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 .
Status of Claims
Receipt of Remarks/Amendments filed on 11/20/2025 is acknowledged. Claims 1, 6-9, 14-17, and 19-20 are amended and claims 2, 5, and 18 are canceled. Claims 1, 3-4, 6-17, and 19-20 are currently pending and are examined on the merits herein.
NOTE: the term “freeze-thaw” in the last line of at least claims 1, 17 and 19 is misspelled as
-free-thaw-. Correction is required.
Priority
The instant application filed 08/25/2023 claims no priority.
Withdrawn Rejections
Claims 4, 8-9, 16-17, and 20 were rejected under 35 U.S.C. 112(b). Applicants’ amendments to the claims have overcome the rejections and the rejections are withdrawn.
Claims 1-2, 4, 6-7, 11, 15, and 19 were rejected under 35 U.S.C. 102(a)(1) over US’558. Applicant’s amendments to the claims have overcome the rejection and the rejection is withdrawn.
Claims 1-2, 4, 6-7, 11, and 15 were rejected under 35 U.S.C. 102(a)(1) over US’345. Applicant’s amendments to the claims have overcome the rejection and the rejection is withdrawn.
Claims 1-2, 4, 6-7, 11, and 15 were rejected under 35 U.S.C. 102(a)(1) over FR’435. Applicant’s amendments to the claims have overcome the rejection and the rejection is withdrawn.
Claims 1-2, 4, and 6 were rejected under 35 U.S.C. 102(a)(1) as being anticipated by Mintel. Applicant’s amendments to the claims have overcome the rejection and the rejection is withdrawn.
Claims 1-2, 4, and 6 were rejected under 35 U.S.C. 102(a)(1) as being anticipated by Mintel2. Applicant’s amendments to the claims have overcome the rejection and the rejection is withdrawn.
Claims 1-2, 4, 6, 11, and 15 were rejected under 35 U.S.C. 102(a)(1) as being anticipated by Mintel3. Applicant’s amendments to the claims have overcome the rejection and the rejection is withdrawn.
Claims 2, 5, and 18 were rejected under 35 U.S.C. 103 over various references. Applicant’s cancellation of claims 2, 5, and 18 have rendered the rejection(s) moot and the rejection(s) are withdrawn.
Claim 17 was rejected under 35 U.S.C. 103 in view of US’558, Making cosmetics, and Mintel4. Applicant’s amendments to the claims have overcome the rejection and the rejection is withdrawn.
Claim 17 was rejected on the ground of nonstatutory double patenting over U.S. Patent Nos. 11,819,559; 12,036,304; and 12,396,941, in view of US’558, Making Cosmetics, and Mintel4. Applicant’s amendment to claim 17 have overcome the rejection and the rejection is withdrawn.
The following rejections are necessitated by amendment:
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.
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, 3-4, 6-9, 11-12, 14-16, and 19-20 are rejected under 35 U.S.C. 103 as being unpatentable over US 2020/0368558 A1 (Chiou, C., et al., 11/26/2020, on record), hereinafter US’558 as evidenced by the National Center for Biotechnology Information (2025). PubChem Compound Summary for CID 20224941, Isohexadecene. Retrieved August 13, 2025 (on record), hereinafter NCBI and Hydroxyacetophenone. Good Molecules. Retrieved: August 2025. (on record), hereinafter Good Molecules and Caprylyl Glycol by Sharkey, L. (2021). Healthline. Retrieved: August 2025 (on record), hereinafter Healthline and Lexgard® O, caprylyl glycol by Inolex - Personal Care & Cosmetics. Ultrus Prospector. Retrieved: August 2025. (on record), hereinafter Ultrus.
US’558 teaches a makeup removal composition including at least one branched or linear, liquid alkane with carbon chain length of C11 to C20, at least one polar emollient with molecular weight of 400 g/mol or less, at least one polymeric thickener for water-based system, and at least one surfactant in a water-based emulsion/suspension system comprising oil and water phases (i.e., an oil-in-water emulsion), the water phase including water present from about 70% to about 85% by weight of the composition (abstract).
Table 2 discloses inventive example 1 which is in the form of a juice (not imbued in a substrate). The juice of inventive example 1 comprises phases A through F. Phase A (i.e., thickeners) comprises: water (~58%); carbomer (0.1%); acrylates/C10-30 alkyl acrylate crosspolymer (0.03%); sodium carboxymethyl starch (0.1%); sclerotium gum (and) xanthan gum (0.2%). Phase B (i.e., water phase) comprises: water (25%); glycerin (3%); caprylyl glycol (0.3%); hydroxyacetophenone (0.5%). Phase C (i.e., pH adjuster) comprises: sodium hydroxide (0.05%) and water (0.5%). Phase D (i.e., oil phase) comprises: isohexadecane (5%); isopropyl myristate (5%); dicaprylyl ether (1%). Phase E (i.e., surfactants) comprises PEG-7 glyceryl cocoate (1%). Phase F comprises fragrance (0.05%). US’558 further teaches its composition to be essentially free of silicones ([0028]; claim 14).
The juice of inventive example 1 therefore reads on a fluid emulsion cosmetic comprising a combination of polymeric thickeners comprising at least one synthetic crosspolymer (i.e., carbomer and acrylates/C10-30 alkyl acrylate crosspolymer), at least one thickening polysaccharide (i.e., sclerotium and xanthan gum), at least one ethoxylated emulsifier having an HLB from 8-14 and in liquid form at RT (i.e., PEG-7 glyceryl cocoate), at least one active selected from water soluble skin care actives, oil soluble skin care actives, and combinations thereof (i.e., hydroxyacetophenone and caprylyl glycol), water, and at least one oil (i.e., isohexadecane), wherein the composition is free of silicones as recited in claim 1. Inventive example 1 comprises 0.2% by weight of sclerotium and xanthan gum which falls within the instantly claimed range of claim 1.
Regarding claim 4, the composition of US’558 comprises both acrylates/C10-30 alkyl acrylate crosspolymer and xanthan gum.
Regarding claims 6-7, the composition of US’558 comprises 1% by weight of PEG-7 glyceryl cocoate.
Regarding claim 8, the composition of US’558 comprises the active hydroxyacetophenone at an amount of 0.5% which falls within the instantly claimed range.
Regarding claim 11, the composition of US’558 comprises isohexadecane which is a C16 alkane as evidenced by the NCBI which reads on the instantly claimed C15-19 alkane.
Regarding claim 15, the composition of US’558 comprises acrylates/C10-30 alkyl acrylate crosspolymer and carbomer as synthetic crosspolymers; sclerotium and xanthan gum as thickening polysaccharides; PEG-7 glyceryl cocoate as an ethoxylated emulsifier; hydroxyacetophenone and caprylyl glycol as water/oil soluble skin care actives; water; and isohexadecane as a c15-19 alkane oil.
The preparation of the juice formulas includes final step 6: mix well at room temperature and drop the batch, wherein all of the ingredients have been previously combined (example 3).
US’558 generally teaches that the amount of one or more actives and additives, alone or in combination, present in the composition can be present in the composition in a range from about 0.001% to about 20% by weight ([0094]-[0095]).
The teachings of US’558 differ from those of the instant invention in that US’588 does not explicitly teach the claimed amount of the at least one synthetic polymer/crosspolymer as recited in claims 1 and 19, nor the amount of the actives as recited in claims 1, 9, 14, 16, 19, and 20, nor does US’558 explicitly teach the amount of the at least one oil as recited in claims 12 and 14.
Regarding the amount of the synthetic crosspolymer as recited in claims 1 and 19, inventive example 1 of US’558 comprises carbomer and acrylates/C10-30 alkyl acrylate crosspolymer at a total amount of 0.13% by weight. While 0.13% does not fall within the instantly claimed range of 0.15 to about 1.5%, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art by are merely close. See MPEP 2144.05. Furthermore, it is well within the abilities of an ordinary artisan to optimize the amount of synthetic crosspolymer in the composition depending on the desired thickness of the final product. As such, one of ordinary skill in the art would have arrived at the instantly claimed range of 0.15% to about 1.5% through no more than routine experimentation. Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Regarding the actives present in the composition of US’558, inventive example 1 comprises hydroxyacetophenone and caprylyl glycol, both of which read on actives as evidenced by Good Molecules and Healthline. Both hydroxyacetophenone and caprylyl glycol are water soluble as evidenced by their inclusion in the water phase (B) of inventive example 1. Caprylyl glycol is also soluble in oils as evidenced by Ultrus. The combination of hydroxyacetophenone and caprylyl glycol therefore reads on a combination of water soluble and oil soluble actives. However, together hydroxyacetophenone and caprylyl glycol only make up 0.7% by weight of the composition which does not fall within the range of claims 1, 9, 16, 19, and 20. Individually, these actives do not fall within the range of claim 14. US’558 teaches that the amount of one or more actives and additives, alone or in combination, may range from about 0.001% to about 20% by weight. As such, it would have been obvious to one of ordinary skill to provide actives at any amount within this range depending on the desired skin care effect of the cosmetic product. One of ordinary skill in the art would have therefore reached the instantly claimed amount of actives (alone or in combination) as recited in claims 1, 9, 14, 16, 19, and 20 through no more than routine experimentation. Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Regarding the properties of the composition as recited in claims 1 and 3, because the composition made obvious by the prior art is identical to the composition claimed, the composition must necessarily have the characteristics claimed as an inherent property, including the composition’s ability to act as a “serum”. It is noted that In re Best (195 USPQ 430) and In re Fitzgerald (205 USPQ 594) discuss the support of rejections wherein the prior art discloses subject matter, which there is reason to believe inherently includes functions that are newly cited, or is identical to a product instantly claimed. In such a situation the burden is shifted to the applicants to “prove that subject matter to be shown in the prior art does not possess the characteristic relied on” (205 USPQ 594). There is no requirement that a person of ordinary skill in the art would have recognized the inherent disclosure at the time of invention, but only that the subject matter is in fact inherent in the prior art reference. Additionally, one of ordinary skill would have been motivated to optimize the formulation when incorporating a high amount of actives, as instantly claimed, in order to provide a stable, fluid emulsion. The optimization of a result effective parameter (i.e., emulsion stability) is considered within the skill of the artisan. See, In re Boesch and Slaney (CCPA) 204 USPQ 215. This is what research chemists do, optimization of result-effective variables through routine experimentation (MPEP 2144.05 IIA and B).
Regarding the amount of the at least one oil as recited in claims 12 and 14, inventive example 1 comprises 5% by weight of isohexadecane. While 5% does not fall within the instantly claimed ranges it is well within the abilities of an ordinary artisan to optimize the amount of oil in the composition depending on the desired consistency of the final product. As such, one of ordinary skill in the art would have arrived at the instantly claimed range of 0.5% to 3% or 2% to 4% through no more than routine experimentation. Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). Furthermore, 5% by weight is close to the instantly claimed range of claims 12 and 14 which recite an upper range of about 3% or about 4%, respectively. A prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art by are merely close. See MPEP 2144.05. Further regarding claim 14, the composition comprises 1% by weight of PEG-7 glyceryl cocoate which falls within the instantly claimed range of the ethoxylated emulsifier and the amount of active is made obvious above.
Regarding claim 19, the final step of the preparation method taught by US’558 comprises mixing all of the ingredients discussed above at room temperature ([0111]). Given that each ingredient and its amount is taught or made obvious above, it would have been obvious to blend the above ingredients at these amounts at room temperature, since such a method is taught for preparing the juice formulations of US’558. Regarding the properties of the resulting fluid emulsion, because the composition made obvious by the prior art is identical to the composition claimed, the composition must necessarily have the characteristics claimed as an inherent property, including the compositions ability to act as a “serum”. It is noted that In re Best (195 USPQ 430) and In re Fitzgerald (205 USPQ 594) discuss the support of rejections wherein the prior art discloses subject matter, which there is reason to believe inherently includes functions that are newly cited, or is identical to a product instantly claimed. In such a situation the burden is shifted to the applicants to “prove that subject matter to be shown in the prior art does not possess the characteristic relied on” (205 USPQ 594). There is no requirement that a person of ordinary skill in the art would have recognized the inherent disclosure at the time of invention, but only that the subject matter is in fact inherent in the prior art reference.
Claims 1, 3-4, 6-12, 14-16, and 19-20 are rejected under 35 U.S.C. 103 as being unpatentable over US 2020/0368558 A1 (Chiou, C., et al., 11/26/2020, on record), hereinafter US’558 as applied to claims 1, 3-4, 6-9, 11-12, 14-16, and 19-20 above, and further in view of Cosmetic solvents for Skin & Hair Care Products: Natural humectants. (2021). Making Cosmetics. Retrieved: August 2025 (on record), hereinafter Making Cosmetics as evidenced by What is Denatured Alcohol and Why is it in my Skincare Products? by Amable, J. (2020). Healthline. Retrieved: August 2025 (on record), hereinafter Healthline2.
The teachings of US’558 are discussed above.
As discussed above, inventive example 1 of US’558 contains an aqueous phase (B) comprising: water (25%); glycerin (3%); caprylyl glycol (0.3%); hydroxyacetophenone (0.5%) (table 2). Additional solvents and humectants may be included in the composition such as ethanol, glycerin, and glycols like butylene glycol and propylene glycol ([0087]). Additionally, water is present in the compositions in a range from about 60% to about 90% be weight of the total composition ([0082]).
The teachings of US’558 differ from that of the instantly claimed invention in that US’558 does not explicitly teach a composition which includes water-soluble solvents that include glycerin, alcohol denatured, butylene glycol, and pentylene glycol as recited in claims 10 and 17, nor the specific range of water recited in claim 10.
Making Cosmetics teaches solvents for cosmetics. Since many ingredients are not or only poorly soluble in water, special solvents may be necessary to bring such ingredients into solution. Special solvents may also be necessary to disperse and wet pigments. Many of such solvents used for dissolving water-soluble ingredients are alcohols and include, for example, propanediol 1,3-butylene glycol, and propylene glycol. Cosmetic solvents are essential for dissolving, stabilizing, and delivering active ingredients, ensuring smooth, uniform consistency and enhancing the performance of skin and hair care formulas. Without these solvents, many active ingredients would be challenging to incorporate into formulations, compromising their effectiveness. Humectants draw moisture from the air and help lock it into the skin and hair, preventing dryness and dehydration. Including these natural humectants in your cosmetic products is crucial for maintaining hydration and enhancing the effectiveness of moisturizers, serums, and conditioners, improving their long-lasting benefits (Solvents). Commercially available solvents sold by Making Cosmetic include butylene glycol, glycerin, and pentylene glycol.
It is noted that denatured alcohol is ethanol mixed with toxic additives to prevent human consumption as evidenced by Healthline2. While it is not safe to drink it is used in cosmetics and skincare products as a form of ethanol.
It would have been obvious to combine the teachings of US’558 and Making Cosmetics before the effective filing date of the claimed invention to provide the composition of US’558 with several water-soluble solvents in addition to the already present glycerin in order to yield the instantly claimed invention. It would have been obvious to include water-soluble solvents that include glycerin, ethanol (i.e., alcohol denat.), butylene glycol, and pentylene glycol since these are taught as known and routine cosmetic solvents by US’558 and Making Cosmetics. One of ordinary skill in the art would have been motivated to include additional solvents in the composition of US’558 since they aid in dissolving, stabilizing, and delivering active ingredients, ensuring smooth, uniform consistency and enhancing the performance of cosmetics as taught by Making Cosmetics. One of ordinary skill in the art would have been especially motivated to include these additional solvents when incorporating a high amount of actives as recited in instant claim 1 since additional solvents can be used to dissolve and stabilize actives.
Regarding the amount of each water-soluble solvent to include, it is well within the abilities of an ordinary artisan to optimize the amount of each cosolvent in the composition depending on the desired solubility and stability of the final product. As such, one of ordinary skill in the art would have arrived at the instantly claimed range of water-soluble solvents in claim 10 through no more than routine experimentation. Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). Furthermore, solubility and stability are results effective parameters and the optimization of a result effective parameter is considered within the skill of the artisan. See, In re Boesch and Slaney (CCPA) 204 USPQ 215. This is what research chemists do, optimization of result-effective variables through routine experimentation (MPEP 2144.05 IIA and B).
One of ordinary skill in the art would have had a reasonable expectation of success in including water-soluble solvents such as ethanol (i.e., alcohol denat.), butylene glycol, and pentylene glycol in addition to glycerin since these compounds are taught as optional additives in the composition of US’558 and are well known solvents in the field of cosmetics as taught by Making Cosmetics.
Regarding the amount of water recited in claim 10, inventive example 1 comprises approximately 84% by weight of water in total. While 84% does not fall within the instantly claimed range (i.e., 60-70%) it is well within the abilities of an ordinary artisan to optimize the amount of water in the composition depending on the amount of other ingredients included and the desired consistency of the final product. Furthermore, US’558 teaches that water may be present in the composition in a range from about 60% to about 90%. As such, one of ordinary skill in the art would have arrived at the instantly claimed range of 60% to 70% through no more than routine experimentation with a reasonable expectation of success. Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
3. Claims 1, 3-4, 6-16, and 19-20 are rejected under 35 U.S.C. 103 as being unpatentable over US 2020/0368558 A1 (Chiou, C., et al., 11/26/2020, PTO-892), hereinafter US’558 and Cosmetic solvents for Skin & Hair Care Products: Natural humectants. (2021). Making Cosmetics. Retrieved: August 2025 (PTO-892), hereinafter Making Cosmetics as applied to claims 1, 3-4, 6-12, 14-16, and 19-20 above, and further in view of Mintel, “Conditioning Cleansing Oil”, June 2020, (PTO-892), hereinafter Mintel4.
The combined teachings of US’558 and Making Cosmetics are discussed above.
The combined teaching of US’558 and Making Cosmetics differ from that of the instant invention in they do not teach wherein the at least one oil includes a combination of pentaerythrityl tetraisostearate, C15-19 alkane, and squalane as recited in claims 13 and 17.
Mintel4 teaches a conditioning cleansing oil which is used to remove makeup, sebum and impurities while regulating the skin’s moisture balance for a smooth, moist and clean finish. It is dermatologically tested containing seven natural oils, and is free from parabens and silicone (product description). The cleaning oil comprises pentaerythrityl tetraisostearate and squalane among other oils (ingredients).
It would have been obvious to modify the combined composition of US’558 and Making Cosmetics with the composition of Mintel4 before the effective filing date of the claimed invention by including the pentaerythrityl tetraisostearate and squalane of Mintel4 into the oil phase of the combined composition. Both Mintel4 and US’558 teach compositions for removing makeup which are free of silicones and comprise an oil phase. “It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose…[T]he idea of combining them flows logically from their having been individually taught in the prior art.” In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980). As such, one of ordinary skill in the art would have arrived at the instantly claimed oil phases of claims 13 and 17 with a reasonable expectation of success by combining the pentaerythrityl tetraisostearate and squalane of Mintel4 with the isohexadecane (i.e., c15-19 alkane) of US’558 since these are all known and effective oils to be used in a silicone free makeup removing composition.
Regarding the amount of each oil to include, it is well within the abilities of an ordinary artisan to optimize the amount of each oil in the composition depending on the desired sensory properties of the final product. As such, one of ordinary skill in the art would have arrived at the instantly claimed range of each oil in claim 13 through no more than routine experimentation. Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
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.
1. Claims 1, 3-4, and 6-16 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 21 of U.S. Patent No. 11,819,559. The Obviousness Double Patenting rejection is appropriate because while the conflicting claims are not identical, the examined claims are not patentably distinct from the reference claims and would have been obvious over the entirety of the reference claims in view of the skills and knowledge available to one of ordinary skill in the art.
Claim 1 of US’559 recites a cosmetic composition comprising: i. an antimicrobial agent comprising 4-hydroxyacetophenone present from about 0.2% to about 1% by weight of the composition; ii. at least one additional antimicrobial agent comprising piroctone olamine present from about 0.05% to about 1.5% by weight of the composition; iii. isohexadecane present from about 3% to about 7% by weight of the composition; iv. isopropyl myristate present from about 3% to about 7% by weight of the composition; v. dicaprylyl ether present from about 1% to about 2% by weight of the composition; vi. glycerin present from about 1% to about 5% by weight of the composition; vii. hexylene glycol present from about 1% to about 2% by weight of the composition; viii. acrylates/C10-30 alkyl acrylate crosspolymer present from about 0.01% to about 0.1% by weight of the composition; and ix. a balance of water, and wherein the cosmetic composition is a makeup removing composition. Claim 21 of US’559 recites the cosmetic composition of claim 1, further including: x. sodium hydroxide; xi. caprylyl glycol; xii. trisodium ethylenediamine disuccinate; xiii. PEG-7 glyceryl cocoate; xiv. sodium lauroyl lactylate, ceramide NP, ceramide AP, phytosphingosine, cholesterol, xanthan gum, carbomer, and ceramide EOP; and xv. Carbomer.
As such the composition of US’559 comprises at least one synthetic polymer or crosspolymer (i.e., acrylates/C10-30 alkyl acrylate crosspolymer), at least one thickening polysaccharide (i.e., xanthan gum), at least one ethoxylated agent having an HLB from 8-14 and in liquid form at room temperature (PEG-7 glyceryl cocoate), at least one active (hydroxyacetophenone and piroctone olamine), water, and at least one oil (i.e., isohexadecane) as recited in instant claim 1. The claims of US’559 do not explicitly recite the inclusion of a silicone in the composition of claim 1, thus it reads on being free of silicones.
The conflicting claims differ from the instant claims in that they do not teach the amount of the synthetic polymer, thickening polysaccharide, or actives as instantly defined in claim 1.
However, it is well within the abilities of an ordinary artisan to optimize the amount of each component in the composition depending on the desired consistency, stability, and bioactive effect of the final product. As such, one of ordinary skill in the art would have arrived at the instantly claimed ranges through no more than routine experimentation. Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
2. Claims 19-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 21 of prior U.S. Patent No. 11,819,559 in view of US 2020/0368558 A1 (Chiou, C., et al., 11/26/2020, PTO-892), hereinafter US’558. The Obviousness Double Patenting rejection is appropriate because while the conflicting claims are not identical, the examined claims are not patentably distinct from the reference claims and would have been obvious over the reference claims in view of US’558.
Claim 1 of US’559 recites a cosmetic composition comprising: i. an antimicrobial agent comprising 4-hydroxyacetophenone present from about 0.2% to about 1% by weight of the composition; ii. at least one additional antimicrobial agent comprising piroctone olamine present from about 0.05% to about 1.5% by weight of the composition; iii. isohexadecane present from about 3% to about 7% by weight of the composition; iv. isopropyl myristate present from about 3% to about 7% by weight of the composition; v. dicaprylyl ether present from about 1% to about 2% by weight of the composition; vi. glycerin present from about 1% to about 5% by weight of the composition; vii. hexylene glycol present from about 1% to about 2% by weight of the composition; viii. acrylates/C10-30 alkyl acrylate crosspolymer present from about 0.01% to about 0.1% by weight of the composition; and ix. a balance of water, and wherein the cosmetic composition is a makeup removing composition. Claim 21 recites the cosmetic composition of claim 1, further including: x. sodium hydroxide; xi. caprylyl glycol; xii. trisodium ethylenediamine disuccinate; xiii. PEG-7 glyceryl cocoate; xiv. sodium lauroyl lactylate, ceramide NP, ceramide AP, phytosphingosine, cholesterol, xanthan gum, carbomer, and ceramide EOP; and xv. Carbomer.
As such the composition of US’559 comprises at least one synthetic polymer or crosspolymer (i.e., acrylates/C10-30 alkyl acrylate crosspolymer), at least one thickening polysaccharide (i.e., xanthan gum), at least one ethoxylated agent having an HLB from 8-14 and in liquid form at room temperature (PEG-7 glyceryl cocoate), at least one active (hydroxyacetophenone and piroctone olamine), water, and at least one oil (i.e., isohexadecane) as recited in instant claim 19. The claims of US’559 do not explicitly recite the inclusion of a silicone in the composition of claim 1, thus it reads on being free of silicones.
The conflicting claims differ from the instant claims in that they do not teach the amount of the synthetic polymer, thickening polysaccharide, or actives as instantly defined in claim 19, nor does US’559 recite a method as defined in claim 19.
US’558 teaches a makeup removal composition including at least one branched or linear, liquid alkane with carbon chain length of C11 to C20, at least one polar emollient with molecular weight of 400 g/mol or less, at least one polymeric thickener for water-based system, and at least one surfactant in a water-based emulsion/suspension system comprising oil and water phases (i.e., an oil-in-water emulsion) (abstract). The composition of US’558 is essentially free of silicones ([0028]; claim 14). US’558 teaches that additional solvents and humectants such as ethanol, glycerin, and glycols may also be included ([0087]). The preparation of the composition includes final step 6: mix well at room temperature and drop the batch, wherein all of the ingredients have been previously combined (example 3).
The amount of each component in claim 19 would have been prima facie obvious to one of ordinary skill in the art since it is well within the abilities of an ordinary artisan to optimize the amount of each component in the composition depending on the desired consistency, stability, and bioactive effect of the final product. As such, one of ordinary skill in the art would have arrived at the instantly claimed ranges through no more than routine experimentation. Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Regarding the method of instant claim 19, it would have been prima facie obvious to use the preparation method of US’588 in preparing the combined composition described above since US’588 teaches the preparation of a make-up removing composition with similar components as the composition of US’559 and the combination of prior art elements according to known methods to yield predictable results is considered prima facie obvious.
3. Claims 1, 3-4, 6-16, and 19-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-2, 4, and 19 of U.S. Patent No. 12,036,304 in view of US 2020/0368558 A1 (Chiou, C., et al., 11/26/2020, PTO-892), hereinafter US’558. The Obviousness Double Patenting rejection is appropriate because while the conflicting claims are not identical, the examined claims are not patentably distinct from the reference claims and would have been obvious over the reference claims in view of US’558.
Claim 1 of US‘304 recites a salt-stable cosmetic composition in the form of an oil in water emulsion, comprising: a water phase including: (i) a salt-stable polymeric system comprising a polymer blend comprising polyacrylate crosspolymer-6, acrylamide/sodium acryloyldimethyltaurate copolymer, and one or more gum; (ii) at least one acidic skin active present in the form of a cosmetically acceptable acid; and (iii) one or more neutralizing agents; and an oil phase. The oil phase includes at least one oil and at least one emulsifier (claim 2 of US‘304). As such, the cosmetic composition of ‘304 comprises at least one synthetic polymer or crosspolymer and at least one thickening polysaccharide (i.e., gum) as well as at least one active, water, and at least one oil as recited in instant claim 1. The crosspolymer is present from 0.2% to 1.2% by weight and the gum is present from 0.1% to 0.5% (US’304 claim 4), both of which fall within the instantly claimed ranges of crosspolymer and polysaccharide. The cosmetically acceptable acids are present in a total amount of 4% to 15% (US’304 claim 4), which overlaps with the instantly claimed range of actives. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05. The composition of US’304 does comprise any silicones as recited, thus it reads on being free of silicones. Claim 19 of US’304 teaches a method for forming a salt-stable direct emulsion cosmetic composition according to claim 1, the method comprising blending the polymers, adding the at least one cosmetically acceptable acid, whereupon the blend typically appreciably thickens, and adjusting the pH to achieve a final pH in a range from about 4.5 to about 7.5 by adding the one or more neutralizing agents. The method of claim 19 does not recite heating, thus it reads on the method of instant claim 19.
The claims of US‘304 differ from the instantly claimed invention in that US‘304 does not recite at least one ethoxylated agent having an HLB in the range form 8-14 and in liquid form as recited in instant claim 1.
US’558 teaches a makeup removal composition including at least one branched or linear, liquid alkane with carbon chain length of C11 to C20, at least one polar emollient with molecular weight of 400 g/mol or less, at least one polymeric thickener for water-based system, and at least one surfactant in a water-based emulsion/suspension system comprising oil and water phases (i.e., an oil-in-water emulsion) (abstract). Specifically, US’558 teaches an emulsion composition comprising polymeric thickeners and PEG-7 glyceryl cocoate as the surfactant/emulsifier (table 2). The composition of US’558 is essentially free of silicones ([0028]; claim 14). US’558 teaches that additional solvents and humectants such as ethanol, glycerin, and glycols may also be included ([0087]).
It would have been obvious to combine the compositions of US’304 and US’558 to give the instantly claimed ethoxylated agent. It would have been prima facie obvious to use PEG-7 glyceryl cocoate (i.e., HLB from 8-14 and liquid at room temp.) as the emulsifier of US’304 since it entails no more than simple substitution of one known element for another to yield predictable results.
4. Claims 1, 3-4, 6-16, and 19-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 12,396,941 in view of US 2020/0368558 A1 (Chiou, C., et al., 11/26/2020, PTO-892), hereinafter US’558.The Obviousness Double Patenting rejection is appropriate because while the conflicting claims are not identical, the examined claims are not patentably distinct from the reference claims and would have been obvious over the reference claims in view of US’558.
Claim 1 of US’941 recites a pilling-resistant cosmetic composition in the form of an oil in water emulsion comprising a water phase and an oily phase, the pilling-resistant cosmetic composition comprising:(i) at least one cosmetically acceptable polymeric thickener selected from the group consisting of polyacrylate crosspolymer-6, xanthan gum, hydroxyethyl acrylate/sodium acryloyldimethyl taurate copolymer, acrylamide/sodium acryloyldimethyltaurate copolymer, carbomer, ammonium acryloyldimethyltaurate/steareth-25 methacrylate crosspolymer, ammonium polyacryloyldimethyl taurate, sodium polyacrylate, sclerotium gum, acrylamide/sodium acryloyldimethyltaurate copolymer and isohexadecane and polysorbate 80, and combinations thereof, present in a total amount of 0.4% to 2.5%; (ii) at least one ethoxylated agent selected from the group consisting of laureth-4, oleth-10, and combinations thereof; and (iii) at least one oil.
As such the composition of US’941 comprises at least one synthetic polymer or crosspolymer, at least one thickening agent (i.e., combinations of the polymers and gums of (i)), at least one ethoxylated agent having an HLB from 8-14 and in liquid form at room temperature (i.e., laureth-4 or oleth-10), water, and at least one oil as recited in instant claim 1. The claims of US’941 do not explicitly recite the inclusion of silicone in the composition of claim 1, thus it reads on being free of silicones.
The claims of US‘941 differ from the instantly claimed invention in that US‘304 does not explicitly recite at least one active or the amount of each component as recited in claim 1, nor the method of claim 19.
US’558 teaches a makeup removal composition including at least one branched or linear, liquid alkane with carbon chain length of C11 to C20, at least one polar emollient with molecular weight of 400 g/mol or less, at least one polymeric thickener for water-based system, and at least one surfactant in a water-based emulsion/suspension system comprising oil and water phases (i.e., an oil-in-water emulsion) (abstract). Specifically, US’558 teaches an emulsion composition comprising hydroxyacetophenone and caprylyl glycol as the active ingredients (table 2). The composition of US’558 is essentially free of silicones ([0028]; claim 14). US’558 teaches that additional solvents and humectants such as ethanol, glycerin, and glycols may also be included ([0087]). The preparation of the composition includes final step 6: mix well at room temperature and drop the batch, wherein all of the ingredients have been previously combined (example 3).
It would have been obvious to combine the compositions of US’941 and US’558 to give the instantly claimed actives. It would have been prima facie obvious to include hydroxyacetophenone and caprylyl glycol as actives in the composition of US’941 since it entails no more than the combination of prior art elements according to known methods to yield predictable results.
The amount of each component in claim 19 would have been prima facie obvious to one of ordinary skill in the art since it is well within the abilities of an ordinary artisan to optimize the amount of each component in the composition depending on the desired consistency, stability, and bioactive effect of the final product. As such, one of ordinary skill in the art would have arrived at the instantly claimed ranges through no more than routine experimentation. Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Regarding the method of instant claim 19, it would have been prima facie obvious to use the preparation method of US’588 in preparing the combined composition described above since US’588 teaches the preparation of a make-up removing composition with similar components as the composition of US’559 and the combination of prior art elements according to known methods to yield predictable results is considered prima facie obvious.
5. Claims 1, 3-4, and 6-16 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 15, 18-20, 23, 31, and 34 of copending Application No. 16/422,976. The Obviousness Double Patenting rejection is appropriate because while the conflicting claims are not identical, the examined claims are not patentably distinct from the reference claims and would have been obvious over the entirety of the reference claims in view of the skills and knowledge available to one of ordinary skill in the art.
Claims 15 and 23 of the copending application recite a makeup removal and cleansing article, comprising: a. a water-insoluble substrate; b. impregnated in the water-insoluble substrate a cleansing composition comprising; i. at least one branched or linear, liquid alkane with carbon chain length of C11 to C20; ii. at least one polar emollient with molecular weight of 400 g/mol or less; iii. at least one polymeric thickener for a water-based system; iv. at least one alkylated glycerol ester surfactant, the at least one alkylated glycerol ester surfactant being selected from the group consisting of polyethylene glycol-7 glyceryl cocoate and others; and v. water. Copending claim 19 further defines that the at least one polymeric thickener is selected from carbomer, acrylates/C10-30 alkyl acrylate crosspolymer, polyacrylate crosspolymer-6, microcrystalline cellulose and cellulose gum, xanthan gum, sodium carboxymethyl starch, sclerotium gum and xanthan gum, xanthan gum and ceratonia siliqua (carob) gum, dehydroxanthan gum, hydroxypropyl starch phosphate, sclerotium gum, xanthan gum and sclerotium gum and lecithin and pullulan, or a combination thereof. The cleansing composition is essentially free of silicone (copending claims 18 and 34). The makeup removal and cleansing article may further comprise at least one additive including hydroxyacetophenone, caprylyl glycol, or combinations thereof (copending claim 34). The synthetic thickeners are present in combination at a total amount of 0.13% to 0.2% (copending claims 20 and 31). Any polymeric thickener species other than the crosspolymer or the carbomer, if present, is present from 0.01% to 2% (copending claims 15 and 23).
As such, the instantly claimed composition would have been obvious in view of the copending claims since the copending claims recite a composition comprising a at least one polymeric thickener that may be selected from various synthetic polymers/crosspolymers, polysaccharide thickeners, and combinations thereof. The copending claims recite the composition comprising an alkylated glycerol ester surfactant such as polyethylene glycol-7 glyceryl cocoate, which reads on the ethoxylated agent of instant claim 1. The composition may comprise additives such as hydroxyacetophenone and caprylyl glycol which read on the actives of instant claim 1. Lastly, the composition comprises water, at least one oil, and is essentially free of silicone.
The amounts of each thickening polymer, defined above, overlap with those which are instantly claimed. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05. While the copending claims do not explicitly define the amount of actives present, it is well within the abilities of an ordinary artisan to optimize the amount of each component in the composition depending on the desired consistency, stability, and bioactive effect of the final product. As such, one of ordinary skill in the art would have arrived at the instantly claimed ranges through no more than routine experimentation. Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Thus, all of the instantly claimed elements are defined in the copending claims and one skilled in the art could have selected and combined the elements as claimed by known methods with no change in their respective functions and the combination would have yielded predictable results to one of ordinary skill in the art at the time of the invention. Note: MPEP 2141 KSR International CO. v. Teleflex Inc. 82 USPQ 2d 1385 (Supreme Court 2007).
This is a provisional nonstatutory double patenting rejection.
Allowable Subject Matter
Claim 17 is allowed. As amended, claim 17 recites a composition comprising a combination of water soluble and oil soluble actives comprising sodium thiosulfate, arginine, sodium hyaluronate, dipotassium glycyrrhizate, capryloyl salicylic acid, carnosine, hydroxyacetophenone, niacinamide, citric acid, caffeine, and a glycine-based skin conditioning agent. A similar composition comprising these specific actives in combination is not disclosed by any of the cited references nor any that could be found in the prior art. For this reason, claim 17 is allowable.
Response to Arguments
Applicant’s arguments, filed 11/20/2025, with respect to the rejection(s) of the claims under 35 U.S.C. 102(a)(1) have been fully considered and are persuasive (pages 9-16). Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made under 35 USC 103 in view of Chiou ‘558.
Applicant's arguments, see pages 16-19, with respect to the rejection of claims 1-12, 14-16, and 19-20 under 35 U.S.C. 103 have been considered but are not found persuasive. Applicant asserts that Chiou ‘558 nor any of the other relied on references teach or suggest a composition including 0.15 to 1.5 wt% of synthetic polymers/crosspolymers, or a composition including 5% to about 20% actives, or a serum that is stable from emulsion breaking and separation. Applicant also asserts that the ethoxylated agent with an HLB from 8-14, surprisingly provides an advantage over non-ethoxylated agents with an HLB from 8-14 in a similar composition (p. 17 of Remarks).
In response to the claimed amounts, as discussed in the prior art rejection above, Chiou ‘558 teaches 0.13% by weight of synthetic polymers/crosspolymers. Chiou ‘558 also teaches that the amount of one or more actives and additives, alone or in combination, may range from about 0.001% to about 20% by weight. Not only would one of ordinary skill in the art have arrived at the instantly claimed ranges via routine experimentation, as discussed above, but Applicant has submitted no evidence that such concentrations are critical. Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Regarding the serum nature of the composition and its stability, such properties are inherent to the structural components of the composition. Since the composition made obvious by the prior art is identical to the composition claimed, the composition must necessarily have the characteristics claimed as an inherent property, including the compositions ability to act as a “serum”. It is noted that In re Best (195 USPQ 430) and In re Fitzgerald (205 USPQ 594) discuss the support of rejections wherein the prior art discloses subject matter, which there is reason to believe inherently includes functions that are newly cited, or is identical to a product instantly claimed. In such a situation the burden is shifted to the applicants to “prove that subject matter to be shown in the prior art does not possess the characteristic relied on” (205 USPQ 594). There is no requirement that a person of ordinary skill in the art would have recognized the inherent disclosure at the time of invention, but only that the subject matter is in fact inherent in the prior art reference.
Regarding Applicant’s assertion of surprising stability advantages, the prior art teaches the same ethoxylated agent as instantly claimed and would therefore result in the same advantages. Applicant has not made a distinction over the prior art in terms of the ethoxylated agent as instantly claimed.
Applicant’s arguments, see pages 19-20, with respect to the rejection of claim 1-20 under 35 U.S.C. 103 have been fully considered and are persuasive. The rejection of claim 17 under 35 U.S.C. 103 has been withdrawn.
While the independent claims 1 and 19 are still rejected for the reasons discussed above, independent claim 17 has been amended to recite a composition comprising a combination of actives including sodium thiosulfate, arginine, sodium hyaluronate, dipotassium glycyrrhizate, capryloyl salicylic acid, carnosine, hydroxyacetophenone, niacinamide, citric acid, caffeine, and a glycine-based skin conditioning agent. Examiner concedes that no cited reference discloses or suggests such a combination of actives. As such, the rejection of claim 17 is withdrawn.
Conclusion
Claims 1, 3-4, 6-16, and 19-20 are rejected.
Claim 17 is 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.
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/SUSANNAH S ARMSTRONG/Examiner, Art Unit 1616
/Mina Haghighatian/Primary Examiner, Art Unit 1616