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 .
Election/Restrictions
Applicant’s election without traverse of invention group I, claims 1-19, in the reply filed on 02/10/2026 is acknowledged.
Claim 20 is withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 02/10/2026.
Applicants further elect linseed oil as specific oil; isobutyl methacrylate as specific acrylate polymer; the reaction product of specific oil and isobutyl methacrylate polymer as specific hydrophobic polymer; rhamnolipid as specific surfactant and polycitronellol acetate as specific solvent. Claims 1-15 and 18 read on the elected species and are under examination; Claims 16-17 and 19 do not read on the elected specie and are withdrawn from consideration.
Claims 1-20 are pending; claims 1-15 and 18 are under examination.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 12/18/2023, 09/26/2024, 02/02/2026, 03/05/2026 and 03/23/2026 is being considered by the examiner.
Claim Objections
Claims 4 and 7 are objected for reciting “the polymer” in claim 1. However, claim 1 recites both “hydrophobic polymer” and “methacrylate or acrylate polymer”, even it appears that “the polymer” refers to “methacrylate or acrylate polymer”, applicants are still advised to replace “the methacrylate or acrylate polymer” for “the polymer” for clarity purpose.
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.
Claims 1-15 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Mitra et al. (US20220249342) in view of DeSanto (US20080213194) and Cavaco Paulo (US20230414478).
Determination of the scope and content of the prior art
(MPEP 2141.01)
Mitra et al. teaches A cosmetic cleansing composition includes a cosmetic carrier system, and a cleansing coagulant system that includes at least one of each of an oil and a viscosity modifier, the viscosity modifier selected from synthetic (including petrochemical based) and natural polymers. The coagulant system can congeal and form a viscoelastic fluid to bind and remove sebum, makeup, dirt, pollution, dead skin and other unwanted material from skin (abstract). In various embodiments, the disclosure provides a cosmetic cleansing composition comprising: (a) cleansing coagulant system comprising: i. an oil component; and ii. a polymer component; and (b) a cosmetic carrier system comprising one or more phases selected from the group consisting of a water phase, an oil phase, and combinations thereof. The coagulant system can congeal and form a viscoelastic fluid to bind and remove sebum, makeup, dirt, pollution, dead skin and other unwanted material from skin. In some embodiments, the cleansing coagulant system that includes at least one of each of an oil and a viscosity modifier includes a natural based or food derived oil, such as linseed oil, and a methacrylate polymer components, such as poly(isobutyl methacrylate). In some embodiments, the cleansing coagulant system is prepared as a reaction product of an oil component selected from the group consisting of glycerides, fatty acids, alkenes, and alkynes, with a polymer component, for example a synthetic polymer component such as a methacrylate or acrylate polymer component. In some embodiments, the cleansing coagulant system is prepared as a homogenous thermal reaction product. In some other embodiments, the reaction product may be produced using other reaction components that drive the formation of the reaction product that forms the cosmetic coagulant system ([0008-0014]). In accordance with the various embodiments, the at least one oil in the cleansing coagulant system is present in a range from about 30% to about 45%, by weight, based on the weight of the cleansing coagulant system, and the at least one polymer is present in a range from about 0.1% to about 20%, by weight, based on the weight of the cleansing coagulant system. In some embodiments, the cleansing coagulant system is present in the cosmetic cleansing composition in a range from about 1% to about 25%, by weight, based on the weight of the cosmetic cleansing composition, and the cosmetic carrier system is present in the range from about 75% to about 99%, by weight, based on the weight of the cosmetic cleansing composition ([0022-0023]). The cosmetic cleansing composition may be any suitable cosmetic cleansing composition, such as, but not limited to, an anhydrous cleansing oil, foaming cleanser, a cleansing milk, lotion or cream, an emulsion such as a water-in-oil or oil-in-water emulsion, or a multi-phase composition comprising at least one water phase, and is easy on the skin, efficiently removes makeup, sebum, dirt and skin debris without smudging, and provides a soft and smooth skin feel after use. The cosmetic cleansing composition in any of the product forms may be either a leave-on or a rinse-off formulation ([0033]). In some embodiments, the cosmetic cleansing compositions may include one or more polar emollient. Emollients are oil-phase ingredients selected from esters, triglycerides, ethers, carbonates, alcohols, oils, butters, fatty acids, and their combinations thereof. The amount of each of the at least one polar emollient, when present, is present in the cosmetic cleansing composition in a range of from about 1% to about 12% by weight ([0080-0084]). In accordance with some embodiments, water may be present in the cosmetic cleansing compositions in a range from about 1% to about 90%, or any suitable combination, sub-combination, range, or sub-range thereof by weight, based on the weight of the cosmetic cleansing composition ([0089]). The pH of the cosmetic cleansing composition is not limited but is generally between 3.0 and 7.0 ([0091]). In some embodiments, the cosmetic cleansing composition may optionally include one or more surfactant in a range from about 1% to about 5%, based on the weight of the cosmetic cleansing composition ([0101-0102]). One of ordinary skill in the art, however, will appreciate that other ranges are within the scope of the invention ([0105]).
DeSanto teaches rhamnolipid-based formulations to clean, disinfect, deodorize, and act as an antimicrobial and antifungal agent for living and working environments. In addition, the present invention relates to the use of rhamnolipids to create a bio-film when applied to a surface, which prevents the growth of bacteria and fungus (abstract). The majority of the surfactants used by the prior art are derived from petroleum sources. These chemical surfactants pose significant environmental risks because they form harmful compounds from incomplete biodegradation in water or soil. In recent years, the prior art is showing an increase in the use of bio-surfactants, because they are an environmentally friendly alternative to petroleum-derived surfactants and their potential use in different areas, such as the food industry, agriculture, pharmaceuticals, cosmetic, and oil industries. Rhamnolipid bio-surfactant secreted from Pseudomonas Aeruginosa, is a naturally occurring extracellular glycolipid that is found in the soil and on plants. Rhamnolipids are powerful bio-surfactants that provide a great antibacterial and antifungal activity, and low toxicity levels, which make them an attractive alternative to the known petroleum derived surfactant used in the pharmaceutical industry, the petroleum industry, agriculture, personal care products, animal cleaning products, and other applications ([0005-0007]). After intense research and development, the present inventor discovered that rhamnolipids can be used to clean, disinfect, deodorize, and act as an antimicrobial and an antifungal agent for living and working environments. In addition, the present inventor discovered that rhamnolipids can also be used in cleaning solutions for humans and animals ([0019]). The personal care product may be a deodorant, sunscreen lotion, cosmetic composition, soap, cleanser, toothpaste, or mouthwash ([0032]). In general, the rhamnolipid preparation (“crude” or partially purified therefrom) is diluted to a final concentration of less than 70%. In various embodiments of the invention, the final formulations contain in the range of about 5% to about 70% rhamnolipid preparation, with preferred formulations being about 65%, or about 35%, or about 25%, or about 10% or about 5% or less of the rhamnolipid preparation in the final formulation ([0043]). Furthermore, the present invention provides rhamnolipid formulations and methods for their use in personal hygiene and care products. Rhamnolipids act as an antimicrobial agent and a surfactant in personal care products ([0069]).
Cavaco Paulo teaches a hair cleanser composition for cleansing and repairing hair (abstract). In some embodiments, the one or more cosmetically or dermatologically acceptable excipients is an emollient selected from: isopropyl lauroyl sarcosinate, phenethyl benzoate, C12-15 alkyl benzoate, caprylic/capric triglyceride, cetyl octanoate, octyldodecanol, dilinoleic acid/propanediol copolymer, isoamyl laurate, oleic acid, isohexadecane, squalane, isopropyl palmitate, polycitronellol, diheptyl succinate, capryloyl glycerin/sebacic acid copolymer, PPG-3 benzyl ether ethylhexanoate, hydrogenated vegetable oil, triheptanoin, diisopropyl sebacate, diisopropyl adipate, propylene glycol dibenzoate, propoxytetramethyl piperidinyl dimethicone, castor oil/IPDI copolymer, butylene glycol cocoate, butylene glycol dicaprylate/dicaprate (dispersant), propylene glycol dicaprylate/dicaprate, triolein (algae oil), propylene glycol dicaprylate/dicaprate, phytosteryl/octyldodecyl lauroyl glutamate, C10-18 triglycerides, isostearyl alcohol, diisostearyl malate, isoamyl laurate, *isoamyl cocoate, hemisqualane, polycitronellol acetate, ethyl macadamiate, coco-caprylate/caprate, coconut alkanes, C9-12 alkane, C13-15 alkane, C13-16 isoalkane, neopentyl glycol diheptanoate, hydrogenated ethylhexyl olivate, hydrogenated olive oil unsaponifiables, undecane, tridecane, isododecane, caprylyl caprylate/caprate, cetyl stearate, cetearyl stearate, decyl oleate, glyceryl stearate, glyceryl adipate, glyceryl arachidate, glyceryl arachidonate, glyceryl behenate, glyceryl caprate, glyceryl caprylate, glyceryl caprylate/caprate, glyceryl citrate/lactate/linoleate/oleate, glyceryl cocoate, glyceryl diarachidate, glyceryl dibehenate, glyceryl dierucate, glyceryl dihydroxystearate, glyceryl diisopalmitate, glyceryl diisostearate, glyceryl dilaurate, glyceryl dilinoleate, glyceryl dimyristate, glyceryl dioleate, glyceryl dipalmitate, glyceryl dipalmitoleate, glyceryl diricinoleate, glyceryl distearate, glyceryl erucate, glycol stearate, isocetyl stearate, isopropyl myristate, isopropyl palmitate, isopropyl stearate, isostearyl stearate, octyl palmitate, octyl stearate, propylene glycol dicaprylate/dicaprate, sorbitan benzoate, sorbitan caprylate, sorbitan isostearate, sorbitan laurate, sorbitan tristearate, stearyl stearate, tocopheryl linoleate, olive oil, avocado oil, coconut oil, sunflower oil, jojoba oil, argan oil, castor oil, almond oil, Sesamum indicum (sesame) seed oil, Prunus areniaca (apricot) kernel oil, Crambe abyssinica seed oil, Oryza sativa (rice) bran oil, Vitis vinifera (grape) seed oil, Passiflora edulis seed oil, meadowfoam seed oil, Butyrospermum parkii (shea) butter, Shorea robusta seed butter, murumuru butter, and any combinations thereof ([0080]).
Ascertainment of the difference between the prior art and the claims
(MPEP 2141.02)
The difference between the instant application and Mitra et al. is that Mitra et al. do not expressly teach rhamnolipid and polycitronellol acetate. This deficiency in Mitra et al. is cured by the teachings of DeSanto and Cavaco Paulo.
Finding of prima facie obviousness
Rational and Motivation (MPEP 2142-2143)
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 invention of Mitra et al., as suggested by DeSanto and Cavaco Paulo, and produce the instant invention.
Mitra et al. teaches a cosmetic cleanser composition comprising cleansing coagulant system comprising a reaction product of specific oil and isobutyl methacrylate polymer; 1-5% of surfactant and 1-12% of emollient in the form of oil in water emulsion. Mitra et al. is silent about rhamnolipid and polycitronellol acetate
One of ordinary skill in the art would have been motivated to include rhamnolipid in the cleanser composition because rhamnolipid is a suitable surfactant in the cleanser composition. MPEP 2144.07. Under guidance from Mitra et al. teaching surfactant in the cleanser composition; DeSanto teaching rhamnolipid as environmentally friendly surfactant in cleanser composition; since it is advantage to have environmentally friendly surfactant, it is obvious to have rhamnolipid in the cleanser composition and produce instant claimed invention with reasonable expectation of success.
One of ordinary skill in the art would have been motivated to include polycitronellol acetate because polycitronellol acetate is a suitable ingredient in cleanser composition. MPEP 2144.07. Under guidance from Mitra et al. teaching emollient in the cleanser composition, Cavaco Paulo teaching polycitronellol acetate as emollient in cleanser composition, it is obvious for one of ordinary skill in the art to include polycitronellol acetate and produce instant claimed invention with reasonable expectation of success.
Regarding claims 1-4, 7-15, prior art teaches cosmetic cleanser composition comprising cleansing coagulant system comprising a reaction product of specific oil and isobutyl methacrylate polymer; about 1-5% of rhamnolipid as surfactant and 1-12% of polycitronellol acetate (also as solvent) as emollient in the form of oil in water emulsion.
Regarding claims 5-6 and amount of a reaction product of specific oil and isobutyl methacrylate polymer in claim 18, Mitra et al. teaches one oil in the cleansing coagulant system is present in a range from about 30% to about 45%, by weight, based on the weight of the cleansing coagulant system, and the at least one polymer is present in a range from about 0.1% to about 20%, by weight, based on the weight of the cleansing coagulant system. In some embodiments, the cleansing coagulant system is present in the cosmetic cleansing composition in a range from about 1% to about 25%, by weight. When the linseed oil is 45%, isobutyl methacrylate is 15%, the linseed oil in the reaction product of oil and polymer is 45/(45+15)=75%, and the isobutyl methacrylate is 25%. When the cleansing coagulant system is 10% of final cosmetic cleansing composition, the amount of reaction product of oil and polymer is 10%x (45%+15%)=6%.
Regarding claim 9, polycitronellol acetate is the elected solvent, which has a distance (Ra) less than 13.4 MPa0.5 according to applicant’s specification (Table 1). Furthermore, applicants submitted that the elected polycitronellol acetate read on claim 9 in response to election on 02/10/2026, then elected polycitronellol acetate must have the property cited in claim 9. "[T]he discovery of a previously unappreciated property of a prior art composition, or of a scientific explanation for the prior art’s functioning, does not render the old composition patentably new to the discoverer." Atlas Powder Co. v. IRECO Inc., 190 F.3d 1342, 1347, 51 USPQ2d 1943, 1947 (Fed. Cir. 1999). Thus the claiming of a new use, new function or unknown property which is inherently present in the prior art does not necessarily make the claim patentable. In re Best, 562 F.2d 1252, 1254, 195 USPQ 430, 433 (CCPA 1977).
Regarding claim 18, prior art teaches a composition in the form of O/W emulsion comprising 6% by weight of reaction product of linseed oil and polyisobutyl methacrylate (hydrophobic polymer); 1-5% of rhamnolipid as surfactant and 1-12% of polycitronellol acetate (also as solvent) as emollient; water at about 1% to about 90%.
In light of the forgoing discussion, the Examiner concludes that the subject matter defined by the instant claims would have been obvious within the meaning of 35 USC 103.
From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole was prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, as evidenced by the references, especially in the absence of evidence to the contrary.
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 1-15 and 18 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-19 of copending Application No. 18544283 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the reference application teaches a cosmetic composition in the form of O/W emulsion comprising a hydrophobic polymer formed from a reaction of oil (linseed oil in claim 3) and a methacrylate or acrylate (isobutyl methacrylate in claim 4) polymer; solvent (polycitronellol acetate in claim 10), surfactant (rhamnolipids in claim 14) and water, and thus teaches each limitation of applicant’s claimed limitation.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1-15 and 18 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-18 of copending Application No. 18544195 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the reference application teaches a cleansing composition in the form of O/W emulsion comprising a hydrophobic polymer formed from a reaction of oil (linseed oil in claim 3) and a methacrylate or acrylate (isobutyl methacrylate in claim 4) polymer; solvent (polycitronellol acetate in claim 11), surfactant (rhamnolipids in claim 12) and water, and thus teaches each limitation of applicant’s claimed limitation.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1-15 and 18 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-19 of copending Application No. 18544254 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the reference application teaches a cosmetic composition in the form of O/W emulsion comprising a hydrophobic polymer formed from a reaction of oil (linseed oil in claim 3) and a methacrylate or acrylate (isobutyl methacrylate in claim 4) polymer; solvent (polycitronellol acetate in claim 10), surfactant (rhamnolipids in claim 14) and water, and thus teaches each limitation of applicant’s claimed limitation.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1-15 and 18 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-18 of copending Application No. 18544223 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the reference application teaches a cosmetic composition in the form of O/W dispersion (alternative to emulsion) comprising a hydrophobic polymer formed from a reaction of oil (linseed oil in claim 3) and a methacrylate or acrylate (isobutyl methacrylate in claim 4) polymer; solvent (polycitronellol acetate in claim 10), surfactant (rhamnolipids in claim 13) and water, and thus teaches each limitation of applicant’s claimed limitation.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Conclusion
No claim is allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JIANFENG SONG. Ph.D. whose telephone number is (571)270-1978. The examiner can normally be reached M-F 8-5.
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/JIANFENG SONG/Primary Examiner, Art Unit 1613