DETAILED ACTION
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
Claims 1-24, 26-29 are currently pending.
Claim 25 have been cancelled.
Claims 14-16, 28 and 29 have been withdrawn.
Claims 1-13, 17-24, 26 and 27 are being examined on the merits.
Election/Restrictions
Applicant's election with traverse of Group I (claims 1-24, 26, and 27) with species election (a) trimethyl pentaphenyl trisiloxane, and (b) diphenylsiloxy phenyl trimethicone in the reply filed on September 15, 2025 is acknowledged. The traversal is on the ground(s) that the Ma reference does not teach the claimed features.
This is not found persuasive because Ma et al reference teaches the common technical feature. Claim 1 states that composition comprises less than 0.01% by weight of polysaccharide gelling agent, which teaches the inclusion of polysaccharide. Ma et al teaches the use a polysaccharide (reference claim 1 and 13 and specification page 28 lines 19-23 and page 29 lines 1-7), where the amount ranges from 0.0001% percent to 5% by weight relative to the total weight of the composition (e.g. page 30 line 19-21).
Claims 1 and 3 of the instant application are drawn to a cosmetic composition comprising polysaccharide gelling agent. The prior art teaches the range mentioned above of the gelling agent which encompasses the limitations of the claims. Although, the instant specification states the preferred invention sprayable, the ability for the composition to be sprayable is not specified in the instant claims therefore Ma et al reads on instant claims of the application.
Claims 14, 15, 16, 28 and 29 withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected group invention and species , there being no allowable generic or linking claim. Since elected second oil is diphenylsiloxy phenyl trimethicone, which is not a hydrocarbon oil and thus claims 14-16 are also withdrawn.
The requirement is still deemed proper and is therefore made FINAL.
Applicant timely traversed the restriction (election) requirement in the reply filed on September 15, 2025.
Accordingly, claims 1-13,17-24, 26 and 27 are being examined on the merits herein.
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55. This application is a 371 of PCT/FR2021/052393 (12/17/2021) which claims priority to FOR FRANCE FR2014092 (12/23/2020) as reflected in the filing receipt issued October 31, 2023.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on June 22,2023 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Drawings
There were no drawings filed.
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.
Claims 2, 3, 4, 6, 8-11,13,18,19, 21, 26 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.
For claim 2: A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 2 recites the broad recitation “ less than 0., and the claim also recites “preferably less than 0.05%” which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
For claim 3: A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 3 recites the broad recitation less than 0.01%, and the claim also recites “more preferentially 0.001%" which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
For claim 4: A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 4 recites the broad recitation " at least 60%", and the claim also recites "preferably at least which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
For claim 6: A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 6 recites the broad recitation "greater than 1.00 g.cm-3 at 20°C", and the claim also recites " and preferably greater than 1.01 g.cm-3 at 20°C" which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
For claim 8: A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 8 recites the broad recitation " at most 50%", and the claim also recites " preferably at most 40%, more preferentially at most 35%" which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
For claim 9: A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 9 recites the broad recitation "density greater 1.00 g.cm-3 at 20°C", and the claim also recites " and preferably greater than 1.01 g.cm-3 at 20°C" which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
For claim 10: A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 10 recites the broad recitation "at least one phenyl", and the claim also recites "preferably having between on and five phenyl groups, and even more preferentially having five phenyl groups" which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
For claim 11: A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 11 recites the broad recitation " at least one phenyl group chosen from diphenyl dimethicone, trimethylsiloxyphenyl dimethicone, phenylpropyldimethylsiloxysilicate, trimethyl pentaphenyl trisiloxane, and mixtures thereof ", and the claim also recites " and more preferentially trimethyl pentaphenyl trisiloxane" which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
For claim 13: A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 13 recites the broad recitation " having at least one phenyl group", and the claim also recites " preferably chosen from phenyl trimethicone, diphenylsiloxy phenyl trimethicone, and mixtures thereof " which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
For claim 18: A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 18 recites the broad recitation " varies from 10/90 to 50/50", and the claim also recites "preferably from 15/85 to 40/60, and more preferentially from 15/85 to 30/70 " which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
For claim 19: A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 19 recites the broad recitation " varies from 80/20 to 20/80", and the claim also recites " preferably from 70/30 to 30/70, more preferentially from 65/35 to 35/70, and even more preferentially from 60/40 to 40/60" which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
For claim 21: A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 21 recites the broad recitation " 0.01% to 5% by weight of the total weight of the composition", and the claim also recites " and preferably from 0.05% to 2% by weight of the total weight of the composition" which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
For claim 26: A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 26 recites the broad recitation "cosmetic active agent preferably being retinol palmitate, Lipochroman®-6 (dimethylmethoxy chromanol, CAS number: 83923-51-7), an esterified derivative of vitamin C such as ascorbyl tetraisopalmitate", and the claim also recites "more preferentially an esterified derivative of vitamin C such as ascorbyl tetraisopalmitate" which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims. Furthermore, the claim recites “said cosmetic active agent preferably being….”, which is not clear if the listed “active agents” in the claims are examples of the cosmetic active agents or the claims are limited to those listed agents. Thus, the metes and bounds of the claim is not clearly defined.
Claim 26 as stated above also contains the trademark/trade name Lipochroman® -6 . Where a trademark or trade name is used in a claim as a limitation to identify or describe a particular material or product, the claim does not comply with the requirements of 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph. See Ex parte Simpson, 218 USPQ 1020 (Bd. App. 1982). The claim scope is uncertain since the trademark or trade name cannot be used properly to identify any particular material or product. A trademark or trade name is used to identify a source of goods, and not the goods themselves. Thus, a trademark or trade name does not identify or describe the goods associated with the trademark or trade name. In the present case, the trademark/trade name is used to identify/describe dimethylmethoxy chromanol and, accordingly, the identification/description is indefinite.
Claim Rejections - 35 USC § 102
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1-6, 8-13,17-24, 26 and 27 are rejected under 35 U.S.C 102(a)(1)/(a)(2) as being anticipated by Ma et al (WO2015/089750 Published on June 25,2015; filled on December 13, 2013; submitted in IDS).
.
Claim 1 is drawn to “A two-phase cosmetic composition comprising an aqueous phase and an oily phase, the aqueous phase representing at least 50% by weight of the total weight of the composition, wherein: the oily phase comprises at least one aromatic silicone oil a) and at least one second oil different from the aromatic silicone oil a); the density of the oily phase is greater than the density of the aqueous phase at 20°C: and the composition comprises less than 0.1% by weight of a polysaccharide gelling agent, relative to the total weight of the composition.
Ma et al., throughout the reference, teaches two-phase cosmetic composition (e.g. specification).
For Claims 1 and 2: Ma et al teaches a two-phase composition comprising an aqueous phase and a dispersed fatty phase from silicone oil chosen from phenyl trimethicones, diphenylsiloxyphenyltrimethicones, trimethylpentaphenyl trisiloxanes (which reads on the elected silicone aromatic oil), and trimethylsiloxyphenyldimethicones (e.g. claims 1 and 5) or mixture thereof, which the phenyl trimethicones, for example, reads on the second oil that is different from the trimethylpentaphenyl trisiloxanes elected by applicant.
The reference also teaches that the aqueous phase ranges from 55% to 99.9% by weight of the total composition (e.g. page 2 line 8-10). The fatty phase as stated in reference is dispersed through the aqueous phase in the form of droplets (e.g. page 3 lines 5 and 6). Reference also teaches the use a polysaccharide (e.g. claims 1 and 13 and specification page 28 lines 19-23 and page 29 lines 1-7), where the amount ranges from 0.0001% percent to 5% by weight relative to the total weight of the composition (e.g. page 30 line 19-21).
The density of the oil is greater than water (1.0 g.cm-3; i.e. aqueous phase) and thus read on the density limitation of the instant claim 1. Ma et al also teaches that the composition is surfactant-free and emulsifying polymer free (e.g. page 1 line 9-26), which reads on claim 2.
For Claim 3: Ma et al also teaches the use a polysaccharide (reference claims 1 and 13 and specification page 28 lines 19-23 and page 29 lines 1-7), where the amount ranges from 0.0001% percent to 5% by weight relative to the total weight of the composition (e.g. page 30 line 19-21).
For Claim 4: Reference also teaches that the aqueous phase ranges from 55% to 99.9% by weight of the total composition (e.g. page 2 line 8-10). Claim 9 of the reference states “…especially from 60% to 90% by weight, and more particularly from 65% to 85% by weight, relative to the total weight of the composition” (e.g. page 41).
For Claim 5: The reference teaches the aqueous phase comprises an amount ranging from 55% to 99% by weight of total composition (e.g. page 20 lines 9-10) and water has density of 1.0 g.cm-3. Reference teaches the aqueous phase may comprise of organic solvents such as polyols and sodium chloride at low percentages (e.g. example 1 invention formulas page 33). Sodium chloride has a density of 2.17 g.cm-3 however, when dissolved in water the density of sodium chloride is much lower. The percentage of sodium chloride used in the composition is very low and would not impact the density too greatly, so the aqueous phase would be at 1.0 g.cm-3. The aqueous phase comprises of overall water and other additives would have minimal effect on the density since the amount of the other ingredients are in very low percentage (e.g. Example 1 table page 33).
For Claim 6: Ma et al teaches the fatty phase comprises of non-volatile silicone oils such as trimethyl pentaphenyl trisiloxane (e.g. page 5 line 20-23 and lines 7-15). The instant specification discloses the density of aromatic silicone oils including trimethyl pentaphenyl trisiloxane with density between 1.092 to 1.099 g.cm-3 (instant spec. table 1). Ma teaches the use of trimethyl pentaphenyl trisiloxane (page 11 line 7-14) in the fatty phase, which would increase the density of the oily phase above 1.00 g.cm-3 as indicated in instant claim 6.
For Claim 8, Ma et al teaches a fatty phase that forms droplets presenting in the composition in a content ranging from 0.1 % to 40% by weight, preferably from 1 % to 30% by weight, and more preferably from 3% to 20% by weight relative to the total weight of the composition (e.g. page 3 line 19-21).
For Claim 9: Ma et al teaches silicone oil trimethyl pentaphenyl trisiloxane (e.g. page 5 line 20-23 and lines 7-15). The instant specification indicates the density of aromatic silicone oils including trimethyl pentaphenyl trisiloxane with density between 1.092 to 1.099 g.cm-3 (instant spec. table 1). Instant specification inherently teaches that the density of the oil phase, which would be greater than 1.00 g.cm-3. It is evident that the density of would always be the same as indicated by instant specification table 1.
For Claim 10, Ma et al teaches a dispersed fatty phase comprising of at least one chosen from silicone oil (e.g. page 3 line 23-25) that contains a least one phenyl substituent having at least a dimethicone (e.g. page 4 line 20-27).
For Claim 11 and 13, Ma et al teaches the use of silicone oil wherein the silicone oil is chosen from phenyl trimethicones, diphenylsiloxyphenyltrimethicones, trimethylpentaphenyl trisiloxanes, trimethylsiloxyphenyldimethicones, or a mixture thereof (e.g. reference claim 5).
For Claim 12: Ma et al teaches the fatty phase comprises at least one silicone oil, hydrocarbonated-based oil or a mixture thereof (line 24 page 3). Reference more specifically teaches phenyl trimethicones, diphenylsiloxyphenyltrimethicones, trimethylpentaphenyl trisiloxanes, trimethylsiloxyphenyldimethicones (e.g. claim 5) which are aromatic silicone oil. Ma et al also teaches the use of a second oil in the composition … “the hydrocarbonated oil is chosen from non-volatile hydrocarbonated apolar oils, non-volatile hydrocarbonated polar oils, volatile hydrocarbonated oils, or a mixture thereof…” (e.g. claim 6).
For Claims 17, 18, 19: Ma teaches the teaches the percentage of two different silicone oils (trimethyl pentaphenyl trisiloxane and diohenylsiloxy phenyl trimethcone) (example 1 table page 33-35) used in a formula. Reference table shows that the invention formula 6 and 7 (phase c in example table) includes two different oils, which would give you a ratio of 1:4 which falls in the claimed ratio range. Reference table teaches the ratio between the two different oils where the first oil amount may be less than the second oil as shown in example 1 table phase c inventive formula 6 and 7 or the second oil amount can be greater than the amount of the first oil as shown in example 1 table comparative formula, which reads on the limitation of claim 17 of the instant application. Claims 18 and 19 further limit the ratio between the first oil and second oil which is also indicated in example 1 table phase C of Ma et al.
For Claim 20, 21, and 22: Ma et al teaches a hydrophobic pigment which are surface treated with a hydrophobic agent. The treated pigments are well dispersed in the fatty phase (e.g. page 27 line 4-7). The use of hydrophobic pigment visibly distinguishes the aqueous phase from the pigmented fatty phase. Reference also teaches that the composition of the present invention comprises from 0.001% to 5% by weight, preferably from 0.05% to 2% by weight of the hydrophobic particles, relative to the total weight of the composition (e.g. page 28 lines 15-17).
For Claim 23 and 24: Ma et al teaches two-phase composition that consists of two mutually immiscible phases (e.g. page 1 lines 6 and 7). Reference demonstrates in example 2 table the forming of oil beads at different temperatures (e.g. page 36 lines 15 -23). The fatty phase as stated in reference is dispersed through the aqueous phase in the form of droplets (e.g. page 3 lines 5 and 6).
For Claim 26: The claim language is unclear as you have discussed in the 112(b) rejection above. The claim recites “said cosmetic active agent preferably being….”, which is not clear if the listed “active agents” in the claims are examples of the cosmetic active agents or the claims are limited to those listed agents. For the purpose of the art rejection the claim is interpreted to be any active agent and those listed in the claim are examples.
Ma et al teaches the composition comprises at least one additive…cosmetic active agent such as vitamins, moisturizers, emollients or collagen-protecting agents, and mixtures thereof in claim 14 (page 42). As previously discussed, active agents listed are interpreted as examples, and claim 14 of reference reads on the instant claim limitations for including a cosmetic active agent.
For Claim 27: The term “fragrance concentrate” is not defined in the instant specification. Term “fragrance concentrate” is broadly used and interpreted as any fragrance. Ma et al teaches the addition of “fragrances” to the composition in claim 14 (page 42), which reads on the limitation of claim 27 of the instant application.
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 1-3, 4-7, 8-12, 17-24, 26, and 27 are rejected under 35 U.S.C 103 as being unpatentable over Ma et al (WO2015/089750; Published on June 25,2015; filled on December 13, 2013) in view of Cordier (JP 2004285047; October 14, 2004; November 25, 2003).
Ma et al., throughout the reference, teaches two-phase cosmetic composition (e.g. specification) as discussed above.
Ma et al does not teach “the difference between the density of the aqueous phase and the density of the oily phase is less than or equal to 0.02” as recited in claim 7. Although Ma et al teaches active agents, reference does not explicitly teach “retinol palmitate, Lipochroman®-6 (dimethylmethoxy chromanol, an esterified derivative of vitamin C such as ascorbyl tetraisopalmitate, and more preferentially an esterified derivative of vitamin C such as ascorbyl tetraisopalmitate” as recited in claim 26.
However, Ma et al teaches a fatty phase that comprises of at least 1 silicone oil and another oil (e.g. page 3 line 23). Reference also teaches an aqueous phase that comprises water, sodium chloride, and glycerol (e.g. page 19 line 28 and page 20 line 1-7). Ingredients of both phases taught by Ma et al are similar to the oily phase and aqueous phase in the instant application, as shown the instant specification table of example 4. The reference mixtures density would be similar to that of instant claims. The density of water is known to be 1.00 g.cm-3, instant specification discloses that the selected aromatic silicone oil has a density of 1.092 g.cm-3 (e.g. table 1 instant spec.) at 20°C, which suggests that the density for the aqueous phase would be 0.9 g.cm-3 or less.
However, Cordier throughout the reference, teaches a similar two-phase cosmetic composition constituted by a distinctive transparent aqueous phase and oil phase (e.g. specification).
For Claim 26: Cordier teaches the two -phase composition may comprise amino acid derivatives such as… Nikkol under the trade name of NIKKOL (e.g. paragraph number 0034), as listed in instant specification table 9 as an active agent. Reference also teaches that the composition may comprise of active ingredients … vitamin A (retinol), ...Vitamin C (ascorbic acid) … and mixtures thereof (e.g. paragraph 0043).
Therefore, it would have been prima facie obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to vary the oil phase mixture and aqueous phase with different amounts of additives to achieve various densities as desired as taught by Ma et al. It would have been obvious to optimize the density of the composition to achieve the desired phase distribution in a cosmetic application. The motivation of one of ordinary skill in the art would be obvious to modify the above mentioned to achieve optimal results for the composition to remain as two distinct phases where the oil phase is denser than the aqueous phase.
Therefore, it would have been prima facie obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate using active agents taught by Cordier et al into the cosmetic composition of the Ma reference, because active agents such as NIKKOL, vitamin A (retinol), Vitamin C (ascorbic acid), and mixtures thereof would produce cosmetic application for skin treatment or hair care taught by Cordier. In addition, it would be obvious to substitute one cosmetic active agent for another to achieve the desired cosmetic application.
A person of ordinary skill in the art would have reasonable expectation of success of achieving such modifications since Ma and Cordier both teach two-phase cosmetic using aromatic silicone oils and active agents.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JASMINE A EVANS whose telephone number is (571)272-9796. The examiner can normally be reached Mon-Fri 8:00-5:00EST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sue Liu can be reached at (571) 272-5539. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/J.A.E./Examiner, Art Unit 1616
/SUE X LIU/Supervisory Patent Examiner, Art Unit 1616
Prosecution Insights