DETAILED ACTION
Notice of Pre-AIA or AIA Status
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either 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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 05/12/2026 has been entered.
Claim Status
Applicant’s amendment of 05/12/2026 is acknowledged. Claims 1 and 15 are amended; claim 5 is cancelled; and claims 16 and 17 are new. Claims 1-4 and 6-17 are currently pending and are examined on the merits herein.
Priority
The instant application does not claim domestic benefit or foreign priority, as reflected on the filing receipt dated on 07/06/2023.
Previous Rejections/Objections
Applicant’s arguments filed 05/12/2026 have been fully considered. Rejections and/or objections not reiterated from the previous Office Action are hereby withdrawn. The following rejections and/or objections are either reiterated or newly applied as necessitated by Applicant’s amendment to the claims. They constitute the complete set of rejections and/or objections presently being applied to the instant application. Applicant’s arguments insofar as they pertain to the present grounds of rejections and/or objections are addressed herein.
Specification
The disclosure is objected to because of the following informalities:
Paragraph 0112 contains several instances of what appears to be an “en dash” followed by an “infinity” symbol, which should be a “degree” symbol.
Appropriate correction is required.
Claim Rejections - 35 USC § 112(b)
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 1-4 and 6-17 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.
Claims 1 and 15 recite the limitations “3.5 µm or less” and “15 µm or less”, which encompasses cellulose particle sizes of 0 µm. It is unclear how the cellulose particles can be 0 µm, i.e., nonexistent, when the particles are a required feature of the claimed composition. Therefore, the scope of the claim is indefinite. Claims 2-4 and 6-17 are rejected by virtue of their dependency on claim 1, as they fail to resolve the ambiguity in question.
Claim 6 recites the limitation “the hydrocarbon-based oil”. There is insufficient antecedent basis for this limitation in the claim. Claim 6 depends from claim 1, which does not recite a hydrocarbon-based oil. The claim is indefinite because it is unclear to which hydrocarbon-based oil the claim refers. For the purposes of compact prosecution in the prior art rejections below, the Examiner is interpreting the claim to be dependent on claim 5, which provides sufficient antecedent basis for the limitation of issue.
Claim 6 recites the limitation “the total amount of hydrocarbon-based oil”. It is unclear whether this amount refers to the total weight of the hydrocarbon-based oil, the total volume of the hydrocarbon-based oil, etc. Therefore, the metes and bounds of the relative limitation are indefinite.
Claim 8 recites the limitation “further comprising a fatty ester”. Because fatty esters can be oils, it is unclear whether this component is meant to be distinct from the one or more oils recited in claim 1 or whether this component is meant to further limit the one or more oils such that it must include a fatty ester. Therefore, the metes and bounds of the claimed composition are indefinite. Claims 9-13 are rejected by virtue of their dependency on claim 8, as they fail to resolve the ambiguity in question. For the purposes of compact prosecution in the prior art rejections below and consistent with Applicant’s instant specification, which states the term "liquid fatty ester" means an ester that that is liquid at room temperature and atmospheric pressure (25° C., 1 atm) and which comprises in its structure at least one hydrocarbon-based chain containing at least 6 carbon atoms [0136], the Examiner is interpreting the claim to mean that an oil that comprises in its structure at least one hydrocarbon-based chain containing at least 6 carbon atoms meets the limitation.
Claim 9 recites the limitation “further comprising a filler”. Because synthetic polyamides and cellulose particles can be considered fillers, it is unclear whether this component is meant to be distinct from the synthetic polyamide and cellulose particles recited in claim 1 or whether this component is meant to further limit the one or more oils. Therefore, the metes and bounds of the claimed composition are indefinite. Claims 9-13 are rejected by virtue of their dependency on claim 9, as they fail to resolve the ambiguity in question. For the purposes of compact prosecution in the prior art rejections below and consistent with Applicant’s instant specification, which states the term "filler" should be understood as meaning colourless or white solid particles of any form, which are in an insoluble form dispersed in the medium of the composition [0151], the Examiner is interpreting the claim to mean that synthetic polyamides and cellulose particles meet the limitation.
Claim 10 recites the limitation “no more than 5% by weight”, which encompasses embodiments wherein the cellulose particles are present in 0% by weight. It is unclear how the cellulose particles can be absent when the particles are a required feature of the claimed composition. Therefore, the scope of the claim is indefinite. Claims 11-12 are rejected by virtue of their dependency on claim 10, as they fail to resolve the ambiguity in question.
Claim 10 recites the limitation “a ratio”. The use of the article “a” when referring to the ratio of each component makes it unclear whether (1) more than one ratio of synthetic polyamide to cellulose particles is present within the anhydrous composition or (2) only one ratio is present. Therefore, the scope of the claim is indefinite. Claims 11-12 are rejected by virtue of their dependency on claim 10, as they fail to resolve the ambiguity in question.
Claim 11 recites at least four instances of the limitation “at least”, which encompasses an upper limit of 100% by weight of the of the anhydrous composition. It is unclear how any of the components individually or simultaneously could be present in an amount of 100% by weight of the composition while also comprising all other required components of the composition. Therefore, the scope of the claim is indefinite. Claim 12 is rejected by virtue of their dependency on claim 1, as it fails to resolve the ambiguity in question.
Claim 13 is rejected for the similar reasons as applied to claims 8 and 9 above because it is unclear whether “the synthetic polyamide” and/or “the cellulose particles” read on the instantly claimed “the filler”, and whether “the fatty ester” reads on the instantly claimed “hydrocarbon-based oil”, or whether these are meant to be distinct components. Therefore, the scope of the claim is indefinite.
Claim 14 recites the limitation “a value representative of a hardness”. The use of the article “a” when referring to “value” and “hardness” makes it unclear whether (1) more than one value representative of a hardness and more than one hardness are present within the anhydrous composition or (2) only one value representative of the composition’s hardness is present. Therefore, the scope of the claim is indefinite.
Claim Rejections - 35 USC § 112(a)
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 16 and 17 rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
New Matter Rejection
New claims 16 and 17 each recite the limitation “a dimethicone crosspolymer” in the amendment filed on 05/12/2026. However, the instant disclosure does not provide support for the entirety of the scope encompassed by the limitation “a dimethicone crosspolymer” as recited in the new claims, which broadly encompasses all species of dimethicone crosspolymers. In particular, the instant specification and claims as originally filed only provide support for “dimethicone crosspolymer” [0105], which is a single and specific compound, not a genus of compounds.
If Applicant believes this rejection is in error, Applicant must disclose where in the specification support for the entire scope of the new claims can be found. As a result, claims 16 and 17 represents new matter.
Claim Interpretation
Regarding the “consists of” language recited in claim 13: Consistent with claims 16 and 17 and Applicant’s instant specification, which states that the silicone oil may include a plurality of types of silicone oils, for example, a polydialkylsiloxane, a phenyl silicone, and dimethicone crosspolymer [0105], the Examiner is interpreting any compound which falls within the scope of “a dimethicone crosspolymer” as a silicone oil.
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 1-4, 6-13, and 16-17 are rejected under 35 U.S.C. 103 as being unpatentable over Stepniewski et al. (US6027738; published: 02/22/2000; PTO-892 of instant action) in view of My Skin Recipes (pg. 1-5; published: 01/25/2016; PTO-892 of instant action) and Daito Kasei 2020 (Cellulobeads D-5 D-10, pg. 1-2; published: 03/2020; PTO-892 of instant action) as evidenced by Cosmetic Ingredient Review (pg. 1-9; published: 01/11/2021), Wolfmeier et al. (Ullmann’s Encyclopedia of Industrial Chemistry, vol. 39, pg. 111-172; published: 2012; PTO-892 of instant action), and Daito Kasei 2018 (S-STM Treated Pigments, pg. 1-2; published: 02/2018; PTO-892 of instant action).
Stepniewski, throughout the reference, teaches an anhydrous makeup composition comprising: (a) a silicone gel, the gel comprising an organopolysiloxane elastomer dispersed in a silicone-compatible vehicle, (b) and a silicone-oil base, wherein the composition produces a soft, non-shiny, or matte appearance when applied to the skin [abstract; claims; col. 2, lines 1-11].
In an exemplary lipstick formulation, the composition comprises: 5.0 wt.% polysilicone-11 (50% organopolysiloxane elastomer in dimethicone); 2.0% dimethicone/trimethylsiloxysilicate (32% trimethylsiloxysilicate); 4.0 wt.% dimethicone; 1.0 wt.% stearyl dimethicone; 39.0 wt.% phenyl trimethicone; 5.0 wt.% squalane; 5.0 wt.% jojoba oil; 8 wt.% mica; 8.0 wt.% dimethicone; 8.5 wt.% polyethylene; 2.5 wt.% silica; 0.8 wt.% titanium dioxide; 0.1 wt.% iron oxides; 1.0 wt.% D&C Red No. 6; 1.1 wt.% iron oxides; and 9.0 wt.% D&C Red. No. 7 calcium lake [col. 6, lines 5-30].
Polysilicone-11 is a crosslinked dimethyl siloxane formed by the reaction of bis-vinyldimethicone and hydrogen dimethicone, as evidenced by Cosmetic Ingredient Review [pg. 2, “Definition and Structure”]. As such, it is a dimethicone crosspolymer, and the Examiner is interpreting the ingredient to read on the instantly claimed silicone oil.
Jojoba oil comprises 97 wt.% wax esters of C16-C24 acids and alcohols but has a melting point of approximately 7°C, as evidenced by Wolfmeier [pg. 125, “Properties and Composition”]. Thus, consistent with Applicant’s instant specification, which states the term “oil” means any fatty substance which is in liquid form at room temperature (20-25°C) [0086], whereas the term “wax” means a lipophilic compound that is solid at room temperature [0112], the Examiner is interpreting the ingredient to read on the instantly claimed hydrocarbon-based oil and fatty ester rather than the instantly claimed wax.
Regarding claim 1: The compositions of Stepniewski, including the exemplary lipstick, are anhydrous and thus meet the claim limitation. Titanium dioxide, iron oxides, D&C Red No. 6, and D&C Red No. 7 calcium lake are pigments [col. 5, lines 8-30], which read on the instantly claimed colorant as evidenced by Applicant’s instant specification which states that the colorant may include pigments, lakes, etc. [instant spec., 0039]. Dimethicone, stearyl dimethicone, and phenyl trimethicone are silicone oils [col. 4, lines 50-65], and squalane and jojoba oil are hydrocarbon oils [col. 4, lines 10-35], which read on the instantly claimed one or more oils. Dimethicone and stearyl dimethicone are polydialkylsiloxanes and are present in a total amount of 16.86 wt.% of the composition (calculated by Examiner: 2.5 wt.% of polysilicone-11 + 1.36 wt.% of dimethicone/trimethylsiloxysilicate + 4.0 wt.% dimethicone + 1.0 wt.% stearyl dimethicone + 8.0 wt.% dimethicone), which lies within and thus reads on the instantly claimed range. The composition does not include a silsesquioxane elastomer and thus meets the claim limitation.
While Stepniewski’s exemplary lipstick does not expressly comprise a synthetic polyamide or cellulose particles, the reference does teach that the composition can contain small amounts of fillers or powders with examples including silica, talc, mica, starch, nylon, kaolin, bismuth oxychloride, or coated versions of these [col. 5, lines 38-45].
My Skin Recipes teaches that nylon-12 is a known cosmetic substitute for silica that gives a creamy or powdery feel, improves spreadability, and offers a matte finish [pg. 2, “Substitutes for Silica”]. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to substitute the 2.5 wt.% silica in the composition of Stepniewski with the nylon-12 of My Skin Recipes to improve the composition’s texture and spreadability while maintaining the matte appearance desired by Stepniewski. The resulting amount of nylon-12 lies within and thus reads on the instantly claimed range of synthetic polyamide.
Daito Kasei 2020 teaches that Cellulobeads D-5 and D-10 are cellulose particles, which range from 5 – 10 µm and 10 – 15 µm in size, respectively, that enhance spreadability and give a soft-focus effect to the application of cosmetic formulations [pg. 1-2, tables, “Key benefits” and “Cosmetic benefits”]. They are available in surface-treated grades, i.e., S-STM, which provide high water repellency and softer feeling [pg. 1, “Use guideline”]. S-STM indicates that the Celluobeads are surface-treated with magnesium stearate, which results in excellent dispersibility, as evidenced by Daito Kasei 2018 [pg. 1]. It would have been prima facie obvious to one of ordinary skill in the art to modify the composition taught by the combination of Stepniewski and My Skin Recipes by further including Cellulobeads D-5 or D-10, which have particle sizes that lie within and thus read on the instantly claimed range, that are surface-treated with magnesium stearate in order to improve the softness, spreadability, dispersibility, and water repellency of the anhydrous composition.
Regarding claims 2 and 3: The Cellulobeads taught by the prior art combination are surface-treated with magnesium stearate, which reads on the instantly claimed salt of a fatty acid.
Regarding claim 4: As discussed above, squalane and jojoba oil read on the instantly claimed hydrocarbon-based oil.
Regarding claim 6: The total amount of silicone oil in the composition taught by the prior art combination is 58.36 wt.% (calculated by Examiner: 5.0 wt.% polysilicone-11 + 1.36% dimethicione in the dimethicone/trimethylsiloxysilicate + 12.0 wt.% other dimethicone + 1.0 wt.% stearyl dimethicone + 39.0 wt.% phenyl trimethicone), which is greater than the 10 wt.% total amounts of hydrocarbon-based oil (calculated by Examiner: 5.0 wt.% squalane + 5.0 wt.% jojoba oil).
Regarding claim 7: The polyethylene in the composition taught by the prior art combination reads on the instantly claimed wax, as evidenced by Stepniewski [col. 4, lines 35-50].
Regarding claim 8: For the reasons discussed above, the jojoba oil in the composition taught by the prior art combination reads on the instantly claimed fatty ester.
Regarding claim 9: The mica, nylon-12, and Cellulobeads in the composition taught by the prior art combination reads on the instantly claimed filler.
Regarding claim 10: Daito Kasei 2020 further teaches that Cellulobeads can used in concentrations ranging from 0.1% up to 10% [pg. 1, “Use guidelines”], which an ordinarily skilled artisan would reasonably determine to represent weight percent since the ingredient is a solid. Because Stepniewski does not particularly limit the concentration of fillers so long as they are only present in “small amounts”, it would have been prima facie obvious to one of ordinary skill in the art to adjust the amount of Cellulobeads within the prior art range, which overlaps the instantly claimed range of cellulose particles and encompasses embodiments which render obvious claimed ratio of synthetic polyamide to cellulose particles (for example, 2.5 wt.% nylon-12 to 5 wt.% Cellulobeads can be written as 1:2) and/or adjust the amount of nylon-12 in the composition. One of ordinary skill in the art would have been motivated to manipulate the relative concentrations of fillers in order to achieve a desired balance of properties such as texture, spreadability, dispersibility, etc.
Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. See MPEP 2144.05(II)(A). In this case, the general conditions of the amount of nylon and cellulose particles have been taught by the prior art; as such, it would not have been inventive for the skilled artisan to have discovered the optimum ratio via routine experimentation.
Regarding claim 11: The total amount of hydrocarbon-based oil and silicone oil, combined, in the composition taught by the prior art combination is 68.36 wt.% (see claim 6 above for calculations), which lies within and thus reads on the instantly claimed range. The total amount of polyethylene wax is 8.5 wt.%, which closely approaches the instantly claimed range of at least 10 wt.%. Stepniewski expressly teaches that when the composition is a lipstick, the composition contains from about 3 – 20 wt.% polyethylene [col. 5, lines 55-37]. Stepniewski further teaches that in addition to jojoba oil, other esters of carboxylic acids and alcohols are useful non-silicone oils [col. 4, lines 10-35], and the oil and/or wax components will generally constitute about 10 – 80 wt.% of the composition [col. 4, lines 50-57]. Thus, it would have been prima facie obvious to one of ordinary skill in the art to adjust the relative concentrations of polyethylene wax and ester oils within the prior art ranges, which overlap and thus render obvious the instantly claimed ranges, depending upon the nature and desired consistency and feel of the product, as directed by Stepniewski [col. 4, lines 35-57].
Again, where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. See MPEP 2144.05(II)(A). In this case, the general conditions of the amount of oil and wax have been taught by the prior art; as such, it would not have been inventive for the skilled artisan to have discovered the optimum concentrations via routine experimentation.
Regarding claim 12: The total amount of fillers in the composition taught by the prior art combination is greater than 10.6 wt.% (calculated by Examiner based on 8 wt.% mica + 2.5 wt.% silica + Cellulobeads in the range of 0.1 wt.% to 10 wt.%), which lies within and thus reads on the instantly claimed range.
Regarding claim 13: The claim uses the transitional phrase “consist of”, which excludes any element, step, or ingredient not specified in the claim. Note: MPEP 2111.03(II). As discussed above, the composition taught by the prior art composition consists only of synthetic polyamide, cellulose particles, colorant, hydrocarbon-based oil, silicone oil, wax, fatty ester, filler, and 0.64 wt.% trimethylsiloxysilicate in the dimethicone/trimethylsiloxysilicate, which lies within and thus reads on the instantly claimed amount of optional other materials.
Regarding claims 16 and 17: As discussed above, the silicone oil portion of the composition taught by the prior art combination consists only of polydialkylsiloxane (e.g., dimethicone and stearyl dimethicone), a phenyl silicone (e.g., phenyl trimethicone), and a dimethicone crosspolymer (e.g., the crosslinked dimethyl siloxane formed by the reaction of bis-vinyldimethicone and hydrogen dimethicone in polysilicone-11). The Examiner notes that the trimethylsiloxysilicate component of the composition is not an oil but rather a silicone resin, as evidenced by Stepniewski [col. 5, lines 30-40].
One of ordinary skill in the art would have a reasonable expectation of success in modifying the prior art as proposed because synthetic polyamides and cellulose particles are routinely used as fillers for cosmetic compositions having a soft matte finish, and Stepniewski expressly permits small amounts of fillers and powders, which may be coated, and even lists nylon as an example. Additionally, Stepniewski acknowledges that the amount and identify of components in the anhydrous base will vary depending on the nature and desired consistency and feel of the product to be made [col. 4, lines 35-57].
Claims 1-4, 6-14, and 16-17 are rejected under 35 U.S.C. 103 as being unpatentable over Stepniewski et al. (US6027738; published: 02/22/2000; PTO-892 of instant action) in view of My Skin Recipes (pg. 1-5; published: 01/25/2016; PTO-892 of instant action) and Daito Kasei 2020 (Cellulobeads D-5 D-10, pg. 1-2; published: 03/2021; PTO-892 of instant action), as applied to claims 1-4, 6-13, and 16-17 above, and further in view of de Clermont-Gallerande et al. (OCL, vol. 27, p. 1-13; published: 07/01/2020; PTO-892 of 06/16/2025) and as evidenced by Cosmetic Ingredient Review (pg. 1-9; published: 01/11/2020), Wolfmeier et al. (Ullmann’s Encyclopedia of Industrial Chemistry, vol. 39, pg. 111-172; published: 2012; PTO-892 of instant action), and Daito Kasei 2018 (S-STM Treated Pigments, pg. 1-2; published: 02/2018; PTO-892 of instant action).
The combination of Stepniewski, My Skin Recipes, and Daito Kasei 2020 teaches the invention(s) of claims 1-4, 6-13, and 16-17 as discussed in detail above and further incorporated herein.
The combination of references is silent as to the hardness of the composition over six months as it relates to claim 14.
de Clermont-Gallerande, throughout the reference, teaches functional roles of lipids in make-up products, including anhydrous products [abstract; pg. 2-4].
Regarding claim 14: de Clermont-Gallerande teaches that adjusting the wax content of an anhydrous cosmetic such as a lipstick within the range of 10 – 25 wt.% allows for an anhydrous composition that does not break on its first application [pg. 2-3, table 1], suggesting that the wax content is critical in controlling the stability of a cosmetic’s hardness from the time of manufacture to the time of use by the consumer. Therefore, hardness stability is a parameter that a person of ordinary skill in the art would routinely optimize, and it would have been obvious to do so through manipulation of the wax content in the composition taught by the combination of Stepniewski, My Skin Recipes, and Daito Kasei 2020 in order to ensure that the cosmetic’s hardness remains the same from the time of manufacture to the time of use, whether that timeframe be a number of weeks, months, or even years.
One of ordinary skill in the art would reasonably expect success in modifying the prior art composition with the teachings of de Clermont-Gallerande as proposed because de Clermont-Gallerande teaches that wax contents are routinely optimized to impart desired characteristics to anhydrous cosmetic compositions, and Stepniewski expressly suggests using polyethylene wax within a similar concentration range when the composition is a lipstick.
Claims 1-4 and 6-17 are rejected under 35 U.S.C. 103 as being unpatentable over Stepniewski et al. (US6027738; published: 02/22/2000; PTO-892 of instant action) in view of My Skin Recipes (pg. 1-5; published: 01/25/2016; PTO-892 of instant action), Daito Kasei 2020 (Cellulobeads D-5 D-10, pg. 1-2; published: 03/2020; PTO-892 of instant action), and de Clermont-Gallerande et al. (OCL, vol. 27, p. 1-13; published: 07/01/2020; PTO-892 of 06/16/2025), as applied to claims 1-4, 6-14, and 16-17 above, and further in view of Rica et al. (EP0566442B1; published: 01/03/1996; PTO-892 of 06/16/2025) and Kobayashi (US20200299488A1; published: 09/24/2020; PTO-892 of 06/16/2025) and as evidenced by Cosmetic Ingredient Review (pg. 1-9; published: 01/11/2021), Wolfmeier et al. (Ullmann’s Encyclopedia of Industrial Chemistry, vol. 39, pg. 111-172; published: 2012; PTO-892 of instant action), and Daito Kasei 2018 (S-STM Treated Pigments, pg. 1-2; published: 02/2018; PTO-892 of instant action).
The combination of Stepniewski, My Skin Recipes, Daito Kasei 2020, and de Clermont-Gallerande teaches the invention(s) of claims 1-4, 6-14, and 16-17 as discussed in detail above and further incorporated herein.
However, the combination of references does not explicitly teach a method comprising the active steps of providing an anhydrous lipstick composition base comprising one or more colorants and adding a synthetic polyamide and cellulose particles to the composition base as recited in claim 15.
Rica, throughout the reference, teaches a process for the preparation of a matte lipstick composition, which comprises the addition of a matting agent, namely spheres of a polyvinylidene copolymer, to a lipstick base so as to obtain a matte appearance as well as homogenous and creamy texture [0010-0011]. More specifically, the base is produced by grinding the pigments into the oily ingredients, followed by the addition of melted waxy ingredients, then addition of other solid substances, then addition of the microspheres of the polyvinylidene copolymer [0021].
Regarding claim 15: It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use the process for preparing a matte lipstick taught by Rica to manufacture the anhydrous lipstick taught by the combination of Stepniewski, My Skin Recipes, Daito Kasei 2020, and de Clermont-Gallerande to ultimately provide matte color delivery with a lipstick having stable hardness. One of ordinary skill in the art would have been motivated to use the method of Rica because the reference teaches that the addition of synthetic polymer microspheres to a lipstick base comprising pigments, oily ingredients, and waxy ingredients produces a homogenous and creamy texture without resulting in an undesirable shiny effect [0009].
While Rica teaches the use of polyvinylidene microspheres to produce the mattifying effect, Kobayashi teaches cellulose and cellulose derivatives as natural alternatives to synthetic polymer microspheres used in cosmetics for the purpose of imparting a blurring effect and improving the spread of the cosmetic [0002; 0005; 0008]. Therefore, one of ordinary skill in the art would reasonably expect that applying the method of Rica to the teachings of Stepniewski, My Skin Recipes, Daito Kasei 2020, and de Clermont-Gallerande would not change the properties of the matte lipstick composition. Further, because the Cellulobeads and nylon-12 are both included within the powder/fillers component of the composition, it would have been obvious to one of ordinary skill in the art to add the nylon at the same time as the cellulose when applying the method of Rica.
The lipstick composition base taught by the combination of Stepniewski, My Skin Recipes, Daito Kasei 2020, de Clermont-Gallerande, Rica, and Kobayashi does not contain water or a silsesquioxane elastomer, thus meeting the limitations wherein the base is anhydrous and free of a silsesquioxane elastomer as recited in claim 15.
Response to Arguments
Applicant’s arguments submitted on 05/12/2026 with respect to rejections under 35 U.S.C. 103 have been fully considered in so far as they apply to the new or modified rejections of the instant Office action 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.
Conclusion
No claim is allowed.
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/SARAH C WISTNER/Examiner, Art Unit 1616
/Mina Haghighatian/Primary Examiner, Art Unit 1616
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