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 .
Specification
The disclosure is objected to because it contains an embedded hyperlink and/or other form of browser-executable code in paragraphs 36 and 39. Applicant is required to delete the embedded hyperlink and/or other form of browser-executable code; references to websites should be limited to the top-level domain name without any prefix such as http:// or other browser-executable code. See MPEP § 608.01.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1, 3-5, 7-12, and 15-16 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Berg-Shultz et al. (previously cited).
Berg-Shultz et al. disclose a cosmetic emulsion composition that includes active agent (tocopherol acetate), microcrystalline wax, titanium dioxide/pigments/mineral sunscreens (titanium oxide/colorant), avobenzone (Parsol® 1789) at 3 wt% and bemotrizinol (Tinosorb® S) at 5 wt% (see example 9 and paragraphs 30, 32, and 42; instant claims 1, 5, 7, 9, 11-12, and 15-16). These amounts and ratios fall within the ranges recited in the instant specification as “effective” for stabilization (see paragraphs 70-75; instant claims 1-2 and 9-10). The ratio of bemotrizinol to avobenzone is 1.6:1 (see instant claims 12 and 16). An encapsulated cinnamate is also present. Encapsulated ethylhexyl cinnamate (octinoxate) is the only particular cinnamate employed in the examples characterizing the stabilizing effect of encapsulating cinnamate compounds which is the focus of Berg-Shultz et al. (see abstract; instant claims 2). Additional sunscreen actives (active agent) are present at less than 10 wt% (see instant claims 3-4 and 8). Therefore its inclusion as the encapsulated cinnamate of the subsequent is implicit from this discussion as well as its recitation in the claims (see example 1 and claims 1-8). Therefore claims 1, 3-5, 7-12, and 15-16 are anticipated by Berg-Shultz et al.
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.
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 1-18 are rejected under 35 U.S.C. 103 as being unpatentable over Chavan et al. (US PGPub No. 2015/0224042) in view of Morimoto et al. (US PGPub No. 2006/0142382).
Chavan et al. teach photostable sunscreen compositions (see abstract). The composition includes a fatty acid with a sunscreen active that is preferably bemotrizinol (Tinosorb® S) at 0.1 to 7 wt% and is also envisioned to include a UVA sunscreen that is preferably avobenzone (4-tert-butyl-4 methoxy dibenzoylmethane) at 0.4 to 3 wt% and a UVB sunscreen that is preferably octinoxate (Parsol® MCX) at 0.4 to 3 wt% (see paragraphs 19-22 and 41-43). These ranges yield a range of ratios of bemotrizinol to avobenzone of 1:4 to 17.5:1 as well as bemotrizinol to octinoxate of 1:4 to 17.5:1 (see instant claims 12-13 and 16-17). The SPF of the composition is preferably higher than 40 (see paragraph 18; instant claims 14 and 18). An example details a vanishing cream with water, a surfactant, bemotrizinol (Tinosorb® S) at 5 wt%, and octinoxate (Parsol® MCX) at 2.25 wt% which provided an SPF of 100 while these components in another preparation at 2.25 wt% and 1.2 wt%, respectively, gave an SPF of 18 (see table 1 example 4 and table 2 example 6). Here the ratio of bemotrizinol to octinoxate was 2.22: 1 or 1.875:1. An additional example combines bemotrizinol (Tinosorb® S) at 2.5 wt%, avobenzone (Parsol® 1789) at 2.25 wt% and octinoxate (Parsol® MCX) at 1.2 wt% to produce an SPF of 15 in the presence of no other filters (see example 5). Here the ratio of bemotrizinol to avobenzone to octinoxate was 2.08:1.875:1. They detail greater photostability for the combination of avobenzone (Parsol® 1789) and octinoxate (Parsol® MCX) when bemotrizinol (Tinosorb® S) is present at a larger proportion than either the octinoxate or avobenzone (see table 2). Chavan et al. further teach various forms of the composition that include sticks and creams (emulsion) (see paragraphs 51). Additional excipient components that include thickeners and skin soothing or healing actives (see paragraph 52; instant claim 8). They also teach the include of other sun protective agents such as zinc oxide or titanium dioxide at 0.1 to 5 wt% (see paragraph 47; instant claims 3-4). Wax is not explicitly taught as a component.
Morimoto et al. teach a vanishing cream employed to deliver skin actives (see abstract and paragraph 58). The cream includes surfactants, water, paraffin wax, and the actives of interest (see paragraph 58).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to prepare a vanishing cream composition of Chavan et al. based on example 5, where the percentage of the bemotrizinol, avobenzone, and octinoxate are increased such that an SPF near the level of example 4 is reached. This modification would have been obvious in light of the desire of Chavan et al. to have their composition SPF exceed 40 and their attainment of such an SPF with higher proportions of bemotrizinol and avobenzone in another example. In each instance exemplified, the proportion of bemotrizinol exceeds both that of octinoxate and avobenzone and this relationship would have been obvious to extend to higher overall proportions of the components at a taught or suggested ratio. The total proportions and ratios of bemotrizinol to these additional UV absorbers overlaps with those instantly claimed, thereby rendering the claimed ranges obvious. “In the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed.Cir. 1990)” (see MPEP 2144.05). It additionally would have been obvious to add a wax to the composition in light of Morimoto et al. who detail its utility in a vanishing cream. This modification is obvious as the application of the same technique to a similar product in order to yield the same improvement. It would follow to also formulate a stick form as Chavan et al. also detail and to include skin actives or a named inorganic sun protective agent at the taught proportion. The step of adding bis-ethylhexyloxyphenol methoxyphenyl triazine (bemotrizinol) to the composition during formation is implicit because each composition comprises this component. These amounts and ratios fall within the ranges recited in the instant specification as “effective” for stabilization (see paragraphs 70-75; instant claims 1-2 and 9-10). Therefore claims 1-18 are obvious over Chavan et al. in view of Morimoto et al.
Claims 1-4 and 6-18 are rejected under 35 U.S.C. 103 as being unpatentable over Chavan et al. in view of Look et al. (US PGPub No. 2002/0041788).
Chavan et al. teach photostable sunscreen compositions (see abstract). The composition includes a fatty acid with a sunscreen active that is preferably bemotrizinol (Tinosorb® S) at 0.1 to 7 wt% and is also envisioned to include a UVA sunscreen that is preferably avobenzone (4-tert-butyl-4 methoxy dibenzoylmethane) at 0.4 to 3 wt% and a UVB sunscreen that is preferably octinoxate (Parsol® MCX) at 0.4 to 3 wt% (see paragraphs 19-22 and 41-43). These ranges yield a range of ratios of bemotrizinol to avobenzone of 1:4 to 17.5:1 as well as bemotrizinol to octinoxate of 1:4 to 17.5:1 (see instant claims 12-13 and 16-17). The SPF of the composition is preferably higher than 40 (see paragraph 18; instant claims 14 and 18). An example details a vanishing cream with water, a surfactant, bemotrizinol (Tinosorb® S) at 5 wt%, and octinoxate (Parsol® MCX) at 2.25 wt% which provided an SPF of 100 while these components in another preparation at 2.25 wt% and 1.2 wt%, respectively, gave an SPF of 18 (see table 1 example 4 and table 2 example 6). Here the ratio of bemotrizinol to octinoxate was 2.22: 1 or 1.875:1. An additional example combines bemotrizinol (Tinosorb® S) at 2.5 wt%, avobenzone (Parsol® 1789) at 2.25 wt% and octinoxate (Parsol® MCX) at 1.2 wt% to produce an SPF of 15 in the presence of no other filters (see example 5). Here the ratio of bemotrizinol to avobenzone to octinoxate was 2.08:1.875:1. They detail greater photostability for the combination of avobenzone (Parsol® 1789) and octinoxate (Parsol® MCX) when bemotrizinol (Tinosorb® S) is present at a larger proportion than either the octinoxate or avobenzone (see table 2). Chavan et al. further teach various forms of the composition that include sticks and creams (emulsion) (see paragraphs 51). Additional excipient components that include thickeners and skin soothing or healing actives (see paragraph 52; instant claim 8). They also teach the include of other sun protective agents such as zinc oxide or titanium dioxide at 0.1 to 5 wt% (see paragraph 47; instant claims 3-4). Chavan et al. teach non-aqueous diluents for compositions and deodorant stick bases in as carriers (see paragraphs 49-50). Wax is not explicitly taught as a component.
Look et al. teach deodorant and sunscreen sticks that include waxes in the base composition along with the desired (e.g., sunscreen) actives (see abstract and paragraphs 71-77). They name avobenzone as well as (octylmethylcinnamate) as envisioned sunscreen actives (see table 7).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to prepare a stick composition of Chavan et al. based on example 5, where the percentage of the bemotrizinol, avobenzone, and octinoxate are increased such that an SPF near the level of example 4 is reached and a non-aqueous diluent with waxes is employed. This modification would have been obvious in light of the desire of Chavan et al. to have their composition SPF exceed 40 and their attainment of such an SPF with higher proportions of bemotrizinol and avobenzone in another example. In each instance exemplified, the proportion of bemotrizinol exceeds both that of octinoxate and avobenzone and this relationship would have been obvious to extend to higher overall proportions of the components at a taught or suggested ratio. The modification adding the waxes is obvious in light of Look et al. who provide further guidance on the stick base formulations suggested by Chavan et al. The total proportions and ratios of bemotrizinol to these additional UV absorbers overlaps with those instantly claimed, thereby rendering the claimed ranges obvious (see MPEP 2144.05). It would follow to also include skin actives or a named inorganic sun protective agent at the taught proportion. The step of adding bis- ethylhexyloxyphenol methoxyphenyl triazine (bemotrizinol) to the composition during formation is implicit because each composition comprises this component. These amounts and ratios fall within the ranges recited in the instant specification as “effective” for stabilization (see paragraphs 70-75; instant claims 1-2 and 9-10). Therefore claims 1-4 and 6-18 are obvious over Chavan et al. in view of Look et al.
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 1-18 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-31 of U.S. Patent No. 11,931,439 in view of Chavan et al. as evidenced by Robinson (previously cited).
Although the claims at issue are not identical, they are not patentably distinct from each other because both sets of claims a topical composition that can be an emulsion (cream) and comprises UV screening actives. At least one UV screening active is selected from a grouping that includes titanium dioxide, bemotrizinol (bis-ethylhexyloxyphenol methoxyphenyl triazine) and avobenzone (butyl methoxydibenzoylmethane), and octinoxate (ethylhexyl methoxycinnamate) (see Robinson column 4 lines 49-53). Wax, colorant, and active agents are also recited components. A particular combination of instantly claimed UV filters is not recited.
Chavan et al. teach photostable sunscreen compositions (see abstract). The composition includes a fatty acid with a sunscreen active that is preferably bemotrizinol (Tinosorb® S) at 0.1 to 7 wt% and is also envisioned to include a UVA sunscreen that is preferably avobenzone (4-tert-butyl-4 methoxy dibenzoylmethane) at 0.4 to 3 wt% and a UVB sunscreen that is preferably octinoxate (Parsol® MCX) at 0.4 to 3 wt% (see paragraphs 19-22 and 41-43). These ranges yield a range of ratios of bemotrizinol to avobenzone of 1:4 to 17.5:1 as well as bemotrizinol to octinoxate of 1:4 to 17.5:1. The SPF of the composition is preferably higher than 40 (see paragraph 18; instant claims 14 and 18). An example details a cream with water, a surfactant, bemotrizinol (Tinosorb® S) at 5 wt%, and octinoxate (Parsol® MCX) at 2.25 wt% which provided an SPF of 100 while these components in another preparation at 2.25 wt% and 1.2 wt%, respectively, gave an SPF of 18 (see table 1 example 4 and table 2 example 6). Here the ratio of bemotrizinol to octinoxate was 2.22:1 or 1.875:1. An additional example combines bemotrizinol (Tinosorb® S) at 2.5 wt%, avobenzone (Parsol® 1789) at 2.25 wt% and octinoxate (Parsol® MCX) at 1.2 wt% to produce an SPF of 15 in the presence of no other filters (see example 5). Here the ratio of bemotrizinol to avobenzone to octinoxate was 2.08:1.875:1. They detail greater photostability for the combination of avobenzone (Parsol® 1789) and octinoxate (Parsol® MCX) when bemotrizinol (Tinosorb® S) is present at a larger proportion than either the octinoxate or avobenzone (see table 2). Chavan et al. further teach various forms of the composition that include sticks and creams (emulsion) (see paragraphs 51). Additional excipient components that include thickeners and skin soothing or healing actives (see paragraph 52; instant claim 8). They also teach the include of other sun protective agents such as zinc oxide or titanium dioxide at 0.1 to 5 wt% (see paragraph 47).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to select bemotrizinol and avobenzone alone or in further combination with octinoxate or titanium dioxide as the UV filters of the patented claims, in light of Chavan et al., who teach the combination of organic UV sunscreens as particularly useful in attaining a high SPF and photostable UV protective composition. Additional UV filters are not required. This modification is obvious as the application of the same technique to a similar product in order to yield the same improvement. Their inclusion at ratios and proportions according to Chavan et al. that stabilize the avobenzone and octinoxate along with their fatty acid would follow as would the inclusion of wax and formation into an emulsion or solid as recited forms for such compositions. This modification would have been obvious in light of the desire of Chavan et al. to have their composition SPF exceed 40 and their attainment of such an SPF with higher proportions of bemotrizinol and avobenzone within their taught range. In each instance exemplified by Chavan et al., the proportion of bemotrizinol exceeds both that of octinoxate and avobenzone and this relationship would have been obvious to extend to higher overall proportions of the components at a taught or suggested ratio. The ratio ranges and proportion ranges overlap with those instantly claimed, thereby rendering the instantly claimed ranges obvious (see MPEP 2144.05). These amounts and ratios fall within the ranges recited in the instant specification as “effective” for stabilization (see paragraphs 70-75; instant claims 1-2 and 9-10). Therefore claims 1-18 are unpatentable over 1-31 of U.S. Patent No. 11,931,439 in view of Chavan et al. as evidenced by Robinson.
Claims 1-5 and 7-18 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-12 of U.S. Patent No. 8,778,313 in view of Chavan et al. and Morimoto et al. as evidenced by Gannis et al. and Robinson.
Although the claims at issue are not identical, they are not patentably distinct from each other because both sets of claims a topical composition that can be an emulsion and comprises UV screening actives. At least one UV screening active selected from a grouping that includes triazines, cinnamates, and dibenzoylmethanes is recited. A narrower listing recites bemotrizinol (bis-ethylhexyloxyphenol methoxyphenyl triazine), avobenzone (butyl methoxydibenzoylmethane), and octinoxate (ethylhexyl methoxycinnamate) (see Robinson column 4 lines 49-53). Titanium dioxide is also an envisioned UV filter which also can fulfill the role of a colorant. A particular combination of instantly claimed UV filters and a wax are not recited.
Chavan et al. teach photostable sunscreen compositions (see abstract). The composition includes a fatty acid with a sunscreen active that is preferably bemotrizinol (Tinosorb® S) at 0.1 to 7 wt% and is also envisioned to include a UVA sunscreen that is preferably avobenzone (4-tert-butyl-4 methoxy dibenzoylmethane) at 0.4 to 3 wt% and a UVB sunscreen that is preferably octinoxate (Parsol® MCX) at 0.4 to 3 wt% (see paragraphs 19-22 and 41-43). These ranges yield a range of ratios of bemotrizinol to avobenzone of 1:4 to 17.5:1 as well as bemotrizinol to octinoxate of 1:4 to 17.5:1. The SPF of the composition is preferably higher than 40 (see paragraph 18; instant claims 14 and 18). An example details a cream with water, a surfactant, bemotrizinol (Tinosorb® S) at 5 wt%, and octinoxate (Parsol® MCX) at 2.25 wt% which provided an SPF of 100 while these components in another preparation at 2.25 wt% and 1.2 wt%, respectively, gave an SPF of 18 (see table 1 example 4 and table 2 example 6). Here the ratio of bemotrizinol to octinoxate was 2.22:1 or 1.875:1. An additional example combines bemotrizinol (Tinosorb® S) at 2.5 wt%, avobenzone (Parsol® 1789) at 2.25 wt% and octinoxate (Parsol® MCX) at 1.2 wt% to produce an SPF of 15 in the presence of no other filters (see example 5). Here the ratio of bemotrizinol to avobenzone to octinoxate was 2.08:1.875:1. They detail greater photostability for the combination of avobenzone (Parsol® 1789) and octinoxate (Parsol® MCX) when bemotrizinol (Tinosorb® S) is present at a larger proportion than either the octinoxate or avobenzone (see table 2). Chavan et al. further teach various forms of the composition that include sticks and creams (emulsion) (see paragraphs 51). Additional excipient components that include thickeners and skin soothing or healing actives (see paragraph 52; instant claim 8). They also teach the include of other sun protective agents such as zinc oxide or titanium dioxide at 0.1 to 5 wt% (see paragraph 47). Titanium dioxide is a coloring agent and UV filter (see column 5 lines 54-65; Gannis et al. column claim 7).
Morimoto et al. teach a vanishing cream employed to deliver skin actives (see abstract and paragraph 58). The cream includes surfactants, water, paraffin wax, and the actives of interest (see paragraph 58).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to select bemotrizinol and avobenzone alone or in further combination with octinoxate or titanium dioxide as the UV filters of the patented claims, in light of Chavan et al., who teach the combination of organic UV sunscreens as particularly useful in attaining a high SPF and photostable UV protective composition. Additional UV filters are not required. This modification is obvious as the application of the same technique to a similar product in order to yield the same improvement. Their inclusion at ratios and proportions according to Chavan et al. that stabilize the avobenzone and octinoxate along with their fatty acid would follow as would the inclusion of wax and formation into an emulsion as a recited form for such compositions. This modification would have been obvious in light of the desire of Chavan et al. to have their composition SPF exceed 40 and their attainment of such an SPF with higher proportions of bemotrizinol and avobenzone within their taught range. In each instance exemplified by Chavan et al., the proportion of bemotrizinol exceeds both that of octinoxate and avobenzone and this relationship would have been obvious to extend to higher overall proportions of the components at a taught or suggested ratio. The ratio ranges and proportion ranges overlap with those instantly claimed, thereby rendering the instantly claimed ranges obvious (see MPEP 2144.05). These amounts and ratios fall within the ranges recited in the instant specification as “effective” for stabilization (see paragraphs 70-75; instant claims 1-2 and 9-10). It additionally would have been obvious to add a wax to the composition in light of Morimoto et al. who detail its utility in a topical cream. This modification is obvious as the application of the same technique to a similar product in order to yield the same improvement. Therefore claims 1-5 and 7-18 are unpatentable over 1-12 of U.S. Patent No. 8,778,313 in view of Chavan et al. and Morimoto et al. as evidenced by Gannis et al. and Robinson.
Claims 1-5 and 7-18 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-12 of U.S. Patent No. 8,778,313 in view of Chavan et al. and Morimoto et al. as evidenced by Gannis et al. and Robinson as applied to claims 1-10 above, and further in view of Dueva-Koganov et al. (previously cited).
Claims 1-12 of U.S. Patent No. 8,778,313 in view of Chavan et al. and Morimoto et al. as evidenced by Gannis et al. and Robinson render obvious the limitations of instant claims 1-5 and 7-18, where bemotrizinol and avobenzone, optionally in combination with octinoxate, are present in a sunscreen composition. The presence of a colorant is not exemplified in a composition.
Dueva-Koganov et al. teach a sunscreen composition that includes at least one sun screening agent (see abstract). They disclose a cosmetic emulsion form that includes octinoxate at 7.5 wt%, avobenzone at 3 wt%, and bemotrizinol at 1.5 wt% (see example 14; instant claim 5). In addition to emulsion forms, Dueva-Koganov et al. also teach stick forms (see paragraph 187). They further detail the inclusion of cosmetically acceptable ingredients such as colorants (see paragraph 182).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to add a colorant to the composition of the modified patented claims in light of the teachings of Dueva-Koganov et al. This modification would have been obvious as the application of the same technique to a similar product in order to yield the same improvement. Therefore claims 1-5 and 7-18 are unpatentable over claims 1-12 of U.S. Patent No. 8,778,313 in view of Chavan et al. Morimoto et al., and Dueva-Koganov et al. as evidenced by Gannis et al. and Robinson.
Claims 1-5 and 7-18 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-21 of U.S. Patent No. 8,765,101 or claims 1-22 of U.S. Patent No. 9,358,192, each separately in view of Chavan et al. and Morimoto et al. as evidenced by Gannis et al. and Robinson.
Although the claims at issue are not identical, they are not patentably distinct from each other because both sets of claims a fluid topical composition that comprises UV screening actives. At least one UV screening active selected from a grouping that includes triazines, cinnamates, and dibenzoylmethanes is recited. A narrower listing recites bemotrizinol (bis-ethylhexyloxyphenol methoxyphenyl triazine), avobenzone (butyl methoxydibenzoylmethane), and octinoxate (ethylhexyl methoxycinnamate) (see Robinson column 4 lines 49-53). Titanium dioxide is also an envisioned UV filter which also can fulfill the role of a colorant. A particular combination of instantly claimed UV filters and wax are not recited.
Chavan et al. teach photostable sunscreen compositions (see abstract). The composition includes a fatty acid with a sunscreen active that is preferably bemotrizinol (Tinosorb® S) at 0.1 to 7 wt% and is also envisioned to include a UVA sunscreen that is preferably avobenzone (4-tert-butyl-4 methoxy dibenzoylmethane) at 0.4 to 3 wt% and a UVB sunscreen that is preferably octinoxate (Parsol® MCX) at 0.4 to 3 wt% (see paragraphs 19-22 and 41-43). These ranges yield a range of ratios of bemotrizinol to avobenzone of 1:4 to 17.5:1 as well as bemotrizinol to octinoxate of 1:4 to 17.5:1. The SPF of the composition is preferably higher than 40 (see paragraph 18; instant claims 14 and 18). An example details a cream with water, a surfactant, bemotrizinol (Tinosorb® S) at 5 wt%, and octinoxate (Parsol® MCX) at 2.25 wt% which provided an SPF of 100 while these components in another preparation at 2.25 wt% and 1.2 wt%, respectively, gave an SPF of 18 (see table 1 example 4 and table 2 example 6). Here the ratio of bemotrizinol to octinoxate was 2.22:1 or 1.875:1. An additional example combines bemotrizinol (Tinosorb® S) at 2.5 wt%, avobenzone (Parsol® 1789) at 2.25 wt% and octinoxate (Parsol® MCX) at 1.2 wt% to produce an SPF of 15 in the presence of no other filters (see example 5). Here the ratio of bemotrizinol to avobenzone to octinoxate was 2.08:1.875:1. They detail greater photostability for the combination of avobenzone (Parsol® 1789) and octinoxate (Parsol® MCX) when bemotrizinol (Tinosorb® S) is present at a larger proportion than either the octinoxate or avobenzone (see table 2). Chavan et al. further teach various forms of the composition that include sticks and creams (emulsion) (see paragraphs 51). Additional excipient components that include thickeners and skin soothing or healing actives (see paragraph 52; instant claim 8). They also teach the include of other sun protective agents such as zinc oxide or titanium dioxide at 0.1 to 5 wt% (see paragraph 47). Titanium dioxide is a coloring agent and UV filter (see column 5 lines 54-65; Gannis et al. column claim 7).
Morimoto et al. teach a vanishing cream employed to deliver skin actives (see abstract and paragraph 58). The cream includes surfactants, water, paraffin wax, and the actives of interest (see paragraph 58).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to select bemotrizinol and avobenzone alone or in further combination with octinoxate or titanium dioxide as the UV filters of the patented claims, in light of Chavan et al., who teach the combination of organic UV sunscreens as particularly useful in attaining a high SPF and photostable UV protective composition. Additional UV filters are not required. This modification is obvious as the application of the same technique to a similar product in order to yield the same improvement. Their inclusion at ratios and proportions according to Chavan et al. that stabilize the avobenzone and octinoxate along with their fatty acid would follow as would the inclusion of wax and formation into an emulsion as a recited form for such compositions. This modification would have been obvious in light of the desire of Chavan et al. to have their composition SPF exceed 40 and their attainment of such an SPF with higher proportions of bemotrizinol and avobenzone within their taught range. In each instance exemplified by Chavan et al., the proportion of bemotrizinol exceeds both that of octinoxate and avobenzone and this relationship would have been obvious to extend to higher overall proportions of the components at a taught or suggested ratio. The ratio ranges and proportion ranges overlap with those instantly claimed, thereby rendering the instantly claimed ranges obvious (see MPEP 2144.05). These amounts and ratios fall within the ranges recited in the instant specification as “effective” for stabilization (see paragraphs 70-75). It additionally would have been obvious to add a wax to the composition in light of Morimoto et al. who detail its utility in a topical cream. This modification is obvious as the application of the same technique to a similar product in order to yield the same improvement. Therefore claims 1-5 and 7-18 are unpatentable over claims 1-21 of U.S. Patent No. 8,765,101 or claims 1-22 of U.S. Patent No. 9,358,192, each separately in view of Chavan et al. and Morimoto et al. as evidenced by Gannis et al. and Robinson.
Claims 1-5 and 7-18 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-21 of U.S. Patent No. 8,765,101 or claims 1-22 of U.S. Patent No. 9,358,192, each separately in view of Chavan et al. and Morimoto et al. as evidenced by Gannis et al. and Robinson as applied to claims 1-10 above, and further in view of Dueva-Koganov et al.
Claims 1-21 of U.S. Patent No. 8,765,101 or claims 1-22 of U.S. Patent No. 9,358,192, each separately in view of Chavan et al. and Morimoto et al. as evidenced by Gannis et al. and Robinson render obvious the limitations of instant claims 1-5 and 7-8 where bemotrizinol and avobenzone, optionally in combination with octinoxate, are present in a sunscreen composition. The presence of a colorant is not exemplified in a composition.
Dueva-Koganov et al. teach a sunscreen composition that includes at least one sun screening agent (see abstract). They disclose a cosmetic emulsion form that includes octinoxate at 7.5 wt%, avobenzone at 3 wt%, and bemotrizinol at 1.5 wt% (see example 14; instant claim 5). In addition to emulsion forms, Dueva-Koganov et al. also teach stick forms (see paragraph 187). They further detail the inclusion of cosmetically acceptable ingredients such as colorants (see paragraph 182).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to add a colorant to the composition of the modified patented claims in light of the teachings of Dueva-Koganov et al. This modification would have been obvious as the application of the same technique to a similar product in order to yield the same improvement. Therefore claims 1-10 are unpatentable over claims 1-21 of U.S. Patent No. 8,765,101 or claims 1-22 of U.S. Patent No. 9,358,192, each separately in view of Chavan et al., Morimoto et al., and Dueva-Koganov et al.as evidenced by Gannis et al. and Robinson.
Claims 1-5 and 7-18 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-18 of U.S. Patent No. 7,402,300, or claims 1-16 U.S. Patent No. 12,102,700, or claims 1-14 of U.S. Patent No. 12,472,192, each separately in view of Chavan et al. and Morimoto et al. as evidenced by Gannis et al. and Robinson.
Although the claims at issue are not identical, they are not patentably distinct from each other because both sets of claims a topical composition that comprises UV screening actives. At least one UV screening active selected from a grouping that includes triazines, cinnamates, and dibenzoylmethanes is recited. A narrower listing recites bemotrizinol (bis-ethylhexyloxyphenol methoxyphenyl triazine), avobenzone (butyl methoxydibenzoylmethane), and octinoxate (ethylhexyl methoxycinnamate) (see Robinson column 4 lines 49-53). A particular combination of instantly claimed UV filters and a wax are not recited.
Chavan et al. teach photostable sunscreen compositions (see abstract). The composition includes a fatty acid with a sunscreen active that is preferably bemotrizinol (Tinosorb® S) at 0.1 to 7 wt% and is also envisioned to include a UVA sunscreen that is preferably avobenzone (4-tert-butyl-4 methoxy dibenzoylmethane) at 0.4 to 3 wt% and a UVB sunscreen that is preferably octinoxate (Parsol® MCX) at 0.4 to 3 wt% (see paragraphs 19-22 and 41-43). These ranges yield a range of ratios of bemotrizinol to avobenzone of 1:4 to 17.5:1 as well as bemotrizinol to octinoxate of 1:4 to 17.5:1. The SPF of the composition is preferably higher than 40 (see paragraph 18; instant claims 14 and 18). An example details a cream with water, a surfactant, bemotrizinol (Tinosorb® S) at 5 wt%, and octinoxate (Parsol® MCX) at 2.25 wt% which provided an SPF of 100 while these components in another preparation at 2.25 wt% and 1.2 wt%, respectively, gave an SPF of 18 (see table 1 example 4 and table 2 example 6). Here the ratio of bemotrizinol to octinoxate was 2.22:1 or 1.875:1. An additional example combines bemotrizinol (Tinosorb® S) at 2.5 wt%, avobenzone (Parsol® 1789) at 2.25 wt% and octinoxate (Parsol® MCX) at 1.2 wt% to produce an SPF of 15 in the presence of no other filters (see example 5). Here the ratio of bemotrizinol to avobenzone to octinoxate was 2.08:1.875:1. They detail greater photostability for the combination of avobenzone (Parsol® 1789) and octinoxate (Parsol® MCX) when bemotrizinol (Tinosorb® S) is present at a larger proportion than either the octinoxate or avobenzone (see table 2). Chavan et al. further teach various forms of the composition that include sticks and creams (emulsion) (see paragraphs 51). Additional excipient components that include thickeners and skin soothing or healing actives (see paragraph 52; instant claim 8). They also teach the include of other sun protective agents such as zinc oxide or titanium dioxide at 0.1 to 5 wt% (see paragraph 47). Titanium dioxide is a coloring agent and UV filter (see column 5 lines 54-65; Gannis et al. column claim 7).
Morimoto et al. teach a vanishing cream employed to deliver skin actives (see abstract and paragraph 58). The cream includes surfactants, water, paraffin wax, and the actives of interest (see paragraph 58).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to select bemotrizinol and avobenzone alone or in further combination with octinoxate or titanium dioxide as the UV filters of the patented claims, in light of Chavan et al., who teach the combination of organic UV sunscreens as particularly useful in attaining a high SPF and photostable UV protective composition. Additional UV filters are not required. This modification is obvious as the application of the same technique to a similar product in order to yield the same improvement. Their inclusion at ratios and proportions according to Chavan et al. that stabilize the avobenzone and octinoxate along with their fatty acid would follow as would the formation into an emulsion as a recited form for such compositions. This modification would have been obvious in light of the desire of Chavan et al. to have their composition SPF exceed 40 and their attainment of such an SPF with higher proportions of bemotrizinol and avobenzone within their taught range. In each instance exemplified by Chavan et al., the proportion of bemotrizinol exceeds both that of octinoxate and avobenzone and this relationship would have been obvious to extend to higher overall proportions of the components at a taught or suggested ratio. The ratio ranges and proportion ranges overlap with those instantly claimed, thereby rendering the instantly claimed ranges obvious (see MPEP 2144.05). These amounts and ratios fall within the ranges recited in the instant specification as “effective” for stabilization (see paragraphs 70-75; instant claims 1-2 and 9-10). It additionally would have been obvious to add a wax to the composition in light of Morimoto et al. who detail its utility in a topical cream. This modification is obvious as the application of the same technique to a similar product in order to yield the same improvement. It additionally would have been obvious to add a wax to the composition in light of Morimoto et al. who detail its utility in a cream. This modification is obvious as the application of the same technique to a similar product in order to yield the same improvement. Therefore claims 1-5 and 7-18 are unpatentable over claims 1-18 of U.S. Patent No. 7,402,300 or claims 1-14 of U.S. Patent No. 12,472,192, each separately in view of Chavan et al. and Morimoto et al. as evidenced by Gannis et al. and Robinson.
Claims 1-5 and 7-18 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-18 of U.S. Patent No. 7,402,300 or claims 1-14 of U.S. Patent No. 12,472,192, each separately in view of Chavan et al. and Morimoto et al. as evidenced by Gannis et al. and Robinson as applied to claims 1-10 above, and further in view of Dueva-Koganov et al.
Claims 1-18 of U.S. Patent No. 7,402,300 or claims 1-14 of U.S. Patent No. 12,472,192, each separately in view of Chavan et al. and Morimoto et al. as evidenced by Gannis et al. and Robinson render obvious the limitations of instant claims 1-5 and 7-8 where bemotrizinol and avobenzone, optionally in combination with octinoxate, are present in a sunscreen composition. The presence of a colorant is not exemplified in a composition.
Dueva-Koganov et al. teach a sunscreen composition that includes at least one sun screening agent (see abstract). They disclose a cosmetic emulsion form that includes octinoxate at 7.5 wt%, avobenzone at 3 wt%, and bemotrizinol at 1.5 wt% (see example 14; instant claim 5). In addition to emulsion forms, Dueva-Koganov et al. also teach stick forms (see paragraph 187). They further detail the inclusion of cosmetically acceptable ingredients such as colorants (see paragraph 182).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to add a colorant to the composition of the modified patented claims in light of the teachings of Dueva-Koganov et al. This modification would have been obvious as the application of the same technique to a similar product in order to yield the same improvement. Therefore claims 1-5 and 7-18 are unpatentable over claims 1-18 of U.S. Patent No. 7,402,300 or claims 1-14 of U.S. Patent No. 12,472,192, each separately in view of Chavan et al., Morimoto et al., and Dueva-Koganov et al.as evidenced by Gannis et al. and Robinson.
Claims 1-4 and 6-18 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-18 of U.S. Patent No. 7,402,300, or claims 1-14 of U.S. Patent No. 12,472,192, each separately in view of Chavan et al. and Look et al. as evidenced by Gannis et al. and Robinson.
Although the claims at issue are not identical, they are not patentably distinct from each other because both sets of claims a topical composition that comprises UV screening actives. At least one UV screening active selected from a grouping that includes triazines, cinnamates, and dibenzoylmethanes is recited. A narrower listing recites bemotrizinol (bis-ethylhexyloxyphenol methoxyphenyl triazine), avobenzone (butyl methoxydibenzoylmethane), and octinoxate (ethylhexyl methoxycinnamate) (see Robinson column 4 lines 49-53). A particular combination of instantly claimed UV filters and a wax are not recited.
Chavan et al. teach photostable sunscreen compositions (see abstract). The composition includes a fatty acid with a sunscreen active that is preferably bemotrizinol (Tinosorb® S) at 0.1 to 7 wt% and is also envisioned to include a UVA sunscreen that is preferably avobenzone (4-tert-butyl-4 methoxy dibenzoylmethane) at 0.4 to 3 wt% and a UVB sunscreen that is preferably octinoxate (Parsol® MCX) at 0.4 to 3 wt% (see paragraphs 19-22 and 41-43). These ranges yield a range of ratios of bemotrizinol to avobenzone of 1:4 to 17.5:1 as well as bemotrizinol to octinoxate of 1:4 to 17.5:1. The SPF of the composition is preferably higher than 40 (see paragraph 18; instant claims 14 and 18). An example details a cream with water, a surfactant, bemotrizinol (Tinosorb® S) at 5 wt%, and octinoxate (Parsol® MCX) at 2.25 wt% which provided an SPF of 100 while these components in another preparation at 2.25 wt% and 1.2 wt%, respectively, gave an SPF of 18 (see table 1 example 4 and table 2 example 6). Here the ratio of bemotrizinol to octinoxate was 2.22:1 or 1.875:1. An additional example combines bemotrizinol (Tinosorb® S) at 2.5 wt%, avobenzone (Parsol® 1789) at 2.25 wt% and octinoxate (Parsol® MCX) at 1.2 wt% to produce an SPF of 15 in the presence of no other filters (see example 5). Here the ratio of bemotrizinol to avobenzone to octinoxate was 2.08:1.875:1. They detail greater photostability for the combination of avobenzone (Parsol® 1789) and octinoxate (Parsol® MCX) when bemotrizinol (Tinosorb® S) is present at a larger proportion than either the octinoxate or avobenzone (see table 2). Chavan et al. further teach various forms of the composition that include sticks and creams (emulsion) (see paragraphs 51). Additional excipient components that include thickeners and skin soothing or healing actives (see paragraph 52; instant claim 8). They also teach the include of other sun protective agents such as zinc oxide or titanium dioxide at 0.1 to 5 wt% (see paragraph 47). Titanium dioxide is a coloring agent and UV filter (see column 5 lines 54-65; Gannis et al. column claim 7).
Look et al. teach deodorant and sunscreen sticks that include waxes in the base composition along with the desired (e.g., sunscreen) actives (see abstract and paragraphs 71-77). They name avobenzone as well as (octylmethylcinnamate ) as envisioned sunscreen actives (see table 7).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to prepare a stick form of the composition of the patented claims where the sunscreen is selected to be bemotrizinol and avobenzone alone or in further combination with octinoxate or titanium dioxide as the UV filters of the patented claims, in light of Chavan et al., who teach the combination of organic UV sunscreens as particularly useful in attaining a high SPF and photostable UV protective composition. Additional UV filters are not required. This modification is obvious as the application of the same technique to a similar product in order to yield the same improvement. Their inclusion at ratios and proportions according to Chavan et al. that stabilize the avobenzone and octinoxate along with their fatty acid would follow as would the formation into an emulsion as a recited form for such compositions. This modification would have been obvious in light of the desire of Chavan et al. to have their composition SPF exceed 40 and their attainment of such an SPF with higher proportions of bemotrizinol and avobenzone within their taught range. In each instance exemplified by Chavan et al., the proportion of bemotrizinol exceeds both that of octinoxate and avobenzone and this relationship would have been obvious to extend to higher overall proportions of the components at a taught or suggested ratio. The ratio ranges and proportion ranges overlap with those instantly claimed, thereby rendering the instantly claimed ranges obvious (see MPEP 2144.05). These amounts and ratios fall within the ranges recited in the instant specification as “effective” for stabilization (see paragraphs 70-75; instant claims 1-2 and 9-10). It additionally would have been obvious to add a wax to the composition in light of Morimoto et al. who detail its utility in a topical cream. This modification is obvious as the application of the same technique to a similar product in order to yield the same improvement. The modification adding the waxes is obvious in light of Look et al. who provide further guidance on the stick base formulations suggested by Chavan et al. The modification choosing a stick form would have been facilitated by adding waxes and is obvious in light of Look et al. who provide further guidance on the stick base formulations suggested by Chavan et al. This modification is obvious as the application of the same technique to a similar product in order to yield the same improvement. Therefore claims 1-4 and 6-18 are unpatentable over claims 1-18 of U.S. Patent No. 7,402,300 or claims 1-14 of U.S. Patent No. 12,472,192, each separately in view of Chavan et al. and Look et al. as evidenced by Gannis et al. and Robinson.
Claims 1-4 and 6-18 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-18 of U.S. Patent No. 7,402,300 or claims 1-14 of U.S. Patent No. 12,472,192, each separately in view of Chavan et al. and Look et al. as evidenced by Gannis et al. and Robinson as applied to claims 1-4 and 6-18 above, and further in view of Dueva-Koganov et al.
Claims 1-18 of U.S. Patent No. 7,402,300 or claims 1-14 of U.S. Patent No. 12,472,192, each separately in view of Chavan et al. and Look et al. as evidenced by Gannis et al. and Robinson render obvious the limitations of instant claims 1-4 and 6-18 where bemotrizinol and avobenzone, optionally in combination with octinoxate, are present in a sunscreen composition. The presence of a colorant is not exemplified in a composition.
Dueva-Koganov et al. teach a sunscreen composition that includes at least one sun screening agent (see abstract). They disclose a cosmetic emulsion form that includes octinoxate at 7.5 wt%, avobenzone at 3 wt%, and bemotrizinol at 1.5 wt% (see example 14; instant claim 5). In addition to emulsion forms, Dueva-Koganov et al. also teach stick forms (see paragraph 187). They further detail the inclusion of cosmetically acceptable ingredients such as colorants (see paragraph 182).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to add a colorant to the composition of the modified patented claims in light of the teachings of Dueva-Koganov et al. This modification would have been obvious as the application of the same technique to a similar product in order to yield the same improvement. Therefore claims 1-4 and 6-18 are unpatentable over claims 1-18 of U.S. Patent No. 7,402,300 or claims 1-14 of U.S. Patent No. 12,472,192, each separately in view of Chavan et al., Look et al., and Dueva-Koganov et al.as evidenced by Gannis et al. and Robinson.
Claims 1-5 and 7-18 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-16 of U.S. Patent No. 12,102,700 in view of Chavan et al. and Morimoto et al. as evidenced by Gannis et al. and Robinson.
Although the claims at issue are not identical, they are not patentably distinct from each other because both sets of claims a fluid topical composition that comprises UV screening actives. At least one UV screening active selected from a grouping that includes triazines, cinnamates, and dibenzoylmethanes is recited. A narrower listing recites bemotrizinol (bis-ethylhexyloxyphenol methoxyphenyl triazine), avobenzone (butyl methoxydibenzoylmethane), and octinoxate (ethylhexyl methoxycinnamate) (see Robinson column 4 lines 49-53). A particular combination of instantly claimed UV filters or wax is not recited.
Chavan et al. teach photostable sunscreen compositions (see abstract). The composition includes a fatty acid with a sunscreen active that is preferably bemotrizinol (Tinosorb® S) at 0.1 to 7 wt% and is also envisioned to include a UVA sunscreen that is preferably avobenzone (4-tert-butyl-4 methoxy dibenzoylmethane) at 0.4 to 3 wt% and a UVB sunscreen that is preferably octinoxate (Parsol® MCX) at 0.4 to 3 wt% (see paragraphs 19-22 and 41-43). These ranges yield a range of ratios of bemotrizinol to avobenzone of 1:4 to 17.5:1 as well as bemotrizinol to octinoxate of 1:4 to 17.5:1. The SPF of the composition is preferably higher than 40 (see paragraph 18; instant claims 14 and 18). An example details a cream with water, a surfactant, bemotrizinol (Tinosorb® S) at 5 wt%, and octinoxate (Parsol® MCX) at 2.25 wt% which provided an SPF of 100 while these components in another preparation at 2.25 wt% and 1.2 wt%, respectively, gave an SPF of 18 (see table 1 example 4 and table 2 example 6). Here the ratio of bemotrizinol to octinoxate was 2.22:1 or 1.875:1. An additional example combines bemotrizinol (Tinosorb® S) at 2.5 wt%, avobenzone (Parsol® 1789) at 2.25 wt% and octinoxate (Parsol® MCX) at 1.2 wt% to produce an SPF of 15 in the presence of no other filters (see example 5). Here the ratio of bemotrizinol to avobenzone to octinoxate was 2.08:1.875:1. They detail greater photostability for the combination of avobenzone (Parsol® 1789) and octinoxate (Parsol® MCX) when bemotrizinol (Tinosorb® S) is present at a larger proportion than either the octinoxate or avobenzone (see table 2). Chavan et al. further teach various forms of the composition that include sticks and creams (emulsion) (see paragraphs 51). Additional excipient components that include thickeners and skin soothing or healing actives (see paragraph 52; instant claim 8). They also teach the include of other sun protective agents such as zinc oxide or titanium dioxide at 0.1 to 5 wt% (see paragraph 47).
Morimoto et al. teach a vanishing cream employed to deliver skin actives (see abstract and paragraph 58). The cream includes surfactants, water, paraffin wax, and the actives of interest (see paragraph 58).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to select bemotrizinol and avobenzone alone or in further combination with octinoxate or titanium dioxide as the UV filters of the patented claims, in light of Chavan et al., who teach the combination of organic UV sunscreens as particularly useful in attaining a high SPF and photostable UV protective composition. Additional UV filters are not required. This modification is obvious as the application of the same technique to a similar product in order to yield the same improvement. Their inclusion at ratios and proportions according to Chavan et al. that stabilize the avobenzone and octinoxate along with their fatty acid would follow as would the inclusion of wax and formation into an emulsion or solid as recited forms for such compositions. This modification would have been obvious in light of the desire of Chavan et al. to have their composition SPF exceed 40 and their attainment of such an SPF with higher proportions of bemotrizinol and avobenzone within their taught range. In each instance exemplified by Chavan et al., the proportion of bemotrizinol exceeds both that of octinoxate and avobenzone and this relationship would have been obvious to extend to higher overall proportions of the components at a taught or suggested ratio. The ratio ranges and proportion ranges overlap with those instantly claimed, thereby rendering the instantly claimed ranges obvious (see MPEP 2144.05). These amounts and ratios fall within the ranges recited in the instant specification as “effective” for stabilization (see paragraphs 70-75; instant claims 1-2 and 9-10). It additionally would have been obvious to add a wax to the composition in light of Morimoto et al. who detail its utility in a vanishing cream. This modification is obvious as the application of the same technique to a similar product in order to yield the same improvement. Therefore claims 1-5 and 7-18 are unpatentable over claims 1-16 of U.S. Patent No. 12,102,700 in view of Chavan et al. and Morimoto et al. as evidenced by Gannis et al. and Robinson.
Claims 1-5 and 7-18 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-16 of U.S. Patent No. 12,102,700 in view of Chavan et al. and Morimoto et al. as evidenced by Gannis et al. and Robinson as applied to claims 1-5 and 7-18 above, and further in view of Dueva-Koganov et al.
Claims 1-16 of U.S. Patent No. 12,102,700 in view of Chavan et al. and Morimoto et al. as evidenced by Gannis et al. and Robinson render obvious the limitations of instant claims 1-5 and 7-18 where bemotrizinol and avobenzone, optionally in combination with octinoxate, are present in a sunscreen composition. The presence of a colorant is not exemplified in a composition.
Dueva-Koganov et al. teach a sunscreen composition that includes at least one sun screening agent (see abstract). They disclose a cosmetic emulsion form that includes octinoxate at 7.5 wt%, avobenzone at 3 wt%, and bemotrizinol at 1.5 wt% (see example 14; instant claim 5). In addition to emulsion forms, Dueva-Koganov et al. also teach stick forms (see paragraph 187). They further detail the inclusion of cosmetically acceptable ingredients such as colorants (see paragraph 182).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to add a colorant to the composition of the modified patented claims in light of the teachings of Dueva-Koganov et al. This modification would have been obvious as the application of the same technique to a similar product in order to yield the same improvement. Therefore claims 1-5 and 7-18 are unpatentable over claims 1-16 of U.S. Patent No. 12,102,700 in view of Chavan et al., Morimoto et al., and Dueva-Koganov et al.as evidenced by Gannis et al. and Robinson.
Claims 1-5 and 7-18 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-13 of U.S. Patent No. 8,747,816 or claims 1-20 of U.S. Patent No. 8,961,941, or claims 1-26 of U.S. Patent No. 8,025,867, each separately in view of Chavan et al. and Morimoto et al. as evidenced by Gannis et al.
Although the claims at issue are not identical, they are not patentably distinct from each other because both sets of claims a stabilized topical composition comprising a dibenzoylmethane that can be an emulsion and comprises one or more other UV screening actives. Avobenzone (4-tert-butyl-4’-methoxydibenzoylmethane) is a recited dibenzoylmethane. At least one UV screening active selected from a grouping that includes bemotrizinol (bis-ethylhexyloxyphenol methoxyphenyl triazine) and octinoxate (ethylhexyl methoxycinnamate) is also recited. Titanium dioxide is an envisioned UV filter which also can fulfill the role of a colorant. A particular combination of instantly claimed UV filters or a wax is not recited.
Chavan et al. teach photostable sunscreen compositions (see abstract). The composition includes a fatty acid with a sunscreen active that is preferably bemotrizinol (Tinosorb® S) at 0.1 to 7 wt% and is also envisioned to include a UVA sunscreen that is preferably avobenzone (4-tert-butyl-4 methoxy dibenzoylmethane) at 0.4 to 3 wt% and a UVB sunscreen that is preferably octinoxate (Parsol® MCX) at 0.4 to 3 wt% (see paragraphs 19-22 and 41-43). These ranges yield a range of ratios of bemotrizinol to avobenzone of 1:4 to 17.5:1 as well as bemotrizinol to octinoxate of 1:4 to 17.5:1. The SPF of the composition is preferably higher than 40 (see paragraph 18; instant claims 14 and 18). An example details a cream with water, a surfactant, bemotrizinol (Tinosorb® S) at 5 wt%, and octinoxate (Parsol® MCX) at 2.25 wt% which provided an SPF of 100 while these components in another preparation at 2.25 wt% and 1.2 wt%, respectively, gave an SPF of 18 (see table 1 example 4 and table 2 example 6). Here the ratio of bemotrizinol to octinoxate was 2.22:1 or 1.875:1. An additional example combines bemotrizinol (Tinosorb® S) at 2.5 wt%, avobenzone (Parsol® 1789) at 2.25 wt% and octinoxate (Parsol® MCX) at 1.2 wt% to produce an SPF of 15 in the presence of no other filters (see example 5). Here the ratio of bemotrizinol to avobenzone to octinoxate was 2.08:1.875:1. They detail greater photostability for the combination of avobenzone (Parsol® 1789) and octinoxate (Parsol® MCX) when bemotrizinol (Tinosorb® S) is present at a larger proportion than either the octinoxate or avobenzone (see table 2). Chavan et al. further teach various forms of the composition that include sticks and creams (emulsion) (see paragraphs 51). Additional excipient components that include thickeners and skin soothing or healing actives (see paragraph 52; instant claim 8). They also teach the include of other sun protective agents such as zinc oxide or titanium dioxide at 0.1 to 5 wt% (see paragraph 47). Titanium dioxide is a coloring agent and UV filter (see column 5 lines 54-65; Gannis et al. column claim 7).
Morimoto et al. teach a vanishing cream employed to deliver skin actives (see abstract and paragraph 58). The cream includes surfactants, water, paraffin wax, and the actives of interest (see paragraph 58).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to select bemotrizinol and avobenzone alone or in further combination with octinoxate or titanium dioxide as the UV filters of the patented claims, in light of Chavan et al., who teach the combination of organic UV sunscreens as particularly useful in attaining a high SPF and photostable UV protective composition. Additional UV filters are not required. This modification is obvious as the application of the same technique to a similar product in order to yield the same improvement. Their inclusion at ratios and proportions according to Chavan et al. that stabilize the avobenzone and octinoxate along with their fatty acid would follow as would the inclusion of wax and formation into an emulsion or solid as recited forms for such compositions. This modification would have been obvious in light of the desire of Chavan et al. to have their composition SPF exceed 40 and their attainment of such an SPF with higher proportions of bemotrizinol and avobenzone within their taught range. In each instance exemplified by Chavan et al., the proportion of bemotrizinol exceeds both that of octinoxate and avobenzone and this relationship would have been obvious to extend to higher overall proportions of the components at a taught or suggested ratio. The ratio ranges and proportion ranges overlap with those instantly claimed, thereby rendering the instantly claimed ranges obvious (see MPEP 2144.05). These amounts and ratios fall within the ranges recited in the instant specification as “effective” for stabilization (see paragraphs 70-75; instant claims 1-2 and 9-10). It additionally would have been obvious to add a wax to the composition in light of Morimoto et al. who detail its utility in a topical cream. This modification is obvious as the application of the same technique to a similar product in order to yield the same improvement. It additionally would have been obvious to add a wax to the composition in light of Morimoto et al. who detail its utility in a cream. This modification is obvious as the application of the same technique to a similar product in order to yield the same improvement. Therefore claims 1-5 and 7-18 are unpatentable over claims 11-13 of U.S. Patent No. 8,747,816 or claims 1-20 of U.S. Patent No. 8,961,941, or claims 1-26 of U.S. Patent No. 8,025867, each separately in view of Chavan et al. and Morimoto et al. as evidenced by Gannis et al.
Claims 1-5 and 7-18 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-13 of U.S. Patent No. 8,747,816 or claims 1-20 of U.S. Patent No. 8,961,941, or claims 1-26 of U.S. Patent No. 8,025867, each separately in view of Chavan et al. and Morimoto et al. as evidenced by Gannis et al. as applied to claims 1-10 above, and further in view of Dueva-Koganov et al.
Claims 1-13 of U.S. Patent No. 8,747,816 or claims 1-20 of U.S. Patent No. 8,961,941, or claims 1-26 of U.S. Patent No. 8,025867, each separately in view of Chavan et al. and Morimoto et al.as evidenced by Gannis et al. render obvious the limitations of instant claims 1-5 and 7-18 where bemotrizinol and avobenzone, optionally in combination with octinoxate, are present in a sunscreen composition. The presence of a colorant is not exemplified in a composition.
Dueva-Koganov et al. teach a sunscreen composition that includes at least one sun screening agent (see abstract). They disclose a cosmetic emulsion form that includes octinoxate at 7.5 wt%, avobenzone at 3 wt%, and bemotrizinol at 1.5 wt% (see example 14; instant claim 5). In addition to emulsion forms, Dueva-Koganov et al. also teach stick forms (see paragraph 187). They further detail the inclusion of cosmetically acceptable ingredients such as colorants (see paragraph 182).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to add a colorant to the composition of the modified patented claims in light of the teachings of Dueva-Koganov et al. This modification would have been obvious as the application of the same technique to a similar product in order to yield the same improvement. Therefore claims 1-5 and 7-18 are unpatentable over claims 1-13 of U.S. Patent No. 8,747,816 or claims 1-20 of U.S. Patent No. 8,961,941, or claims 1-26 of U.S. Patent No. 8,025867, each separately in view of Chavan et al., Morimoto et al., and Dueva-Koganov et al.as evidenced by Gannis et al.
Claims 1-4 and 6-18 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-13 of U.S. Patent No. 8,747,816 or claims 1-20 of U.S. Patent No. 8,961,941, or claims 1-26 of U.S. Patent No. 8,025,867, each separately in view of Look et al. and Morimoto et al. as evidenced by Gannis et al.
Although the claims at issue are not identical, they are not patentably distinct from each other because both sets of claims a stabilized topical composition comprising a dibenzoylmethane that can be an emulsion and comprises one or more other UV screening actives. Avobenzone (4-tert-butyl-4’-methoxydibenzoylmethane) is a recited dibenzoylmethane. At least one UV screening active selected from a grouping that includes bemotrizinol (bis-ethylhexyloxyphenol methoxyphenyl triazine) and octinoxate (ethylhexyl methoxycinnamate) is also recited. Titanium dioxide is an envisioned UV filter which also can fulfill the role of a colorant. A particular combination of instantly claimed UV filters or a wax is not recited.
Chavan et al. teach photostable sunscreen compositions (see abstract). The composition includes a fatty acid with a sunscreen active that is preferably bemotrizinol (Tinosorb® S) at 0.1 to 7 wt% and is also envisioned to include a UVA sunscreen that is preferably avobenzone (4-tert-butyl-4 methoxy dibenzoylmethane) at 0.4 to 3 wt% and a UVB sunscreen that is preferably octinoxate (Parsol® MCX) at 0.4 to 3 wt% (see paragraphs 19-22 and 41-43). These ranges yield a range of ratios of bemotrizinol to avobenzone of 1:4 to 17.5:1 as well as bemotrizinol to octinoxate of 1:4 to 17.5:1. The SPF of the composition is preferably higher than 40 (see paragraph 18; instant claims 14 and 18). An example details a cream with water, a surfactant, bemotrizinol (Tinosorb® S) at 5 wt%, and octinoxate (Parsol® MCX) at 2.25 wt% which provided an SPF of 100 while these components in another preparation at 2.25 wt% and 1.2 wt%, respectively, gave an SPF of 18 (see table 1 example 4 and table 2 example 6). Here the ratio of bemotrizinol to octinoxate was 2.22:1 or 1.875:1. An additional example combines bemotrizinol (Tinosorb® S) at 2.5 wt%, avobenzone (Parsol® 1789) at 2.25 wt% and octinoxate (Parsol® MCX) at 1.2 wt% to produce an SPF of 15 in the presence of no other filters (see example 5). Here the ratio of bemotrizinol to avobenzone to octinoxate was 2.08:1.875:1. They detail greater photostability for the combination of avobenzone (Parsol® 1789) and octinoxate (Parsol® MCX) when bemotrizinol (Tinosorb® S) is present at a larger proportion than either the octinoxate or avobenzone (see table 2). Chavan et al. further teach various forms of the composition that include sticks and creams (emulsion) (see paragraphs 51). Additional excipient components that include thickeners and skin soothing or healing actives (see paragraph 52; instant claim 8). They also teach the include of other sun protective agents such as zinc oxide or titanium dioxide at 0.1 to 5 wt% (see paragraph 47). Titanium dioxide is a coloring agent and UV filter (see column 5 lines 54-65; Gannis et al. column claim 7).
Look et al. teach deodorant and sunscreen sticks that include waxes in the base composition along with the desired (e.g., sunscreen) actives (see abstract and paragraphs 71-77). They name avobenzone as well as (octylmethylcinnamate ) as envisioned sunscreen actives (see table 7).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to prepare a stick form of the composition of the patented claims where the sunscreen is selected to be bemotrizinol and avobenzone alone or in further combination with octinoxate or titanium dioxide as the UV filters of the patented claims, in light of Chavan et al., who teach the combination of organic UV sunscreens as particularly useful in attaining a high SPF and photostable UV protective composition. Additional UV filters are not required. This modification is obvious as the application of the same technique to a similar product in order to yield the same improvement. Their inclusion at ratios and proportions according to Chavan et al. that stabilize the avobenzone and octinoxate along with their fatty acid would follow. This modification would have been obvious in light of the desire of Chavan et al. to have their composition SPF exceed 40 and their attainment of such an SPF with higher proportions of bemotrizinol and avobenzone within their taught range. In each instance exemplified by Chavan et al., the proportion of bemotrizinol exceeds both that of octinoxate and avobenzone and this relationship would have been obvious to extend to higher overall proportions of the components at a taught or suggested ratio. The ratio ranges and proportion ranges overlap with those instantly claimed, thereby rendering the instantly claimed ranges obvious (see MPEP 2144.05). These amounts and ratios fall within the ranges recited in the instant specification as “effective” for stabilization (see paragraphs 70-75; instant claims 1-2 and 9-10). The modification adding the wax is obvious in light of Look et al. who provide further guidance on the stick base formulations suggested by Chavan et al. The modification choosing a stick form would have been facilitated by adding waxes and is obvious in light of Look et al. who provide further guidance on the stick base formulations suggested by Chavan et al. This modification is obvious as the application of the same technique to a similar product in order to yield the same improvement. Therefore claims 1-4 and 6-18 are unpatentable over claims 11-13 of U.S. Patent No. 8,747,816 or claims 1-20 of U.S. Patent No. 8,961,941, or claims 1-26 of U.S. Patent No. 8,025867, each separately in view of Chavan et al. and Look et al. as evidenced by Gannis et al.
Claims 1-4 and 6-18 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-13 of U.S. Patent No. 8,747,816 or claims 1-20 of U.S. Patent No. 8,961,941, or claims 1-26 of U.S. Patent No. 8,025867, each separately in view of Chavan et al. and Look et al. as evidenced by Gannis et al. as applied to claims 1-10 above, and further in view of Dueva-Koganov et al.
Claims 1-13 of U.S. Patent No. 8,747,816 or claims 1-20 of U.S. Patent No. 8,961,941, or claims 1-26 of U.S. Patent No. 8,025867, each separately in view of Chavan et al. and Morimoto et al.as evidenced by Gannis et al. render obvious the limitations of instant claims 1-4 and 6-18 where bemotrizinol and avobenzone, optionally in combination with octinoxate, are present in a sunscreen composition. The presence of a colorant is not exemplified in a composition.
Dueva-Koganov et al. teach a sunscreen composition that includes at least one sun screening agent (see abstract). They disclose a cosmetic emulsion form that includes octinoxate at 7.5 wt%, avobenzone at 3 wt%, and bemotrizinol at 1.5 wt% (see example 14; instant claim 5). In addition to emulsion forms, Dueva-Koganov et al. also teach stick forms (see paragraph 187). They further detail the inclusion of cosmetically acceptable ingredients such as colorants (see paragraph 182).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to add a colorant to the composition of the modified patented claims in light of the teachings of Dueva-Koganov et al. This modification would have been obvious as the application of the same technique to a similar product in order to yield the same improvement. Therefore claims 1-4 and 6-18 are unpatentable over claims 1-13 of U.S. Patent No. 8,747,816 or claims 1-20 of U.S. Patent No. 8,961,941, or claims 1-26 of U.S. Patent No. 8,025867, each separately in view of Chavan et al., Look et al., and Dueva-Koganov et al.as evidenced by Gannis et al.
Claims 1-18 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-24 of U.S. Patent No. 7,364,720 in view of Chavan et al. and Richard et al. (US Patent No. 5,569,451) as evidenced by Gannis et al.
Although the claims at issue are not identical, they are not patentably distinct from each other because both sets of claims a stabilized topical composition comprising a dibenzoylmethane that can be an emulsion or stick and comprises one or more other UV screening actives. Avobenzone (4-tert-butyl-4’-methoxydibenzoylmethane) is a recited dibenzoylmethane. At least one UV screening active selected from a grouping that includes bemotrizinol (bis-ethylhexyloxyphenol methoxyphenyl triazine) and octinoxate (ethylhexyl methoxycinnamate) is also recited. Titanium dioxide is an envisioned UV filter which also can fulfill the role of a colorant. The composition may also include a fatty substance. A particular combination of instantly claimed UV filters and was are not recited.
Chavan et al. teach photostable sunscreen compositions (see abstract). The composition includes a fatty acid with a sunscreen active that is preferably bemotrizinol (Tinosorb® S) at 0.1 to 7 wt% and is also envisioned to include a UVA sunscreen that is preferably avobenzone (4-tert-butyl-4 methoxy dibenzoylmethane) at 0.4 to 3 wt% and a UVB sunscreen that is preferably octinoxate (Parsol® MCX) at 0.4 to 3 wt% (see paragraphs 19-22 and 41-43). These ranges yield a range of ratios of bemotrizinol to avobenzone of 1:4 to 17.5:1 as well as bemotrizinol to octinoxate of 1:4 to 17.5:1. The SPF of the composition is preferably higher than 40 (see paragraph 18; instant claims 14 and 18). An example details a cream with water, a surfactant, bemotrizinol (Tinosorb® S) at 5 wt%, and octinoxate (Parsol® MCX) at 2.25 wt% which provided an SPF of 100 while these components in another preparation at 2.25 wt% and 1.2 wt%, respectively, gave an SPF of 18 (see table 1 example 4 and table 2 example 6). Here the ratio of bemotrizinol to octinoxate was 2.22:1 or 1.875:1. An additional example combines bemotrizinol (Tinosorb® S) at 2.5 wt%, avobenzone (Parsol® 1789) at 2.25 wt% and octinoxate (Parsol® MCX) at 1.2 wt% to produce an SPF of 15 in the presence of no other filters (see example 5). Here the ratio of bemotrizinol to avobenzone to octinoxate was 2.08:1.875:1. They detail greater photostability for the combination of avobenzone (Parsol® 1789) and octinoxate (Parsol® MCX) when bemotrizinol (Tinosorb® S) is present at a larger proportion than either the octinoxate or avobenzone (see table 2). Chavan et al. further teach various forms of the composition that include sticks and creams (emulsion) (see paragraphs 51). Additional excipient components that include thickeners and skin soothing or healing actives (see paragraph 52; instant claim 8). They also teach the include of other sun protective agents such as zinc oxide or titanium dioxide at 0.1 to 5 wt% (see paragraph 47). Titanium dioxide is a coloring agent and UV filter (see column 5 lines 54-65; Gannis et al. column claim 7).
Richard et al. teach a topical sunscreen composition that may be in various forms that include sticks and emulsions (see abstract and column 5 lines 13-16). They additionally teach the presence of a fatty substance that is envisioned to be wax (see column 5 lines 33-36).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to prepare an emulsion or stick composition of the patented claims with a sunscreen selected to be bemotrizinol and avobenzone alone or in further combination with octinoxate or titanium dioxide as the UV filters of the patented claims, in light of Chavan et al., who teach the combination of organic UV sunscreens as particularly useful in attaining a high SPF and photostable UV protective composition. Additional UV filters are not required. This modification is obvious as the application of the same technique to a similar product in order to yield the same improvement. Their inclusion at ratios and proportions according to Chavan et al. that stabilize the avobenzone and octinoxate along with their fatty acid would follow. This modification would have been obvious in light of the desire of Chavan et al. to have their composition SPF exceed 40 and their attainment of such an SPF with higher proportions of bemotrizinol and avobenzone within their taught range. In each instance exemplified by Chavan et al., the proportion of bemotrizinol exceeds both that of octinoxate and avobenzone and this relationship would have been obvious to extend to higher overall proportions of the components at a taught or suggested ratio. The ratio ranges and proportion ranges overlap with those instantly claimed, thereby rendering the instantly claimed ranges obvious (see MPEP 2144.05). These amounts and ratios fall within the ranges recited in the instant specification as “effective” for stabilization (see paragraphs 70-75; instant claims 1-2 and 9-10). It additionally would have been obvious to add a wax as a fatty substance in light of Richard et al. The patented claims envision a fatty substance and the choice of wax in this role would have been obvious as the simple substitution of one known element for another in order to yield a predictable outcome. Therefore claims 1-18 are unpatentable over claims 1-24 of U.S. Patent No. 7,364,720 in view of Chavan et al. and Richard et al. as evidenced by Gannis et al.
Claims 1-18 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-24 of U.S. Patent No. 7,364,720 in view of Chavan et al. and Richard et al. as evidenced by Gannis et al. as applied to claims 1-18 above, and further in view of Dueva-Koganov et al.
Claims 1-24 of U.S. Patent No. 7,364,720 in view of Chavan et al. and Richard et al. as evidenced by Gannis et al. render obvious the limitations of instant claims 1-18 where bemotrizinol and avobenzone, optionally in combination with octinoxate, are present in a sunscreen composition. The presence of a colorant is not exemplified in a composition.
Dueva-Koganov et al. teach a sunscreen composition that includes at least one sun screening agent (see abstract). They disclose a cosmetic emulsion form that includes octinoxate at 7.5 wt%, avobenzone at 3 wt%, and bemotrizinol at 1.5 wt% (see example 14; instant claim 5). In addition to emulsion forms, Dueva-Koganov et al. also teach stick forms (see paragraph 187). They further detail the inclusion of cosmetically acceptable ingredients such as colorants (see paragraph 182).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to add a colorant to the composition of the modified patented claims in light of the teachings of Dueva-Koganov et al. This modification would have been obvious as the application of the same technique to a similar product in order to yield the same improvement. Therefore claims 1-18 are unpatentable over claims 1-24 of U.S. Patent No. 7,364,720 in view of Chavan et al., Richard et al., and Dueva-Koganov et al.as evidenced by Gannis et al.
Claims 1-18 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-17 of U.S. Patent No. 10,583,075, or claims 1-16 of U.S. Patent No. 9,526,924, or claims 1-31 of U.S. Patent No. 8,999,299, or claims 1-25 of U.S. Patent No. 7,510,703, each separately in view of Chavan et al. and Richard et al. as evidenced by Gannis et al.
Although the claims at issue are not identical, they are not patentably distinct from each other because both sets of claims a topical composition comprising UV screening actives selected from a listing that includes bemotrizinol (bis-ethylhexyloxyphenol methoxyphenyl triazine) and octinoxate (ethylhexyl methoxycinnamate). The composition may be in the form of an emulsion. A particular combination of instantly claimed UV filters is not recited.
Chavan et al. teach photostable sunscreen compositions (see abstract). The composition includes a fatty acid with a sunscreen active that is preferably bemotrizinol (Tinosorb® S) at 0.1 to 7 wt% and is also envisioned to include a UVA sunscreen that is preferably avobenzone (4-tert-butyl-4 methoxy dibenzoylmethane) at 0.4 to 3 wt% and a UVB sunscreen that is preferably octinoxate (Parsol® MCX) at 0.4 to 3 wt% (see paragraphs 19-22 and 41-43). These ranges yield a range of ratios of bemotrizinol to avobenzone of 1:4 to 17.5:1 as well as bemotrizinol to octinoxate of 1:4 to 17.5:1. The SPF of the composition is preferably higher than 40 (see paragraph 18; instant claims 14 and 18). An example details a cream with water, a surfactant, bemotrizinol (Tinosorb® S) at 5 wt%, and octinoxate (Parsol® MCX) at 2.25 wt% which provided an SPF of 100 while these components in another preparation at 2.25 wt% and 1.2 wt%, respectively, gave an SPF of 18 (see table 1 example 4 and table 2 example 6). Here the ratio of bemotrizinol to octinoxate was 2.22:1 or 1.875:1. An additional example combines bemotrizinol (Tinosorb® S) at 2.5 wt%, avobenzone (Parsol® 1789) at 2.25 wt% and octinoxate (Parsol® MCX) at 1.2 wt% to produce an SPF of 15 in the presence of no other filters (see example 5). Here the ratio of bemotrizinol to avobenzone to octinoxate was 2.08:1.875:1. They detail greater photostability for the combination of avobenzone (Parsol® 1789) and octinoxate (Parsol® MCX) when bemotrizinol (Tinosorb® S) is present at a larger proportion than either the octinoxate or avobenzone (see table 2). Chavan et al. further teach various forms of the composition that include sticks and creams (emulsion) (see paragraphs 51). Additional excipient components that include thickeners and skin soothing or healing actives (see paragraph 52; instant claim 8). They also teach the include of other sun protective agents such as zinc oxide or titanium dioxide at 0.1 to 5 wt% (see paragraph 47). Titanium dioxide is a coloring agent and UV filter (see column 5 lines 54-65; Gannis et al. column claim 7).
Richard et al. teach a topical sunscreen composition that may be in various forms that include sticks and emulsions (see abstract and column 5 lines 13-16). They additionally teach the presence of a fatty substance that is envisioned to be wax (see column 5 lines 33-36).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to prepare an emulsion or stick composition of the patented claims with a sunscreen selected to be bemotrizinol and avobenzone alone or in further combination with octinoxate or titanium dioxide as the UV filters of the patented claims, in light of Chavan et al., who teach the combination of organic UV sunscreens as particularly useful in attaining a high SPF and photostable UV protective composition. Additional UV filters are not required. This modification is obvious as the application of the same technique to a similar product in order to yield the same improvement. Their inclusion at ratios and proportions according to Chavan et al. that stabilize the avobenzone and octinoxate along with their fatty acid would follow. This modification would have been obvious in light of the desire of Chavan et al. to have their composition SPF exceed 40 and their attainment of such an SPF with higher proportions of bemotrizinol and avobenzone within their taught range. In each instance exemplified by Chavan et al., the proportion of bemotrizinol exceeds both that of octinoxate and avobenzone and this relationship would have been obvious to extend to higher overall proportions of the components at a taught or suggested ratio. The ratio ranges and proportion ranges overlap with those instantly claimed, thereby rendering the instantly claimed ranges obvious (see MPEP 2144.05). These amounts and ratios fall within the ranges recited in the instant specification as “effective” for stabilization (see paragraphs 70-75; instant claims 1-2 and 9-10). It additionally would have been obvious to add a wax as a fatty substance in light of Richard et al. The choice of wax in this role would have been obvious as the simple substitution of one known element for another in order to yield a predictable outcome. Therefore claims 1-18 are unpatentable over 1-17 of U.S. Patent No. 10,583,075, or claims 1-16 of U.S. Patent No. 9,526,924, or claims 1-31 of U.S. Patent No. 8,999,299, or claims 1-25 of U.S. Patent No. 7,510,703, each separately in view of Chavan et al. and Richard et al. as evidenced by Gannis et al.
Claims 1-18 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-17 of U.S. Patent No. 10,583,075, or claims 1-16 of U.S. Patent No. 9,526,924, or claims 1-31 of U.S. Patent No. 8,999,299, or claims 1-25 of U.S. Patent No. 7,510,703, each separately in view of Chavan et al. and Richard et al. as evidenced by Gannis et al. as applied to claims 1-18 above, and further in view of Dueva-Koganov et al.
Claims 1-17 of U.S. Patent No. 10,583,075, or claims 1-16 of U.S. Patent No. 9,526,924, or claims 1-31 of U.S. Patent No. 8,999,299, or claims 1-25 of U.S. Patent No. 7,510,703, each separately in view of Chavan et al. and Richard et al. as evidenced by Gannis et al. render obvious the limitations of instant claims 1-18 where bemotrizinol and avobenzone, optionally in combination with octinoxate, are present in a sunscreen composition. The presence of a colorant is not exemplified in a composition.
Dueva-Koganov et al. teach a sunscreen composition that includes at least one sun screening agent (see abstract). They disclose a cosmetic emulsion form that includes octinoxate at 7.5 wt%, avobenzone at 3 wt%, and bemotrizinol at 1.5 wt% (see example 14; instant claim 5). In addition to emulsion forms, Dueva-Koganov et al. also teach stick forms (see paragraph 187). They further detail the inclusion of cosmetically acceptable ingredients such as colorants (see paragraph 182).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to add a colorant to the composition of the modified patented claims in light of the teachings of Dueva-Koganov et al. This modification would have been obvious as the application of the same technique to a similar product in order to yield the same improvement. Therefore claims 1-18 are unpatentable over claims 1-17 of U.S. Patent No. 10,583,075, or claims 1-16 of U.S. Patent No. 9,526,924, or claims 1-31 of U.S. Patent No. 8,999,299, or claims 1-25 of U.S. Patent No. 7,510,703, each separately in view of Chavan et al., Richard et al, and Dueva-Koganov et al.as evidenced by Gannis et al.
The following are provisional nonstatutory double patenting rejections because the patentably indistinct claims have not in fact been patented.
Claims 1, 3-5, 7-12, and 16-17 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-8, 10-13, and 15 of copending Application No. 18/543343 (reference application).
Although the claims at issue are not identical, they are not patentably distinct from each other because both sets of claims recite a compositions comprising bemotrizinol and avobenzone where one or more other UV screening actives is also present. The bemotrizinol is present at a portion larger than the avobenzone and yields ratios that meet those instantly claimed. The recited ratios fall within the ranges recited in the instant specification as “effective” for stabilization (see paragraphs 70-75). A colorant and active agent are also recited ingredients as is titanium dioxide. The composition is recited in emulsion or anhydrous form. Additional UV filters are not required. A wax is not detailed composition.
Richard et al. teach a topical sunscreen composition that may be in various forms that include sticks and emulsions (see abstract and column 5 lines 13-16). They additionally teach the presence of a fatty substance that is envisioned to be wax (see column 5 lines 33-36).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to prepare an emulsion or stick composition of the patented claims in light of the claims and Richards et al. It additionally would have been obvious to add a wax as a fatty substance in light of Richard et al. The patented claims envision a fatty substance and the choice of wax in this role would have been obvious as the simple substitution of one known element for another in order to yield a predictable outcome. Therefore claims 11, 3-5, 7-12, and 16-17 are unpatentable over claims 1-8, 10-13, and 15 of copending Application No. 18/543343 (reference application) in view of Richard et al.
Claims 1-18 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-8, 10-13, and 15 of copending Application No. 18/543343 (reference application) in view of Richard et al. as applied to claims 1, 3-5, 7-12, and 16-17 above, and further in view of Chavan et al.
Claims 1-8, 10-13, and 15 of copending Application No. 18/543343 (reference application) in view of Richard et al. teach the limitations of instant claims 1, 3-5, 7-12, and 16-17. The presence of octinoxate is not detailed.
Chavan et al. teach photostable sunscreen compositions (see abstract). The composition includes a fatty acid with a sunscreen active that is preferably bemotrizinol (Tinosorb® S) at 0.1 to 7 wt% and is also envisioned to include a UVA sunscreen that is preferably avobenzone (4-tert-butyl-4 methoxy dibenzoylmethane) at 0.4 to 3 wt% and a UVB sunscreen that is preferably octinoxate (Parsol® MCX) at 0.4 to 3 wt% (see paragraphs 19-22 and 41-43). These ranges yield a range of ratios of bemotrizinol to avobenzone of 1:4 to 17.5:1 as well as bemotrizinol to octinoxate of 1:4 to 17.5:1. The SPF of the composition is preferably higher than 40 (see paragraph 18; instant claims 14 and 18). An example details a cream with water, a surfactant, bemotrizinol (Tinosorb® S) at 5 wt%, and octinoxate (Parsol® MCX) at 2.25 wt% which provided an SPF of 100 while these components in another preparation at 2.25 wt% and 1.2 wt%, respectively, gave an SPF of 18 (see table 1 example 4 and table 2 example 6). Here the ratio of bemotrizinol to octinoxate was 2.22:1 or 1.875:1. An additional example combines bemotrizinol (Tinosorb® S) at 2.5 wt%, avobenzone (Parsol® 1789) at 2.25 wt% and octinoxate (Parsol® MCX) at 1.2 wt% to produce an SPF of 15 in the presence of no other filters (see example 5). Here the ratio of bemotrizinol to avobenzone to octinoxate was 2.08:1.875:1. They detail greater photostability for the combination of avobenzone (Parsol® 1789) and octinoxate (Parsol® MCX) when bemotrizinol (Tinosorb® S) is present at a larger proportion than either the octinoxate or avobenzone (see table 2). Chavan et al. further teach various forms of the composition that include sticks and creams (emulsion) (see paragraphs 51). Additional excipient components that include thickeners and skin soothing or healing actives (see paragraph 52; instant claim 8). They also teach the include of other sun protective agents such as zinc oxide or titanium dioxide at 0.1 to 5 wt% (see paragraph 47). Titanium dioxide is a coloring agent and UV filter (see column 5 lines 54-65; Gannis et al. column claim 7).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to prepare the emulsion or stick composition of the modified patented claims with a sunscreen selected to be bemotrizinol and avobenzone alone or in further combination with octinoxate or titanium dioxide as the UV filters of the patented claims, in light of Chavan et al., who teach the combination of organic UV sunscreens as particularly useful in attaining a high SPF and photostable UV protective composition. Additional UV filters are not required. This modification is obvious as the application of the same technique to a similar product in order to yield the same improvement. Their inclusion at ratios and proportions according to Chavan et al. that stabilize the avobenzone and octinoxate along with their fatty acid would follow as. This modification would have been obvious in light of the desire of Chavan et al. to have their composition SPF exceed 40 and their attainment of such an SPF with higher proportions of bemotrizinol and avobenzone within their taught range. In each instance exemplified by Chavan et al., the proportion of bemotrizinol exceeds both that of octinoxate and avobenzone and this relationship would have been obvious to extend to higher overall proportions of the components at a taught or suggested ratio. The ratio ranges and proportion ranges overlap with those instantly claimed, thereby rendering the instantly claimed ranges obvious (see MPEP 2144.05). These amounts and ratios fall within the ranges recited in the instant specification as “effective” for stabilization (see paragraphs 70-75; instant claims 1-2 and 9-10). Therefore claims 1-18 are unpatentable over claims 1-8, 10-13, and 15 of copending Application No. 18/543343 (reference application) in view of Richard et al. and Chavan et al.
Claims 1-18 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-9 and 11-18 of copending Application No. 18/543287 (reference application), each separately in view of Chavan et al.
Although the claims at issue are not identical, they are not patentably distinct from each other because both sets of claims recite a compositions comprising bemotrizinol where one or more other UV screening actives selected from a short listing that includes avobenzone is also present. A wax UV booster, colorant, titanium dioxide, and active agent are also recited ingredients. The composition is recited in emulsion form. A particular combination of instantly claimed UV filters is not recited.
Chavan et al. teach photostable sunscreen compositions (see abstract). The composition includes a fatty acid with a sunscreen active that is preferably bemotrizinol (Tinosorb® S) at 0.1 to 7 wt% and is also envisioned to include a UVA sunscreen that is preferably avobenzone (4-tert-butyl-4 methoxy dibenzoylmethane) at 0.4 to 3 wt% and a UVB sunscreen that is preferably octinoxate (Parsol® MCX) at 0.4 to 3 wt% (see paragraphs 19-22 and 41-43). These ranges yield a range of ratios of bemotrizinol to avobenzone of 1:4 to 17.5:1 as well as bemotrizinol to octinoxate of 1:4 to 17.5:1. The SPF of the composition is preferably higher than 40 (see paragraph 18; instant claims 14 and 18). An example details a cream with water, a surfactant, bemotrizinol (Tinosorb® S) at 5 wt%, and octinoxate (Parsol® MCX) at 2.25 wt% which provided an SPF of 100 while these components in another preparation at 2.25 wt% and 1.2 wt%, respectively, gave an SPF of 18 (see table 1 example 4 and table 2 example 6). Here the ratio of bemotrizinol to octinoxate was 2.22:1 or 1.875:1. An additional example combines bemotrizinol (Tinosorb® S) at 2.5 wt%, avobenzone (Parsol® 1789) at 2.25 wt% and octinoxate (Parsol® MCX) at 1.2 wt% to produce an SPF of 15 in the presence of no other filters (see example 5). Here the ratio of bemotrizinol to avobenzone to octinoxate was 2.08:1.875:1. They detail greater photostability for the combination of avobenzone (Parsol® 1789) and octinoxate (Parsol® MCX) when bemotrizinol (Tinosorb® S) is present at a larger proportion than either the octinoxate or avobenzone (see table 2). Chavan et al. further teach various forms of the composition that include sticks and creams (emulsion) (see paragraphs 51). Additional excipient components that include thickeners and skin soothing or healing actives (see paragraph 52; instant claim 8). They also teach the include of other sun protective agents such as zinc oxide or titanium dioxide at 0.1 to 5 wt% (see paragraph 47). Titanium dioxide is a coloring agent and UV filter (see column 5 lines 54-65; Gannis et al. column claim 7).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to prepare an emulsion or stick composition of the patented claims with a sunscreen selected to be bemotrizinol and avobenzone alone or in further combination with octinoxate or titanium dioxide as the UV filters of the patented claims, in light of Chavan et al., who teach the combination of organic UV sunscreens as particularly useful in attaining a high SPF and photostable UV protective composition. Additional UV filters are not required. This modification is obvious as the application of the same technique to a similar product in order to yield the same improvement. Their inclusion at ratios and proportions according to Chavan et al. that stabilize the avobenzone and octinoxate along with their fatty acid would follow as would the inclusion of wax and formation into an emulsion as a recited form for such compositions. This modification would have been obvious in light of the desire of Chavan et al. to have their composition SPF exceed 40 and their attainment of such an SPF with higher proportions of bemotrizinol and avobenzone within their taught range. In each instance exemplified by Chavan et al., the proportion of bemotrizinol exceeds both that of octinoxate and avobenzone and this relationship would have been obvious to extend to higher overall proportions of the components at a taught or suggested ratio. The ratio ranges and proportion ranges overlap with those instantly claimed, thereby rendering the instantly claimed ranges obvious (see MPEP 2144.05). These amounts and ratios fall within the ranges recited in the instant specification as “effective” for stabilization (see paragraphs 70-75; instant claims 1-2 and 9-10). Therefore claims 1-18 are unpatentable over claims 1-9 and 11-18 of copending Application No. 18543287 (reference application) in view of Chavan et al.
Claims 1-18 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-16 of copending Application No. 18/543375 (reference application) in view of Chavan et al. and Richard et al. as evidenced by Gannis et al.
Although the claims at issue are not identical, they are not patentably distinct from each other because both sets of claims recite a compositions comprising bemotrizinol where one or more other UV screening actives selected from a short listing that includes avobenzone is also present. An active agent and mineral filter are also recited ingredients. The composition is recited in emulsion or stick form. A particular combination of instantly claimed UV filters and wax are not recited.
Chavan et al. teach photostable sunscreen compositions (see abstract). The composition includes a fatty acid with a sunscreen active that is preferably bemotrizinol (Tinosorb® S) at 0.1 to 7 wt% and is also envisioned to include a UVA sunscreen that is preferably avobenzone (4-tert-butyl-4 methoxy dibenzoylmethane) at 0.4 to 3 wt% and a UVB sunscreen that is preferably octinoxate (Parsol® MCX) at 0.4 to 3 wt% (see paragraphs 19-22 and 41-43). These ranges yield a range of ratios of bemotrizinol to avobenzone of 1:4 to 17.5:1 as well as bemotrizinol to octinoxate of 1:4 to 17.5:1. The SPF of the composition is preferably higher than 40 (see paragraph 18; instant claims 14 and 18). An example details a cream with water, a surfactant, bemotrizinol (Tinosorb® S) at 5 wt%, and octinoxate (Parsol® MCX) at 2.25 wt% which provided an SPF of 100 while these components in another preparation at 2.25 wt% and 1.2 wt%, respectively, gave an SPF of 18 (see table 1 example 4 and table 2 example 6). Here the ratio of bemotrizinol to octinoxate was 2.22:1 or 1.875:1. An additional example combines bemotrizinol (Tinosorb® S) at 2.5 wt%, avobenzone (Parsol® 1789) at 2.25 wt% and octinoxate (Parsol® MCX) at 1.2 wt% to produce an SPF of 15 in the presence of no other filters (see example 5). Here the ratio of bemotrizinol to avobenzone to octinoxate was 2.08:1.875:1. They detail greater photostability for the combination of avobenzone (Parsol® 1789) and octinoxate (Parsol® MCX) when bemotrizinol (Tinosorb® S) is present at a larger proportion than either the octinoxate or avobenzone (see table 2). Chavan et al. further teach various forms of the composition that include sticks and creams (emulsion) (see paragraphs 51). Additional excipient components that include thickeners and skin soothing or healing actives (see paragraph 52; instant claim 8). They also teach the include of other sun protective agents such as zinc oxide or titanium dioxide at 0.1 to 5 wt% (see paragraph 47). Titanium dioxide is a coloring agent and UV filter (see column 5 lines 54-65; Gannis et al. column claim 7).
Richard et al. teach a topical sunscreen composition that may be in various forms that include sticks an emulsions (see abstract and column 5 lines 13-16). They additionally teach the presence of a fatty substance that is envisioned to be wax (see column 5 lines 33-36).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to prepare an emulsion or stick composition of the patented claims with a sunscreen selected to be bemotrizinol and avobenzone alone or in further combination with octinoxate or titanium dioxide as the UV filters of the patented claims, in light of Chavan et al., who teach the combination of organic UV sunscreens as particularly useful in attaining a high SPF and photostable UV protective composition. Additional UV filters are not required. This modification is obvious as the application of the same technique to a similar product in order to yield the same improvement. Their inclusion at ratios and proportions according to Chavan et al. that stabilize the avobenzone and octinoxate along with their fatty acid would follow as would the inclusion of wax and formation into an emulsion as a recited form for such compositions. This modification would have been obvious in light of the desire of Chavan et al. to have their composition SPF exceed 40 and their attainment of such an SPF with higher proportions of bemotrizinol and avobenzone within their taught range. In each instance exemplified by Chavan et al., the proportion of bemotrizinol exceeds both that of octinoxate and avobenzone and this relationship would have been obvious to extend to higher overall proportions of the components at a taught or suggested ratio. The ratio ranges and proportion ranges overlap with those instantly claimed, thereby rendering the instantly claimed ranges obvious (see MPEP 2144.05). These amounts and ratios fall within the ranges recited in the instant specification as “effective” for stabilization (see paragraphs 70-75; instant claims 1-2 and 9-10). It additionally would have been obvious to add a wax as a fatty substance in light of Richard et al. The patented claims envision a fatty substance and the choice of wax in this role would have been obvious as the simple substitution of one known element for another in order to yield a predictable outcome. Therefore claims 1-18 are unpatentable over claims 1-16 of copending Application No. 18/543375 (reference application) in view of Chavan et al. and Richard et al. as evidenced by Gannis et al.
Claims 1-18 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-16 of copending Application No. 18/543375 (reference application) in view of Chavan et al. and Richard et al. as evidenced by Gannis et al. as applied to claims 1-10 above, and further in view of Dueva-Koganov et al.
Claims 1-16 of copending Application No. 18/543375 (reference application) in view of Chavan et al. and Richard et al. as evidenced by Gannis et al. render obvious the limitations of instant claims 1-18 where bemotrizinol and avobenzone, optionally in combination with octinoxate, are present in a sunscreen composition. The presence of a colorant is not exemplified in a composition.
Dueva-Koganov et al. teach a sunscreen composition that includes at least one sun screening agent (see abstract). They disclose a cosmetic emulsion form that includes octinoxate at 7.5 wt%, avobenzone at 3 wt%, and bemotrizinol at 1.5 wt% (see example 14; instant claim 5). In addition to emulsion forms, Dueva-Koganov et al. also teach stick forms (see paragraph 187). They further detail the inclusion of cosmetically acceptable ingredients such as colorants (see paragraph 182).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to add a colorant to the composition of the modified copending claims in light of the teachings of Dueva-Koganov et al. This modification would have been obvious as the application of the same technique to a similar product in order to yield the same improvement. Therefore claims 1-10 are unpatentable over claims 1-9 and 1-13 of copending Application No. 18/543375 (reference application) in view of Chavan et al., Richard et al., and Dueva-Koganov et al.as evidenced by Gannis et al.
Claims 1-18 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-8 and 10-13 of copending Application No. 18/985642 (reference application) in view of Chavan et al. and Richard et al. as evidenced by Gannis et al.
Although the claims at issue are not identical, they are not patentably distinct from each other because both sets of claims recite a compositions comprising iron oxide and bemotrizinol where one or more other UV screening actives selected from a short listing that includes avobenzone is also present. Titanium dioxide is an envisioned UV filter which also can fulfill the role of a colorant. An emulsion form is also recited. A particular combination of instantly claimed UV filters and a wax are not recited.
Chavan et al. teach photostable sunscreen compositions (see abstract). The composition includes a fatty acid with a sunscreen active that is preferably bemotrizinol (Tinosorb® S) at 0.1 to 7 wt% and is also envisioned to include a UVA sunscreen that is preferably avobenzone (4-tert-butyl-4 methoxy dibenzoylmethane) at 0.4 to 3 wt% and a UVB sunscreen that is preferably octinoxate (Parsol® MCX) at 0.4 to 3 wt% (see paragraphs 19-22 and 41-43). These ranges yield a range of ratios of bemotrizinol to avobenzone of 1:4 to 17.5:1 as well as bemotrizinol to octinoxate of 1:4 to 17.5:1. The SPF of the composition is preferably higher than 40 (see paragraph 18; instant claims 14 and 18). An example details a cream with water, a surfactant, bemotrizinol (Tinosorb® S) at 5 wt%, and octinoxate (Parsol® MCX) at 2.25 wt% which provided an SPF of 100 while these components in another preparation at 2.25 wt% and 1.2 wt%, respectively, gave an SPF of 18 (see table 1 example 4 and table 2 example 6). Here the ratio of bemotrizinol to octinoxate was 2.22:1 or 1.875:1. An additional example combines bemotrizinol (Tinosorb® S) at 2.5 wt%, avobenzone (Parsol® 1789) at 2.25 wt% and octinoxate (Parsol® MCX) at 1.2 wt% to produce an SPF of 15 in the presence of no other filters (see example 5). Here the ratio of bemotrizinol to avobenzone to octinoxate was 2.08:1.875:1. They detail greater photostability for the combination of avobenzone (Parsol® 1789) and octinoxate (Parsol® MCX) when bemotrizinol (Tinosorb® S) is present at a larger proportion than either the octinoxate or avobenzone (see table 2). Chavan et al. further teach various forms of the composition that include sticks and creams (emulsion) (see paragraphs 51). Additional excipient components that include thickeners and skin soothing or healing actives (see paragraph 52; instant claim 8). They also teach the include of other sun protective agents such as zinc oxide or titanium dioxide at 0.1 to 5 wt% (see paragraph 47). Titanium dioxide is a coloring agent and UV filter (see column 5 lines 54-65; Gannis et al. column claim 7).
Richard et al. teach a topical sunscreen composition that may be in various forms that include sticks an emulsions (see abstract and column 5 lines 13-16). They additionally teach the presence of a fatty substance that is envisioned to be wax (see column 5 lines 33-36).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to prepare an emulsion or stick composition of the patented claims with a sunscreen selected to be bemotrizinol and avobenzone alone or in further combination with octinoxate or titanium dioxide as the UV filters of the patented claims, in light of Chavan et al., who teach the combination of organic UV sunscreens as particularly useful in attaining a high SPF and photostable UV protective composition. Additional UV filters are not required. This modification is obvious as the application of the same technique to a similar product in order to yield the same improvement. Their inclusion at ratios and proportions according to Chavan et al. that stabilize the avobenzone and octinoxate along with their fatty acid would follow as would the inclusion of wax and formation into an emulsion as a recited form for such compositions. This modification would have been obvious in light of the desire of Chavan et al. to have their composition SPF exceed 40 and their attainment of such an SPF with higher proportions of bemotrizinol and avobenzone within their taught range. In each instance exemplified by Chavan et al., the proportion of bemotrizinol exceeds both that of octinoxate and avobenzone and this relationship would have been obvious to extend to higher overall proportions of the components at a taught or suggested ratio. The ratio ranges and proportion ranges overlap with those instantly claimed, thereby rendering the instantly claimed ranges obvious (see MPEP 2144.05). These amounts and ratios fall within the ranges recited in the instant specification as “effective” for stabilization (see paragraphs 70-75; instant claims 1-2 and 9-10). It additionally would have been obvious to add a wax as a fatty substance in light of Richard et al. The patented claims envision a fatty substance and the choice of wax in this role would have been obvious as the simple substitution of one known element for another in order to yield a predictable outcome. Therefore claims 1-18 are unpatentable over claims 1-8 and 10-13 of copending Application No. 18/985642 (reference application) in view of Chavan et al. and Richard et al. as evidenced by Gannis et al.
Claims 1-18 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-8 and 10-13 of copending Application No. 18/985642 (reference application) in view of Chavan et al. and Richard et al. as evidenced by Gannis et al. as applied to claims 1-18 above, and further in view of Dueva-Koganov et al.
Claims 1-8 and 10-13 of copending Application No. 18/985642 (reference application) in view of Chavan et al. and Richard et al. as evidenced by Gannis et al. render obvious the limitations of instant claims 1-18 where bemotrizinol and avobenzone, optionally in combination with octinoxate, are present in a sunscreen composition. The presence of a colorant is not exemplified in a composition.
Dueva-Koganov et al. teach a sunscreen composition that includes at least one sun screening agent (see abstract). They disclose a cosmetic emulsion form that includes octinoxate at 7.5 wt%, avobenzone at 3 wt%, and bemotrizinol at 1.5 wt% (see example 14; instant claim 5). In addition to emulsion forms, Dueva-Koganov et al. also teach stick forms (see paragraph 187). They further detail the inclusion of cosmetically acceptable ingredients such as colorants (see paragraph 182).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to add a colorant to the composition of the modified copending claims in light of the teachings of Dueva-Koganov et al. This modification would have been obvious as the application of the same technique to a similar product in order to yield the same improvement. Therefore claims 1-18 are unpatentable over claims 1-8 and 10-13 of copending Application No. 18/985642 (reference application) in view of Chavan et al., and Richard et al., and Dueva-Koganov et al. as evidenced by Gannis et al.
Claims 1-18 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-12 and 14-20 of copending Application No. 18/257179 (reference application) in view of Chavan et al. and Richard et al. as evidenced by Gannis et al.
Although the claims at issue are not identical, they are not patentably distinct from each other because both sets of claims a topical composition that comprises UV screening actives. At least one UV screening active selected from a grouping that includes bemotrizinol (bis-ethylhexyloxyphenol methoxyphenyl triazine) and butyl methoxydibenzoylmethane is recited. A particular combination of instantly claimed UV filters and a wax are not recited.
Chavan et al. teach photostable sunscreen compositions (see abstract). The composition includes a fatty acid with a sunscreen active that is preferably bemotrizinol (Tinosorb® S) at 0.1 to 7 wt% and is also envisioned to include a UVA sunscreen that is preferably avobenzone (4-tert-butyl-4 methoxy dibenzoylmethane) at 0.4 to 3 wt% and a UVB sunscreen that is preferably octinoxate (Parsol® MCX) at 0.4 to 3 wt% (see paragraphs 19-22 and 41-43). These ranges yield a range of ratios of bemotrizinol to avobenzone of 1:4 to 17.5:1 as well as bemotrizinol to octinoxate of 1:4 to 17.5:1. The SPF of the composition is preferably higher than 40 (see paragraph 18; instant claims 14 and 18). An example details a cream with water, a surfactant, bemotrizinol (Tinosorb® S) at 5 wt%, and octinoxate (Parsol® MCX) at 2.25 wt% which provided an SPF of 100 while these components in another preparation at 2.25 wt% and 1.2 wt%, respectively, gave an SPF of 18 (see table 1 example 4 and table 2 example 6). Here the ratio of bemotrizinol to octinoxate was 2.22:1 or 1.875:1. An additional example combines bemotrizinol (Tinosorb® S) at 2.5 wt%, avobenzone (Parsol® 1789) at 2.25 wt% and octinoxate (Parsol® MCX) at 1.2 wt% to produce an SPF of 15 in the presence of no other filters (see example 5). Here the ratio of bemotrizinol to avobenzone to octinoxate was 2.08:1.875:1. They detail greater photostability for the combination of avobenzone (Parsol® 1789) and octinoxate (Parsol® MCX) when bemotrizinol (Tinosorb® S) is present at a larger proportion than either the octinoxate or avobenzone (see table 2). Chavan et al. further teach various forms of the composition that include sticks and creams (emulsion) (see paragraphs 51). Additional excipient components that include thickeners and skin soothing or healing actives (see paragraph 52; instant claim 8). They also teach the include of other sun protective agents such as zinc oxide or titanium dioxide at 0.1 to 5 wt% (see paragraph 47). Titanium dioxide is a coloring agent and UV filter (see column 5 lines 54-65; Gannis et al. column claim 7).
Richard et al. teach a topical sunscreen composition that may be in various forms that include sticks an emulsions (see abstract and column 5 lines 13-16). They additionally teach the presence of a fatty substance that is envisioned to be wax (see column 5 lines 33-36).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to prepare an emulsion or stick composition of the patented claims with a sunscreen selected to be bemotrizinol and avobenzone alone or in further combination with octinoxate or titanium dioxide as the UV filters of the patented claims, in light of Chavan et al., who teach the combination of organic UV sunscreens as particularly useful in attaining a high SPF and photostable UV protective composition. Additional UV filters are not required. This modification is obvious as the application of the same technique to a similar product in order to yield the same improvement. Their inclusion at ratios and proportions according to Chavan et al. that stabilize the avobenzone and octinoxate along with their fatty acid would follow as would the inclusion of wax and formation into an emulsion as a recited form for such compositions. This modification would have been obvious in light of the desire of Chavan et al. to have their composition SPF exceed 40 and their attainment of such an SPF with higher proportions of bemotrizinol and avobenzone within their taught range. In each instance exemplified by Chavan et al., the proportion of bemotrizinol exceeds both that of octinoxate and avobenzone and this relationship would have been obvious to extend to higher overall proportions of the components at a taught or suggested ratio. The ratio ranges and proportion ranges overlap with those instantly claimed, thereby rendering the instantly claimed ranges obvious (see MPEP 2144.05). These amounts and ratios fall within the ranges recited in the instant specification as “effective” for stabilization (see paragraphs 70-75; instant claims 1-2 and 9-10). It additionally would have been obvious to add a wax as a fatty substance in light of Richard et al. The patented claims envision a fatty substance and the choice of wax in this role would have been obvious as the simple substitution of one known element for another in order to yield a predictable outcome. Therefore claims 1-18 are unpatentable over 1-12 and 14-20 of copending Application No. 18/257179 (reference application) in view of Chavan et al and Richard et al. as evidenced by Gannis et al.
Claims 1-18 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-12 and 14-20 of copending Application No. 18/257179 (reference application) in view of Chavan et al and Richard et al. as evidenced by Gannis et al. as applied to claims 1-18 above, and further in view of Dueva-Koganov et al.
Claims 1-12 and 14-20 of copending Application No. 18/257179 (reference application) in view of Chavan et al and Richard et al. as evidenced by Gannis et al. render obvious the limitations of instant claims 1-18 where bemotrizinol and avobenzone, optionally in combination with octinoxate, are present in a sunscreen composition. The presence of a colorant is not exemplified in a composition.
Dueva-Koganov et al. teach a sunscreen composition that includes at least one sun screening agent (see abstract). They disclose a cosmetic emulsion form that includes octinoxate at 7.5 wt%, avobenzone at 3 wt%, and bemotrizinol at 1.5 wt% (see example 14; instant claim 5). In addition to emulsion forms, Dueva-Koganov et al. also teach stick forms (see paragraph 187). They further detail the inclusion of cosmetically acceptable ingredients such as colorants (see paragraph 182).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to add a colorant to the composition of the modified copending claims in light of the teachings of Dueva-Koganov et al. This modification would have been obvious as the application of the same technique to a similar product in order to yield the same improvement. Therefore claims 1-18 are unpatentable over claims 1-12 and 14-20 of copending Application No. 18/257179 (reference application) in view of Chavan et al. and Richard et al. and Dueva-Koganov et al.as evidenced by Gannis et al.
Claims 1-10 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-8 of copending Application No. 18/543721 (reference application) in view of Chavan et al. and Richard et al.
Although the claims at issue are not identical, they are not patentably distinct from each other because both sets of claims a topical composition comprising bemotrizinol (bis-ethylhexyloxyphenol methoxyphenyl triazine) and octinoxate (ethylhexyl methoxycinnamate), where the former is at a larger proportion than the latter. The composition may be in the form of an emulsion or stick as well as have an SPF of greater than 50. A colorant, titanium dioxide, and active agent are also recited ingredients. A particular combination of instantly claimed UV filters and a wax are not recited.
Chavan et al. teach photostable sunscreen compositions (see abstract). The composition includes a fatty acid with a sunscreen active that is preferably bemotrizinol (Tinosorb® S) at 0.1 to 7 wt% and is also envisioned to include a UVA sunscreen that is preferably avobenzone (4-tert-butyl-4 methoxy dibenzoylmethane) at 0.4 to 3 wt% and a UVB sunscreen that is preferably octinoxate (Parsol® MCX) at 0.4 to 3 wt% (see paragraphs 19-22 and 41-43). These ranges yield a range of ratios of bemotrizinol to avobenzone of 1:4 to 17.5:1 as well as bemotrizinol to octinoxate of 1:4 to 17.5:1. The SPF of the composition is preferably higher than 40 (see paragraph 18; instant claims 14 and 18). An example details a cream with water, a surfactant, bemotrizinol (Tinosorb® S) at 5 wt%, and octinoxate (Parsol® MCX) at 2.25 wt% which provided an SPF of 100 while these components in another preparation at 2.25 wt% and 1.2 wt%, respectively, gave an SPF of 18 (see table 1 example 4 and table 2 example 6). Here the ratio of bemotrizinol to octinoxate was 2.22:1 or 1.875:1. An additional example combines bemotrizinol (Tinosorb® S) at 2.5 wt%, avobenzone (Parsol® 1789) at 2.25 wt% and octinoxate (Parsol® MCX) at 1.2 wt% to produce an SPF of 15 in the presence of no other filters (see example 5). Here the ratio of bemotrizinol to avobenzone to octinoxate was 2.08:1.875:1. They detail greater photostability for the combination of avobenzone (Parsol® 1789) and octinoxate (Parsol® MCX) when bemotrizinol (Tinosorb® S) is present at a larger proportion than either the octinoxate or avobenzone (see table 2). Chavan et al. further teach various forms of the composition that include sticks and creams (emulsion) (see paragraphs 51). Additional excipient components that include thickeners and skin soothing or healing actives (see paragraph 52; instant claim 8). They also teach the include of other sun protective agents such as zinc oxide or titanium dioxide at 0.1 to 5 wt% (see paragraph 47). Titanium dioxide is a coloring agent and UV filter (see column 5 lines 54-65; Gannis et al. column claim 7).
Richard et al. teach a topical sunscreen composition that may be in various forms that include sticks an emulsions (see abstract and column 5 lines 13-16). They additionally teach the presence of a fatty substance that is envisioned to be wax (see column 5 lines 33-36).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to prepare an emulsion or stick composition of the patented claims with a sunscreen selected to be bemotrizinol and avobenzone alone or in further combination with octinoxate or titanium dioxide as the UV filters of the patented claims, in light of Chavan et al., who teach the combination of organic UV sunscreens as particularly useful in attaining a high SPF and photostable UV protective composition. Additional UV filters are not required. This modification is obvious as the application of the same technique to a similar product in order to yield the same improvement. Their inclusion at ratios and proportions according to Chavan et al. that stabilize the avobenzone and octinoxate along with their fatty acid would follow as would the inclusion of wax and formation into an emulsion as a recited form for such compositions. This modification would have been obvious in light of the desire of Chavan et al. to have their composition SPF exceed 40 and their attainment of such an SPF with higher proportions of bemotrizinol and avobenzone within their taught range. In each instance exemplified by Chavan et al., the proportion of bemotrizinol exceeds both that of octinoxate and avobenzone and this relationship would have been obvious to extend to higher overall proportions of the components at a taught or suggested ratio. The ratio ranges and proportion ranges overlap with those instantly claimed, thereby rendering the instantly claimed ranges obvious (see MPEP 2144.05). These amounts and ratios fall within the ranges recited in the instant specification as “effective” for stabilization (see paragraphs 70-75; instant claims 1-2 and 9-10). It additionally would have been obvious to add a wax as a fatty substance in light of Richard et al. The patented claims envision a fatty substance and the choice of wax in this role would have been obvious as the simple substitution of one known element for another in order to yield a predictable outcome. Therefore claims 1-18 are unpatentable over claims 1-8 of copending Application No. 18/543721 (reference application) in view of Chavan et al. and Richard et al.
Response to Arguments
Applicant's arguments filed May 20, 2026. In light of the amendment to the claims the rejections over Birrenbach and over Dueva-Koganov et al. as primary references are hereby withdrawn. New grounds of rejection are detailed to address the new claim limitations. The arguments against the rejection over Berg-Shultz et al. have been fully considered, but they are not persuasive.
The applicant argues that Berg-Shultz et al. teach encapsulated cinnamates which are stabilized by the encapsulating material and do not stabilize this compound with other sunscreen actives. While the cinnamate, octinoxate, employed by Berg-Shultz et al. is encapsulated, they explicitly teach the inclusion of additional unencapsulated sunscreen in the composition to further enhance its photostability (see paragraph 3). Furthermore, the avobenzone is present at a relative amount that meets the new claim limitations and is present at a proportion within the ranges recited in the instant specification as “effective” for stabilization (see paragraphs 70-75; instant claims 1-2 and 9-10). Thus Berg-Shultz et al. still anticipates a number of the instant claims.
It is suggested that the applicant employ consistent terminology to recite the composition components. For example some claims recite the term “bemotrizinol” while others recite bis-ethylhexyloxyphenol methoxyphenyl triazine, but both describe the same compound
Conclusion
No claim 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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/CARALYNNE E HELM/Examiner, Art Unit 1615
/MELISSA S MERCIER/Primary Examiner, Art Unit 1615
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