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 .
DETAILED ACTION
Applicant’s Request for Reconsideration dated January 20, 2026 is acknowledged.
Claims 1 and 4-14 are pending.
Claims 2 and 3 are cancelled.
Claims 1, 5, 9, 10, 13 and 14 are currently amended.
Claims 1 and 4-14 as filed on January 20, 2026 are currently pending and under consideration.
This action is made FINAL.
Withdrawn Objections / Rejections
In view of the amendment of the abstract, all previous objections to the specification are withdrawn.
In view of the amendment of the claims, all previous claim objections are withdrawn and all previous claim rejections under 35 USC 112(b) are withdrawn.
Applicant’s arguments 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 Rejections and/or objections not reiterated from previous office actions are hereby withdrawn.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.
Maintained Grounds of Rejection / New Grounds of Rejection Necessitated by Amendment
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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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, 4-7 and 9-14 are rejected under 35 U.S.C. 103 as being unpatentable over Oki et al. (US 2021/0403660, published December 30, 2021, of record) in view of Spindler et al. (WO 2017/180440, published October 19, 2017, of record) and Abe (WO 2022/137679, published June 30, 2022, as evidenced by US 2024/0041710, IDS references filed March 21, 2024).
Oki teaches biodegradable resin particles; the particles comprise a base particle containing a biodegradable resin selected from a cellulose resin that is preferably cellulose acetylate (title; abstract; claims, in particular 1, 8, 9; paragraphs [0045]-[0046], [0054]). The degree of polymerization of the cellulose acetylate is 200 to 1000; the degree of polymerization is the molecular weight divided by the molecular weight of a constituent unit which is 263 or 284 (molecular weight = (263 or 284)*(200 to 1000) ~ 52,600 to 284,000 Daltons) (paragraphs [0065]-[0068]), as required by instant claims 13, 14. The base particles may further comprise other components inclusive of plasticizers inclusive of esters inclusive of fatty acid (hydrocarbon) esters; the content of these other components is 0 to 5 wt% (0 to 50,000 ppm) (paragraphs [0074]-[0084]). Oki further teaches the base particles are prepared using methods in which an organic solvent in which each component is dissolved is suspended in an aqueous solvent and exemplifies an embodiment wherein resin is dissolved in methyl ethyl ketone (implies some non-zero residual amount will be present in the product) (paragraphs [0242]-[0254], [0292]).
The particles comprise a first (intermediate) layer on the surface of the base particle, the first layer containing a cationic resin inclusive of a polyalkyleneimine (polyamine) (claim 1), as required by instant claim 7.
The particles comprise a second layer on the first layer, the second layer containing a hydrophobic compound inclusive of a fatty acid compound (claims 1, 2), as required by instant claim 4.
The particle diameter is 3 to 100 microns (paragraphs [0234]-[0235]), as required by instant claim 9.
The large-diameter (upper) GSDv is 1.5 or less (paragraphs [0237]-[0241]), as required by instant claim 10.
Oki, as a whole, is drawn to resin particles having utility in cosmetics (e.g., paragraphs [0040], [0259]).
Oki does not teach 3 to 1000 ppm of a hydrocarbon ester selected from ethyl acetate, butyl acetate or ethyl propionate and a ketone selected from methyl ethyl ketone, methyl isobutyl ketone or acetone as required by claim 1.
Oki does not teach a C16-C22 fatty acid as required by claim 5.
Oki does not teach a saturated fatty acid as required by claim 6.
Oki does not teach a sphericity of 0.7 or greater as required by claim 11.
Oki does not teach a surface smoothness of 50% or more as required by claim 12.
These deficiencies are made up for in the teachings of Spindler and Abe.
Spindler teaches delivery systems based on natural microparticles comprising a natural substrate material such as cellulose (title; abstract; claims). An active agent is entrapped in the substrate using a solvent inclusive of ketones such as methyl ethyl ketone (abstract; page 26, lines 8-28). The solvent used for the entrapment is substantially removed because in practice 100% removal is not possible; in some embodiments the residual solvent is not more than 100 ppm of the final composition (page 27, lines 14-25).
Abe teaches resin beads obtained by surface treatment of core beads formed from a resin having cellulose as a main component; cellulose includes cellulose acetate (title; abstract; claims). Abe further teaches a method of production comprising the step of dissolving the cellulose in a solvent inclusive of ester-based solvents inclusive of ethyl acetate and ketone-based solvents inclusive of methyl ethyl ketone and exemplifies embodiments wherein resin is dissolved in ethyl acetate; these solvents can be used singly or in combination (abstract; claims; paragraphs [0075]-[0077]; Examples). Abe further teaches the beads have a sphericity of 0.7 to 1.0 and a surface smoothness of 70 to 100%; this sphericity and smoothness improves spreadability and tactile impression (abstract; Figure 1; paragraphs [0039]-[0042]), as required by instant claims 11, 12. The surface treatment agent is a lipophilic agent that is a metal salt of stearic acid (claims 4, 5; paragraphs [0067]-[0069]), as required by instant claims 5, 6.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to prepare the cellulose resin base particles of Oki with organic solvents as taught by Abe inclusive of ester-based solvents inclusive of ethyl acetate and ketone-based solvents inclusive of methyl ethyl ketone because these solvents are suitable for dissolving cellulose for the preparation of particles. There would be a reasonable expectation of success because Oki embraces any organic solvent and because Oki exemplifies production wherein resin is dissolved in methyl ethyl ketone.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention that the cellulose resin base particles of Oki or/and Oki in view of Abe comprise residual processing solvent because Spindler teaches in practice 100% removal is not possible and it would have been obvious to ensure the cellulose resin particles of Oki or/and Oki in view of Abe prepared using solvents inclusive of ester-based solvents inclusive of ethyl acetate and ketone-based solvents inclusive of methyl ethyl ketone comprise no more than 100 ppm residual solvent as taught by Spindler because this quantity qualifies as substantially none and because this quantity is suitable for cellulose microparticles suitable for cosmetic applications.
Regarding claims 5, 6, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to substitute lipophilic agents as taught by Abe inclusive of metal salts of stearic acid for the hydrophobic compound of the second layer of the cellulose resin particles of Oki in view of Abe and Spindler because simple substitution of functionally equivalent elements yields predictable results, absent evidence to the contrary. There would be a reasonable expectation of success because stearic acid is a fatty acid compound falling within the genus embraced by Oki.
Regarding claims 11, 12, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the cellulose resin particles of Oki in view of Abe and Spindler to have a sphericity of 0.7 to 1.0 and a surface smoothness of 70 to 100% as taught by Abe in order to improve spreadability and tactile impression. There would be a reasonable expectation of success because Oki does not delimit the shape of the particles.
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Oki et al. (US 2021/0403660, published December 30, 2021, of record) in view of Spindler et al. (WO 2017/180440, published October 19, 2017, of record) and Abe (WO 2022/137679, published June 30, 2022, as evidenced by US 2024/0041710, IDS references filed March 21, 2024) as applied to claims 1, 4-7 and 9-14 above, and further in view of McCarthy, JR et al. (US 2021/0009767, published January 14, 2021, of record).
The teachings of Oki, Spindler and Abe have been described supra.
They do not teach an inorganic particle as an external additive (understood as a coating as described in paragraphs [0042]-[0043] of the instant specification) as required by claim 8.
This deficiency is made up for in the teachings of McCarthy.
McCarthy teaches solventless particle coating (title; abstract; claims). The solid coatings include waxes or/and fats such as fatty alcohols and fatty acids (claim 3; paragraph [0031]). Certain types of coated solid granule cores may suffer from adhesion and caking during storage; to prevent this, the particles may be dry coated with silica (paragraph [0047]), as required by instant claim 8.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the cellulose resin particles of Oki in view of Spindler and Abe to further comprise a dry coating with silica as taught by McCarthy in order to prevent potential adhesion or caking during storage.
Response to Arguments: Claim Rejections - 35 USC § 103
Applicant’s arguments have been fully considered but they are not persuasive.
Applicant’s citation to paragraphs [0078]-[0079] of the as-filed specification at pages 10-11 of the Remarks in support of the argument that the cellulose particles as the final product do not contain ethyl acetate and methyl ethyl ketone is acknowledged (emphasis in original). This argument is problematic because (1) the particles as actually claimed require 3 to 1000 ppm ester inclusive of ethyl acetate and ketone inclusive of MEK and (2) the particles as actually claimed are not limited to those produced by the process of paragraphs [0078]-[0079].
Applicant’s citation to paragraph [0011] at page 11 in support of the apparent argument that the ethyl acetate and MEK are added to the final product cellulose particles is acknowledged but not found persuasive because it is not seen where the specification discloses such a process. For example, neither the exemplified process at paragraphs [0078]-[0081] nor the generic process at paragraphs [0060]-[0067] encompass a step where the process solvents are removed (in totality) and then a de minimis amount of 3 to 1000 ppm are added back into the particles. To the contrary, paragraph [0061] suggests the (residual) amounts of process solvents are retained by adjusting the amount of process solvent (e.g., paragraph [0060]).
Applicant’s citation to Tables 1-2-1, 1-2-2, 1-4-1 and 1-4-2 at pages 11-12 in support of the allegation that the specific amounts of ester and ketone achieve synergistic effects of unexpected results and are critical is unpersuasive because the content of the specification has already been considered in the determination of prima facie obviousness as part of the Graham analysis. Notably, the exemplified process has limited nexus with the genus of particles claimed. Applicant’s specific comparison of Examples 1-18 with comparative examples 1 and 2 is noted but unpersuasive because claim 1 as currently amended limits the amount of the hydrocarbon ester and the amount of the ketone to 3 to 1000 ppm. Example 7 comprising 995 ppm ethyl acetate and 993 ppm MEK, identified at page 12 of the Remarks as desirably “fluffy”, evidences the claimed range is not critical for the exemplified particles let alone for the genus of particles embraced by claim 1. A cursory comparison of the process of Examples 1-18 (Table 1-1) to the process of the comparative examples (Table 1-3) suggests the primary difference in the production method is the amount of organic solvent. However, it is known from the prior art that one of the many process factors that affects the cellulose particle produced is the amount of raw material (and implicitly the amount of solvent) (e.g., Yoshimura et al. (US 2021/0032415), paragraphs [0061]-[0064], [0109]). Optimization of solvents in the process would be routine.
Applicant’s characterization of Oki as merely using methyl ethyl ketone as solvent to prepare base particles at page 12 is unpersuasive because it would have been obvious in view of Schindler that it is impossible to remove all organic process solvents.
Applicant’s characterization of Spindler as exemplifying acetone at pages 12-13 is unpersuasive because (1) the instant claims embrace the presence of acetone and (2) Spindler evidences acetone to be an art recognized obvious variant of MEK.
Applicant’s characterization of Abe as exemplifying ethyl acetate at pages 13-14 is unpersuasive because (1) the instant claims embrace the presence of ethyl acetate and (2) Abe evidences ethyl acetate is an obvious variant of MEK.
Applicant’s characterization of the rejection as hindsight at page 14 is unpersuasive because it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
Applicant’s rehashed allegation of synergistic unexpected effects at page 14 is unpersuasive because (1) it is not credited that the exemplary data evidence synergism – meaning an effect which is greater than the sum of each of the effects taken separately – because there are no data evidencing the effect of an ester alone or a ketone alone and (2) it is not credited that the exemplary data evidence an unexpected result because there is limited nexus of the exemplified particles to the genus of particles claimed. See MPEP 716 for information regarding allegations of unexpected results.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1 and 4-14 are rejected on the ground of nonstatutory double patenting as being unpatentable (1) over claims 1-14 of U.S. Patent No. 12,065,547; (2) over claims 1-12 of U.S. Patent No. 12,187,861; (3) over claims 1-13 of U.S. Patent No. 12,325,779; (4) over claims 1-16 of U.S. Patent No. 12,378,403; and (5) over claims 1-14 of U.S. Patent No. 12,460,054 (Application No. 18/366,674) in view of Abe (WO 2022/137679, published June 30, 2022, as evidenced by US 2024/0041710, IDS references filed March 21, 2024), Spindler et al. (WO 2017/180440, published October 19, 2017, of record) and Oki et al. (US 2021/0403660, published December 30, 2021, of record).
The instant claims are drawn to a particle comprising cellulose as the base constituent (meaning greater than 90 wt% cellulose as defined in paragraph [0013] of the specification) and 3 to 1000 ppm of a hydrocarbon ester inclusive of ethyl acetate and a ketone inclusive of methyl ethyl ketone. The particle may further comprise a coating comprising inter alia a fatty acid, the fatty acid having 16 to 22 carbon atoms or the fatty acid being saturated. The particle may further comprise an intermediate coating comprising inter alia a polyamine. The particle may further comprise an inorganic particle as an external additive. The particle may have a diameter of 3 to 10 microns, an upper GSDv of 1 to 1.7, a sphericity greater than 0.7, or a surface smoothness greater than 50%. The cellulose may have a molecular weight greater than 37,000.
The ‘547 Patent claims are drawn to a particle comprising a cellulose core, a first coating layer comprising a polyamine and a second coating layer comprising a linear, saturated C14-C22 fatty acid. The particle may further comprise a silicon external additive. The particle may have a diameter of 3 to 10 microns, an upper GSDv of 1 to 1.7, a sphericity greater than 0.9, or a surface smoothness greater than 80%. The cellulose may have a molecular weight greater than 37,000.
The ‘861 Patent claims are drawn to particles comprising a cellulose core and a first coating layer comprising a polyamine or/and a linear, saturated fatty acid, wherein the particles have a diameter of 3 to 10 microns. The particles may further comprise a silicon external additive. The particles may have an upper GSDv of 1 to 1.7, a sphericity greater than 0.9, or a surface smoothness greater than 80%. The cellulose may have a molecular weight greater than 37,000.
The ‘779 Patent claims are drawn to a particle comprising a cellulose core and a first coating layer comprising a fatty acid. The fatty acid may be a C16-C22 fatty acid or may be saturated. The particle may further comprise an intermediate coating comprising inter alia a polyamine. The particle may further comprise an inorganic particle as an external additive. The particle may have a diameter of 3 to 10 microns, an upper GSDv of 1 to 1.7, a sphericity greater than 0.7, or a surface smoothness greater than 50%. The cellulose may have a molecular weight greater than 37,000.
The ’403 Patent claims are drawn to resins comprising cellulose particles comprising coating layers and intermediate layers, wherein the cellulose particles have a sphericity greater than 0.9, wherein the coating layers comprise inter alia linear saturated fatty acids and wherein the intermediate layers comprise polyamines. The particles may have a diameter of 1 to 10 microns, an upper GSDv of less than 1.7, or a surface smoothness greater than 50%.
The ‘054 Patent claims are drawn to a particle comprising cellulose as a base constituent, a coating layer comprising a saturated fatty acid and an intermediate layer comprising inter alia a polyamine. The particle may further comprise an inorganic particle as an external additive. The particle may have a diameter of 3 to 10 microns, an upper GSDv of 1 to 1.7, a sphericity greater than 0.7, or a surface smoothness greater than 50%. The cellulose may have a molecular weight greater than 37,000.
The instant claims differ from the conflicting Patent claims primarily with respect to the recitation of 3 to 1000 ppm ester / ethyl acetate and ketone / MEK. However, it is known in view of at least Abe as elaborated supra that cellulose particles are prepared using solvents inclusive of ethyl acetate or/and MEK and it would have been obvious that at least some residual solvent remains in cellulose particles. In view of Spindler, it would have been obvious to minimize the residual solvent to amounts lower than 100 ppm of the particles because this threshold renders particles suitable for cosmetic applications.
The instant claims also differ from the ‘861 Patent claims with respect to the arrangement of the layers. However, it is known in view of at least Oki as elaborated supra to prepare cellulose particles comprising a first layer comprising a cationic resin inclusive of a polyalkyleneimine (polyamine) and second layer comprising a fatty acid compound and it would have been obvious to do so.
The instant claims also differ from the ‘861 Patent claims, the ‘403 Patent claims and the ‘054 Patent claims with respect to the species of fatty acids. However, it is known in view of at least Abe as elaborated supra to employ stearic acid as the fatty acid or wax and it would have been obvious to do so.
The instant claims also differ from the ‘403 Patent claims with respect to the species of cellulose MW. However, it is known in view of at least Oki as elaborated supra to employ cellulose having a degree of polymerization which implicitly renders obvious MWs as instantly claimed.
The instantly claimed particles are therefore an obvious variant of the particles of the conflicting Patents in view of the prior art.
Claims 1 and 4-14 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable (A) over claims 1-3, 5, 6, 8-20 of copending Application No. 17/990,720; (B) over claims 1, 3-5, 9, 11, 12 and 14-22 of copending Application No. 18/071,531; (C) over claims 1-17, 19 and 20 of copending Application No. 18/151,132;
(D) over claims 1-14 of copending Application No. 18/444,627; (E) over claims 1-16 of copending Application No. 18/458,986; (F) over claims 1-10 of copending Application No. 18/459,442; (G) over claims 1-10 and 20 of copending Application No. 18/461,482; and
(H) over claims 1-13 of copending Application No. 18/542,778 in view of Abe (WO 2022/137679, published June 30, 2022, as evidenced by US 2024/0041710, IDS references filed March 21, 2024), Spindler et al. (WO 2017/180440, published October 19, 2017, of record), Oki et al. (US 2021/0403660, published December 30, 2021, of record) and McCarthy, JR et al. (US 2021/0009767, published January 14, 2021, of record).
Withdrawn copending claims are included because withdrawn claims are still pending
The instant claims have been described supra.
The copending ‘547 claims (A) are drawn to a particle comprising cellulose as the first component in an amount of 70 to 95 wt% (main component). The particles may further comprise a coating layer comprising inter alia a polyamine or/and a linear, saturated fatty acid, wherein the coating layer comprises a first coating layer containing the polyamine compound and a second coating covering the first coating. The particle may further comprise a silicon particle as an external additive. The particle may have a diameter of 3 to 10 microns, an upper GSDv of 1 to 1.7, a sphericity greater than 0.9, or a surface smoothness greater than 80%. The cellulose may have a molecular weight greater than 37,000.
The copending ‘531 claims (B) are drawn to particles comprising cellulose as the base constituent, a coating layer comprising inter alia a polyamine or/and a linear, saturated fatty acid, and a second coating layer and comprising hydrophobized silica particles (external). The particle may have a diameter of 3 to 10 microns, an upper GSDv of 1 to 1.7, a sphericity greater than 0.9, or a surface smoothness greater than 80%. The cellulose may have a molecular weight greater than 37,000.
The copending ‘132 claims (C) are drawn to a particle comprising cellulose as a base constituent, the cellulose having a molecular weight greater than 37,000, the particle having a diameter of less than 9 microns and an upper GSDv of 1.5 or less. The particle may further comprise a coating layer comprising inter alia a polyamine or/and a linear, saturated fatty acid. The coating may comprise a first coating comprising the polyamine and a second coating. The particle may further comprise a silicon particle as an external additive. The particle may have a diameter of 3 to 9 microns, an upper GSDv of 1 to 1.5, a sphericity greater than 0.9, or a surface smoothness greater than 80%.
The copending ‘627 claims (D) are drawn to particle comprising cellulose as a main component, a first coating layer containing a polysaccharide, and a second coating layer comprising a fatty acid salt. The fatty acid salt may comprise calcium stearate. The particle may have a diameter of 3 to 10 microns.
The copending ‘986 claims (E) are drawn to a particle comprising cellulose acetate as a main component. The particle may have a diameter of 1 to 100 microns. The particle may comprise a coating layer comprising inter alia fatty acids, and may further comprise an intermediate coating layer comprising inter alia polyamines. The particle may further comprise an inorganic particle as an external additive.
The copending ‘442 claims (F) are drawn to a particle comprising cellulose as a main component, a first coating layer, and a second coating layer comprising inter alia a fatty acid. The first coating layer may comprise a polysaccharide.
The copending ‘482 claims (G) are drawn to particles containing a base particle containing cellulose as a main component, a coating layer, and an intermediate layer. The particles may have a surface smoothness less than 80% or a diameter of 1 to 20 microns. The coating layer may comprise inter alia a fatty acid.
The copending ‘778 claims (H) are drawn to particles containing cellulose as a main component and a coating layer. The particles may have a diameter of 1 to 100 microns. The coating layer may comprise inter alia a fatty acid, the fatty acid may be linear. The particles may further comprise an intermediate coating layer, the intermediate coating layer comprising inter alia a polyamine.
The instant claims differ from the conflicting copending claims primarily with respect to the recitation of 3 to 1000 ppm ester / ethyl acetate and ketone / MEK. However, it is known in view of at least Abe as elaborated supra that cellulose particles are prepared using solvents inclusive of ethyl acetate or/and MEK and it would have been obvious that at least some residual solvent remains in cellulose particles. In view of Spindler, it would have been obvious to minimize the residual solvent to amounts lower than 100 ppm of the particles because this threshold renders particles suitable for cosmetic applications.
The instant claims may also differ from the conflicting copending claims with respect to the arrangement of the layers. However, it is known in view of at least Oki as elaborated supra to prepare cellulose particles comprising a first layer comprising a cationic resin inclusive of a polyalkyleneimine (polyamine) and second layer comprising a fatty acid compound and it would have been obvious to do so.
The instant claims may also differ from the conflicting copending claims with respect to the species of fatty acids. However, it is known in view of at least Abe as elaborated supra to employ stearic acid as the fatty acid or wax and it would have been obvious to do so.
The instant claims may also differ from the conflicting copending claims with respect to the species of cellulose MW. However, it is known in view of at least Oki as elaborated supra to employ cellulose having a degree of polymerization which implicitly renders obvious MWs as instantly claimed.
The instant claims may also differ from the conflicting copending claims with respect to the diameter, SD, sphericity or/and smoothness. However, it is known in view of at least Oki as elaborated supra to prepared cellulose particles having a diameter of 3 to 100 microns and a large-diameter GSDv of 1.5 or less and it would have been obvious to do so and it is known in view of at least Abe to prepare cellulose particles of similar diameter that have a sphericity of 0.7 to 1.0 and a surface smoothness of 70 to 100% and it would have been obvious to do in order to improve smoothness and uniformity.
The instant claims may also differ from the conflicting copending claims with respect to the recitation of an external inorganic particle. However, it is known in view of at least McCarty to overcoat particles with silica in order to prevent adhesion and caking during storage and it would have been obvious to do so.
The instantly claimed particles are therefore an obvious variant of the particles of the conflicting copending claims in view of the prior art.
This is a provisional nonstatutory double patenting rejection.
Response to Arguments: Double Patenting
Applicant’s request to withdraw the double patenting rejections for the same reasons as set forth with respect to the rejections under 35 USC 103 at page 15 of the Remarks is acknowledged but not found persuasive for the same reasons as set forth with respect to the rejections under 35 USC 103.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Yoshimura et al. (US 2021/0032415) teaches a method for producing cellulose particles (title; abstract; claims).
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 ALISSA PROSSER whose telephone number is (571)272-5164. The examiner can normally be reached M - Th, 10 am - 6 pm.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, DAVID BLANCHARD can be reached on (571)272-0827. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ALISSA PROSSER/
Examiner, Art Unit 1619
/BENNETT M CELSA/Primary Examiner, Art Unit 1600