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 .
Summary
Receipt of Applicant’s disclosers filed on 09/29/2023 is acknowledged. Claims 1-12 are pending and under examination in this application.
Priority
The current application filed on 09/29/2023 claims priority to Korean patent application No. 10-2023-0003604 filed on 01/10/2023.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 09/29/2023 are in compliance with the provisions of 37 CFR 1.98. Accordingly, the information disclosure statements has been considered by the examiner. Signed copies have been attached to this office action.
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.
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 1-12 are rejected under 35 U.S.C. 103 as being unpatentable over Sun (KR 20140123295 A) in view of Morley (US 2011/0158920 A1).
Sun teaches a cosmetic composition containing a transparent ceramide emulsion prepared by using ceramide, lecithin, heavy chain triglyceride, glycerin, water and an
anionic surfactant, wherein the transparent ceramide emulsion has a small ceramide particle size, improves the skin barrier function, and strengthens the skin moisturizing power by reducing the amount of water-loss of the hard-skin surface (abstract).
Regarding claims 1, 2, 3, 8 and 10, Sun teaches a transparent ceramide emulsion comprising 0.1 to 5% by weight of ceramide, from 0.01 to 5% by weight of lecithin, from 1 to 15% by weight of heavy chain triglyceride, from 1 to 50% by weight of glycerin, from 30 to 70%, 0.01 to 5% by weight of the cosmetic composition (¶ 0008). Moreover, Sun explicitly teaches ceramide NP (ceramide 3B) (¶ 0040 and 0002-0003). Furthermore, Sun discloses in Examples 1 and 2 and in formulation tables that triglyceride is kept at 1.0 wt %, and from 1 to 15 wt % of heavy chain triglyceride (claim 3).
Regarding claim 5, Sun teaches 0.1 to 5 wt % of ceramide in the transparent cosmetic composition, and in Example 3, ceramide concentration is at 0.5 wt % in order to maintain in the “transparent” result (¶ 0054-0056).
Regarding claim 6, Sun teaches in Examples 1 and 2, explicitly utilizes an oil phase caprylic/capric triglyceride at 1 wt % to maintain a “transparent” state.
Regarding claim 7, Sun teaches the gelling agents used to stabilize the transparent ceramide emulsion are typically conventional water-soluble polymers, for example, Sun discloses cellulose derivative, microcrystalline cellulose (¶ 0008), and use of Carbopol (a well known carbomer) (¶ 0078) as a standard means to achieve the desired viscosity for a cosmetic product while maintaining the transparency of the ceramide particles. The gelling agents in Sun’s composition differs from applicant’s ethyl cellulose complex, however the general teaching and the use of a cellulose-based polymer gelling agent in a translucent cosmetic composition for stabilizing ceramide is taught and it would have been obvious a PHOSITA through routine substitution, in selecting a specific commercial blend like isostearoyl alcohol*butylene glycol cocoate*ethyl cellulose in order to optimize to the “gel cream” texture.
Regarding claim 9, Sun teaches hydrogenated lecithin (saturated lecithin) (¶ 0038-0039).
Regarding claim 11, Sun teaches caprylic/capric triglyceride (¶ 0056, 0078).
Regarding claim 12, Sun teaches emulsified gel cream formulation (¶ 0008-2th ¶ and claim 6).
Sun fails to specifically teach individual ratios of ceramide, gelling agent, lecithin and oil as claimed.
Morley teaches a method for producing a bigel, the method comprising: (a) providing an oleogel comprising at least one oily agent gelled with at least one cellulose polymer; (b) providing an aqueous gel comprising at least one component whose Viscosity is pH dependent, such as a carbomer; (c) mixing the oleogel and the aqueous gel together to form a bigel; and (d) Subsequently adjusting the viscosity of the bigel under high flow and low shear stirring to obtain a bigel of a desired Viscosity (abstract).
Regarding claims 4 and 5, Morley teaches providing an oleogel comprising at least one oily agent gelled with at least one cellulose polymer (¶ 0012), and the cellulose polymer may be chosen from ethyl cellulose, non-sodium carboxy-methylcellulose, and mixtures thereof (¶ 0026), ethyl cellulose is present in a proportion of between about 0.01 and 5 %, 0.1 and 10 % (¶ 0031-0032), and is well known in the art, the level of gelling provided by ethyl cellulose in the oleogel, and hence its viscosity, depends upon both the proportion and the grade of the ethyl cellulose (¶ 0033). Moreover, Morley discloses in one specific embodiment, the oily phase comprises ethyl cellulose in a proportion of between about 1 and about 10% by weight (¶ 0034), and suggests higher wt % to ensure stability (¶ 0035-0044). Therefore, the limitation of gelling agent greater than or equal to about 1 wt% is taught.
Regarding claim 6, Morley teaches the preparation of bigels where the oil phase is gelled by a polymer, and that the ratio of gelling agent to the oil phase must be sufficient to trap the oil within the poly matrix, and for ethyl cellulose, it typically requires the polymer concentration to be equal to or greater than the oil concentration when the total oil phase is small, around 1%) (¶ 0054-0070).
Regarding claim 7, Morley teaches as is well known in the art, the level of gelling
provided by ethyl cellulose in the oleogel, and hence its viscosity, depends upon both the proportion and the grade of the ethyl cellulose. For a given amount by weight of ethyl cellulose in an oleogel, the higher the grade of ethyl cellulose used, the higher the viscosity of the oleogel. In other words, higher amounts of ethyl cellulose will generally be used when the grade of the ethyl cellulose is lower (¶ 0033) and to adjust the viscosity, suitable components include carbomers, and/or sodium carboxyl-methylcellulose (¶ 0053), and Carbomer is a generic name for a family of polymers
known as Carbopols ® (¶ 0054). As noted in view of prior art Sun above, it would have been obvious a PHOSITA through routine substitution, in selecting a specific commercial blend like isostearoyl alcohol*butylene glycol cocoate*ethyl cellulose in order to optimize to the “gel cream” texture.
It would have been prima facie obvious to a person having ordinary skill in the art (PHOSITA) before the effective filing date of the claimed invention to arrive at the claimed translucent composition by modifying Sun’s transparent ceramide cosmetic composition by optimizing and adjusting the ratios of the claimed ceramide, gelling agent, lecithin and oil to achieve the “translucent gel cream” cosmetic composition.
Sun teaches a clear baseline for achieving a translucent appearance by utilizing a specific lipid ratio of ceramide, lecithin, and oil and maintaining nano-sized droplets formulation. However, Sun fails to teach the technical “feel” and lightness of a modern skincare product. Morley teaches the technical solution of utilizing ethyl cellulose-based gelling agents to transform liquid lipid phases into stable, semi-solid gel creams and thus It would have been reasonably obvious to combine Sun in view of Morley and a PHOSITA would have been motivated to combine the known cosmetic ingredients (ceramide, lecithin and triglycerides) and optimize the structure using standard cellulosic polymer. The resulting ratios (gelling agent greater or equal to ceramide and gelling agent greater or equal to oil) are the predictable outcome of combining the minimum polymer concentration required for gelation (1 wt %) as taught by Morley with the maximum oil/lipid concentration allowed for translucency (1 wt %) as taught by Sun. Moreover, It would have been prima facie obvious to a PHOSTA to combine the references because of known elements and methods to yield predictable results. As noted in the rejections above, Sun explicitly teaches ceramide NP (ceramide 3), hydrogenated lecithin, and caprylic/capric triglyceride as the optimal combination for transparent skin barrier product. The claimed ranges (0.5-1.0 wt % ceramide and ≤ 1 wt % oil) are explicitly disclosed as the “ideal” working embodiments in Sun for achieving “translucency”. Moreover, the addition of the specific ethyl cellulose gelling agent as taught by Morley to the emulsion of Sun to create a “gel cream” is a routine formulation modification choice to improve the product’s shelf-stability and sensory profile.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANDRE MACH whose telephone number is (571)272-2755. The examiner can normally be reached 0800 - 1700 M-F.
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/ANDRE MACH/Examiner, Art Unit 1615
/Robert A Wax/Supervisory Patent Examiner, Art Unit 1615