,000 and 15,000,000 as taught by Heath in order to have celluloses that are suitable for use in a cosmetic emulsion and that can be lubricious polymers that can moisturize the skin when these size celulloses are hydrophobized (silylated).
It would have been prima facie obvious for one of ordinary skill in the art before the earliest effective filing date making the Fack composition of greater than 70 wt% fatty alcohol to add 0.5% silylated bacterial cellulose, titanium dioxide and make the fatty alcohol be lauryl alcohol to add iron oxide in order to have an opacifier in the composition as taught by Heath.
Response to Arguments
The comments and arguments dated April 10, 2026 have been reviewed and carefully considered.
Applicants note the amendments to the claims and assert that the indefiniteness rejections have been addressed with these amendments. The Office agrees and the indefiniteness rejections have been withdrawn above.
Applicants assert that Blaker teaches a water-in-oil emulsion that has a water phase comprising at least 30 vol% of the Blaker composition. The invention in claim 1 is an oil/polymer blend that comprises 75 to 99.9 wt% of an oil and 0.1 to 25 wt% of a silylated cellulose thickening polymer. Hence the invention in claim 1 leaves a maximum of 24.9% (25%) of the oil/polymer blend undefined but this is not enough room for at least 30 vol% water phase as required by the teachings of Blaker.
Applicants argue that there is no motivation to modify the teachings of Blaker to arrive at the claimed invention and reliance on Heath does not cure the deficiency in the teachings of Blaker.
Applicants’ obviousness arguments have been carefully reviewed and are not found to be persuasive. Applicants’ assertion that Blaker teaches a water-in-oil emulsion that has a water phase comprising at least 30 vol% of the Blaker composition is not found to be persuasive because Blaker does not require an aqueous phase of at least 30 wt%. Rather, Blaker requires the dispersed phase to be at least 30 wt% but does not require that the dispersed phase be water. Blaker teaches oil-in-water emulsions as well. (See Example 5). In some embodiments the dispersed phase is aqueous or water and in some embodiments the dispersed phase is oil.
Thus, Applicants arguments do not take into account all of the teachings of Blaker.
Additionally, Blaker teaches in terms of volume percentage while instant claim 1 is in terms of weight percentage. Claim 1 is directed to silicone fluids and silicone fluids can be heavier than water. The aqueous phase can also contain ingredients (hydrophilic ingredients) that make up the aqueous phase and take up considerable volume but do not take up much weight. Therefore, it is possible to have a dispersed aqueous phase that takes up 30% by volume of a composition but only takes up 25% of the composition by weight. Therefore, the teachings of Blaker do read on the invention as claimed.
Conclusion
Claims 1, 4, 6-8 and 11-12 are rejected.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SARAH CHICKOS whose telephone number is (571)270-3884. The examiner can normally be reached on M-F 9-6.
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, David Blanchard can be reached on 571-272-0827. 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.
/SARAH CHICKOS/
Examiner, Art Unit 1619
/DAVID J BLANCHARD/Supervisory Patent Examiner, Art Unit 1619
Prosecution Insights