DETAILED ACTION
Status of the Application
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claims 9-13 are withdrawn.
Claims 1-8 are pending and represent all claims currently under consideration.
Election/Restrictions
Applicant’s election without traverse of Group I in the reply filed on 03/11/2026 is acknowledged.
Claims 9-13 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 03/11/2026.
Priority
Acknowledgment is made of applicant’s claim for foreign priority under 35 U.S.C. 119 (a)-(d). Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Claims 1-8 are considered to have an effective filing date of 03/19/2021.
Information Disclosure Statement
The information disclosure statement filed 09/18/2023 has been considered.
The information disclosure statement filed 11/18/2025 fails to comply with the provisions of 37 CFR 1.98(a)(4) because it lacks the appropriate size fee assertion. It has been placed in the application file, but the information referred to therein has not been considered as to the merits.
Claim Objections
Claim 1 is objected to because of the following informalities. Appropriate correction is required.
Regarding claim 1, “agents: a first” should read “agents, comprising a first”; “the weight percent” should read “a weight percent”; “7%,” should read “7%;” in order to be consistent with the formatting of the rest of the claim; and “Wherein” in the last line of the claim should be lowercase.
Specification
The use of the terms Physica, Anton Paar, Carbopol, and Lubrizol, which are trade names or marks used in commerce, has been noted in this application. The term should be accompanied by the generic terminology; furthermore the term should be capitalized wherever it appears or, where appropriate, include a proper symbol indicating use in commerce such as ™, SM , or ® following the term.
Although the use of trade names and marks used in commerce (i.e., trademarks, service marks, certification marks, and collective marks) are permissible in patent applications, the proprietary nature of the marks should be respected and every effort made to prevent their use in any manner which might adversely affect their validity as commercial marks.
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.
Claims 1-8 are rejected under 35 U.S.C. 103 as being unpatentable over Johncock (WO 2020088778 A1; IDS reference, 09/18/2023), further in view of Schmaus (WO 2019120564 A1; IDS reference, 09/18/2023).
Regarding claim 1, Johncock teaches an oil-in-water emulsion composition (Johncock, claim 16) which can be formulated as a hair care product such as a concentrated shampoo (Johncock, page 54, paragraph 0081). Johncock exemplifies a composition comprising water in about 53% and xanthan gum (i.e., a thickener as defined by the instant specification, page 8, line 30) in 0.2%, which each lie within the claimed range. Johncock teaches the composition comprises a mixture of potassium cetyl phosphate and hydrogenated palm glycerides (i.e., emulsifying agents as defined by the instant claims 2-3) in 2% total (Johncock, page 58, example 1), but does not specify the individual percentage of each. Schmaus, however, teaches a cosmetic emulsion comprising water, and one or more emulsifiers which can be potassium cetyl phosphate and hydrogenated palm glycerides (Schmaus, claims 1 and 3), and teaches a preferable ratio of potassium cetyl phosphate to hydrogenated palm glycerides is about 6:4 (Schmaus, page 8, 10th paragraph), which would result in about 1.2% potassium cetyl phosphate and 0.8% hydrogenated palm glycerides as calculated from the 2% total amount taught by Johncock, which each lie within the claimed range.
Johncock and Schmaus are both considered to be analogous to the claimed invention, because Johncock, Schmaus, and the instant invention are in the same field of cosmetic emulsions. It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have utilized the ratio of emulsifying agents taught by Schmaus to be preferable, because Johncock teaches these ingredients, but does not specify a ratio between the two.
Regarding claim 2, Johncock and Schmaus together teach all the elements of the claimed invention as applied to claim 1. Johncock teaches the composition comprises emulsifiers (Johncock, claim 21), and exemplifies a composition comprising potassium cetyl phosphate (Johncock, page 58, example 1).
Regarding claim 3, Johncock and Schmaus together teach all the elements of the claimed invention as applied to claim 1. Johncock teaches the composition comprises emulsifiers (Johncock, claim 21), and exemplifies a composition comprising hydrogenated palm glycerides (Johncock, page 58, example 1).
Regarding claim 4, Johncock and Schmaus together teach all the elements of the claimed invention as applied to claim 1. As above, Johncock teaches the composition comprises a mixture of potassium cetyl phosphate and hydrogenated palm glycerides (i.e., emulsifying agents as defined by the instant claims 2-3) in 2% total (Johncock, page 58, example 1), but does not specify the individual percentage of each. Schmaus, however, teaches a preferable ratio of potassium cetyl phosphate to hydrogenated palm glycerides is about 6:4 (Schmaus, page 8, 10th paragraph), which would result in about 1.2% potassium cetyl phosphate (i.e., “first emulsifying agent” as claimed) as calculated from the 2% total amount taught by Johncock, which lies within the claimed range. As above, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have utilized the ratio of emulsifying agents taught by Schmaus to be preferable, because Johncock teaches these ingredients, but does not specify a ratio between the two.
Regarding claim 5, Johncock and Schmaus together teach all the elements of the claimed invention as applied to claim 1. As above, Johncock teaches the composition comprises a mixture of potassium cetyl phosphate and hydrogenated palm glycerides (i.e., emulsifying agents as defined by the instant claims 2-3) in 2% total (Johncock, page 58, example 1), but does not specify the individual percentage of each. Schmaus, however, teaches a preferable ratio of potassium cetyl phosphate to hydrogenated palm glycerides is about 6:4 (Schmaus, page 8, 10th paragraph), which would result in about 0.8% hydrogenated palm glycerides (i.e., “second emulsifying agent” as claimed) as calculated from the 2% total amount taught by Johncock, which lies within the claimed range. As above, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have utilized the ratio of emulsifying agents taught by Schmaus to be preferable, because Johncock teaches these ingredients, but does not specify a ratio between the two.
Regarding claim 6, Johncock and Schmaus together teach all the elements of the claimed invention as applied to claim 1. Johncock teaches suitable thickeners are polymeric thickeners such as Carbopols® (i.e., a crosslinked polyacrylic acid as defined by the instant specification, page 9, lines 2-3).
Regarding claim 7, Johncock and Schmaus together teach all the elements of the claimed invention as applied to claim 1. Johncock exemplifies a composition comprising glycerin (i.e., a humectant as defined by the instant specification, page 13, lines 3-4; Johncock, page 58, example 1).
Regarding claim 8, Johncock and Schmaus together teach all the elements of the claimed invention as applied to claim 7. Johncock exemplifies a composition comprising glycerin in about 3.75% (i.e., a humectant as defined by the instant specification, page 13, lines 3-4; Johncock, page 58, example 1B), which lies within the claimed range.
Conclusion
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/C.P.J./ Examiner, Art Unit 1613
/JENNIFER A BERRIOS/ Primary Examiner, Art Unit 1613
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