DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after December 14, 2023, is being examined under the first inventor to file provisions of the AIA .
Status of the Application
Receipt is acknowledged of Applicants’ claimed invention filed on 12/14/2023 in the matter of Application N° 18/539,467. Said documents are entered on the record. The Examiner further acknowledges the following:
Thus, claims 1-20 represent all claims currently under consideration.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1-20 are rejected under 35 U.S.C. 103 as being unpatentable over Vetter et al. (WO2016146360A1), in view of Renouard et al. (WO2021152265A1), Rabe et al. (US6531142B1), and Chengyun et al. (CN112515992B).
Regarding claims 1 and 18, Vetter et al. teach on how to wash and remove makeup from the face. The two-phase face washing solutions consist of an oil phase and a water phase, comprise at least isohexadecane, C15-19 alkanes, and do not contain silicone containing compounds. The two-phase face washing preparations are distinguished by the oil phase to water phase volume ratio of 20 to 80 to 40 to 60 vol.%, ideally 25 to 75 to 35 to 65 vol.%, especially 30 to 70 vol.%, depending on the preparation’s total volume (See Abstract, and claims 1 and 2). The two-phase face cleaning preparations described in claims 1 and/or 2 are distinguished by the oil phase’s inclusion of at least one additional component chosen from the isododecane and cococaprylate/ caprate group. According to at least one of the aforementioned claims, the two-phase facial cleansing preparations are distinguished by the oil phase’s specific components having a composition ranging from 0.05 to 40 wt.%, depending on the preparation’s overall weight. Coco-caprylate/caprate is used as an emollient, ester oil, skin-feel modifier (See claim 3). Vetter et al. teach at least one polymeric thickener such as C13-16 isoparaffin (See Description paragraph 11). And two-phase facial cleansing preparations according to at least one of the preceding claims, characterized in that nonionic surfactants selected from the group consisting of polyglyceryl-10 laurate (See claims and paragraph 20).
Regarding claim 2, Vetter et al. teach a phase containing water and a phase containing oil are necessary for Vetter to generate a two-phase product. These two phases are ideally optically distinct while at rest. These two phases do not instantly mix and create a two-phase system that is horizontally divided because of their distinct densities. Phases can be momentarily mixed together by adding energy, such as via shaking. However, a very quick separation into the two phases happens again later on because of the strong interfacial tension and density difference between oil and water (See paragraph18). A two-phase facial washing method that consists of an oil phase and a water phase (See claim 1). After about 15 minutes, the separation into two phases with a clear interface is usually finished; depending on how intense and prolonged the shaking was, the phases may thereafter be slightly cloudy. Both phases are once again clear after less than 12 hours (See paragraph 22). In accordance with claim 1, two-phase facial washing preparations are used for concurrent makeup removal, facial cleansing, and toning. Preparations for two-phase facial washing that are blended by shaking before being applied (See bottom of claims). When at rest, the phases are visibly separated, forming a clear interface. The consumer shakes the product before use, temporarily dispersing the phases.
Regarding claims 3 and 4, Vetter et al. teach an object to produce preparations that result in the removal of makeup and cleansing of the face, as well as a toning and refreshing effect of the skin. Furthermore, silicone-free preparations must to be made accessible (See paragraph 9).
Regarding claim 5, according to Vetter et al. biphasic skin cleaning and makeup removal compositions are described in EP 0974333. The presence of a specific preservative, polyaminopropyl biguanides, is what distinguishes the formulations (See paragraph 7). One or more active substances, perfumes, colors, and/or skin moisturizers are advantageously included in the preparations made in accordance with the invention (See paragraph 25).
Regarding claims 7, and 8, Vetter et al. teach an oil and water phase in a two-phase face cleansing procedure. At least isohexadecanes are present in the oil phase. Based on the overall volume of the preparation, the oil phase to water phase volume ratio is 20 to 80 to 40 to 60% by volume, preferably 25 to 75 to 35 to 65 by volume, and especially preferably 30 to 70% by volume. To accomplished the aforementioned goal, the oil phase of the preparations in accordance with the invention must have a particular composition. It is crucial that the oil phase contain at least isohexadecane. Additionally, additional ingredients that can be chosen from the group isododecane may be present in another or may (See paragraphs 12, 15, and 16).
Regarding claims 17, and 18, Vetter et al. teach wherein the composition comprise a sodium chloride (See paragraph 28).
However, Vetter et al do not disclose wherein the one or more emollient esters comprises isopropyl myristate, and the at least one polymeric thickener for a water-based system comprises hydroxyethyl cellulose.
Regarding claims 6, 9, 10, 11, and 18, Renouard et al. teach it is advantageous to select the fourth oil from the group that includes isopropyl myristate and its combinations. In accordance with the invention, the composition may consist of 8 to 15% by mass of fourth oil, computed in relation to the total mass of the oily phase, preferably between 10 and 14% or more preferably 12.5% (See paragraphs 27 and 28). One or more thickeners (cellulose) or other common ingredients found in makeup removers and cleansers are advantageously included in the formulation. Generally depending on their solubility, those skilled in the art utilize them in the watery or oily phase of cosmetics (See paragraph 42).
Regarding claims 12, 13, and 18, Renouard et al. teach the composition contains one or more thickeners (cellulose) or other typical substances found in cleansers and makeup removers. Those skilled in the art typically use them in the oily or watery phase of cosmetics, depending on how soluble they are. Phase shift time computed in relation to the total mass of the composition, ideally between 0.5 and 3%, and optionally between 0.1 and 10% by interface adjuster mass (See paragraph 41 and 42). A surfactant may also be included in the composition in accordance with the invention. Anionic, cationic, nonionic, or amphoteric surfactants are all possible; nonionic surfactants are preferred. The group that includes polyglyceryl-6 caprylate is one option for the surfactant (See paragraph 29).
Regarding claims 14, 15, and 18, Renouard et al. teach the composition according to the invention comprise a surfactant. The surfactant can be polyglyceryl -6-10 laurate, and polyglyceryl-6-caprylate (See paragraph 29). According to the invention, the composition may contain 0.1 to 5% by mass of surfactant, particularly between 0.10 and 0.30% of the composition’s total mass (See paragraph 30). The composition can comprise from 0.01 to 1% by mass of antimicrobial agent. Polyglyceryl-6-caprylate is classified as a secondary effect, an Antimicrobial-boosting agent (See paragraph 34). The removal of makeup and traces from the skin, eyes, and/or lips can be aided by a so-called tonic composition. In addition to tonics, which are made of water and surfactants, the majority of make-up removing compositions contain lipids that dissolve makeup more readily. Fortunately, the composition is made up of between 50 and 95% of the mass of the aqueous phase, which is determined based on the composition’s overall mass. Water can make up anywhere between 70 and 100 percent of the aqueous phase’s total mass (See paragraphs 15 and 16).
It would have been obvious to one of ordinary skill in the art before the effective filing date at the time of the invention, to modify the composition of Vetter et al. by selecting an emollient ester from the group taught by Renouard et al. and by incorporating a polymeric thickener suitable for a water-based system, as taught by Renouard et al. In order to achieve the predictable benefits of improved formulation stability, texture, and cleansing performance. Such selections represent routine formulation choices involving known cosmetic ingredients used according to their established functions and solubility properties, and would have been made with a reasonable expectation of success.
However, Renouard et al. do not teach wherein a container containing the makeup removal composition. An outlet connected to the container, such as an outlet of a spray nozzle. And a spray-device, etc.
Regarding claim 19, Rabe et al. teach the mixture is electrostatically sprayable and can be appropriately applied directly to the skin using electrostatic spray techniques. In order to atomize the composition as a spray of electrically charged droplets, this approach typically entails elevating the composition to be sprayed to a high electric potential in a spray nozzle. In order to release their electric charge, the electrically charged droplets look for the nearest earthly object, which can be set up to be the intended spray target (See column 3, line 38-45). According to standard light microscopy techniques, this material should ideally also have a relaxation period long enough to allow for a spray in which every droplet has a particle size of less than 300 microns (See column 5, lines 25-28). Preferred devices include a device that can be used on a small scale for personal use and has a reservoir to hold the topical compositions, at least on a delivery device that communicates with the reservoir, like a nozzle; (See column 12, lines 56-59).
Regarding claim 20, although Rabe et al. does not explicitly state that the fluid product is removed “without rinsing with water,” the disclosed removal mechanisms, namely wiping, absorbing, evaporating, or blotting, do not require the use of water rinsing. Rather, Rabe et al. teaches removal by mechanical action using a substrate, which is consistent with wipe-off cosmetic and makeup removal techniques commonly employed to avoid the need for water (See column 19, lines 58-63).
It would have been obvious to one of ordinary skill in the art before the effective filing date to employ the disclosed fluid product and removal method as a makeup removal composition that is applied for use and removed by wiping without rinsing with water, since the prior art expressly teaches removal via wiping or absorbing and such methods predictably eliminate the need for a rinsing step. The omission of a water-rinsing step constitutes a routine optimization and design choice that would have yielded predictable results, namely convenient makeup removal without additional cleansing steps, and would have been made with a reasonable expectation of success.
However, Rabe et al. do not disclose wherein the makeup removal composition comprises triethyl citrate.
Regarding claims 16, and 18, Chengyun et al. teach triethyl citrate is taught as a stable compound. The composition is an aqueous solution with an active ingredient that hydrolyzes to create ammonia; the active agent and triethyl citrate have a weight ratio of 1 to 100. The method for stabilizing an aqueous solution comprising an active ingredient that hydrolyzes to produce ammonia is also related to the invention, as is the application of the stabilized composition in skin preparations (See abstract, paragraph 1, and claim 1).
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the electrostatically sprayable makeup removal composition of Rabe et al. to further comprise triethyl citrate, as taught by Chengyun et al. in order to provide a stable auxiliary component compatible with aqueous formulations subjected to high electric potential during spraying. The selection and incorporation of triethyl citrate would have represented a routine formulation choice involving a known stable compound, yielding predictable results while maintaining sprayability and application performance, and would have been made with a reasonable expectation of success.
Response to Arguments
Applicant's arguments filed March 03, 2026 have been fully considered but they are not persuasive.
In response thereto, claim 1 objection is respectfully acknowledged.
The applicant contends that Vetter et al., Renouard et al., Rabe et al., and Chengyun et al. fail to disclose or suggest the claimed two-phase micellar system, hydroxyethyl cellulose, polyglyceryl dicaprate, triethyl citrate, and a sprayable composition. However, the rejection is based upon the collective teachings of the cited references and not upon any single reference alone.
Vetter et al. teach two-phase facial cleansing and makeup-removing compositions comprising an aqueous phase and an oil phase. Vetter et al. specifically discloses two-phase facial cleansing preparations useful for washing and removing makeup from the face, wherein the compositions contain distinct oil and water phases and include oil components such as isohexadecane, C15-19 alkanes, isododecane, and coco-caprylate/caprate. Vetter et al. further teaches nonionic surfactants including polyglyceryl-based surfactants such as polyglyceryl-10 laurate and teaches the optional inclusion of polymeric thickeners. Therefore, Vetter et al. establishes the desirability of a two-phase makeup-removing composition containing oil-phase components, surfactants, and thickening agents.
Applicant argues that none of the references disclose hydroxyethyl cellulose. However. Renouard et al. teach the inclusion of thickeners, including cellulose-based thickeners, in makeup-removing and cleansing compositions. Renouard et al. expressly teaches that one or more thickeners, including cellulose materials, may advantageously be incorporated into the composition. It would have been obvious to one of ordinary skill in the art to select hydroxethylcellulose from the known class of cellulose thickeners taught by Renouard et al. for use in the two-phase cleansing composition of Vetter et al., because hydroxyethylcellulose was a well-known cosmetic thickener routinely employed to provide viscosity control, stability, and improved sensory properties.
Applicant further argues that the references fail to disclose polyglyceryl dicaprate. However, Renouard et al. teaches polyglyceryl-based surfactants, including polyglyceryl-6-caprylate and polyglyceryl-10 laurate, while Vetter et al. teaches polyglyceryl surfactants such as polyglyceryl-10 laurate. These references collectively demonstrate that polyglyceryl fatty acid esters were conventionally used as surfactants in cleansing and makeup-removing compositions. Selection of polyglyceryl dicaprate as another known member of the same class of cosmetic surfactants would have been an obvious matter of routine optimization and design choice in order to obtain desired cleansing, emulsification, and skin-feel properties.
Applicant additionally argues that Chengyun’s et al. disclosure of triethyl citrate is limited to a monophasic composition and does not provide a reason for inclusion in a two-phase makeup removing composition. This argument is unpersuasive because Chengyun et al. teaches triethyl citrate as a known cosmetic ingredient suitable for tropical formulations. The reference is relied upon only for its teaching of triethyl citrate as a composition component. One of ordinary skill in the art would have reasonably expected triethyl citrate to function similarly when incorporated into the known two-phase cleansing compositions of Vetter et al. and Renouard et al. substituting one known cosmetic ingredient for another or incorporating a known cosmetic additive into a known cosmetic composition to obtain its recognized benefits constitutes routine formulation optimization.
With respect to claim 19, applicant argues that only Rabe et al. disclose a sprayable composition and that Rabe’s composition is monophasic and non-aqueous. However, Rabe et al. clearly teaches that cosmetic compositions may be electrostatically sprayable and applied directly to the skin by atomization through a spray nozzle. The rejection does not rely on Rabe for the two-phase cleansing composition, but rather for the teaching that cosmetic compositions may be delivered in spray form. It would have been obvious to one of ordinary skill in the art to provide the two-phase cleansing composition of Vetter et al., as modified by the teachings of Renouard et al. and Chengyun et al., in a sprayable format as taught by Rabe et al. in order to facilitate convenient and uniform application to the skin. The modification merely involves the use of a known delivery systems for its intended purpose and would have yielded predictable results.
Accordingly, the combination of Vetter et al., Renouard et al., Chengyun et al., and Rabe et al. collectively teaches or suggests all of the claimed limitations, and applicant has not presented persuasive evidence that the proposed combination would have been beyond the level of ordinary skill in the art. Therefore, the rejection under 35 U.S.C. 103 is maintained.
Conclusion
No claim is allowed.
THIS ACTION IS MADE FINAL. 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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/KIMBERLY BARBER/Examiner, Art Unit 1615
/Robert A Wax/Supervisory Patent Examiner, Art Unit 1615
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