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 .
Priority
The present application is a National Stage entry of International application PCT/JP2021/041079 filed 11/09/2021, which claims the benefit of Foreign application JP2020-188038 filed 11/11/2020. Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55, although it is noted that no English translation was provided.
Status of the Application
Receipt is acknowledged of Applicant’s claimed invention, filed 04/05/2023, in the matter of Application N° 18/030,386. Said documents have been entered on the record. The Examiner further acknowledges the following:
Claims 1-6 are pending.
Claims 1-6 are presented for examination and rejected as set forth below.
Claim Objections
Claim 3 is objected to because of the following informalities: there is no period at the end of the sentence. Appropriate correction is required.
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 1-6 are rejected under 35 U.S.C. 103 as being unpatentable over Clavel (US 2014/0079656A1), and in further view of Kazuhiro (JP2016222587A; cited on the IDS filed 04/05/2023; machine translation provided), Daito Kasei (Product, 2018), and Daito Kasei Europe (Ecocert 2019).
Applicant’s claims are directed to a cosmetic containing: (A) a powder that is surface-treated with a surface treatment agent including at least two types of treatment agents, one of the at least two types of treatment agents being an N-acyl amino acid or a salt thereof; and (B) at least one type of surfactant selected from among polyglycerol esters of fatty acids; wherein the cosmetic does not contain a silicone compound. The examiner considers the term “including” to be open-ended in the same way as “comprising.” In terms of “treatment agent” of claim 1, the Examiner recognizes in the Art, that fillers (i.e., particles/powders) can be “treated” with a variety of substances such that material is deposited to the filler surface, potentially altering the property compared to the original filler (see [0236-0244] from Clavel). Thus, “treatment agent” is considered a generic term for an agent that is exposed to a filler in some form of surface “treatment” to modify properties with examples demonstrated by Clavel [0236-0244]. In claim 6, “oil-based” is interpreted to mean that the instant cosmetic contains any oil.
Clavel teaches an emulsion-type composition, preferably water-in-oil type, comprising at least one polyglyceryl polyricinoleate and at least one polyol, and at least one volatile linear alkane for improved application comfort and stability (abstract).
Regarding claims 1 and 3-5: Clavel teaches a composition comprising polyglyceryl-6-polyricinoleate (Clavel – claim 28, [0084]) and undecane (a volatile linear alkane) (Clavel – claim 21), and surface treated powders (treated with amino acids) that can be incorporated [0236-0241]. Note that polyglyceryl-6-polyricinoleate is defined by Applicant as a polyglycerol ester of a monohydroxy fatty acid having 12 to 22 carbon atoms [0018-0019], and therefore, polyglyceryl-6-polyricinoleate reads on instant claim 3. , and a compound and its properties/structure are inseparable.
Additionally, there is no requirement for a silicone compound in the composition (Clavel – claim 18).
Regarding claim 6: Clavel teaches a least one liquid fatty (oil) phase in the cosmetic composition [0116-0118] and also water-in-oil type emulsions (abstract).
In summary, Clavel teaches the elements of the instant invention except for the surface treated powder that includes a surface treatment agent comprising at least two treatment agents (instant claims 1-2).
Kazuhiro teaches a water-in-oil emulsion composition comprising powder surface-treated with N-acyl amido acids for excellent makeup lasting effect (abstract), where in there is no requirement of silicones (note Kazuhiro teaches negative effects of silicone [0007, 0041]. Kazuhiro blends a powder surface-treated with an N-acyl amino acid and a surfactant in order to improve cleansing properties and maintaining the cosmetic’s staying power [0007-0008]. Kazuhiro specifically teaches several suitable ASL types of powders such as ASL-Yellow LL-100P, etc. [0019].
Daito Kasei additionally teaches “ASL treatment” products for use in cosmetic compositions, wherein both lysine and sodium lauroyl glutamate (reads on instant claim 2) are incorporated into a cosmetic powder to provide amphiphilicity, an emulsion effect, and a moist feeling (pg 3-4). Daito Kasei Europe further specifies ASL-Yellow LL-100P is made of iron oxides, sodium lauroyl glutamate, lysine, and magnesium chloride (meeting the sodium N-lauroyl glutamate and lysine, as required by instant claim 2).
It would have been prima facie obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to modify Clavel to use the specific surface-treated powders taught by Kazuhiro and Daito Kasei in place of the general teaching of surface-treated powders by Clavel because it is the selection of a specific ingredient that is taught generally by Clavel. The selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination in Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945). Both Clavel and Kazuhiro teach stable water-in-oil emulsion compositions for cosmetic use. Furthermore, Daito Kasei teaches that ASL treated powders such as those taught by Kazuhiro offer amphilicity, an emulsion effect, and a moist feeling as an improvement on Clavel. Also, note that amino acid surface-treated ASL powders in Kazuhiro, containing sodium N-lauroyl glutamate and lysine (e.g., ASL-Yellow LL-100P) [0019], are also shown as acceptable examples of instant component 1(A) for the instant invention, as shown in Applicant’s Specification [0016].
Claims 1-6 are rejected under 35 U.S.C. 103 as being unpatentable over Hirofumi (JP2012121835A – machine translation provided), and in further view of Clavel (US 2014/0079656A1), Kazuhiro (JP2016222587A – machine translation provided; cited on the IDS filed 04/05/2023), Daito Kasei (Product, 2018), and Daito Kasei Europe (Ecocert 2019).
The claim interpretations are previously discussed above.
Hirofumi teaches a lipophilically surface-treated powder for incorporation into cosmetics, where the treatment includes application of an N-acylamino acid (abstract). Incorporation of these types of powders afford a cosmetic with smooth feeling, detergency, cosmetic effect, and cosmetic retainability (abstract).
Regarding claim 1: Hirofumi teaches a composition comprising an N-acylamino acid surface-treated powder (Hirofumi – claim 1) that can further comprise an oil and surfactant to provide a dispersion (Hirofumi – claim 7, [0019-0020]). There is no requirement of silicone in the composition (Hirofumi – claims 6-8), as is seen by the oil dispersion medium suggested including hydrocarbon-based oils [0019]. Hirofumi generally teaches lipophilic treatment of powders with materials such as N-acyl amino acids generally improves dispersibility of the powder, leading to smooth feel and excellent cleansing properties [0007-0011].
Regarding claim 5: Hirofumi also teaches W/O emulsions in a sunscreen example [0042].
Regarding claim 6: Hirofumi teaches oily liquid-based cosmetics [0022-0023], including dispersions [0001], N-acylamino surface treatment improves dispersibility [0041, 0053].
However, Hirofumi does not teach the specific combination of surface-treating agents applied to a powder (instant claims 1-2), the surfactant (B) genus (instant claim 3), and the specific surfactant (instant claim 4).
Clavel teaches compositions comprising at least one polyglyceryl polyricinoleate and at least one volatile linear alkane for improved application comfort and stability (abstract). Clavel teaches a composition comprising polyglyceryl-6-polyricnoleate (reads on the genus of claim 3 also) (Clavel – claim 28, [0084]).
Kazuhiro teaches a water-in-oil emulsion composition comprising powder surface-treated with N-acyl amido acids for excellent makeup lasting effect (abstract), where in there is no requirement of silicones (note Kazuhiro teaches negative effects of silicone [0007, 0041]. Kazuhiro specifically teaches several ASL types of powders such as ASL-Yellow LL-100P, etc. [0019].
Daito Kasei additionally teaches “ASL treatment” products for use in cosmetic compositions, wherein both lysine and sodium lauroyl glutamate (reads on instant claim 2) are incorporated into a cosmetic powder to provide amphiphilicity, an emulsion effect, and a moist feeling (pg 3-4). Daito Kasei Europe further specifies ASL-Yellow LL-100P is made of iron oxides, sodium lauroyl glutamate, lysine, and magnesium chloride (meeting the sodium N-lauroyl glutamate and lysine, as required by instant claim 2).
It would have been prima facie obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to modify the general teaching of Hirofumi to use the specific surface-treated powders to improve dispersibility of dispersion [0007-0011, 0016] in combination with a surfactant [0011], with the surface-treated powder species of the Kazuhiro and Daito Kasei references, and the specific surfactants of Clavel, because this is the selection of a specific ingredient that is taught generally by Clavel. The selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination in Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945). The references of Hirofumi, Clavel, and Kazuhiro are all oriented toward compositions comprising lipophilically surface-treated powders in the presence of surfactants for cosmetic use. Furthermore, Daito Kasei teaches that ASL treated powder species such as those taught by Kazuhiro offer benefits of amphilicity, an emulsion effect, and a moist feeling, as an improvement on the teachings of Hirofumi. Also, note that amino acid surface-treated ASL powders in Kazuhiro, containing sodium N-lauroyl glutamate and lysine (e.g., ASL-Yellow LL-100P) [0019], are also shown as acceptable examples of instant component 1(A) for the instant invention, as shown in Applicant’s Specification [0016].
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to RAJAN PRAGANI whose telephone number is (703)756-5319. The examiner can normally be reached 7a-5p EST (M-Th).
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/R.P./Examiner, Art Unit 1614 02/09/2026
/SEAN M BASQUILL/Primary Examiner, Art Unit 1614