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 .
Priority
The effective filing date of the instant application is 14 September 2023.
Election/Restrictions
Applicant’s election without traverse of Group I (claims 1-8, 10-14, 16-32), sodium acrylates crosspolymer-2, squalane, polyurethane, and ammonium acryloyldimethyltaurate/VP copolymer and hydroxyethyl acrylate/sodium acryloyldimethyl taurate copolymer in the reply filed on 19 September 2025 is acknowledged.
Claim 33 withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.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 19 September 2025.
Examiner’s Note
The Applicant's amendments and arguments filed 15 January 2026 are acknowledged and have been fully considered. The Examiner has re-weighed all the evidence of record. Rejections and objections not reiterated from previous office actions are hereby withdrawn. The following rejections and objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application. In the Applicant’s response, filed 15 January 2026, it is noted that claims 1 and 5 have been amended, claims 2-4, 6-8, 10-14, 16-23, and 29 have been canceled, and claims 34-37 have been newly added. Support for the amendment(s) and/or new claim(s) can be found on pg. 3 of the specification. No new matter has been added.
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.
Claim 1 is 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.
Claim 1 recites a hydrophilic emollient comprising “squalene” and a water-soluble emollient comprising “squalane.” Table 1 in the instant specification uses “squalane” with mango seed butter and Orbignya oleifera seed oil, instead of “squalene.” Furthermore, step 3 on pg. 17 of the instant specification uses “Dermanet squalene” which is interpreted as a typo and should instead be “Dermanet squalane” since “Dermanet squalene” appears to not exist as a product. The Applicant is asked to clarify because squalene and squalane are different compounds. Therefore, the metes and bounds of this limitation cannot be determined and is considered indefinite.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
Claim(s) 1, 5, 24-26, 28, 30-32, 36, 37 is/are rejected under 35 U.S.C. 103 as being unpatentable over Montoya et al. (US 2020/0345595 A1), specialchem.com, newdirectionsaromatics.com, and Baier (US 20130195911 A1).
Montoya et al. teach a skin-tightening composition that may be in the form of an oil-in-water emulsion (entire teaching; abs) and may include sodium acrylates crosspolymer-2 (para. 85), squalane (para. 42), and ammonium acryloyldiethyl taurate/VP copolymer and hydroxyethyl acrylate/sodium acryloyldimethyl taurate copolymer (para. 20). The composition may comprise 50-90% of water (abs). The amount of sodium acrylates crosspolymer-2 may be 0.1-20% (para. 86). Babassu oil (para. 60) and glycerin (para. 19) may be included, addressing the hydrophilic emollient of claim 10 (pg. 10 of instant specification). The amount of ammonium acryloyldimethyltaurate/VP copolymer and hydroxyethyl acrylate/sodium acryloyldimethyl taurate copolymer may be up to 10% (para. 20, 73). Hydrophobic compounds in an amount of 1-15% (para. 11) include squalane (para. 42), babassu oil, and isodecyl neopentanoate (para. 47), addressing claims 24 and 25 (pg. 13 of instant specification). The composition may include polyurethane as a film former (para. 76), addressing claim 26. The composition does not require silicone, PEG, or alcohol, addressing claims 30-32. Squalene in claim 1 is interpreted as squalane (see above 112b rejection). Polyols, such as glycerin, may be in an amount of about 0.1-25% (paras. 70, 71). The components and amounts partially address claim 1.
The viscosity limitations in 36 and 37 are interpreted as inherent properties of the composition comprising polymers and thickeners. The polymers and thickeners used in the instant invention result in the desired viscosity (instant specification, pg. 23). Since Montoya teaches the claimed polymers/thickeners in the claimed amounts, the composition taught by Montoya would inherent and necessarily have the viscosity properties in claims 36 and 37. It is noted that “products of identical chemical composition cannot have mutually exclusive properties.” A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990) (see MPEP 2112.01 (II)). The U.S. Patent Office is not equipped with analytical instruments to test prior art compositions for the infinite number of ways that a subsequent applicant may present previously unmeasured characteristics. When as here, the prior art appears to contain the exact same ingredients and applicant's own disclosure supports the suitability of the prior art composition as the inventive composition component, the burden is properly shifted to applicant to show otherwise.
Montoya does not teach hydrogenated lecithin or mango seed butter in claim 1.
Specialchem.com teaches that hydrogenated lecithin is versatile and commonly used in cosmetics for hydrating properties and may mix well with oil and water-based ingredients (pg. 1).
Newdirectionsaromatics.com teaches that mango butter (same as mango seed butter) softens and soothes the skin (pgs. 5-6).
Since Montoya does not specifically teach hydrogenated lecithin in claim 1, one of ordinary skill in the art would have been motivated to use specialchem.com’s teaching that hydrogenated lecithin is hydrating and mixes well with oil and water-based ingredients. A skilled artisan would have been led to combine the teachings because Montoya teaches an oil-in-water emulsion to treat skin imperfections and specialchem.com teaches that hydrogenated lecithin may improve compositions with their hydrating properties.
Since Montoya does not specifically teach mango seed butter in claim 1, one of ordinary skill in the art would have been motivated to use newdirectionsaromatics.com’s teaching that mango seed butter softens and soothes the skin. A skilled artisan would have been led to combine the teachings because Montoya teaches an oil-in-water emulsion to treat skin imperfections and specialchem.com teaches that hydrogenated lecithin may improve compositions with their moisturizing and anti-aging properties.
In regards to the amounts of mango seed butter and hydrogenated lecithin in claim 1, Baier teaches 1% of hydrogenated lecithin and 1% of mango seed butter (Example 1) in their oil-in-water emulsion for skin (para. 52, abs). That being said and in lieu of objective evidence of unexpected results, the amounts can be viewed as a variable that achieves the recognized result of successfully making the cosmetic composition, which a skilled artisan would have been easily motivated to modify and adjust. The optimum or workable range of amounts can be accordingly characterized as routine optimization and experimentation (see MPEP 2144.05 (II)B). “[Discovery of an optimum value of a result effective variable in a known process is ordinarily within the skill of the art.” In re Boesch, 617 F.2d 272, 276 (CCPA 1980). Applicants provide no evidence of any secondary consideration, such as unexpected results, that would render the optimized amounts of mango seed butter and hydrogenated lecithin as nonobvious.
Claim(s) 1, 5, 24-28, 30-32, 36, 37 is/are rejected under 35 U.S.C. 103 as being unpatentable over Montoya et al. (US 2020/0345595 A1), specialchem.com, newdirectionsaromatics.com, and b4brands.com.
In regards to claim(s) 1, 5, 24-26, 28, 30-32, 36, 37, Montoya et al., as applied supra, is herein applied in its entirety for its teachings of a skin-tightening composition that may be in the form of an oil-in-water emulsion (entire teaching; abs) and may include sodium acrylates crosspolymer-2 (para. 85), squalane (para. 42), and ammonium acryloyldiethyl taurate/VP copolymer and hydroxyethyl acrylate/sodium acryloyldimethyl taurate copolymer (para. 20).
Montoya does not specifically teach methylpropanediol in claim 27.
B4brands.com teaches that methylpropanediol is used in skincare as a solvent, humectant, viscosity modifier, and solubilizer to help stabilize formulations with oil and water-based components (pgs. 1-2).
Since Montoya does not specifically teach methylpropanediol in claim 27, one of ordinary skill in the art would have been motivated to use b4brands.com’s teaching that methylpropanediol helps to stabilize oil and water-based formulations. A skilled artisan would have been led to combine the teachings because Montoya teaches an oil-in-water emulsion to treat skin imperfections and b4brands.com teaches that methylpropanediol may improve compositions with their stabilizing properties.
Claim(s) 1, 5, 24-28, 30-32, 34-37 is/are rejected under 35 U.S.C. 103 as being unpatentable over Yu (WO 2008070368 A2), specialchem.com, newdirectionsaromatics.com, and Baier (US 20130195911 A1), as evidenced by ewg.org.
Yu teaches a skin composition (abs; entire teaching) that may comprise 0.1-10% (para. 142) of sodium acrylates crosspolymer (interpreted as sodium acrylates crosspolymer-2, evidenced by ewg.org, pg. 2), 0.01-10% of squalene and perhydrosqualene (squalane) (para. 141), 0.01-30% of glycerin (para. 142), 0.1-10% of ammonium acryloyldimethyltaurate/VP copolymer (para. 142), 0.1-10% of hydroxyethylacrylate/sodium acryloyldimethyl taurate (para. 142), 30-90% of water (para. 121), and 0-5% of a preservative (para. 140) in an oil-in-water emulsion (para. 123), partially addressing claim 1 and addressing claims 5 and 35. The composition may include a hydrophobic emollient, such as olive oil, in an amount of 0.01-10% (para. 141) and 0.01-30% of methylpropanediol (para. 142), addressing claims 24-28. The composition does not require silicone, alcohol, PEG, or sodium silicate, addressing claims 30-32 and 34.
The viscosity limitations in 36 and 37 are interpreted as inherent properties of the composition comprising polymers and thickeners. The polymers and thickeners used in the instant invention result in the desired viscosity (instant specification, pg. 23). Since Yu teaches the claimed polymers/thickeners in the claimed amounts, the composition taught by Yu would inherent and necessarily have the viscosity properties in claims 36 and 37. It is noted that “products of identical chemical composition cannot have mutually exclusive properties.” A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990) (see MPEP 2112.01 (II)). The U.S. Patent Office is not equipped with analytical instruments to test prior art compositions for the infinite number of ways that a subsequent applicant may present previously unmeasured characteristics. When as here, the prior art appears to contain the exact same ingredients and applicant's own disclosure supports the suitability of the prior art composition as the inventive composition component, the burden is properly shifted to applicant to show otherwise.
Yu does not teach hydrogenated lecithin or mango seed butter in claim 1.
Specialchem.com teaches that hydrogenated lecithin is versatile and commonly used in cosmetics for hydrating properties and may mix well with oil and water-based ingredients (pg. 1).
Newdirectionsaromatics.com teaches that mango butter (same as mango seed butter) softens and soothes the skin (pgs. 5-6).
Since Yu does not teach hydrogenated lecithin in claim 1, one of ordinary skill in the art would have been motivated to use specialchem.com’s teaching that hydrogenated lecithin is hydrating and mixes well with oil and water-based ingredients. A skilled artisan would have been led to combine the teachings because Yu teaches an oil-in-water emulsion to treat skin aging and specialchem.com teaches that hydrogenated lecithin may improve compositions with their hydrating properties.
Since Yu does not teach mango seed butter in claim 1, one of ordinary skill in the art would have been motivated to use newdirectionsaromatics.com’s teaching that mango seed butter softens and soothes the skin. A skilled artisan would have been led to combine the teachings because Yu teaches an oil-in-water emulsion to treat skin aging and specialchem.com teaches that hydrogenated lecithin may improve compositions with their moisturizing and anti-aging properties.
In regards to the amounts of mango seed butter and hydrogenated lecithin in claim 1, Baier teaches 1% of hydrogenated lecithin and 1% of mango seed butter (Example 1) in their oil-in-water emulsion for skin (para. 52, abs). That being said and in lieu of objective evidence of unexpected results, the amounts can be viewed as a variable that achieves the recognized result of successfully making the cosmetic composition, which a skilled artisan would have been easily motivated to modify and adjust. The optimum or workable range of amounts can be accordingly characterized as routine optimization and experimentation (see MPEP 2144.05 (II)B). “[Discovery of an optimum value of a result effective variable in a known process is ordinarily within the skill of the art.” In re Boesch, 617 F.2d 272, 276 (CCPA 1980). Applicants provide no evidence of any secondary consideration, such as unexpected results, that would render the optimized amounts of mango seed butter and hydrogenated lecithin as nonobvious.
Response to Arguments
Applicant's arguments filed 15 January 2026 have been fully considered but they are not persuasive.
The Applicant argues that a skilled artisan would not have a reason or motivation to arrive at the composition in amended claim 1 (Remarks, pg. 6).
Applicant’s argument is not found persuasive. Montoya et al. teach a skin-tightening composition that may be in the form of an oil-in-water emulsion (entire teaching; abs) and may include sodium acrylates crosspolymer-2 (para. 85), squalane (para. 42), and ammonium acryloyldiethyl taurate/VP copolymer and hydroxyethyl acrylate/sodium acryloyldimethyl taurate copolymer (para. 20). The composition may comprise 50-90% of water (abs).
Since Montoya does not specifically teach hydrogenated lecithin in claim 1, one of ordinary skill in the art would have been motivated to use specialchem.com’s teaching that hydrogenated lecithin is hydrating and mixes well with oil and water-based ingredients. A skilled artisan would have been led to combine the teachings because Montoya teaches an oil-in-water emulsion to treat skin imperfections and specialchem.com teaches that hydrogenated lecithin may improve compositions with their hydrating properties. Additionally, since Montoya does not specifically teach mango seed butter in claim 1, one of ordinary skill in the art would have been motivated to use newdirectionsaromatics.com’s teaching that mango seed butter softens and soothes the skin. A skilled artisan would have been led to combine the teachings because Montoya teaches an oil-in-water emulsion to treat skin imperfections and specialchem.com teaches that hydrogenated lecithin may improve compositions with their moisturizing and anti-aging properties.
Also, Yu teaches a skin composition (abs; entire teaching) that may comprise 0.1-10% (para. 142) of sodium acrylates crosspolymer (interpreted as sodium acrylates crosspolymer-2, evidenced by ewg.org, pg. 2), 0.01-10% of squalene and perhydrosqualene (squalane) (para. 141), 0.01-30% of glycerin (para. 142), 0.1-10% of ammonium acryloyldimethyltaurate/VP copolymer (para. 142), 0.1-10% of hydroxyethylacrylate/sodium acryloyldimethyl taurate (para. 142), 30-90% of water (para. 121), and 0-5% of a preservative (para. 140) in an oil-in-water emulsion (para. 123).
Since Yu does not teach hydrogenated lecithin in claim 1, one of ordinary skill in the art would have been motivated to use specialchem.com’s teaching that hydrogenated lecithin is hydrating and mixes well with oil and water-based ingredients. A skilled artisan would have been led to combine the teachings because Yu teaches an oil-in-water emulsion to treat skin aging and specialchem.com teaches that hydrogenated lecithin may improve compositions with their hydrating properties. Additionally, since Yu does not teach mango seed butter in claim 1, one of ordinary skill in the art would have been motivated to use newdirectionsaromatics.com’s teaching that mango seed butter softens and soothes the skin. A skilled artisan would have been led to combine the teachings because Yu teaches an oil-in-water emulsion to treat skin aging and specialchem.com teaches that hydrogenated lecithin may improve compositions with their moisturizing and anti-aging properties.
The Applicant argues that Formulation 5 provides unexpected superior viscosity, texture, and stability (Remarks, pgs. 6-7).
Applicant’s argument is not found persuasive. Formulation 5 comprises sodium acrylates crosspolymer-2 in an amount of 0.5%, which allegedly resulted in better viscosity, stability, and texture compared to both Formulation 6, which has 1% sodium acrylates crosspolymer-2 and Formulation 3, which lacks sodium acrylates crosspolymer-2. Sodium acrylates crosspolymer-2 is known in the art to act as a viscosity-increasing agent. Therefore, it is not unexpected or surprising that the compositions comprising sodium acrylates crosspolymer-2 would have superior stability, texture, and viscosity (Formulation 3 vs. Formulation 5). Sodium acrylates crosspolymer-2 is also known in the art to be used in lower concentrations, such as 0.47-1.8% (evidenced by CIR Report Data Sheet, pg. 32), in personal care products. Therefore, it is not unexpected or surprising that Formulation 5 with less sodium acrylate crosspolymer-2 (0.5%) would result in a more favorable consistency compared to Formulation 6 (1% sodium acrylates crosspolymer-2), which likely felt a little heavier in texture (instant specification, pg. 20) due to the slightly higher concentration of sodium acrylates crosspolymer-2 (Formulation 5 vs Formulation 6).
Conclusion
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.
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/D.A.K./Examiner, Art Unit 1613
/ANDREW S ROSENTHAL/Primary Examiner, Art Unit 1613