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 .
Formal Matters
Receipt of Applicant’s response dated 02/24/2026 is acknowledged.
Claims 1-12 are pending.
Claims 1-3, 6, and 9 are amended.
Claims 9-10 remain withdrawn from consideration as being drawn to a nonelected invention.
Claims 4 and 11 remain withdrawn from consideration as being drawn to a nonelected species.
Claims 1-3, 5-8, and 12 are under consideration in the instant Office action to the extent of the elected species, i.e., the at least one hydroxyl compound selected from polyols, glycol ethers and mixtures thereof is glycerol, the fillers comprising the particulate solid phase is hydrophilic treated pigments, the at least one oil comprising the oily phase is an undecane-tridecane mixture, the suspending agents is hectorite, the cohesion agents is fatty esters, and the composition is in the form of a protective foundation powder.
OBJECTIONS/REJECTIONS WITHDRAWN
Specification
The objections to the abstract set forth in the Office action dated 11/25/2025 have been withdrawn in light of Applicant’s amendments to the abstract.
Claim Objections
The objections to claims 1-3 and 6 set forth in the Office action dated 11/25/2025 have been withdrawn in light of Applicant’s amendments to the claims.
Claim Rejections - 35 USC § 112
The indefiniteness rejections set forth in the Office action dated 11/25/2025 have been withdrawn in light of Applicant’s amendments to the claims.
Claim Rejections - 35 USC § 103
The obviousness rejections of claims 1-3, 5-7, and 12 over Zamyatin et al in view of Dumousseaux et al and of claim 8 over Zamyatin et al in view of Dumousseaux et al and further in view of Yang et al set forth in the Office action dated 11/25/2025 have been withdrawn in light of Applicant’s amendments to the claims and in favor of the new grounds of rejection below as necessitated by Applicant’s amendments to the claims.
Double Patenting
The provisional nonstatutory double patenting rejection over claims 1-8, 12, and 14-15 of copending Application No. 18/027,156 in view of Zamyatin et al and Dumousseaux et al is hereby withdrawn in light of Applicant’s filing of the terminal disclaimer dated 02/24/2026 and the approval of said terminal disclaimer dated 03/17/2026.
NEW GROUNDS OF REJECTION
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.
Claims 1-3, 5-7, and 12 are rejected under 35 U.S.C. 103 as being unpatentable over Zamyatin et al (US 2007/0218024 A1, published 09/20/2007, cited in Notice of References Cited 11/25/2025) in view of Dumousseaux et al (FR 2952822 A1, published 05/27/2011, cited in Notice of References Cited 11/25/2025).
Note: The instant claims are being examined to the extent of the elected species, i.e., the at least one hydroxyl compound selected from polyols, glycol ethers and mixtures thereof is glycerol, the fillers comprising the particulate solid phase is hydrophilic treated pigments, the at least one oil comprising the oily phase is an undecane-tridecane mixture, the suspending agents is hectorite, the cohesion agents is fatty esters, and the composition is in the form of a protective foundation powder.
Zamyatin et al teach a powdered water cosmetic composition, wherein ‘powdered water composition’ refers to a composition that exists in the dry powder form yet contains appreciable amounts of water, suitable for use on keratin surfaces i.e. the skin, lips, or lashes as lipsticks, eye shadows, foundations, mascaras, eye liners, or powders (See entire document, e.g., Abstract, [0002], [0008]-[0009]).
The powdered water cosmetic composition may comprise a water phase, an oil phase, and a particulate phase (e.g., Abstract, [0010], [0035]).
The powdered water cosmetic composition generally contains from about 1-85%, preferably from about 2-60%, more preferably from about 5-55% by weight water (e.g., [0022]). The powdered water cosmetic composition may comprise one or more humectants or stabilizers in the water phase from about 0.01-30%, preferably 0.5-25%, more preferably 1-20% by weight of the total composition, wherein glycerin (i.e., glycerol) is exemplified in a powdered water cosmetic composition suitable as a face powder or foundation makeup (e.g., [0056], [0065]).
The powdered water cosmetic composition comprises activatable pigments which may be in the particulate phase, that may be treated with materials hydrophilic in character (e.g., [0029], [0035]). Particularly preferred is where the composition contains activatable water soluble iron oxide pigments, which are coated or treated with galactoarabinan, which is a polysaccharide obtained from the extraction of the larch tree Larix and such pigments are suspending in the particle phase of the dry water composition; such pigments are available from Color Techniques under the GA series, e.g., a suitable red iron oxide is GA-7293 hydrophilic red iron oxide sold by Color Techniques (e.g., [0041]).
The powdered water cosmetic composition may comprise non-activatable powders including hectorite, wherein ‘non-activatable’ refers to no color change occurring upon application to the keratinous surface (e.g., [0048], [0052]).
Zamyatin et al do not teach specific motivation for the inclusion of one or more humectants or stabilizers being glycerin in the composition, the composition being a hydrating composition, the composition being a compact powder, or the composition being a protective foundation powder.
These deficiencies are made up for in the teachings of Dumousseaux et al.
Dumousseaux et al teach an anhydrous powdery cosmetic composition for making up and/or caring for a keratin material, capable of providing improved application and hydration properties, that may be in the form of a foundation, a blush, an eyeshadow, a concealer, or an eyeliner and may be in the form of a “compact” powder or a “free” powder (See entire document, e.g., Par. 1 and 10 of Description on Page 2 of English translation). Dumousseaux et al teach that a well-known approach in the art to making powders more comfortable and less drying to the skin include introduction into the powders liquid moisturizing compounds, such as glycerine (i.e., glycerol) or glycols, either alone or in emulsion, with oils (e.g., Par. 1 of Description on Page 2 of English translation).
The composition, which comprises hydrophilic treated pigments (See Page 4 of English translation), comprises a physiologically acceptable medium, meaning a medium which is particularly suitable for the application of a composition of the invention to keratinous substances, and may comprise any additive usually used in the field, e.g., UV protective agents (e.g., Par “IV. Physiologically acceptable medium” on Page 6 and “III. Additives” on Page 7 of English translation).
The composition will preferably be an oil-in-water emulsion, an aqueous gel, or an emulsified gel, and the presence of such an aqueous composition is advantageous in that it promotes comfort and hydration of the composition and provides a moisturizing effect (e.g., Bottom of Page 7 of English translation). An aqueous composition of the instant invention may comprise, as hydrating agent, polyols such as glycerine (i.e., glycerol) (e.g., Bottom of Page 7 of English translation).
It would have been prima facie obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, based on the teachings of Zamyatin et al and Dumousseaux et al, to provide a hydrating powdered water cosmetic composition suitable for use on keratin surfaces i.e. the skin, lips, or lashes as lipsticks, eye shadows, foundations, mascaras, eye liners, or powders, specifically “compact” powder or “free” powder, comprising a water phase, an oil phase, and a particulate phase, wherein the composition comprises water from about 1-85%, preferably from about 2-60%, more preferably from about 5-55% by weight of the total composition, glycerol from about 0.01-30%, preferably 0.5-25%, more preferably 1-20% by weight of the total composition present in the water phase, activatable pigments present in the particulate phase treated with hydrophilic materials, e.g., a suitable red iron oxide is GA-7293 hydrophilic red iron oxide sold by Color Techniques, hectorite, and UV protective agents, all being present in a physiologically acceptable medium.
One of ordinary skill in the art would have been motivated to incorporate glycerol specifically as the one or more humectants or stabilizers in the water phase in the powdered water cosmetic composition of Zamyatin et al, and there would have been a reasonable expectation of success, because not only is glycerol exemplified in a powdered water cosmetic composition suitable as a face powder or foundation makeup in the teaching of Zamyatin et al, but also because Dumousseaux et al teach that the introduction of liquid moisturizing compounds such as glycerol into powder compositions, either alone or in an emulsion with oils, leads to more comfortability to the skin and less drying of the skin and Dumousseaux et al teach a cosmetic composition for making up and/or caring for a keratin material as an aqueous composition providing comfort, hydration, and a moisturizing effect comprising glycerol as hydrating agent.
The hydrating powdered water cosmetic composition of Zamyatin et al in view of Dumousseaux et al render obvious instant claims 1-3, 5-7, and 12.
Regarding the ranges of water and of glycerol as the elected species of the at least one hydroxyl compound selected from polyols, glycol ethers and mixtures thereof required by instant claims 1-3, a prima facie case of obviousness typically exists when the ranges of a claimed composition overlap the ranges disclosed in the prior art (In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003)).
Claim 1 is a product-by-process claim and therefore the product is given patentable weight, not the process by which the product is made. “[Elven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.” In re Thorne, 777 F.2d 695, 698, 227 USPQ S64, 966 (Fed. Cir. 1985).
Therefore, claim 1 is being examined to the extent of the resultant solid composition i.e., “A cosmetic composition for caring for and/or making up keratin materials in the form of a solid composition comprising, in a physiologically acceptable medium, at least: water in an amount of from 5% to 50% by weight relative to the total weight of the composition, at least one hydroxyl compound selected from polyols, glycol ethers and mixtures thereof, a particulate solid phase comprising at least fillers, and optionally an oily phase comprising at least one oil, wherein said solid composition is in the form of a compact powder” rather than the method for obtaining the solid composition, i.e., “said composition being obtained by a method comprising the following steps: (i) mixing the particulate solid phase, the at least one hydroxyl compound, the water and the optional oily phase constituting a liquid phase to form a paste; and (ii) shaping the paste by compacting and partial removal of the liquid phase to give the composition in the form of a solid composition”.
The requirements that the composition be in the form of a compact powder (instant claim 1) and in the form of a protective foundation powder (the elected species of form of instant claim 12), the hydrating powdered water cosmetic composition of Zamyatin et al in view of Dumousseaux et al being a “compact” or “free” powder foundation comprising UV protective agents meets the limitations of a ‘compact powder’ and a ‘protective foundation powder’.
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Zamyatin et al (as cited above) in view of Dumousseaux et al (as cited above) as applied to claims 1-3, 5-7, and 12 above, and further in view of Yang et al (CN 104691004 A, published 06/10/2015, cited in Notice of References Cited 11/25/2025).
The hydrating powdered water cosmetic composition of Zamyatin et al in view of Dumousseaux et al has been discussed supra.
Neither Zamyatin et al nor Dumousseaux et al teach the composition having 3D relief patterns of the surface of the composition.
This deficiency is made up for in the teaching of Yang et al.
Yang et al teach a preparation method and preparation device for make-up pressed powder with a surface three-dimensional printed pattern with ‘relief style’ (See entire document, e.g., Abstract, Top of Page 3 of English translation). Yang et al teach that relief patterns in make-up products are attractive in appearance to consumers (e.g., Par. 1 of Background Technology on Page 2 of English translation).
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 prepare the hydrating powdered water cosmetic composition of Zamyatin et al in view of Dumousseaux et al comprising surface three-dimensional ‘relief style’ printed patterns because Yang et al teach that relief patterns in make-up products is attractive in appearance to consumers. There would have been a reasonable expectation of success because Yang et al teach a preparation method and preparation device for make-up products in the form of pressed powder bearing surface three-dimensional ‘relief style’ printed patterns.
The hydrating powdered water cosmetic composition of Zamyatin et al, Dumousseaux et al, and Yang et al comprising surface three-dimensional ‘relief style’ printed patterns renders obvious instant claim 8.
Response to Applicant’s Arguments
Applicant’s arguments filed on 02/24/2026 have been considered.
Applicant argues that the feature of the solid composition being in the form of a compact powder of amended claim 1 is neither disclosed nor suggested by the cited prior art. Applicant argues that a skilled person would not have had any reason or motivation in view of Dumousseaux to add glycerol to the composition described by Zamyatin since Dumousseeaux does not suggest incorporating glycerol into a compact solid composition comprising water, especially comprising 5 to 50% water by weight.
The above arguments have been fully considered by the Examiner but are not found persuasive because, firstly, the limitation of claim 1 of the composition being in the form of a compact powder is met by the hydrating powdered water cosmetic composition of Zamyatin et al in view of Dumousseaux et al being in the form of a “compact” powder or “free” powder (See new grounds of rejection of claims 1-3, 5-7, and 12 above for more details). Secondly, the argument that a skilled person would not have had any reason or motivation in view of Dumousseaux to add glycerol to the composition described by Zamyatin since Dumousseeaux does not suggest incorporating glycerol into a compact solid composition comprising water is not found persuasive because the rejection under 35 USC 103 of claims 1-3, 5-7, and 12 above does not rely on the stance that a skilled person would have added glycerol to the composition described by Zamyatin et al because Dumousseaux et al teach or suggest incorporating glycerol into a compact solid composition comprising 5 to 50% water by weight, but instead, the rejection under 35 USC 103 of claims 1-3, 5-7, and 12 above relies on the stance that one of ordinary skill in the art would have been motivated to incorporate glycerol specifically as the one or more humectants or stabilizers in the water phase in the powdered water cosmetic composition of Zamyatin et al because not only is glycerol exemplified in a powdered water cosmetic composition suitable as a face powder or foundation makeup in the teaching of Zamyatin et al, but also because Dumousseaux et al teach that the introduction of liquid moisturizing compounds such as glycerol into powder compositions, either alone or in an emulsion with oils, leads to more comfortability to the skin and less drying of the skin and Dumousseaux et al teach a cosmetic composition for making up and/or caring for a keratin material as an aqueous composition providing comfort, hydration, and a moisturizing effect comprising glycerol as hydrating agent (See rejection above for more details). Further, it is not a requirement that Dumousseaux et al teach every limitation of the instant claims, e.g. the argument that Dumousseaux et al do not teach introducing glycerol into a composition comprising 5 to 50% water by weight, because the rejection under 35 USC 103 of claims 1-3, 5-7, and 12 above is based on the combined teachings of Zamyatin et al and Dumousseaux et al and not the individual teaching of Dumousseaux et al. Applicant is reminded that the reason or motivation to modify the reference may often suggest what the inventor has done, but for a different purpose or to solve a different problem. It is not necessary that the prior art suggest the combination to achieve the same advantage or result discovered by applicant. See, e.g., In re Kahn, 441 F.3d 977, 987, 78 USPQ2d 1329, 1336 (Fed. Cir. 2006).
Conclusion
No claims are allowable.
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.
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/K.E.O./Examiner, Art Unit 1619
/DAVID J BLANCHARD/Supervisory Patent Examiner, Art Unit 1619
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