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 .
Claim Status
Applicants’ amendments and arguments filed 01/01/2026 have been fully considered. Rejections and/or objections not reiterated from previous office actions are hereby withdrawn.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.
Claims are 1, 4, and 9-10 are amended.
Claims 11-14 and 16 remain withdrawn.
Claims 1-10 and 15 are examined on the merits.
Claim Interpretation
In regards to claim 1, which recites the limitation of ‘in a cosmetic or pharmaceutical formulation’, it is noted that the instant claims are composition claims and future intended use is not given patentable weight. Thus any composition comprising a fatty phase, an aqueous phase, and a surfactant containing a mixture of alkali metal stearoyl glutamate and stearoyl glutamic acid, wherein the surfactant has a pH of between 7.8 and 9.2, measured at 25oC in 5% by mass solution in water, and in that the composition comprises between 0.2 g and 0.5 g of aqueous phase/g of surfactant, will meet this limitation.
In regards to claims 9-10, which recite the limitation of “the composition is in the form of individualized solid particles” and “the individualized solid particles are in the form of flakes or pellets with a which are larger than or equal to 1mm”, it is noted that the instant claims are composition claims and future intended use, such as using the composition in a particle to make a flake or pellet is not given patentable weight. Thus any composition comprising a fatty phase, an aqueous phase, and a surfactant containing a mixture of alkali metal stearoyl glutamate and stearoyl glutamic acid, wherein the surfactant has a pH of between 7.8 and 9.2, measured at 250 C in a 5% by mass solution in water, and in that the composition comprises between 0.2 g and 0.5 g of aqueous phase/g of surfactant, will meet this limitation.
Maintained Rejections
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.
Claim 5 is 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.
Claim 5 is indefinite over the phrase of “in the presence of polyglycerol-3.” It is not clear whether the polyglycerol-3 is included in the emulsifying base composition or not. For instance, it is unclear if the polyglycerol-3 is intended to be applied prior to or after the application of the wax derivatives or if it is applied simultaneously with the wax derivatives.
For the purpose of moving prosecution forward, Examiner broadly interprets “in the presence” to mean any composition comprising jojoba wax, sunflower wax, and polyglycerol-3.
New Rejections Necessitated by Amendments
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.
Claims 1-6 and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Rodier et al. (US20080207778A1, published 08/28/2008, hereafter Rodier) in view of Ikeda et al. (JP2021169442A, published 10/28/2021, English translation via Google, hereafter Ikeda), in view of Hibbs et al. (Hibbs, John. "Anionic surfactants." Chemistry and technology of surfactants 91 (2006)., hereafter Hibbs) and as evidenced by Deckner (Deckner, G. (2016, November 18). Emulsifiers: A Primer. ULTRUS. https://www.ulprospector.com/knowledge/5528/pcc-personal-care-emulsifiers-primer/, hereafter Deckner).
As evidenced by Deckner, both sodium stearoyl glutamate and sodium stearoyl lactylate are common anionic hydrophilic emulsifiers (page 1, last paragraph).
Rodier claims a support comprising a wax derivative for making topical cosmetic formulations comprising a mixture containing: polyol esters with saturated linear acids and unsaturated linear and/or saturated branched acids, monounsaturated linear or saturated branched acid esters with saturated linear alcohols, saturated linear acid esters with monounsaturated linear or saturated branched alcohols, saturated linear and/or monounsaturated linear and/or saturated branched free alcohols, saturated linear ester acids and saturated linear alcohols, monounsaturated linear or saturated branched ester acids and monounsaturated linear or saturated branched linear alcohols, the linear saturated alcohols and acids having at least 20 carbon atoms and the monounsaturated or saturated branched alcohols and acids having at least 18 carbon atoms (claim 1; according to the claim limitations of the instant claims 1-10 and 15). Rodier claims the mixture is a wax derivative obtained by reacting together at least one solid wax and at least one liquid wax in the presence of at least one polyol (claim 2; according to the claim limitations of the instant claim 5). Rodier claims the solid wax is selected from a group to include candelilla, rice, and sunflower wax (claim 3; according to the claim limitations of the instant claim 5). Furthermore, Rodier claims the liquid wax is jojoba wax (claim 4; according to the claim limitations of the instant claim 5). Rodier claims the polyol is selected from a group including polyglycerol (claim 5; according to the claim limitations of the instant claim 5). Claim 7 of Rodier claims the wax derivative is obtained by reacting jojoba wax, rice wax, candelilla wax, and polyglycerol (according to the claim limitations of the instant claim 5). Claim 10 of Rodier claims the comprises at least one constituent selected from the group comprising cetostearyl alcohol, sodium stearoyl lactylate, and a glycerol stearate (according to the claim limitations of the instant claim 1). Rodier claims the support comprising by weight: 4-50% of a wax derivative obtained by reacting jobowax, rice wax, candelilla wax, and polyglycerol; 4-50% of sodium stearoyl lactylate; 4-50% of cetostearyl alcohol; and 4-50% of glycerol stearate (claim 11; according to the claim limitations of the instant claims 1, 4-6 and 15). Claims 12-13 of Rodier claim the composition is an emulsifier and can be used in a cosmetic (according to the claim limitations of the instant claim 1). Furthermore, Rodier teaches that sodium stearoyl lactylate can be used as an emulsifier or coemulfsier in the composition ([0047]; according to the claim limitations of the instant claim 1). Finally Rodier teaches the composition comprising solvents to include water, ethanol, glycerine, propylene glycol, butylene glycol, and sorbitol ([0053]; according to the claim limitations of the instant claim 1).
Rodier fails to teach the polyglycerol to be polyglyverol-3 as in instant claims 5-6 and 15. Rodier further fails to teach the addition of sodium stearoyl glutamate as in instant claim 1.
Ikeda teaches a topical composition for skin or hair care prepared as an emulsifier composition in response to the demand for raw materials that satisfy the hypoallergenicity to the human body, plant origin, environmental protection, and so on (title and abstract; according to the claim limitations of the instant claim 1). Ikeda teaches the composition comprising sodium stearoyl glutamic acid, glyceryl stearate, and cetearyl alcohol to product mixture obtained by transesterifiying polyglycerin-3, jojoba ester, and sunflower seed wax (abstract and claim 1; according to the claim limitations of the instant claims 1-3, 5, and 7).
Both Rodier and Ikeda fail to teach the surfactant has a pH of 7.8-9.2 (anionic) in a solution of water as in instant claim 1.
Hibbs teaches that anionic surfactants are most commonly used in cleansing applications for their ability to emulsify oil (page 108, paragraph 1).
It would be obvious to one skilled in the art before the effective filing date of the claimed invention to claim a emulsifier composition comprising a wax derivative of jojoba wax, sunflower wax, polyglycerol, and an emulsifier such as sodium stearoyl lactylate, and water as outlined by Rodier with the simple substitution of polyglycerol-3 for the polyglycerol and sodium stearoyl glutamate for emulsifier in place of sodium stearoyl lactylate as outlined by Ikeda and evidenced by Deckner. Simple substitution of one polyglycerol for another and one common anionic hydrophilic emulsifier for another is within the purview of the skilled artisan and would yield predictable results. It would be obvious to one skilled in the art before the effective filing date of the claimed invention to claim a emulsifier composition comprising a wax derivative of jojoba wax, sunflower wax, polyglycerol, and an emulsifier such as sodium stearoyl lactylate, and water as outlined by Rodier with the ready for improvement with the known technique of using an anionic surfactant as outlined by Hibbs. Adding the forementioned components to emulsifying base composition as claimed by instant claim 1 would yield predictable results thus making them of obviousness as modification of a known product with a known technique is within the purview of the skilled artisan.
Claims 7-8 are rejected under 35 U.S.C. 103 as being unpatentable over Rodier et al. (US20080207778A1, published 08/28/2008, hereafter Rodier) in view of Ikeda et al. (JP2021169442A, published 10/28/2021, English translation via Google, hereafter Ikeda), in view of Hibbs et al. (Hibbs, John. "Anionic surfactants." Chemistry and technology of surfactants 91 (2006)., hereafter Hibbs), in view of Hayakawa et al. (CN109937030A, published 06/25/2019, English translation via PE2E, hereafter Hayakawa), and as evidenced by Deckner (Deckner, G. (2016, November 18). Emulsifiers: A Primer. ULTRUS. https://www.ulprospector.com/knowledge/5528/pcc-personal-care-emulsifiers-primer/, hereafter Deckner).
As outlined above Rodier in view of Ikeda and evidenced by Deckner, teaches an emulsifier composition comprising a fatty phase comprising a wax derivative, an aqueous phase, and sodium stearoyl glutamate.
Although Rodier and Ikeda teaches the addition of cetostearyl alcohol at 4-50% and glycerol stearate, at a concentration of 4 to 50%, it fails to teach the addition of glycerol palmitostearate as in the instant claims 7-8.
Hayakawa teaches a skin cosmetic composition that comprises a nonionic surfactant to be selected from a list to include glyceryl palmitostearate and lipophilic glycerin monostearate acyl glycerol which is also known as glycerol stearate (page 23-24).
It would be obvious to one skilled in the art before the effective filing date of the claimed invention to claim a emulsifier composition comprising a wax derivative of jojoba wax, sunflower wax, polyglycerol, cetostearyl alcohol, glycerol stearate, and an emulsifier such as sodium stearoyl lactylate, and water as outlined by Rodier in view of Ikeda and evidenced by Deckner with the simple substitution of glyceryl palmitostearate for glycerol stearate as outlined by Ikeda and evidenced by Hayakawa. Simple substitution of one nonionic surfactant for another is within the purview of the skilled artisan and would yield predictable results.
Claims 9-10 are rejected under 35 U.S.C. 103 as being unpatentable over Rodier et al. (US20080207778A1, published 08/28/2008, hereafter Rodier) in view of Ikeda et al. (JP2021169442A, published 10/28/2021, English translation via Google, hereafter Ikeda), in view of Lotioncrafter (“NatureMuls” product page and sds sheet, date of issue of SDS 08/14/2019, https://lotioncrafter.com/products/naturemuls?srsltid=AfmBOoo6sk-Mvr8t9DVKhK9iUS_oMM4ugj2gh6NvpqCjwtIMuwWm-cJo, hereafter Lotioncrafter), as evidenced by Deckner (Deckner, G. (2016, November 18). Emulsifiers: A Primer. ULTRUS. https://www.ulprospector.com/knowledge/5528/pcc-personal-care-emulsifiers-primer/, hereafter Deckner).
As outlined above Rodier in view of Ikeda and evidenced by Deckner, teaches an emulsifier composition comprising a fatty phase comprising a wax derivative, an aqueous phase, and sodium stearoyl glutamate.
Both Rodier and Ikeda fail to teach the emulsifying base in the form of a pellet or flake at a specific size.
Lotioncrafter’s SDS outlines the ingredients used in their “NatureMuls” product to include: Candelilla/Jojoba/Rice Bran Polyglyceryl-3 Esters, glyceryl stearate, cetearyl stearate, cetearyl alcohol, and sodium stearoyl lactylate (page 2, section 3 of SDS). Furthermore, Lotioncrafter teaches the product to be a solid off-white wax (page 4, section 9 of SDS). Lotioncrafter’s product page outlines the appearance of the product to be an off-white pellet (formulation guide). Additionally, the product page provides the following image for their individual pellet product:
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It would be obvious one skilled in the art before the effective filing date of the claimed invention to claim teaches an emulsifier composition comprising a fatty phase comprising a wax derivative, an aqueous phase, and sodium stearoyl glutamate as outlined by Rodier in view of Ikeda and evidenced by Deckner ready for improvement with the known technique of forming the emulsifying base composition into a large pellet form as outlined by Lotioncrafter. Forming the emulsifying base composition into a large pellet as claimed by instant claims 9 and 10 would yield predictable results thus making them of obviousness as modification of a known product with a known technique is within the purview of the skilled artisan.
Response to Applicant’s Arguments
Applicant’s arguments filed on 01/01/2026 have been considered.
In regards to the 35 USC § 112(b) rejection in regards to claim 5, Applicant has provided no reasoning or amendment as to why this rejection should be withdrawn. Therefore, the rejection is maintained.
In regards to the 35 USC § 103 rejections, Applicant’s amendments necessitated new grounds of rejections.
Conclusion
No claims allowed.
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 ALEXANDRA NICOLE ISNOR whose telephone number is (703)756-5561. The examiner can normally be reached Monday-Friday 5:30am-3pm PST.
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/BETHANY P BARHAM/Supervisory Patent Examiner, Art Unit 1611
/A.N.I./Examiner, Art Unit 1611
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