DETAILED ACTION
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 May 29, 2026, has been entered.
Previous Rejections
Applicant’s arguments, filed May 7, 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 Rejections and/or objections not reiterated from previous office actions are hereby withdrawn.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
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 Nadau-Fourcade (US 2016/0206590 A1).
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.
Nadau-Fourcade teaches the missing element of Faig.
Nadau-Fourcade teaches an oil-in-water emulsion composition that includes gemini surfactants (abstract).
Nadau-Fourcade teaches gemini surfactants have a hydrophilic head group and two hydrophobic tails, resulting in their increased surface-active properties (paragraph 0098). Nadau-Fourcade teaches gemini surfactants are ten to one hundred times more surface active than conventional surfactants (paragraph 0098). Nadau-Fourcade teaches sodium dilauramidoglutamide lysine as a suitable gemini surfactant (paragraph 0098).
Nadau-Fourcade teaches the inclusion of emulsifier (e.g. gemini surfactant) in the amount of 0.01 to 7% by weight of the composition (paragraph 0103).
The combination of Faig and Nadau-Fourcade’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 Nadau-Fourcade because gemini surfactants are ten to one hundred times more surface active than their conventional surfactant counterparts (paragraph 0098). Furthermore, a person of ordinary skill in the art would expect the modification of Faig’s composition to include a gemini surfactant as taught by Nadau-Fourcade to be beneficial to the skin because Nadau-Fourcade teaches the layer structure of gemini surfactants makes it compatible with ceramides and improves skin barrier properties (paragraph 0098). Therefore, the combination of Faig and Nadau-Fourcade’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 Nadau-Fourcade’s teaching to include a gemini surfactant (abstract, paragraphs 0098 – 0103) reads on instant claim 1.
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 claim 1. Claimed ranges that overlap teachings of the prior art are prima facie obvious according to MPEP 2144.05(i).
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 0.1 to 12% 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.
Nadau-Fourcade’s teaching for sodium dilauramidoglutamide lysine as a suitable gemini surfactant in the amount of 0.01 to 7% by weight of the composition (paragraphs 0098 – 0103) reads on instant claims 12 and 13. Nadau-Fourcade’s teaching for a gemini surfactant in the amount of 0.01 to 7% by weight of the composition (paragraphs 0098 – 0103) 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 May 7, 2026
Applicant’s arguments have been considered but are moot because the new ground of rejection addresses each limitation of the claims as presently amended and does not rely on the teachings of Cochran (US 2015/0099638 A1).
Double Patenting
The judicially created doctrine for non-statutory double patenting rejections has been described in detail in a 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. Further, instant claim 1 recites oil in the amount of 0.01 to 15% by weight, which conflicting claim 1 does not.
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 claims 1 and 3 which recite oil in the amount of 0.01 to 15% and 0.1 to 12% by weight, respectively.
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 May 7, 2026
Applicant argues that the double patenting rejection should be withdrawn because conflicting claim 1 does not recite the instant limitation of including oil in an amount of 0.01 to 15% by weight (Remarks page 6). As discussed in the body of the rejection above, although conflicting claim 1 does not recite an amount of oil, conflicting claim 3’s recitation for oil in the amount of 0.01 to 25% by weight overlaps on the instantly claimed ranges of 0.01 to 15% and 0.1 to 12% by weight, as recited in instant claims 1 and 3, respectively. Conflicting claim 1 recites the at least one polyglyceryl fatty acid ester has an HLB of 8 to 11, overlapping on the HLB range recited in instant claim 1 which appears to result from the claimed b/c ratio. Further, as discussed in the body of the rejection above, conflicting claims 7 and 8 recite the anionic surfactant is a gemini surfactant, reading on instant claims 1 and 12. For these reasons the non-statutory double patenting rejection is maintained.
Conclusion
All claims are rejected. No claims are allowed.
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
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