RESPONSE TO AMENDMENT
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 .
WITHDRAWN REJECTIONS
The double patenting rejections made of record in the office action mailed on 05/05/2026 have been withdrawn due to Applicant’s amendment in the response filed 08/03/2026.
The 35 U.S.C. §103 rejection of claims 8-16 made of record in the office action mailed on 05/05/2026 have been withdrawn due to Applicant’s amendment in the response filed 08/03/2026,
REJECTIONS
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim Rejections - 35 USC § 103
Claims 1-7 are rejected under 35 U.S.C. 103 as being unpatentable over Iler et al. (U.S. Pat. No. 3,855,172) in view of Kong et al. (U.S. App. Pub. No. 2009/0246279).
Regarding claim 1, Iler et al. teaches metal oxide microspheres having diameters in the range of 0.5 to 20 microns (Abstract and col. 5, lines 14-22), overlapping with the presently claimed range. The microspheres have a porosity that is distributed throughout the volume of the microspheres as shown in Fig. 1 as they are formed by an aggregation of smaller particles of inorganic oxides. (col. 4, lines 22-51). The microparticles, after synthesis, are present in a solution (i.e. with a liquid material)/semi-solid (wet settled cake, Example 1, col. 10, lines 3-11), therefore the particles disclosed in Iler et al. are dispersed in a substrate material having the form of a liquid/semi-solid.
With respect to the limitation “having a continuous solid structure formed by sintering”, the individual smaller particles of inorganic oxides as disclosed in col. 4, lines 22-51 would exhibit a continuous solid structure. Therefore, the porous microspheres would “have a continuous solid structure” as claimed. Furthermore, the microsphere as a whole is described as a solid network of these individual particles that are interconnected which would therefore form both a porous and continuous solid structure as presently claimed. (col. 5, lines 23-29 and col. 3, lines 20-24). These smaller particles therefore, by virtue of their interconnected network, would also satisfy the limitation of a continuous solid structure. Furthermore, the particles can be sintered together. (col. 2, line 66 - col. 3, line 4 and col. 7, lines 16-30).
With respect to the limitation “the porous microspheres exhibit angle-independent color observable by the human eye”, the microspheres comprise refractory metal oxide materials such as silica, alumina, titania, zirconia, ferric oxide, antimony oxide and tin oxide (col. 2, lines 60-65). These types of materials have a certain color that would be described by one of ordinary skill in the art as angle independent. For example, titania has a white, non-angle dependent color. As another example, the ink composition containing iron oxide particles is described as having a dark brown color (Example 14) which is not described as angle dependent. This color is further retained in the ink composition where the particles are viewed at different angles, and the color is described as being retained. Angle-independent color is therefore implied or inherent when Iler et al. describes the coloration of the microspheres, since angle-dependent coloring requires specific interference structures which are not described in Iler et al.
Iler et al. teaches that the microspheres are usable as flame resistant and pigment fillers as well as catalytic and chromatographic packing materials (col. 1, lines 10-22). However, Iler et al. does not explicitly disclose the microspheres in a gel, paste or cream.
Kong et al. teaches porous metal oxide microparticles containing hydrophobic materials encapsulated within the pores thereof. (Abstract, Fig. 2-5 and par. [0257]). Kong et al. teaches such microspheres have applications in cosmetics when mixed with creams, perfumes, drugs, food and cleaning agents. (par. [0261]).
It would have been obvious to one of ordinary skill in the art to use the microspheres claimed in Iler in creams (i.e. dispersed therein), based on the teachings of Kong et al.
One of ordinary skill in the art would have found it obvious to use the microspheres of Iler in a cream based on the known utility thereof in cosmetic products as taught in Kong et al. The microspheres of Iler et al. would therefore act as pigmenting fillers, a known utility explicitly disclosed by the primary reference, in the cream composition for a cosmetic product. Combining known prior art elements according to known methods to yield predictable results is prima facie obvious. MPEP 2143. In the instant case, since porous metal oxide microspheres are known to be used in cream compositions, one of ordinary skill in the art would have a reasonable expectation of success of using the porous microspheres in Iler in a cream composition to form a product having utility as a cosmetic composition.
Regarding claim 2, Iler et al. teaches metal oxide microspheres having diameters in the range of 0.5 to 20 microns (Abstract and col. 5, lines 14-22), overlapping with the presently claimed range
Regarding claim 3, Iler et al. teaches that the average pore diameter is about 300 nanometers. (col. 9, lines 30-34).
Regarding claim 4, Iler et al. teaches that the microspheres have a pore content (i.e. porosity) of over 50% by volume (i.e. 0.5 or greater) (col. 3, lines 23-24), overlapping with the present claim range.
Regarding claim 5, Iler et al. teaches diameters in the range of 0.5 to 20 microns (Abstract and col. 5, lines 14-22), pore sizes of about 300 nanometers. (col. 9, lines 30-34) and a pore content (i.e. porosity) of over 50% by volume (i.e. 0.5 or greater) (col. 3, lines 23-24), overlapping with the present claim range.
Regarding claim 6, the microspheres comprise metal oxides including silica (Example 1), alumina (Example 8), zirconia (Example 9), titania (Example 10) and iron oxide. (Example 14).
Regarding claim 7, the metal oxide material is present in an amount of 10-90% after synthesis. (col. 6, lines 40-44).
Claims 10-13 and 15-16 are rejected under 35 U.S.C. 103 as being unpatentable over Iler et al. (U.S. Pat. No. 3,855,172) in view of Kong et al. (U.S. App. Pub. No. 2009/0246279) and Brick et al. (U.S. Pat. No. 8,394,396).
Regarding claim 10, Iler et al. teaches metal oxide microspheres having diameters in the range of 0.5 to 20 microns (Abstract and col. 5, lines 14-22), overlapping with the presently claimed range. The microspheres have a porosity that is distributed throughout the volume of the microspheres as shown in Fig. 1 as they are formed by an aggregation of smaller particles. The microparticles, after synthesis, are present in a solution (i.e. with a liquid material)/semi-solid (wet settled cake, Example 1, col. 10, lines 3-11), therefore the particles disclosed in Iler et al. are dispersed in a substrate material having the form of a liquid/semi-solid.
With respect to the limitation “having a continuous solid structure formed by sintering”, the individual smaller particles of inorganic oxides as disclosed in col. 4, lines 22-51 would exhibit a continuous solid structure. Therefore, the porous microspheres would “have a continuous solid structure” as claimed. Furthermore, the microsphere as a whole is described as a solid network of these individual particles that are interconnected which would therefore form both a porous and continuous solid structure as presently claimed. (col. 5, lines 23-29 and col. 3, lines 20-24). These smaller particles therefore, by virtue of their interconnected network, would also satisfy the limitation of a continuous solid structure. Furthermore, the particles can be sintered together. (col. 2, line 66 - col. 3, line 4 and col. 7, lines 16-30).
Iler et al. teaches that the microspheres are usable as flame resistant and pigment fillers as well as catalytic and chromatographic packing materials (col. 1, lines 10-22). However, Iler et al. does not explicitly disclose the microspheres in a gel, paste or cream.
Kong et al. teaches porous metal oxide microparticles containing hydrophobic materials encapsulated within the pores thereof. (Abstract, Fig. 2-5 and par. [0257]). Kong et al. teaches such microspheres have applications in cosmetics when mixed with creams, perfumes, drugs, food and cleaning agents. (par. [0261]).
It would have been obvious to one of ordinary skill in the art to use the microspheres claimed in Iler in creams (i.e. dispersed therein), based on the teachings of Kong et al.
One of ordinary skill in the art would have found it obvious to use the microspheres of Iler in a cream based on the known utility thereof in cosmetic products as taught in Kong et al. The microspheres of Iler et al. would therefore act as pigmenting fillers, a known utility explicitly disclosed by the primary reference, in the cream composition for a cosmetic product. Combining known prior art elements according to known methods to yield predictable results is prima facie obvious. MPEP 2143. In the instant case, since porous metal oxide microspheres are known to be used in cream compositions, one of ordinary skill in the art would have a reasonable expectation of success of using the porous microspheres in Iler in a cream composition to form a product having utility as a cosmetic composition.
Iler et al. fails to teach in the inclusion of one or more light absorbers in the range of 0.1 wt% to 5 wt% as claimed.
Brick et al. teaches sol-gel inorganic porous particles having a series of pores (Abstract) which are usable in cosmetic compositions. (col. 3, lines 54-61). Brick et al. teaches that the porous particles may further include marker materials in amounts of 0.001% to 35 wt% (col. 8, lines 35-38), wherein the marker materials include colored dyes or pigments (i.e. light absorbers). (col. 8, lines 4-22). The amounts of marker materials in Brick et al. overlap with the range of claim 10. As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, 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).
It would have been obvious to one of ordinary skill in the art to include a colored dye or pigment in the inorganic microspheres of Iler et al., in amounts disclosed in Brick et al.
One of ordinary skill in the art to include colored dyes or pigments in the microsphere composition of Iler et al. in order to improve or alter the color hue or color intensity of the microspheres of Iler et al. for enhanced aesthetic considerations.
Regarding claim 11, Brick et al. teaches that suitable pigments used in the microparticles may include carbon black. (col. 8, lines 19-22). It would have been obvious to one of ordinary skill in the art so select carbon black as the coloring pigment material to impart a darker color to the inorganic particles of Iler et al. in view of the teachings of Brick et al.
Regarding claim 12, the microspheres have a porosity that is distributed throughout the volume of the microspheres as shown in Fig. 1 as they are formed by an aggregation of smaller particles.
Regarding claim 13, the microspheres comprise metal oxides including silica (Example 1), alumina (Example 8), zirconia (Example 9), titania (Example 10) and iron oxide. (Example 14).
Regarding claim 15, Iler et al. teaches that the average pore diameter is about 300 nanometers. (col. 9, lines 30-34).
Regarding claim 16, the metal oxide material is present in an amount of 10-90% after synthesis. (col. 6, lines 40-44).
ANSWERS TO APPLICANT’S ARGUMENTS
Applicant’s arguments in the response filed 08/03/2026 regarding the prior art rejections made of record in the office action mailed on 05/05/2026 have been carefully considered but are deemed unpersuasive.
With respect to the rejections of claim 1, Applicant argues that the description in Iler et al. regarding the use of the microspheres in in an ink composition is not supported. (Applicant’s arguments filed 08/03/2026, page 3).
The Examiner disagrees. Iler et al. teaches in Example 14 that the iron oxide containing microspheres have a brown color which is retained in an ink composition which is a mix of particles and would cause different viewing angles. There is no mention in Iler et al. of a different hue or coloration, let alone angle dependent color. Angle-independent coloration is the general default state of most colored objects or materials and as such, the description in Iler et al. either implies the present of angle-independent color or it is inherent in the structure described in the prior art reference. Similarly, the metal oxide materials chosen for the inorganic oxide particles which also possess angle-independent coloration such as titanium dioxide which is a white pigment and does not inherently possess angle dependent coloration. In order to impart angle-dependent coloration, there would need to be a specific interference pattern not contemplated in the microspheres of Iler et al. It is therefore the Examiner’s position that the limitation is taught in the reference of Iler et al. by inherency or is implied.
Conclusion
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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/ALEXANDRE F FERRE/Primary Examiner, Art Unit 1788 09/26/2026
