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 . Claims included in the prosecution are claims 1-3, 5-7, 10, 12, 14, 15 and 19-21.
Applicants' arguments, filed 08/31/2026, 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 Rejections and/or objections not reiterated from previous office actions are hereby withdrawn.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 Objections
Claim 1 is objected to because of the following informalities: “isohexadecene” should be recited as --- isohexadecane ---. Appropriate correction is required.
Claim 1 is objected to because of the following informalities: “tripheptanoin” should be recited as --- triheptanoin ---. Appropriate correction is required.
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.
1. Claims 1, 5-7, 10, 12 and 19-21 are rejected under 35 U.S.C. 103 as being unpatentable over Stevenson (US 2023/0302023, Priority Date: Mar. 28, 2022) in view of Uchiyama et al., (US 2020/0093712 A1, March 26, 2020) (hereinafter Uchiyama) and Crane et al., (US 2015/0265504 A1, Sept. 24, 2015) (hereinafter Crane).
Stevenson discloses a skin care composition that provides moisturization and minimizes odor (abstract). The skin care composition may be in the form of an O/W emulsion (¶ [0047]). The composition may comprise emulsifiers, which are surfactants that can stabilize emulsions (i.e., the emulsion is physically stable). Examples of O/W emulsifiers include PEG-100 stearate (¶ [0041]). Surfactants may be present from about 0.1 wt. % to about 7.5 wt. % (¶ [0043]). Thickeners may be included to alter viscosity (¶ [0044]). Suitable thickeners include sodium acrylate/sodium acryloyldimethyl taurate copolymer (¶ [0045]). Thickeners may be present from about 0.001 wt. % to about 40.0 wt. % (¶ [0046]). Water may be included at an amount of 75.0 wt. % (¶ [0031]). The skin care composition may be composed of one or more carriers, including fatty alcohols (e.g., cetyl alcohol (i.e., fatty alcohol having an average carbon chain length ranging from about 12 to about 22)) (¶ [0028]). The skin care composition may be composed of one or more carriers that act as skin-conditioning agents, Examples of useful skin-conditioning agents include isohexadecane (¶ [0029]). Carriers may be present from about 0.001 wt. % to about 99.0 wt. % (¶ [0032]). The skin care composition may include antiseptics (¶ [0026]). Perfumes may be added to the composition as an odor neutralizer (¶ [0017]).
Stevenson differs from the instant claims insofar as not disclosing wherein sodium acrylate/sodium acryloyldimethyl taurate copolymer is in the continuous phase and wherein isohexadecane and cetyl alcohol are in the dispersed phase.
However, Uchiyama discloses an oil-in-water emulsion composition comprising component (A), component (B), component (C): a higher alcohol, and component (D) (Abstract). Examples of the higher alcohol (component C) include cetyl alcohol ([0046]). In addition to the aforementioned components, the composition of the present disclosure may further contain (E) a thickener ([0051]), such as sodium acrylate/sodium acryloyldimethyltaurate copolymer ([0053]). An oil phase was prepared by dissolving oil-soluble components, such as the component (A) and the component (C) in an oily component at high temperatures. On the other hand, a water phase was prepared by dissolving water-soluble components, such as the component (B), the component (D), and the component (E), in an aqueous solvent such as purified water at high temperatures ([0105]).
Accordingly, it would have been prima facie obvious to one of ordinary skill in the art to have incorporated sodium acrylate/sodium acryloyldimethyl taurate copolymer in the continuous phase of the O/W emulsion of Stevenson and isohexadecane and cetyl alcohol in the dispersed phase of the O/W emulsion of Stevenson since to prepare O/W emulsions oil-soluble components are dissolved in the oily phase and water-soluble components are dissolved in the water phase as taught by Uchiyama.
The combined teachings of Stevenson and Uchiyama do not teach wherein the composition has a viscosity of greater than or equal to 800 Pa*s or greater than or equal to 900 Pa*s at a shear rate of 0.10 s-1.
However, Crane discloses water-based cosmetic compositions comprising a synthetic non-associative thickening polymer, a synthetic associative thickening polymer, an emulsifier, a film forming polymer, and a liquid fatty substance (abstract). The gels of the invention display a particular viscosity ranging from 2,000 Pa·s to 90,000 Pa·s at low shear rate ([0026]) and low shear is from about 0.01 s-1 to about 1 s-1 ([0028]). Gel compositions of the invention may be in the form of an oil in water emulsion ([0119]).
Stevenson does not disclose a viscosity for the composition, but discloses wherein the composition may be an O/W emulsion. Accordingly, it would have been prima facie obvious to one of ordinary skill in the art to have formulated the oil in water emulsion of Stevenson to have a viscosity ranging from 2,000 Pa·s to 90,000 Pa·s at a shear rate of about 0.01 s-1 to about 1 s-1 since this is a known and effective viscosity for an oil in water emulsions as taught by Crane.
Regarding the limitation of claim 1 reciting wherein the composition is formulated without acrylamide and polyacrylamide, Stevenson does not disclose wherein the composition is required to comprise an acrylamide or polyacrylamide. Accordingly, a composition free of acrylamide and polyacrylamide would have been obvious.
Regarding the limitations of claims 1 and 19 reciting wherein the composition comprises a tack force between 20 and 40 minutes of less than 900 g and less than 880 g, respectively, as noted in the instant specification on page 4, lines 12-13, the composition can have an average tack force between 20 and 40 minutes of less than 800 g, and alternatively less than 790 g. Stevenson discloses oil in water emulsions containing sodium acrylate/sodium acryloyldimethyltaurate in about 0.001% to about 40.0 wt. %, water, about 0.001 wt. % to about 99.0 wt. % cetyl alcohol and isohexadecane, and about 0.1 wt. % to about 7.5% PEG-100 stearate. Accordingly, because Stevenson discloses substantially the same components in substantially the same amounts as the claimed invention, the composition of Stevenson necessarily has the claimed tack force.
Regarding claim 1 reciting wherein the composition does not have a foul odor, as discussed above, Stevenson discloses wherein the composition comprises an odor neutralizer.
Regarding the limitation of claims 5 and 6 reciting wherein the composition is formulated without phenoxyethanol and ethoxylated ingredients, respectively, Stevenson does not disclose wherein the composition is required to comprise phenoxyethanol or ethoxylated ingredients. Accordingly, a composition free of phenoxyethanol and ethoxylated ingredients would have been obvious.
Regarding instant claims 20 and 21, as discussed above, Stevenson discloses wherein the composition comprises 75.0 wt. % water. Water is a natural ingredient. Therefore, a composition comprising at least 70% natural ingredient would have been obvious.
2. Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Stevenson (US 2023/0302023, Priority Date: Mar. 28, 2022) in view of Uchiyama et al., (US 2020/0093712 A1, March 26, 2020) (hereinafter Uchiyama), Crane et al., (US 2015/0265504 A1, Sept. 24, 2015) (hereinafter Crane), and further in view of Duprat-de-Paule et al., (Augmented bio-based lipids for cosmetics, June 15, 2018) (hereinafter Duprat-de-Paule).
The teachings of Stevenson, Uchiyama and Crane are discussed above. Stevenson, Uchiyama and Crane do not teach wherein the composition comprises sodium acrylate/sodium acryloyldimethyl taurate copolymer & C15-19 Alkane & Polyglyceryl-6 Laurate, Polyglycerin-6.
However, Duprat-de-Paule discloses wherein Sodium Acrylate/Sodium Acryloyldimethyl Taurate Copolymer & C15-19 Alkane & Polyglyceryl-6 Laurate & Polyglycerin-6 is a sustainably designed liquid rheology modifier characterized by a light skin feel with a high gliding effect (page 6, left column, last paragraph).
Generally, it is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use. See MPEP 2144.07. Stevenson discloses wherein the composition comprises a thickener, such as sodium acrylate/sodium acryloyldimethyltaurate copolymer. Accordingly, it would have been obvious to one of ordinary skill in the art to have incorporated Sodium Acrylate/Sodium Acryloyldimethyl Taurate Copolymer & C15-19 Alkane & Polyglyceryl-6 Laurate & Polyglycerin-6 into the composition of Stevenson since it is a known and effective thickener that additionally provides skin with a light skin feel and has high gliding effect as taught by Duprat-de-Paule.
3. Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Stevenson (US 2023/0302023, Priority Date: Mar. 28, 2022) in view of Uchiyama et al., (US 2020/0093712 A1, March 26, 2020) (hereinafter Uchiyama), Crane et al., (US 2015/0265504 A1, Sept. 24, 2015) (hereinafter Crane), and further in view of SNF (Personal Care Brochure, 2021).
The teachings of Stevenson, Uchiyama and Crane are discussed above. Stevenson, Uchiyama and Crane do not teach wherein the composition comprises sodium acrylate/sodium acryloyldimethyl taurate copolymer & C15-19 alkane & lauryl glycoside.
However, SNF discloses wherein NatursolTM EMI 132 is a multifunctional rheology modifier providing thickening, stabilizing, and texturizing benefits (Slide 5). NatursolTM EMI 132’s INCI name is sodium acrylate/sodium acryloyldimethyl taurate copolymer, C15-19 alkane, and lauryl glucoside (Slide 6).
Generally, it is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use. See MPEP 2144.07. Stevenson discloses wherein the composition comprises a thickener, such as sodium acrylate/sodium acryloyldimethyltaurate copolymer. Accordingly, it would have been obvious to one of ordinary skill in the art to have incorporated Sodium Acrylate/Sodium Acryloyldimethyl Taurate Copolymer & C15-19 Alkane & Lauryl Glucoside into the composition of Stevenson since it is a known and effective thickener that additionally provides stabilizing and texturizing benefits as taught by SNF.
4. Claim 14 is rejected under 35 U.S.C. 103 as being unpatentable over Stevenson (US 2023/0302023, Priority Date: Mar. 28, 2022) in view of Uchiyama et al., (US 2020/0093712 A1, March 26, 2020) (hereinafter Uchiyama), Crane et al., (US 2015/0265504 A1, Sept. 24, 2015) (hereinafter Crane), and further in view of Burgo et al., (WO 2021/237207 A2, Nov. 25, 2021) (cited by applicant on IDS 11/07/2023) (hereinafter Burgo).
The teachings of Stevenson, Uchiyama and Crane are discussed above. Stevenson, Uchiyama and Crane do not teach wherein the composition comprises methylheptylglycerin.
However, Burgo teaches biobased alkyl glyceryl ether compounds and compositions, and applications thereof that include inter alia cosmetic applications ([0002]). The invention is directed to a biobased compound of Formula (I) ([0011]), which is 1-methylheptyl glycerin ([0014]). Formulations comprising Formula (I) include cosmetic products ([0021]). The formulation is an oil-in-water emulsion ([Claim 37). The formulation may comprise one or more biobased BAGE compounds. Biobased BAGE compounds will impart an antimicrobial or preservative effect in the formulation and/or composition to preserve the formulation and/or composition against contamination by microorganisms and/or improve antimicrobial efficacy on surfaces — e.g. skin, hair, etc. ([0060]). The biobased BAGE compound is a biobased methylheptylglycerin (“bio-MHG”) ([0063]).
Generally, it is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use. See MPEP 2144.07. Stevenson discloses wherein the composition comprises an antiseptic agent. Accordingly, it would have been prima facie obvious to one of ordinary skill in the art to have formulated the composition of Stevenson wherein the composition further comprises methylheptylglycerin since methylheptulglycerin is a known and effective antiseptic since it imparts an antimicrobial or preservative effect in formulations for the skin as taught by Burgo.
5. Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over Stevenson (US 2023/0302023, Priority Date: Mar. 28, 2022) in view of Uchiyama et al., (US 2020/0093712 A1, March 26, 2020) (hereinafter Uchiyama), Crane et al., (US 2015/0265504 A1, Sept. 24, 2015) (hereinafter Crane), and further in view of Nahrwold (US 2022/0009863 A1, Jan 13, 2022) (hereinafter Nahrwold).
The teachings of Stevenson, Uchiyama and Crane are discussed above. Stevenson, Uchiyama and Crane do not teach wherein the composition comprises phenylpropanol.
However, Nahrwold teaches that 3-Phenylpropan-1-ol (INCI name: Phenylpropanol) is an aromatic alcohol with a mild and pleasant odor. 3-Phenylpropan-1-ol is used as fragrance ingredient in perfumes and personal care products ([0005]). The invention relates to a process for manufacturing of 3-phenylpropan-1-ol from nature derived starting material ([0010]) such as cinnamon bark or cassia bark ([0015]). The 3-phenylpropan-1-ol which is free of allergens and typical odor-affecting impurities is suitable for use in cosmetics and personal care products ([0065]).
Generally, it is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use. See MPEP 2144.07. Stevenson discloses wherein the composition comprises perfumes. Accordingly, it would have been obvious to one of ordinary skill in the art to have incorporated phenylpropanol into the composition of Stevenson since it is a known and effective perfume as taught by Nahrwold.
Response to Arguments
Applicant argues that it was found that Examples A-1 and A-2, which included PEG-100 stearate as the emulsifier had sufficient viscosity with both isohexadecene or tripheptanoin. Examples A-1 and A-2 also did not feel tacky and had no noticeable odor, unlike some examples with natural polymers.
The Examiner does not find Applicant’s argument to be persuasive. Any differences between the claimed invention and the prior art may be expected to result in some differences in properties. See MPEP 716.02. Thus, because each example comprises a different emulsifier, one of ordinary skill in the art would have reasonably expected each example to have different properties, e.g., viscosity. Also, Applicant has not explained why it is desirable to have a viscosity of greater than 800 Pa*s. Applicant has not explained what makes a viscosity “sufficient.” It was known in the art that skin care compositions may be in forms such as creams, gels, solutions, and ointments. Each of those forms have a different viscosity. Therefore, since skin care compositions may have a variety of viscosities, it is unclear why achieving a viscosity of greater than 800 Pa*s is unexpected. Furthermore, Applicant has shown wherein compositions comprising a polyglyceryl-3 distearate and glyceryl stearate citrate emulsifier system had a noticeable foul odor. It is not clear how showing wherein such emulsifier system causes a foul odor shows that using PEG-100 stearate is unexpected when there are thousands of other emulsifiers and Applicant has not shown wherein only PEG-100 stearate does not cause a foul odor. As such, the rejection is maintained.
Applicant argues that the secondary/tertiary references do not cure the deficiencies.
The Examiner submits that Applicant’s arguments with regards to the main rejection are unpersuasive and are addressed above. Therefore, the other rejections are maintained.
Conclusion
Claims 1-3, 5-7, 10, 12, 14, 15 and 19-21 are rejected.
No claims are allowed.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to TRACY LIU whose telephone number is (571)270-5115. The examiner can normally be reached Mon-Fri 9 am - 5 pm.
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/TRACY LIU/ Primary Examiner, Art Unit 1614
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