DETAILED ACTION
Previous Rejections
Applicant’s arguments, filed January 30, 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 Rejections and/or objections not reiterated from previous office actions are hereby withdrawn.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.
Claim Status
Claims 1 – 15 are examined here-in.
Claim Rejections - 35 USC § 103 (Maintained)
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 non-obviousness.
Claims 1 – 15 are rejected under 35 U.S.C. 103 as being unpatentable over Faig (US 2019/0321280 A1, of record) in view of Cochran (US 2015/0099638 A1, of record).
Faig teaches a cosmetic composition in the form of an oil-in-water emulsion (abstract, paragraph 0006).
Faig teaches the composition contains oils such as triglycerides of fatty acids or plant oils (paragraph 0065). Faig teaches oils in the composition in the amount of 0.1 to 30 wt. % of the composition (paragraph 0068).
Faig teaches the composition comprises polyglyceryl stearate as a non-thickening emulsifier (abstract, paragraph 0007, claims 5, 10, 13). Faig teaches that polyglyceryl co-emulsifiers stabilize the composition (paragraph 0025). Faig teaches polyglyceryl co-emulsifiers in the amount of 0.1 to 2.5 wt. % of the composition (paragraph 0025). In Faig’s examples 1 – 3, polyglyceryl-6 distearate is included in the amount of 0.96 to 1.28% and polyglyceryl-3-beeswax is included in the amount of 0.1275 to 0.17% (Table 1).
Faig teaches the inclusion of fatty alcohols, such as cetyl alcohol, in the amount of 0.1 to 30 wt. % of the composition (paragraphs 0067 – 0068). In Faig’s examples 1 – 3, cetyl alcohol is included in the amount of 0.1275 – 0.17 wt. % of the composition (Table 1).
Faig teaches the inclusion of water in the composition, with examples 1 – 3 including water in the amount of approximately 75 wt.% of the composition (paragraph 0076, Table 1).
Faig teaches that the composition may contain further ingredients for formulating the emulsion or modifying the feel of the composition (paragraph 0076).
Faig does not teach the inclusion of a gemini surfactant.
Cochran teaches the missing element of Faig.
Cochran teaches the inclusion of amino-acid based gemini surfactant for stabilizing emulsion compositions (abstract).
Cochran teaches that gemini surfactants are much more surface active than conventional surfactants, with low CMC values compared to conventional surfactants with equivalent chain lengths (paragraphs 0028, 0033). Cochran teaches sodium dilauramidoglutamide lysine as a suitable gemini surfactant in the amount of 1 to 15 wt. % of the composition (paragraphs 0012, 0029).
Cochran also discloses that there is synergistic activity between gemini surfactants and sugar-derived compounds (such as polyglycerols) that increases the stability and versatility of the emulsion compositions (paragraphs 0010, 0011, 0030).
The combination of Faig and Cochran’s teachings renders instant claims 1 – 15 prima facie obvious as combining prior art elements according to known methods to yield predictable results (MPEP 2143(i)(a)). A person of ordinary skill in the art would be motivated to modify the oil-in-water composition of Faig to include a gemini surfactant as taught by Cochran because Cochran teaches that gemini surfactants act as stabilizers for emulsion compositions (abstract). Furthermore, a person of ordinary skill in the art would expect the modification of Faig’s composition with Cochran’s teaching for gemini surfactants to result in a more stable emulsion composition because Cochran teaches that the combination of gemini surfactant and sugar-derived compounds (such as Faig’s polyglycerols) increases the stability and versatility of emulsion compositions (paragraphs 0010, 0011, 0030). Therefore, the combination of Faig and Cochran’s teachings is prima facie obvious according to MPEP 2143(i)(a).
The combination of Faig’s teaching for an oil-in-water emulsion which includes an oil, two polyglyceryl esters, a fatty alcohol, and water (abstract, paragraphs 0006, 0007, 0025, 0065, 0068, 0075, Table 1) with Cochran’s teaching to include a gemini surfactant to stabilize emulsion compositions (abstract, paragraphs 0012, 0028, 0029, 0033) reads on instant claim 1. Polyglyceryl-6 distearate and polyglyceryl-3-beeswax as taught in Faig’s examples 1 – 3 have a weight ratio of approximately 7.5:1 (polyglyceryl-6 distearate is in the amount of 1.28 wt. % and polyglyceryl-3 beeswax is in the amount of 0.17 wt. %) resulting in an approximate weighted average HLB value of 8.5 (Table 1). An HLB value of 8.5 falls within the claimed range of 8 and 11, as recited in instant claim 1. Although the examples recite a weight ratio of 7.5:1 for the first and second polyglyceryl fatty acid esters, Faig teaches polyglyceryl co-emulsifiers in the amount of 0.1 to 2.5 wt. % of the composition (paragraph 0025). Various combination of polyglyceryls in the taught amount of 0.1 to 2.5 wt. % of the composition could result in a ratio of more than 15 and less than 35. For example, the first polyglyceryl in the amount of 1.5 wt. % and the second polyglyceryl in the amount of 0.1 wt. % would be a weight ratio of 15. As such, Faig’s teaching for polyglyceryls in the amount of 0.1 to 2.5 wt. % reads on a weight ratio of polyglyceryls in a range of 15 to 35, as recited in instant claim 1.
Faig’s teaching that the composition contains oils such as triglycerides of fatty acids or plant oils (paragraph 0065) reads on instant claim 2.
Faig’s teaching for oils in the composition in the amount of 0.1 to 30 wt. % (paragraph 0068) overlaps on the instantly claimed range of 0.01 to 15% by weight as recited in instant claim 3. Claimed ranges that overlap with teachings of the prior art are prima facie obvious according to MPEP 2144.05(i).
Faig’s teaching for polyglyceryl-6 distearate (examples 1 – 3, Table 1) reads on instant claims 4 – 6. Faig teaches polyglyceryl fatty acids in the amount of 0.1 to 2.5 wt. % of the composition, overlapping on the instantly claimed range of 0.01 to 20 % as recited in instant claim 6.
Faig’s teaching for polyglyceryl-3 beeswax (examples 1 – 3, Table 1) reads on instant claims 7 – 9. Faig’s teaching for polyglyceryl fatty acids in the amount of 0.1 to 2.5 wt. % of the composition, overlapping on the instantly claimed range of 0.01 to 20 % as recited in instant claim 9.
Faig’s teaching to include a fatty alcohol, such as cetyl alcohol, in the amount of 0.1 to 30 wt. % of the composition (paragraphs 0067 – 0068) reads on instant claims 10 and 11. Faig’s teaching for fatty alcohol in the amount of 0.1 to 30 wt. % (paragraphs 0067 – 0068) overlaps on the instantly claimed range of 0.01 to 15% as recited in instant claim 11.
Cochran’s teaching for sodium dilauramidoglutamide lysine as gemini surfactant in the amount of 1 to 15 wt. % of the composition (paragraphs 0012, 0029) reads on instant claims 12 and 13. Cochran’s teaching for gemini surfactant in the amount of 1 to 15 wt. % (paragraphs 0012, 0029) overlaps on the instantly claimed range of 0.01 to 5% as recited in instant claim 13.
Faig’s teaching to include water in the composition, with examples 1 – 3 including water in the amount of approximately 75 wt.% of the composition (paragraph 0076, Table 1) overlaps on the claimed range of 50 to 90% as recited in instant claim 14.
Faig teaches the oil-in-water cosmetic composition is for topical application on keratinous substrates (paragraph 0017), reading on instant claim 15.
Examiner’s Reply to Attorney Arguments Dated January 30, 2026
Applicant argues that Faig does not teach each of the requirements of the claims (Remarks page 7). In response to applicant's arguments against the references individually, one cannot show non-obviousness by attacking references individually where the rejections are based on combinations of references. See MPEP 2145(iv).
Applicant argues that Cochran does not remedy the deficiencies of Faig because “Cochran is silent with respect to better non-sticky feeling and smooth feeling derived from a gemini surfactant, providing no reason or basis to expect such superior results of the claimed invention (Remarks page 10). As discussed in the body of the rejection above, a person of ordinary skill in the art would be motivated to modify the oil-in-water composition of Faig to include a gemini surfactant as taught by Cochran because Cochran teaches that gemini surfactants act as stabilizers for emulsion compositions (abstract). Furthermore, a person of ordinary skill in the art would expect the modification of Faig’s composition with Cochran’s teaching for gemini surfactants to result in a more stable emulsion composition because Cochran teaches that the combination of gemini surfactant and sugar-derived compounds (such as Faig’s polyglycerols) increases the stability and versatility of emulsion compositions (paragraphs 0010, 0011, 0030). Although Cochran does not teach the non-sticky and smooth feelings as a benefit of including a gemini surfactant (i.e., the rationale of Applicant), according to MPEP 2144(iv) rationale different from Applicant’s is permissible “it is not necessary that the prior art suggest the combination to achieve the same advantage or result discovered by Applicant”.
Applicant alleges unexpected results, stating “the claimed invention provides unexpected results… as compared to the closest prior art, i.e. Faig” (Remarks pages 7 and 8). As an initial matter, the Examiner notes that a proper side-by-side comparison to the closest prior art as required by MPEP 716.02(e) does not appear to have been made. Applicant compares example 1 with comparative example 8, stating “comparative example 8 is similar to the primary reference Faig in that both have no [gemini surfactant]” (Remarks page 9). This comparison is not a proper comparison to the closest prior art of the rejection because the rejection is over Faig in view of Cochran. As discussed above, although Cochran does not teach the non-sticky and smooth feelings as a benefit of including a gemini surfactant (i.e., the rationale of Applicant), Cochran does teach that inclusion of a gemini surfactant will result in a more stable emulsion (paragraphs 0010, 0011, 0030) and according to MPEP 2144(iv) rationale different from Applicant’s is permissible.
Applicant also alleges unexpected results with regards to “the weight ratio of the amount of the (b) first polyglyceryl fatty acid ester/the amount of the (c) second polyglyceryl fatty acid ester is more than 15 and less than 35” (Remarks pages 10 – 13). Applicant compares example 1 with comparative examples 1 and 2, claims that comparative examples 1 and 2 are representative of Faig’s teachings (Remarks page 12). The Examiner disagrees that this comparison is proper, because comparative examples 1 and 2 are not representative of Faig (these examples include a gemini surfactant). Furthermore, this comparison is not proper because the weighted HLB values are an additional variable that is changing between example 1 and comparative examples 1 and 2, and therefore it cannot be concluded that any changes in composition properties result solely from differences in weight ratios of polyglyceryl fatty acid esters.
For these reasons, the 35 U.S.C. 103 rejection of claims 1 – 15 over Faig in view of Cochran is maintained.
Double Patenting
The judicially created doctrine for non-statutory double patenting rejections has been described in detail in the previous action.
Double Patenting over Application No. 17/757,168
Claims 1 – 15 are provisionally rejected on the ground of non-statutory double patenting as being unpatentable over claims 1 and 3 - 15 of copending Application No. 17/757,168 in view of Faig (as cited above).
Although the claims at issue are not identical, they are not patentably distinct from each other because instant claim 1 is drawn to a water-in-oil emulsion composition comprising at least one oil, at least one first polyglyceryl fatty acid ester, at least one second polyglyceryl fatty acid ester, at least one fatty alcohol, at least one gemini surfactant, and water.
Conflicting claim 1 is drawn to a composition comprising at least one oil, at least one polyglyceryl fatty acid ester, at least one anionic surfactant, at least one acrylic thickener, and water.
The instant and conflicting claims differ because conflicting claim 1 recites at least one acrylic thickener but does not recite a second polyglyceryl fatty acid ester or a fatty alcohol.
Faig teaches water-in-oil emulsion compositions with acrylamide-based thickeners (paragraph 0027) and fatty alcohols (paragraph 0067) as standard ingredients for inclusion in a cosmetic composition. Faig’s examples 1 – 3 include first and second polyglyceryl fatty acid esters (Table 1).
It would be prima facie obvious to the ordinarily skilled artisan to include, within instant claim 1, an acrylamide-based thickener as taught by Faig. It is prima facie obvious according to MPEP 2143(I)(a) as combining prior art elements according to known methods to yield predictable results.
The anionic surfactant of conflicting claim 1 reads on the gemini surfactant of instant claim 1.
Conflicting claim 3’s recitation for oil in the amount of 0.01 to 25% by weight reads on instant claim 3 which recites oil in the amount of 0.01 to 15% by weight.
Conflicting claim 4 recites the polyglyceryl fatty acid ester has 12 to 24 carbon atoms, which overlaps with 6 to 22 carbon atoms recited in instant claim 1, and each of the species listed in instant claim 5.
Conflicting claim 5 recites the polyglyceryl fatty acid ester comprises 4 to 10 glycerol units, which overlaps on the 2 to 10 glycerol units recited in instant claims 4 and 7.
Conflicting claim 6 recites the polyglyceryl fatty acid ester in the amount of 0.01 to 10% by weight of the composition, which overlaps on the claimed ranges of 0.01 to 20% and 0.01 to 15% as recited in instant claim 6 and 9.
Conflicting claims 7 and 8 recite the anionic surfactant is a gemini surfactant, reading on instant claims 1 and 12.
Conflicting claim 9 recites the anionic surfactant is in the amount of 0.01 to 10% by weight of the composition, which overlaps with the recitation of 0.01 to 5% gemini surfactant by weight of the composition recited in instant claim 13.
Conflicting claim 12 recites water in the amount of 50 to 90% by weight of the composition, reading on instant claim 14.
Conflicting claim 13 recites the composition is an O/W emulsion, reading on instant claims 1 – 15.
Conflicting claims 14 and 15 recite the composition is a cosmetic composition and a cosmetic process for treating a keratin substance by applying the composition, which reads on instant claim 15.
This is a provisional non-statutory double patenting rejection.
Examiner’s Reply to Attorney Arguments Dated January 30, 2026
Applicant argues that the double patenting rejection should be withdrawn for the same reasons as the 35 U.S.C. 103 rejection, or that the rejection be held in abeyance (Remarks page 25). According to MPEP 804(1), a complete response to a non-statutory double patenting rejection is either a showing that the claims subject to the rejection are patentably distinct from the reference claim or the filing of a terminal disclaimer. The Examiner notes that Applicant’s argument is not a showing that the claims are patentably distinct from the reference claims. As such, the non-statutory double patenting rejection is maintained.
Conclusion
THIS ACTION IS MADE FINAL. 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.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Toriana N. Vigil whose telephone number is (571)270-7549. The examiner can normally be reached Monday - Friday 9:00 a.m. - 5:00 p.m. EST.
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/TORIANA N. VIGIL/Examiner, Art Unit 1612
/SAHANA S KAUP/Supervisory Primary Examiner, Art Unit 1612