Prosecution Insights
Last updated: October 01, 2026
Application No. 18/044,187

TRANSPARENT LIQUID HAIR MASK WITH CONSISTENCY TRANSFORMATION AND IMMEDIATE EFFECT DURING APPLICATION

Non-Final OA §103§112§DP
Filed
Mar 06, 2023
Priority
Sep 07, 2020 — DE 10 2020 123 257.8 +1 more
Examiner
ZHANG SPIERING, DONGXIU
Art Unit
1616
Tech Center
1600 — Biotechnology & Organic Chemistry
Assignee
Henkel AG & Co. KGaA
OA Round
3 (Non-Final)
45%
Grant Probability
Moderate
3-4
OA Rounds
0m
Est. Remaining
99%
With Interview

Examiner Intelligence

Grants 45% of resolved cases
45%
Career Allowance Rate
14 granted / 31 resolved
-14.8% vs TC avg
Strong +71% interview lift
Without
With
+70.9%
Interview Lift
resolved cases with interview
Typical timeline
3y 3m
Avg Prosecution
57 currently pending
Career history
105
Total Applications
across all art units

Statute-Specific Performance

§101
2.6%
-37.4% vs TC avg
§103
45.0%
+5.0% vs TC avg
§102
12.7%
-27.3% vs TC avg
§112
25.2%
-14.8% vs TC avg
Black line = Tech Center average estimate • Based on career data from 31 resolved cases

Office Action

§103 §112 §DP
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 . Continued Examination Under 37 CFR 1.114 A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 02/18/2026 has been entered. Status of Claims Amendment filed on 02/18/2026 is acknowledged. Claim 10 remain cancelled. Claims 1, 3-4, 8-9, 13, and 20 are amended. Claims 1-9 and 11-21 are pending and being examined on the merits herein. Priority This instant application 18044187 is a 371 of PCT/EP2021/071841, filed August 5, 2021, which claims foreign priority to German Application No. 10 2020 123 257.8, filed September 7, 2020. Information Disclosure Statement The information disclosure statement (IDS), filed on 02/18/2026, is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the Examiner. 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 1-9 and 11-20 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. The term “long-chain fatty alcohol” in claim 1 and claim 9 is a relative term which renders the claim indefinite. The term “long-chain fatty alcohol” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree of number of carbon chains to within the scope of a “long-chain”, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is unclear how many carbon numbers in the fatty alcohol are considered long-chain; and it is unclear what additional fatty alcohols are encompassed because claim 1 or claim 9 “long-chain fatty alcohol comprises” implies open language and the specific examples may not present all the fatty alcohol species. Claims 2-8 and 11-20 are rejected accordingly because they are directly or indirectly depend on claim 1 or claim 9, and they do not further clarify the issue as addressed above. 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 1-9 and 11-21 are rejected under 35 U.S.C. 103 as being unpatentable over Lee et al. (US20200206111, 07/02/2020). Lee throughout the reference teaches hair care and conditioning compositions, which are substantially anhydrous and include propylene glycol, monoalcohols, cationic surfactants, and fatty compounds, and the methods for conditioning, managing, and/or styling the hair using the compositions (e.g., Abstract). For Claims 1, 8-9, 11 and 14, Lee exemplifies compositions A-X ( [0171], Pg. 14-16 Table), comprising all the instantly claimed components: - monohydric alcohol as ethanol and /or isopropyl alcohol (present at amount of 5, 10, 20, 20.1, 28.7, 30, and 50 wt.%), - polyhydric alcohol as propylene glycol (varying amounts, 65 -87.7 wt.%), - long-chain fatty alcohol as myristyl alcohol (varying amounts, 1-4 wt.%) (corresponding to instant claim 14), - cationic surfactant including cetrimonium chloride and behentrimonium chloride (varying amounts, 0.5-3 wt.%) (corresponding to quaternary ammonium salts), - fatty ester dicaprylyl carbonate (varying amounts, 0.5 -7.4 wt.%), corresponding to emollient as known in the field of art (as evidenced by instant spec., Pg. 6), - caprylic/capric triglyceride, - water (at 1.8 wt.%). Lee specifies that the substantially anhydrous cosmetic composition is transparent (e.g., [0116]; Claims 1 and 14) (corresponding to instant claim 8), and the composition comprises about 5 to 70 wt.% of monoalcohols, about 20 to about 95% of propylene glycol (corresponding to polyhydric alcohol, overlapping with from about 20 to 45 wt.% in instant claims 1 and 9), about 0.1 to 5 wt.% of cationic surfactants, about 0.1 to about 20 wt.% of one or more fatty compounds (e.g., Claim 1), wherein the fatty compounds can be myristyl alcohol, lauryl alcohol, behenyl alcohol, cetyl alcohol, isostearyl alcohol, or a mixture thereof (Claim 10), overlapping with long-chain fatty alcohol amount from about 10 to about 35 wt.% in instant claims 1 and 9. Lee teaches that the conveniently, the compositions can be applied and allowed to remain on the hair for a period of time that is typical for regular shampooing and/or conditioning ([0095]; [0098]), e.g., a few seconds (1, 2, 3, or 5 seconds) up to about 1, about 2, about 5, about 10, about 15, about 20, about 25, or about 30 minutes (e.g., [0098]), and rinsing the compositions from the hair [0095], corresponding to the method of treating hair in instant claims 9 and 11. For Claims 2, 12 and 19, Lee teaches the composition can comprise monoalcohols such as ethanol, propanol, butanol, pentanol, hexanol, isopropyl alcohol, cycohexanol, isobutyl alcohol, 2-methyl-2-butanol (2-methylbutan-2-ol), and a mixture thereof (e.g., [0033]). Lee indicates that the composition can comprise about 5 to about 70 wt.%, preferably about 5 to about 50 wt.% of ethanol (e.g., [0118]), overlapping with about 13 to about 40 wt.% in instant claim 2, or about 20 to about 30 wt.% in instant claim 12. For Claims 3, Lee teaches the compositions may include one or more glycols can be glycerin (e.g., [0113]; [0127])), which is known as C3 polyhydric alcohol. For Claims 4, 18 and 21, Lee teaches that the total amount of fatty alcohols in the composition can vary but typically is from about 0.1 to about 15 wt.% (e.g., [0059]). Lee also indicates that the composition can comprise from about 0.1 to 20 wt.% of one or more fatty compounds (Claims 1 and 6) which can be one or more fatty alcohols (Claim 7), such as myristyl alcohol, lauryl alcohol (corresponding to instant claim 18), being used alone or in combination as mixture (Claim 10) (corresponding to instant claim 21), overlapping with about 15 to about 30 wt.% in instant claim 4. For Claim 5, Lee teaches the preferred quaternary ammonium salts as cationic surfactant(s) for the composition include dialkyldimethylammonium or alkyltrimethylammonium salts (e.g., [0136]), and cationic surfactants can present at about 0.1 to about 5 wt.% in the composition (e.g., Claim 1), overlapping with about 0.5 to about 5 wt.% in instant claim 5. For Claim 6, Lee teaches that the fatty compounds in the composition can be fatty carbonate esters selected from C14-15 dialkyl carbonate, dicaprylyl carbonate, diethyl carbonate, etc. (e.g., Claim 9), which can present in the composition from about 0.1 to 20 wt.% of the composition (Claims 1 and 6), overlapping with about 0.5 to about 15 wt.% in instant claim 6. For Claims 7 and 17, Lee states that the fatty compounds presenting at about 0.1 to 20 wt.% in the composition can be fatty esters (Claims 1, 6 and 7). Lee teaches liquid fatty esters such as triglycerides containing from 6 to 30 carbon atoms are suitable for the composition (e.g., [0164]), and caprylic (8 carbons) /capric (10 carbons) triglyceride appears in exemplified embodiments ([0171], Table Pg. 14-16), at amount ranging from 0.5 wt.% to 7.4 wt.% of total fatty esters in the compositions. Carbon numbers overlap with C6 to C12 in instant claim 7; and amount ranges overlap with about 0.5 to about 15 wt.% in instant claim 7, or overlap with about 3 to about 12 wt.% in instant claim 17. For Claim 13, Lee teaches the compositions can include 1,3 propanediol and glycerin (same as glycerol; e.g., [0127]), and exemplifies in compositions F-H using polyhydric glycols including propanediol and/or glycerin ([0171], Table, Pg. 15 ). For Claim 15, Lee exemplifies using cetrimonium chloride in compositions, as cationic surfactant, which can present alone or with other cationic surfactants at 1.2 wt.% in compositions A and E ([0171], 1st Table, Pg. 14), and 0.5-3 wt.% in compositions F-H ([0171], Table, Pg. 15), overlapping with 1 to about 4 wt.% in instant claim 15. For Claim 16, Lee teaches the fatty compounds in the composition can present from about 0.1 to 20 wt.% (Claims 1 and 6), which can be one or more fatty esters (Claim 7), selected from fatty carbonate esters (Claim 8), including dicaprylyl carbonate (Claim 9). The amount overlaps with about 3 to about 12 wt.% in instant claim 16. For Claim 20, Lee teaches that the transparent and substantially anhydrous cosmetic composition can comprise about 5 to about 70 wt.% of one or more monoalcohols having from 2 to 6 carbon atoms (e.g., Claim 1), which can be butanol (e.g., [0033]), overlapping with about 15 to about 34 wt.% in instant claim 20. Lee does not teach in a single embodiment containing the same amount ranges as in instant claims 1 and 9 of polyhydric alcohol and the long-chain fatty alcohol myristyl alcohol in the exemplified compositions A-X ([0171], Table). It would have been prima facie obvious for a person with ordinary skills in the art prior to filing date to select specific components taught by Lee to arrive at current invention. Even though prior art does not disclose a single embodiment comprising the claimed ingredients all in the amounts as instantly claimed, the teaching is not limited to examples. MPEP 2144.01 points out "[I]n considering the disclosure of a reference, it is proper to take into account not only specific teachings of the reference but also the inferences which one skilled in the art would reasonably be expected to draw therefrom." In re Preda, 401 F.2d 825, 826, 159 USPQ 342, 344 (CCPA 1968). “The use of patents as references is not limited to what the patentees describe as their own inventions or to the problems with which they are concerned. They are part of the literature of the art, relevant for all they contain.” In re Heck, 699 F.2d 1331, 1332-33, 216 USPQ 1038, 1039 (Fed. Cir. 1983), and "A reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art, including nonpreferred embodiments." Merck & Co. v.Biocraft Labs., Inc. 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir. 1989), and "Disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments." In re Susi, 440 F.2d 442, 169 USPQ 423 (CCPA 1971). Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). MPEP §2144.05(I) states that “[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 Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). For this instance, all the concentration ranges of agents, carbon numbers, and time duration overlap with those taught by prior art as discussed above. Moreover, It would have been prima facie obvious for one of ordinary skill in the art to optimize the ingredient concentrations or time duration through nothing more than “routine experimentation” (MPEP §2144.05 (II)). See Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382 ,"The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages.” 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 1-9 and 11-21 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over at least claims 1, 2, 4-5 and 7-13 of copending Application No. US18044183 (hereafter US’183), in view of Lee et al. (US20200206111, 07/02/2020). US’183 recites a hair care composition comprising at least one polyhydric alcohol, at least one polyethylene glycol, at least one monohydric alcohol, at least one quaternary ammonium salt, and less than about 10 wt% of water (Claim 1) (corresponding to instant claims 1 and 9, overlapping with water amount in instant claims 1 and 9), wherein the polyhydric alcohol comprises a C3 or C4 polyol or mixture thereof, present in a concentration of from 15 wt.% to about 45 wt.% (Claim 2) (overlapping to instant claim 3), the monohydric alcohol is selected from ethanol, propanol, butanol, and combinations thereof, and present in a concentration of from about 15 wt.% to 45 wt.% (Claim 4) (corresponding to instant claims 2, 12, and 19-20 with overlapping ranges to instant claims 2, 12 and 20), the quaternary ammonium salt is an alkyltrimethylammonium salt and comprises a C14 to C18 alkyltrimethyl-ammonium salt in a concentration of from about 0.1 wt.% to about 12 wt.% (Claim 5) (corresponding to instant claim 5 with overlapping range). US’183 indicates the polyhydric alcohol is glycerol, propanediol, or a combination thereof, the monohydric alcohol is ethanol, propanol, or a combination thereof, the quaternary ammonium salt is hexadecyltrimethylammonium chloride (Claims 7 and 12) (corresponding to instant claims 1-3 and 5), with their corresponding ranges from about 25% to about 35%, from about 25% to about 35%, from about 6% to about 10% respectively (Claim 8), or from about 25% to about 40%, from about 25% to about 35%, from about 1% to about 9% respectively, and less than about 10% of water (claim 13) (corresponding to instant claims 2 ,3, 5, 12, 13, 15, and 19). US’183 recites a method of providing the hair composition to long scalp human hair for exposure time from about 1 second to about 3 minutes, from 5 to about 10 seconds, or about 5 to about 10 seconds (Claims 9-11) (corresponding to instant claims 9 and 11). US’183 does not recite emollient as recited in instant claims 1, 6, 9 and 16, or long-chain fatty alcohol in the composition with their concentrations and alternative species as recited in instant claims 1, 4, 9, 14, 18 and 21, triglyceride or carpylic/capric triglyceride and/or amount as recited in instant claims 1, 7, 9 and 17, or the composition being transparent as recited in instant claim 8. Lee teaches a transparent hair care composition comprising long-chain fatty alcohol such as myristyl alcohol and lauryl can present at about 0.1 to about 20 wt.% in the composition as fatty compounds (e.g., Claims 1, 6 and 10) (corresponding to instant claims 1, 4, 9, 14, 18 and 21). Lee teaches emollients dicaprylyl carbonate with overlapping amounts (corresponding to claims 1, 6, 9 and 16), triglycerides including caprylic/capric with overlapping amounts (corresponding to instant claims 1, 7, 9, and 17), as discussed above in great detail and incorporated herein. It would have been prima facie obvious to one of ordinary skill in the art to combine teachings of Lee with US’183, and select desirable compounds into the composition to arrive at instant invention. Because both compositions share common ingredients for the same intended use, especially Lee teaches functions of categorized ingredients in the composition and demonstrates that the composition provides better customer satisfactory than commercial benchmark products (e.g., Lee, [0183]), it would have motivated artisans in the field to modify the composition of US’183 with Lee’s teaching for reasonable expectation of success. It is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use (MPEP §2144.07). See Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945). Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). MPEP §2144.05(I) states that “[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 Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). All the amount ranges, carbon numbers, and time duration overlap with Lee or US’183. Moreover, It would have been prima facie obvious for one of ordinary skill in the art to optimize the ingredient concentrations or time duration through nothing more than “routine experimentation” (MPEP §2144.05 (II)). See Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382 ,"The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages.” This is a provisional nonstatutory double patenting rejection. Claims 1-9 and 11-21 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over at least claims 2-14 of copending Application No. US18250901 (hereafter US’901), in view of Lee et al. (US20200206111, 07/02/2020). US’901 recites a transparent hair product composition (Claim 1) comprising the same components (Claim 2) as in instant claims 1 and 9, except long-chain fatty alcohol species and amount as recited in instant claim 1 and 9, when compared side by side, US’901 recites monohydric alcohol as ethanol, propanol, butanol or a mixture thereof from 13 wt.% to 40 wt.% in claim 3 as seen in instant claim 2, polyhydric alcohol claim 4 as instant claim 3, long-chain fatty alcohol claim 5 as instant claim 6, quaternary ammonium salt claim 6 as instant claim 5, emollient claim 7 as instant claim 6, medium-chain triglyceride claim 8 as instant claim 7, a method in claims 9-10 comprising steps including those in instant claims 9 and 11, a hair care product in claims 11-14 corresponding to instant claims 1-7 and 13-19. US’901 does not indicate water weight in the composition. US’901 also does not recite long-chain fatty alcohol as myristyl alcohol, lauryl alcohol, or a combination thereof. Lee teaches water, myristyl alcohol, lauryl alcohol, and their amounts in the hair care composition as discussed in great detail above, and incorporated herein. It would have been prima facie obvious to one of ordinary skill in the art to combine teachings of Lee to implement water and its amount as well as long-chain fatty acid species, such as myristyl alcohol, lauryl alcohol into the US’901 composition to arrive at instant invention, because Lee and US’901 constitute substantially similar categories of components in the compositions for the same intended use, an artisan in the field would have reasonable expectation of success of incorporating the proper water carrier with suitable and preferred long-chain fatty alcohols as pointed out Lee into the composition of US’901, especially Lee demonstrates the composition shows better satisfactory when compared to commercial products. It is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use (MPEP §2144.07). See Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945). Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). MPEP §2144.05(I) states that “[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 Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). For this instance, the concentration ranges are identical, or overlapping with those in prior art or US’901. Moreover, It would have been prima facie obvious for one of ordinary skill in the art to optimize the ingredient concentrations or time duration through nothing more than “routine experimentation” (MPEP §2144.05 (II)). See Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382 ,"The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages.” This is a provisional nonstatutory double patenting rejection. Response to Arguments Applicant's arguments filed on 02/18/2026 have been fully considered, but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument. Response to Affidavit The affidavit filed on 03/10/2026 by Dr. Sylvia Kerl has been fully considered and the declaration regarding prior art Mintel used in previous office action mailed on 11/18/2025 being an opaque, white, creamy emulsion, and does not teach the instantly claimed transparent composition is acknowledged. In light of the affidavit and claim amendments, office action has taken new ground of rejection as presented above, and prior art Mintel is no longer used as prior art in the office action as presented above. Conclusion No claims are allowed. Any inquiry concerning this communication or earlier communications from the examiner should be directed to DONGXIU ZHANG SPIERING whose telephone number is (703)756-4796. The examiner can normally be reached 7:30am-5:00pm (Except for Fridays). 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, SUE X. LIU can be reached at (571)272-5539. 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. /DX.Z./Examiner, Art Unit 1616 /MONICA A SHIN/Primary Examiner, Art Unit 1616
Read full office action

Prosecution Timeline

Mar 06, 2023
Application Filed
May 13, 2025
Non-Final Rejection mailed — §103, §112, §DP
Sep 15, 2025
Response Filed
Nov 18, 2025
Final Rejection mailed — §103, §112, §DP
Feb 18, 2026
Request for Continued Examination
Feb 24, 2026
Response after Non-Final Action
Mar 10, 2026
Response after Non-Final Action
Sep 09, 2026
Non-Final Rejection mailed — §103, §112, §DP (current)

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Prosecution Projections

3-4
Expected OA Rounds
45%
Grant Probability
99%
With Interview (+70.9%)
3y 3m (~0m remaining)
Median Time to Grant
High
PTA Risk
Based on 31 resolved cases by this examiner. Grant probability derived from career allowance rate.

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