Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Election/Restrictions
Applicant’s election without traverse of Group I – claims 1-19 and Species: a) isobutyl methacrylate; b) linseed oil; c) capric/capric triglyceride; d) ceramide NP; e) acyl taurate in the reply filed on 01/05/2026 is acknowledged. It is noted that “capric/capric triglyceride” as elected by Applicant is not found within Applicant’s specification or claims or in the art. Examiner broadly interprets this election to be a typo of “caprylic/capric triglyceride” as found in Applicant’s instant claim 10.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 12/18/2023, 09/19/2024, 04/02/2025, and 02/02/2026 are being considered by the examiner. The submission is in compliance with the provisions of 37 CFR 1.97. In the IDS filed on 09/19/2024 only an English copy of the abstract is present for the foreign patents, therefore, only the abstract is being considered by the examiner. Further in the IDS filed on 09/19/2024, no English translation on the non-patent literature document is present, therefore this document is not being considered by the examiner. In the IDS filed on 02/02/2026 many of the non-patent literature documents are without English translations, therefore, these documents are not being considered by the examiner. Further, one of the foreign patent documents in the IDS filed on 02/02/2026 only has an English translation of the abstract, therefore only the abstract is considered by the examiner. Lastly, the non-patent document, “Solvent selector chart”, is illegible, therefore this document is not being considered by the examiner. Please see annotated forms.
Claim Interpretation
Claims 5-6 and 19 utilize the relative term "about" which is defined as +/-5% in the instant specification (page 64, lines 1-2). Therefore, examiner will interpret the term “about” to mean +/-5% any value following.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 14 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 14 recites “the one or more biosurfactants are selected from..”, however claim 14 is dependent upon claim 1 which makes no mention of “biosurfactants”. It is unclear if “biosurfactants” is making reference to the “surfactant” of claim 1 or is directed towards adding an addition surfactant. Thus, the claim is rendered indefinite.
For the purpose of moving prosecution forward, the examiner broadly interprets “biosurfactant” to be the surfactant of claim 1 and not an additionally added surfactant.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim(s) 1-17 are rejected under 35 U.S.C. 103 as being unpatentable Zhen et al. (CN115337216A, published 11/15/2022, English translation by Google, hereafter Zhen) in view Mitra et al. (US20220249342A1, published 08/11/2022, priority date 05/04/2021, hereafter Mitra).
Zhen teaches a product composition for daily skin care comprising a cleanser with a cleaning effect and teaches the composition in an oil-in-water emulsion (abstract; according to the claim limitations of the instant claims 1 and 19). Zhen teaches the invention relates to the field of cosmetics (page 2, paragraph 4; according to the claim limitations of the instant claims 1 and 19). Zhen claims a skin care product composition of soothing effect that comprises cleansing milk comprising water, sodium methyl cocoyl taurate, caprylic acid/ capric triglyceride, ceramide, and a polyacrylate cross-linked polymer (claim 1; according to the claim limitations of the instant claims 1, 9-17, and 19). Zhen claims the composition has 2 to about 4% sodium methyl cocoyl taurate (claim 2; according to the claim limitations of the instant claims 1, 14-17, and 19). Zhen then claims the composition has 2-5% caprylic/capric triglyceride (claim 4; according to the claim limitations of the instant claims 1, 9-10, and 19). Zhen claims the polyacrylate cross-linked polymer in a concentration of 0.3-0.7% (claim 3 and claim 6; according to the claim limitations of the instant claim 19). Lastly, Zhen teaches the ceramide comprising ceramide NP (page 5, line 2; according to the claim limitations of the instant claims 1, 11-13, and 19).
Zhen fails to teach the polymer is a hydrophobic polymer formed as a reaction product of a natural or food-derived oil and a methacrylate or acrylate polymer including as instant claims 1-4 and 7-8.
Mitra claims a cosmetic cleansing composition comprising a) a cleansing coagulant system: i) an oil component and ii) a polymer component; b) a cosmetic carrier system comprising one or more phases selected from a water phase, an oil phase, and combinations thereof (claim 1; according to the claim limitations of the instant claims 1 and 19). Mitra teaches the coagulant system can congeal and form a viscoeleastic fluid to bind and remove sebum, makeup, dirt, pollution, dead skin, and other unwanted material from the skin ([0013]; according to the claim limitations of the instant claims 1 and 19). Mitra teaches the coagulant system includes at least one of each of an oil and a viscosity modifier includes a natural based or food derived oil, such as linseed oil, and a methacrylate polymer components, such as poly(isobutyl methacrylate) ([0013]; according to the claim limitations of the instant claims 1-4, 7-8, and 19). Mitra further teaches that the coagulant system is prepared as a reaction product of an oil component selected from the group consisting of glycerides, fatty acids, alkenes, and alkynes, with a polymer component, for example a synthetic polymer component such as a methacrylate or acrylate polymer component ([0014]; according to the claim limitations of the instant claims 1-4, 7-8, and 19). Further, Mitra then teaches that the oil and polymer components of the cleansing coagulant system can be applied to keratinous tissue, for example, on the skin, hair or nails, either in the form of a prepared cosmetic coagulant system or as a precursor that may be activated or reacted at the time of or just prior to application so as to form the cosmetic coagulant system on the surface of the keratinous tissue ([0015]; according to the claim limitations of the instant claims 1-4, 7-8, and 19). Mitra continues to teach the cosmetic coagulant system is activated and formed at the time of or just prior to application, the cleansing oil adsorbs sebum, skin dirt, particulate make up, etc. and reacts with the polymer to form a viscoelastic fluid that can be sloughed off ([0015]; according to the claim limitations of the instant claims 1-4, 7-8, and 19). Mitra then teaches the cosmetic cleansing composition is applied in a series of steps from one or more articles of manufacture wherein after a first application one or more subsequent applications provides for reacting, fixing or coagulating the cleansing coagulant system component to form a semi solid or solid or congealed material that may thereafter be peeled or sloughed of washed form the keratinous tissue ([0035]; according to the claim limitations of the instant claims 1-4, 7-8, and 19). Mitra claims this coagulation is present in a concentration of from about 1 to about 25% (claim 4; according to the claim limitations of the instant claims 1 and 19). Mitra teaches the polymer component should be in a concentration of about 15-75%, preferably 20-40%, or more preferably about 25-35% ([0057]; according to the claim limitations of the instant claims 5-6). Further, Mitra teaches the oil, specifically linseed oil glyceride, should comprise about 25-85%, preferably 60-80%, and more preferably 65-75% ([0058]; according to the claim limitations of the instant claims 5-6). Lastly, Mitra teaches the composition can be a cleansing milk and an oil-in-water emulsion ([0182]; according to the claim limitations of the instant claims 1 and 19).
It would be obvious to one skilled in the art before the effective filing date of the claimed invention would modify a cleansing composition comprising sodium methyl cocoyl taurate, caprylic/capric triglyceride, water, ceramide NP, and a polymer as an oil-in-water emulsion as outlined by Zhen by utilization of a polymer formed as a reaction product of linseed oil and poly(isobutyl methacrylate as the polymer in the composition as outlined by Mitra under TSM, see MPEP 2143(G). As outlined by Mitra, a coagulation system comprising a viscosity modifier includes a natural based or food derived oil, such as linseed oil, and a methacrylate polymer components, such as poly(isobutyl methacrylate) binds and removes sebum, makeup, dirt, pollution, dead skin, and other unwanted material from the skin which would motivate someone skilled in the art to advantageously combine a combination polymer of a natural based or food derived oil, such as linseed oil, and a methacrylate polymer components, such as poly(isobutyl methacrylate), at the desired concentrations, with the skin cleansing composition of Zhen as it would have a reasonable expectation of success.
Claims 18-19 are rejected under 35 U.S.C. 103 as being unpatentable Zhen et al. (CN115337216A, published 11/15/2022, English translation by Google, hereafter Zhen) in view Mitra et al. (US20220249342A1, published 08/11/2022, priority date 05/04/2021, hereafter Mitra), and in view of Hosny et al. (Hosny K, Asfour H, Rizg W, Alhakamy NA, Sindi A, Alkhalidi H, Abualsunun W, Bakhaidar R, Almehmady AM, Akeel S, Ali S, Alghaith A, Alshehri S, Khallaf R. Formulation, Optimization, and Evaluation of Oregano Oil Nanoemulsions for the Treatment of Infections Due to Oral Microbiota. Int J Nanomedicine. 2021 Aug 13;16:5465-5478. doi: 10.2147/IJN.S325625. PMID: 34413644; PMCID: PMC8370598, hereafter Hosny).
As outlined above, Zhen in view of Mitra teaches a cleansing cosmetic composition comprising a linseed oil/isobutyl methacrylate polymer, caprylic/capric triglyceride, ceramide NP, sodium methyl cocoyl taurate, and water at the desired concentrations.
Zhen in view of Mitra fails to teach the composition has an average droplet size of about 10nm to about 2 µm as in instant claims 18 and 19.
Hosny teaches nanoemulsions contain oil globules dispersed in an aqueous vehicle and stabilized by a film of surfactant and cosurfactants that form around them (page 5466, paragraph 3). Hosny teaches these systems ideally have a droplet size of 10 to 100 nm which provides the solution with several traits to make them more effective than conventional emulsions (page 5466, paragraph 3). Lastly, Hosny teaches these compositions have better visual transparency, better performance, and more physical stability (page 5466, paragraphs 3-4).
It would be obvious to one skilled in the art before the effective filing date of the claimed invention would modify as outlined by Zhen in view of Mitra by addition making the oil-in-water dispersion a nanoemulsion with a droplet size of 10-100 nm as outlined by Hosny under TSM, see MPEP 2143(G). As outlined by Hosny, using a nanoemulsion with a droplet size of 10-100nm as opposed to a conventional emulsion results in better visual transparency, better performance and more physical stability which would motivate someone skilled in the art to advantageously to make composition of Zhen in view of Mitra into a nanoemulsion with a droplet size of 10-100nm as it would have a reasonable expectation of success.
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 1-19 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-18 of copending Application No. 18544223 (reference application) in view of Special Chem (Ceramide NP. Special Chem. (2023, March 23). https://www.specialchem.com/cosmetics/inci-ingredients/ceramide-np, hereafter Chem). Although the claims at issue are not identical, they are not patentably distinct from each other.
18544223 claims a cosmetic care composition comprising: (a) a hydrophobic polymer formed as a reaction product of a natural or food-derived oil and a methacrylate or acrylate polymer; (b) one or more solvents capable of solubilizing the reaction of product (a); (c) one or more biosurfactants and optionally, one or more co-surfactants other than the one or more biosurfactants; and (e) water; wherein the composition is an oil-in-water dispersion having an average droplet of about 10 nm to about 1µm (claim 1; according to the claim limitations of the instant claims 1-2, and 18-19). Claim 2 of 18544223 claims the hydrophobic polymer is the reaction product formed from a natural or food-derived oil and a methacrylate polymer (according to the claim limitations of the instant claims 1-2 and 19). Claim 3 of 18544223 claims the natural or food-derived oil is a drying oil or semi-drying oil selected from linseed oil, sunflower oil, tung oil, fish oil, cottonseed oil, soybean oil, or combinations thereof (according to the claim limitations of the instant claims 1-3 and 19). Claim 4 of 18544223 claims the polymer is derived from monomers selected from isobutyl methacrylate, methyl methacrylate, ethyl methacrylate, n- butyl methacrylate, and combinations thereof (according to the claim limitations of the instant claims 1-2, 4, 7-8, and 19). Claim 5 of 18544223 claims the hydrophobic polymer is the reaction product of about 50 to about 85 parts by weight of the natural or food-derived oil and about 15 to about 50 parts by weight of the methacrylate or acrylate polymer (according to the claim limitations of the instant claims 1-2, 5-6, and 19). Claim 6 of 18544223 claims the hydrophobic polymer is the reaction product of about 72 to about 77 parts by weight of the natural or food-derived oil and about 23 to about 28 parts by weight of a methacrylate polymer (according to the claim limitations of the instant claims 1-2, 5-6, and 19). Claim 7 of 18544223 claims the polymer is isobutyl methacrylate polymer (according to the claim limitations of the instant claims 1-2, 4, 7-8, and 19). Claim 8 of 18544223 claims the hydrophobic polymer is the reaction product of linseed oil and poly(isobutyl methacrylate) (according to the claim limitations of the instant claims 1-4, 7-8, and 19). Claim 9 of 18544223 claims one or more solvents capable of solubilizing the reaction product of (a) have a dispersion component (D), a polar component (P), and a hydrogen bonding component (H), and a distance (Ra) of less than or equal to 13.4 MPa0.5 per Hansen Solubility Parameters, wherein the distance (Ra) is defined by formula (I):
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(according to the claim limitations of the instant claim 9). Claim 10 of 18544223 claims at least one of the one or more solvents capable of solubilizing the reaction product of (a) is selected from polycitronellol acetate, caprylic/capric triglyceride, isododecane, isohexadecane, tetradecane, isopropyl myristate, isopropyl alcohol, octyldodecanol, ethanol, phenoxyethanol, castor oil, and mixtures thereof (according to the claim limitations of the instant claims 10 and 19). Claim 11 of 18544223 claims the one or more biosurfactants are selected from glycolipids and claim 12 of 18544223 claims the glycolipids are selected from sophorolipids, rhamnolipids, trehalose lipids, mannosylerythritol lipids, and combinations thereof (according to the claim limitations of the instant claims 14 and 19). Claim 13 of 18544223 claims the at least one of the one or more glycolipids is a rhamnolipid and claim 14 of 18544223 claims the composition further comprising one or more co-surfactants (according to the claim limitations of the instant claims 14 and 19). Claim 15 of 18544223 claims the one or more co-surfactants are selected from anionic surfactants, nonionic surfactants, amphoteric surfactants, or combinations thereof (according to the claim limitations of the instant claims 15 and 19). Claim 16 of 18544223 claims the one or more anionic surfactants, wherein the one or more anionic surfactants are selected from acyl glutamates, acyl taurates, alkanoyl isethionates, alkyl succinates, alkyl sulphosuccinates, N-alkoyl sarcosinates, alkyl phosphates, alkyl ether phosphates, alkyl ether carboxylates, alpha-olefin sulphonates, or combinations thereof (according to the claim limitations of the instant claims 16-17 and 19). Claim 17 of 18544223 claims the at least one of the one or more anionic surfactants is an acyl taurate (according to the claim limitations of the instant claims 16-17 and 19). Lastly, claim 18 of 18544223 claims a composition comprising:(a) about 0.5 to about 10 wt.% of a reaction product formed from a natural or food-derived oil selected from linseed oil, sunflower oil, tung oil, fish oil, cottonseed oil, soybean oil, and combinations thereof, and a polymer formed from one or more monomers selected from isobutyl methacrylate, methyl methacrylate, ethyl methacrylate, and n-butyl methacrylate and combinations thereof; (b) about 0.1 to about 10 wt.% of one or more solvents capable of solubilizing the reaction product of (a); (c) about 1 to about 10 wt.% of a plurality of surfactants, wherein the plurality of surfactants comprise: (c)(i) about 1 to about 8 wt.% of one or more rhamnolipids; and (c)(ii) about 0.5 to about 5 wt.% of one or more co-surfactants; (d) about 70 to about 95 wt.% of water; and wherein the composition is an oil-in-water dispersion having oil droplet with a droplet size of from about 100 nm to about 800 nm, and all percentages by weight are based on a total weight of the composition (according to the claim limitations of the instant claims 1-3, 7-8, 14-15, and 19).
18544223 fails to teach the addition of a skin active agent, specifically ceramide, as claimed by instant claims 1, 11-13, and 19.
Chem teaches ceramide NP is one of several types of ceramides found naturally in skin and a cosmetic ingredient (title and page 1). Chem teaches ceramide NP helps improve the look and feel of dry or dehydrated skin thanks to its water retention properties (page 3, paragraph 2). Chem teaches that ceramide NP reinforces skin’s barrier strength, so it better resets external stressors and thus contributes to supple, resilient, hydrated skin overall (page 3, paragraph 2).
It would be obvious to one skilled in the art before the effective filing date of the claimed invention would an oil in water emulsion cosmetic composition comprising a hydrophobic polymer, one or more solvents, one or more surfactants, and water as outlined by 18544223 by addition of a skin agent, such as ceramide NP, as outlined by Chem under TSM, see MPEP 2143(G). As outlined by Chem, adding ceramide NP reinforces the skin barrier strength which would motivate someone skilled in the art to advantageously combine ceramide NP with the composition of 18544223 as it would have a reasonable expectation of success. This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1-19 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-18 of copending Application No. 18544195 (reference application) in view of Special Chem (Ceramide NP. Special Chem. (2023, March 23). https://www.specialchem.com/cosmetics/inci-ingredients/ceramide-np, hereafter Chem). Although the claims at issue are not identical, they are not patentably distinct from each other.
18544195 claims a cleansing wipe comprising a cleansing composition comprising: (a) a hydrophobic polymer formed as a reaction product of a natural or food-derived oil and a methacrylate or acrylate polymer; (b) one or more solvents capable solubilizing the hydrophobic polymer of (a); (c) one or more surfactants; and (d) water; wherein the cleansing composition is an oil-in-water emulsion (claim 1; according to the claim limitations of the instant claims 1 and 19). Claim 2 of 18544195 claims the hydrophobic polymer is the reaction product of a natural or food-derived oil and a methacrylate polymer (according to the claim limitations of the instant claims 1-2 and 19). Claim 3 of 18544195 claims the natural or food-derived oil is a drying oil or semi-drying oil selected from linseed oil, sunflower oil, tung oil, fish oil, cottonseed oil, soybean oil, or combinations thereof (according to the claim limitations of the instant claims 1-3, 8, and 19). Claim 4 of 18544195 claims the polymer is derived from monomers selected from isobutyl methacrylate, methyl methacrylate, ethyl methacrylate, n- butyl methacrylate, or combinations thereof (according to the claim limitations of the instant claims 1-2, 4, 7-8, and 19). Claim 5 of 18544195 claims the hydrophobic polymer is the reaction product of about 50 to about 85 parts by weight of the natural or food-derived oil and about 15 to about 50 parts by weight of the methacrylate or acrylate polymer (according to the claim limitations of the instant claims 1-2, 5-6, and 19). 18544195 claims the hydrophobic polymer is the reaction product of about 72 to about 77% of linseed oil and about 23 to about 28% of isobutyl methacrylate polymer (claim 6; according to the claim limitations of the instant claims 1-8 and 19). Claim 7 of 18544195 claims the polymer is derived from one or more monomers selected from isobutyl methacrylate, methyl methacrylate, ethyl methacrylate, n-butyl methacrylate, or combinations thereof (according to the claim limitations of the instant claims 1, 4, 7-8, and 19). Claim 8 of 18544195 claims the polymer is isobutyl methacrylate polymer (according to the claim limitations of the instant claims 1, 4, 7-8, and 19). Claim 9 of 18544195 claims the hydrophobic polymer is the reaction product of linseed oil and poly(isobutyl methacrylate) (according to the claim limitations of the instant claims 1-4, 7-8, and 19). Claim 10 of 18544195 claims the one or more solvents capable of solubilizing the reaction product of (a) have a dispersion component (D), a polar component (P), and a hydrogen bonding component (H), and a distance (Ra) of less than or equal to 13.4 MPa0.5 per Hansen Solubility Parameter, wherein the distance (Ra) is defined by formula (I):
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(according to the claim limitations of the instant claim 9). Claim 11 of 18544195 claims the at least one of the one or more solvents capable of solubilizing the reaction product of (a) is selected from polycitronellol acetate, caprylic/capric triglyceride, isododecane, isohexadecane, tetradecane, isopropyl myristate, isopropyl alcohol, octyldodecanol, ethanol, castor oil, and mixtures thereof (according to the claim limitations of the instant claims 10 and 19). Claim 12 of 18544195 claims the at least one of the one or more surfactants is a biosurfactant, wherein the biosurfactant is a glycolipid selected from sophorolipids, rhamnolipids, trehalose lipids, mannosylerythritol lipids, or combinations thereof (according to the claim limitations of the instant claims 14 and 19). Claim 13 of 18544195 claims the one or more surfactants are selected from anionic surfactants, nonionic surfactants, amphoteric surfactants, or combinations thereof (according to the claim limitations of the instant claims 15 and 19). Claim 14 of 18544195 claims the one or more anionic surfactants, wherein the one or more anionic surfactants are selected from sulfate surfactants, acyl glutamates, acyl taurates, alkanoyl isethionates, alkyl succinates, alkyl sulphosuccinates, N-alkoyl sarcosinates, alkyl phosphates, alkyl ether phosphates, alkyl ether carboxylates, alpha-olefin sulphonates, or combinations thereof (according to the claim limitations of the instant claims 16-17 and 19). Claim 15 of 18544195 claims at least one of the one or more anionic surfactants is an acyl taurate (according to the claim limitations of the instant claims 16-17 and 19). Claim 16 of 18544195 claims the plurality of surfactants, wherein the plurality of surfactants include:(c)(i) about 1 to about 8 wt.% of one or more rhamnolipids; and (c)(ii) about 0.5 to about 5 wt.% of one or more anionic surfactants (according to the claim limitations of the instant claims 14-16 and 19). Claim 17 of 18544195 claims the oil-in-water emulsion is a dispersion having a droplet size from about 10 nm to about 1 pm (according to the claim limitations of the instant claim 18). Claim 18 of 18544195 claims a cleansing wipe comprising:(i) an insoluble flexible substrate; and (ii) a cleansing composition, wherein the cleansing composition comprises: (a) about 0.1 to about 8 wt.% of a hydrophobic polymer that is a reaction product of linseed oil and poly(isobutyl methacrylate); (b) about 0.1 to about 40 wt.% of a liquid oil solvent capable of solubilizing the hydrophobic polymer of (a); (c) about 1 to about 10 wt.% of a plurality of surfactants, wherein the plurality of surfactants comprises: (c)(i) about 1 to about 8 wt.% of one or more rhamnolipids; and (c)(ii) about 0.5 to about 5 wt.% of one or more so-surfactants; (d) about 60 to about 95 wt.% of water; wherein the cleaning composition is an oil-in-water dispersion with oil droplets having an average droplet size from about 10 nm to about 1 pm, all weight percentages are based on the total weight of the cleansing composition, and the substrate is impregnated with the cleaning composition (according to the claim limitations of the instant claims 1-4, 7-8, 14, and 19).
18544195 fails to teach the addition of a skin active agent, specifically ceramide, as claimed by instant claims 1, 11-13, and 19.
As outlined above, Chem teaches ceramide NP is one of several types of ceramides found naturally in skin and a cosmetic ingredient (title and page 1). Chem teaches ceramide NP helps improve the look and feel of dry or dehydrated skin thanks to its water retention properties (page 3, paragraph 2). Chem teaches that ceramide NP reinforces skin’s barrier strength, so it better resets external stressors and thus contributes to supple, resilient, hydrated skin overall (page 3, paragraph 2).
It would be obvious to one skilled in the art before the effective filing date of the claimed invention would claim an oil in water emulsion cleansing wipe comprising a cleansing composition comprising a hydrophobic polymer, one or more solvents, one or more surfactants, and water as outlined by 18544195 by addition of a skin agent, such as ceramide NP, as outlined by Chem under TSM, see MPEP 2143(G). As outlined by Chem, adding ceramide NP reinforces the skin barrier strength and improves the look and feel of dry or dehydrated skin which would motivate someone skilled in the art to advantageously combine ceramide NP with the composition of 18544195 as it would have a reasonable expectation of success. This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1-11 and 13-18 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-10, 14-16, and 18-19 of copending Application No. 18544312 (reference application) in view of Nokaly et al. (US5688831A, published 11/18/1997, hereafter Nokaly). Although the claims at issue are not identical, they are not patentably distinct from each other.
18544312 claims a pigment dispersion comprising:(a) a hydrophobic polymer formed as a reaction product of a natural or food- derived oil and a methacrylate or acrylate polymer; (b) one or more solvents capable of solubilizing the hydrophobic polymer of (a); (c) particles of one or more pigments dispersed throughout the one or more solvents of (b) (according to the claim limitations of the instant claims 1-2). Claim 2 of 18544312 claims the hydrophobic polymer is the reaction product formed from a natural or food-derived oil and a methacrylate polymer (according to the claim limitations of the instant claims 1-2). Claim 3 of 18544312 claims the natural or food-derived oil is a drying oil or semi-drying oil selected from linseed oil, sunflower oil, tung oil, fish oil, cottonseed oil, soybean oil, or combinations thereof (according to the claim limitations of the instant claims 1-3, and 8). Claim 4 of 18544312 claims the polymer is derived from monomers selected from isobutyl methacrylate, methyl methacrylate, ethyl methacrylate, n- butyl methacrylate, and combinations thereof (according to the claim limitations of the instant claims 1-2, 4, and 7-8). Claim 5 of 18544312 claims the hydrophobic polymer is the reaction product of about 50 to about 85 parts by weight of the natural or food-derived oil and about 15 to about 50 parts by weight of the methacrylate or acrylate polymer (according to the claim limitations of the instant claims 5-6). Claim 6 of 18544312 claims the hydrophobic polymer is the reaction product of about 72 to about 77 parts by weight of the natural or food-derived oil and about 23 to about 28 parts by weight of a methacrylate polymer (according to the claim limitations of the instant claims 5-6). Claim 7 of 18544312 claims the polymer is derived from one or more monomers selected from isobutyl methacrylate, methyl methacrylate, ethyl methacrylate, n-butyl methacrylate, or combinations thereof, and claim 8 of 18544312 claims the polymer is isobutyl methacrylate polymer (according to the claim limitations of the instant claims 1-2, 4, and 7-8). Claim 9 of 18544312 claims the hydrophobic polymer is the reaction product of linseed oil and poly(isobutyl methacrylate) (according to the claim limitations of the instant claims 1-4, and 7-8). The first claim 10 of 18544312 claims the one or more solvents capable of solubilizing the hydrophobic polymer of (a) have a dispersion component (D), a polar component (P), and a hydrogen bonding component (H), and a distance (Ra) of less than or equal to 13.4 MPa0.5 per Hansen Solubility Parameters, wherein the distance (Ra) is defined by formula (I):
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(according to the claim limitations of the instant claim 9). The second claim 10 of 18544312 claims the at least one of the one or more solvents capable of solubilizing the hydrophobic polymer of (a) is selected from polycitronellol acetate, caprylic/capric triglyceride, isododecane, isohexadecane, tetradecane, isopropyl myristate, isopropyl alcohol, octyldodecanol, ethanol, phenoxyethanol, castor oil, or mixtures thereof (according to the claim limitations of the instant claims 9-10). Claim 14 of 18544312 claims the pigment to have a has a particle size of less than 15pm (according to the claim limitations of the instant claim 18). Claim 15 of 18544312 claims A pigment dispersion comprising:(a) about 1 to about 20 wt.% of a hydrophobic polymer formed as a reaction product of a natural or food-derived oil and a methacrylate or acrylate polymer; (b) about 30 to about 70 wt.% of one or more solvents capable of solubilizing the hydrophobic polymer of (a); and (c) about 30 to about 60 wt.% of particles of one or more pigments dispersed throughout the one or more solvents of (b) (according to the claim limitations of the instant claims 1-2). Claim 16 of 18544312 claims an oil-in-water emulsion comprising the dispersion composition which comprises water (according to the claim limitations of the instant claim 1). Lastly, claim 18 of 18544312 claims the pigment is a makeup product and claim 19 of 18544312 claims the makeup product comprises an oil-in-water emulsion (according to the claim limitations of the instant claim 1).
18544312 fails to teach the addition of a surfactant and a skin agent as in instant claims 1 and 11-17
Nokaly claims a cosmetic make up composition in the form of an oil-in-water emulsion (title and claim 1). Nokaly claims an emollient to include caprylic/capric triglyceride (claim 20). Nokaly teaches the addition of natural and synthetic phosphoglycerides, glycolipids and sphingolipids, for example cerebrosides, ceramides and lecithin (column 7, lines 20-22). Further, Nokaly teaches the addition of taurates, specifically sodium lauryl taurate and sodium methyl cocoyl taurate (column 7, lines 36-37).
It would be obvious to one skilled in the art before the effective filing date of the claimed invention would claim a pigment dispersion, specifically a makeup product, comprising a hydrophobic polymer, one or more solvents, and water as an oil-in water emulsion as outlined by 18544312 ready for improvement with the known technique of adding ceramides and taurates, such as sodium methyl cocoyl taurate as outlined by Nokaly. Adding the forementioned limitations to a makeup pigment composition as claimed by instant claims 1 and 11-17 would yield predictable results thus making them of obviousness as modification of a known product with a known technique is within the purview of the skilled artisan. This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1-17 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-11 and 18 of copending Application No. 18543728 (reference application) in view of Zhen et al. (CN115337216A, published 11/15/2022, English translation by Google, hereafter Zhen). Although the claims at issue are not identical, they are not patentably distinct from each other.
18543728 claims a multiphase cleansing comprising: (i) an oil phase comprising: (a) a hydrophobic polymer formed as a reaction product of a natural or food-derived oil and a methacrylate or acrylate polymer; (b) one or more solvents capable of solubilizing the reaction product of (i)(a); (ii) an aqueous phase comprising: (a) water (claim 1; according to the claim limitations of the instant claims 1-2). Claim 2 of 18543728 claims the hydrophobic polymer is the reaction product formed from a natural or food-derived oil and a methacrylate polymer (according to the claim limitations of the instant claims 1-2). Claim 3 of 18543728 claims the natural or food-derived oil is a drying oil or semi-drying oil selected from linseed oil, sunflower oil, tung oil, fish oil, cottonseed oil, soybean oil, or combinations thereof (according to the claim limitations of the instant claims 1-3, and 8). Claim 4 of 18543728 claims the methacrylate or acrylate polymer is derived from monomers selected from isobutyl methacrylate, methyl methacrylate, ethyl methacrylate, n-butyl methacrylate, or combinations thereof (according to the claim limitations of the instant claims 1-2, 4, and 7-8). Claim 5 of 18543728 claims the hydrophobic polymer is the reaction product of about 50 to about 85 parts by weight of the natural or food-derived oil and about 15 to about 50 parts by weight of the methacrylate or acrylate polymer (according to the claim limitations of the instant claims 5-6). Claim 6 of 18543728 claims the hydrophobic polymer is the reaction product of about 72 to about 77 parts by weight of the natural or food-derived oil and about 23 to about 28 parts by weight of the hydrophobic polymer (according to the claim limitations of the instant claims 5-6). Claim 7 of 18543728 claims the polymer is isobutyl methacrylate polymer (according to the claim limitations of the instant claims 1-2, 4, and 7-8). Claim 8 of 18543728 claims the hydrophobic polymer is the reaction product of linseed oil and poly(isobutyl methacrylate) (according to the claim limitations of the instant claims 1-4 and 7-8). Claim 9 of 18543728 claims the hydrophobic polymer is the reaction product of about 72 to about 77% of linseed oil and about 23 to about 28% of isobutyl methacrylate polymer (according to the claim limitiations of the instant claims 5-6). Claim 10 of 18543728 claims the one or more solvents capable of solubilizing the reaction product of (a) have a dispersion component (D), a polar component (P), a hydrogen bonding component (H), and a distance (Ra) of less than or equal to 13.4 MPa0-5 as per Hansen Solubility Parameters, wherein the distance (Ra) is defined by formula (I):
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(according to the claim limitations of the instant claim 9). Claim 11 of 18543728 claims the at least one of the one or more solvents capable of solubilizing the reaction product of (a) is selected from polycitronellol acetate, caprylic/capric triglyceride, isododecane, isohexadecane, tetradecane, isopropyl myristate, isopropyl alcohol, octyldodecanol, ethanol, phenoxyethanol, castor oil, or mixtures thereof (according to the claim limitations of the instant claims 9-10). Claim 18 of 18543728 claims A multiphase cleansing comprising:(i) about 20 to about 50 wt.% of an oil phase comprising: (a) about 0.01 to about 2 wt.% of a reaction product of about 72 to about 77% of the linseed oil and about 23 to about 28% of isobutyl methacrylate polymer; (b) about 5 to about 50 wt.% of one or more solvents capable of solubilizing the reaction product of (a) having a dispersion component (D), a polar component (P), and a hydrogen bonding component (H), and a distance (Ra) per Hansen Solubility Parameters of less than or equal to 13.4 MPa0-5, wherein the distance (Ra) is defined by formula (I):
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;
(ii) about 40 to about 80 wt.% of an aqueous phase comprising: (a) about 30 to about 99 wt.% of water; (b) about 0.01 to about 20 wt.% of one or more water soluble solvents (according to the claim limitations of the instant claims 1-9).
18543728 fails to teach the addition of a surfactant and a skin agent as in instant claims 1, and 11-17. Further, although 18543728 claims the cleansing composition has an oil phase and an aqueous phase, it fails to explicitly claim the composition is an oil-in-water emulsion as in instant claim 1.
As outlined above, Zhen teaches a product composition for daily skin care comprising a cleanser with a cleaning effect and teaches the composition in an oil-in-water emulsion (abstract; according to the claim limitations of the instant claims 1 and 19). Zhen teaches the invention relates to the field of cosmetics (page 2, paragraph 4; according to the claim limitations of the instant claims 1 and 19). Zhen claims a skin care product composition of soothing effect that comprises cleansing milk comprising water, sodium methyl cocoyl taurate, caprylic acid/ capric triglyceride, ceramide, and a polyacrylate cross-linked polymer (claim 1; according to the claim limitations of the instant claims 1, 9-17, and 19). Zhen claims the composition has 2 to about 4% sodium methyl cocoyl taurate (claim 2; according to the claim limitations of the instant claims 1, 14-17, and 19). Zhen then claims the composition has 2-5% caprylic/capric triglyceride (claim 4; according to the claim limitations of the instant claims 1, 9-10, and 19). Zhen claims the polyacrylate cross-linked polymer in a concentration of 0.3-0.7% (claim 3 and claim 6; according to the claim limitations of the instant claim 19). Lastly, Zhen teaches the ceramide comprising ceramide NP (page 5, line 2; according to the claim limitations of the instant claims 1, 11-13, and 19).
It would be obvious to one skilled in the art before the effective filing date of the claimed invention to claim a multiphase cleansing composition comprising one or more solvents, a hydrophobic polymer, and water as outlined by 18543728 ready for improvement with the known technique of adding surfactants – specifically sodium methyl cocoyl taurate and skin active agents – specifically ceramide NP to a cleansing composition and making the cleansing composition into an oil-in-water emulsion as outlined by Zhen. Adding the forementioned limitations to a cleansing composition comprising a hydrophobic polymer, solvents, and water as claimed by instant claims 1 and 11-17 would yield predictable results thus making them of obviousness as modification of a known product with a known technique is within the purview of the skilled artisan. This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1-19 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-10 and 14-19 of copending Application No. 18544283 (reference application) in view of Special Chem (Ceramide NP. Special Chem. (2023, March 23). https://www.specialchem.com/cosmetics/inci-ingredients/ceramide-np, hereafter Chem). Although the claims at issue are not identical, they are not patentably distinct from each other.
18544283 claims a mineral sunscreen composition comprising: a mineral sunscreen composition comprising:(a) a hydrophobic polymer formed as a reaction product of a natural or food- derived oil and a methacrylate or acrylate polymer; (b) one or more solvents capable of solubilizing the reaction product of (a); (c) one or more mineral UV filtering agents; (d) one or more surfactants; and (e) water; wherein the composition is an oil-in-water emulsion (according to the claim limitations of the instant claims 1-2, and 19). Claim 2 of 18544283 claims the hydrophobic polymer is the reaction product formed from a natural or food-derived oil and a methacrylate polymer (according to the claim limitations of the instant claims 1-2 and 19). Claim 3 of 18544283 claims the natural or food-derived oil is a drying oil or semi-drying oil selected from linseed oil, sunflower oil, tung oil, fish oil, cottonseed oil, soybean oil, or combinations thereof (according to the claim limitations of the instant claims 1-3, 8, and 19). Claim 4 of 18544283 claims the polymer is derived from monomers selected from isobutyl methacrylate, methyl methacrylate, ethyl methacrylate, n-butyl methacrylate, and combinations thereof (according to the claim limitations of the instant claims 1-2, 4, 7-8, and 19). Claim 5 of 18544283 claims the hydrophobic polymer is the reaction product of about 50 to about 85 parts by weight of the natural or food-derived oil and about 15 to about 50 parts by weight of the methacrylate or acrylate polymer (according to the claim limitations of the instant claims 1, 5-6, and 19). Claim 6 of 18544283 claims the hydrophobic polymer is the reaction product of about 72 to about 77 parts by weight of the natural or food-derived oil and about 23 to about 28 parts by weight of a methacrylate polymer (according to the claim limitations of the instant claims 1, 5-6, and 19). Claim 7 of 18544283 claims the polymer is isobutyl methacrylate polymer (according the claim limitations of the instant claims 1-2, 4, 7-8, and 19). Claim 8 of 18544283 claims the hydrophobic polymer is the reaction product of linseed oil and poly(isobutyl methacrylate) (according to the claim limitations of the instant claims 1-4, 7-8, and 19). Claim 9 of 18544283 claims the one or more solvents capable of solubilizing the reaction product of (a) have a dispersion component (D), a polar component (P), a hydrogen bonding component (H), and a distance (Ra) of less than or equal to 13.4 MPa0-5 per Hansen Solubility Parameters, wherein the distance (Ra) is defined by formula (I):
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(according to the claim limitations of the instant claim 9). Claim 10 of 18544283 claims the at least one of the one or more solvents capable of solubilizing the reaction product of (a) is selected from polycitronellol acetate, caprylic/capric triglyceride, isododecane, isohexadecane, tetradecane, isopropyl myristate, isopropyl alcohol, octyldodecanol, ethanol, phenoxyethanol, castor oil, or mixtures thereof (according to the claim limitations of the instant claims 9-10). Claim 14 of 18544283 claims the one or more biosurfactants are selected from glycolipids, wherein the glycolipids are selected from sophorolipids, rhamnolipids, trehalose lipids, mannosylerythritol lipids, or combinations thereof (according to the claim limitations of the instant claims 14 and 19). Claim 15 of 18544283 claims the one or more surfactants are selected from anionic surfactants, nonionic surfactants, amphoteric surfactants, or combinations thereof (according to the claim limitations of the instant claims 14-15, and 19). Claim 16 of 18544283 claims the composition comprising one or more anionic surfactants, wherein the one or more anionic surfactants are selected from acyl glutamates, acyl taurates, alkanoyl isethionates, alkyl succinates, alkyl sulphosuccinates, N-alkoyl sarcosinates, alkyl phosphates, alkyl ether phosphates, alkyl ether carboxylates, alpha-olefin sulphonates, or combinations thereof (according to the claim limitations of the instant claims 15-17). Claim 17 of 18544283 claims the one or more anionic surfactants, wherein at least one of the one or more anionic surfactants is an acyl taurate (according to the claim limitations of the instant claims 15-17). Claim 18 of 18544283 claims the oil-in-water emulsion is a dispersion having a droplet size from about 10 nm to about 1 pm (according to the claim limitations of the instant claims 18-19). Claim 19 of 18544283 claims a mineral sunscreen composition comprising:(a) about 0.5 to about 10 wt.% of a hydrophobic polymer resulting from a reaction product of a natural or food-derived oil selected from linseed oil, sunflower oil, tung oil, fish oil, cottonseed oil, soybean oil, and combinations thereof and a polymer formed from one or more monomers selected from isobutyl methacrylate, methyl methacrylate, ethyl methacrylate, and n-butyl methacrylate and combinations thereof; (b) about 0.1 to about 10 wt.% of one or more solvents capable of solubilizing the reaction product of (a); (c) one or more mineral UV filtering agents; (d) about 1 to about 10 wt.% of a plurality of surfactants, wherein the plurality of surfactants comprises: (c)(i) about 0.1 to about 8 wt.% of one or more rhamnolipids; and (c)(ii) about 0.1 to about 8 wt.% of one or more additional surfactants selected from anionic surfactants, nonionic surfactants, amphoteric surfactants, and cationic surfactants, or mixtures thereof; and (d) water; wherein the composition is an oil-in-water emulsion having a droplet size of about 10 nm to about 2 pm, and all percentages by weight are based on a total weight of the composition (according to the claim limitations of the instant claims 1-9, 14-15, and 18-19).
18544283 fails to teach the addition of a skin active agent, specifically ceramide, as claimed by instant claims 1, 11-13, and 19.
As outlined above, Chem teaches ceramide NP is one of several types of ceramides found naturally in skin and a cosmetic ingredient (title and page 1). Chem teaches ceramide NP helps improve the look and feel of dry or dehydrated skin thanks to its water retention properties (page 3, paragraph 2). Chem teaches that ceramide NP reinforces skin’s barrier strength, so it better resets external stressors and thus contributes to supple, resilient, hydrated skin overall (page 3, paragraph 2).
It would be obvious to one skilled in the art before the effective filing date of the claimed invention would claim a mineral sunscreen composition comprising an oil in water emulsion comprising a hydrophobic polymer, one or more solvents, one or more surfactants, and water as outlined by 18544283 by addition of a skin agent, such as ceramide NP, as outlined by Chem under TSM, see MPEP 2143(G). As outlined by Chem, adding ceramide NP reinforces the skin barrier strength and improves the look and feel of dry or dehydrated skin which would motivate someone skilled in the art to advantageously combine ceramide NP with the composition of 18544283 as it would have a reasonable expectation of success. This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1-17 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-2, 5, and 12 of copending Application No. 18543619 (reference application) Zhen et al. (CN115337216A, published 11/15/2022, English translation by Google, hereafter Zhen). Although the claims at issue are not identical, they are not patentably distinct from each other.
18543619 claims a cosmetic premix composition, consisting of: a reaction product of a natural or food-derived oil and a methacrylate or acrylate polymer; and one or more solvents, each solvent having Hansen Solubility Parameters the satisfy Ra
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≤
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650
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(claims 1 and 12; according to the claim limitations of the instant claims 1-2, 9, and 19). Claim 2 of 18543619 claims the one or more solvents comprises caprylic/capric triglyceride, isopropyl myristate, citronellyl acetate, acetone, triglycerides, a triglycerides-containing oil, or a combination thereof (according to the claim limitations of the instant claims 9-10). Claim 5 of 18543619 claims the natural or food-derived oil is linseed oil (according to the claim limitations of the instant claims 1-3, 8, and 19).
18543619 fails to teach the addition of a surfactant and a skin agent as in instant claims 1, and 11-17. Further, 18543619 fails to claim the composition is an oil-in-water emulsion as in instant claim 1.
As outlined above, Zhen teaches a product composition for daily skin care comprising a cleanser with a cleaning effect and teaches the composition in an oil-in-water emulsion (abstract; according to the claim limitations of the instant claims 1 and 19). Zhen teaches the invention relates to the field of cosmetics (page 2, paragraph 4; according to the claim limitations of the instant claims 1 and 19). Zhen claims a skin care product composition of soothing effect that comprises cleansing milk comprising water, sodium methyl cocoyl taurate, caprylic acid/ capric triglyceride, ceramide, and a polyacrylate cross-linked polymer (claim 1; according to the claim limitations of the instant claims 1, 9-17, and 19). Zhen claims the composition has 2 to about 4% sodium methyl cocoyl taurate (claim 2; according to the claim limitations of the instant claims 1, 14-17, and 19). Zhen then claims the composition has 2-5% caprylic/capric triglyceride (claim 4; according to the claim limitations of the instant claims 1, 9-10, and 19). Zhen claims the polyacrylate cross-linked polymer in a concentration of 0.3-0.7% (claim 3 and claim 6; according to the claim limitations of the instant claim 19). Lastly, Zhen teaches the ceramide comprising ceramide NP (page 5, line 2; according to the claim limitations of the instant claims 1, 11-13, and 19).
It would be obvious to one skilled in the art before the effective filing date of the claimed invention to claim a cosmetic premix composition comprising one or more solvents, a hydrophobic polymer, and water as outlined by 18543619 ready for improvement with the known technique of adding surfactants – specifically sodium methyl cocoyl taurate and skin active agents – specifically ceramide NP to a cleansing composition and making the cleansing composition into an oil-in-water emulsion as outlined by Zhen. Adding the forementioned limitations to a cleansing composition comprising a hydrophobic polymer, solvents, and water as claimed by instant claims 1 and 11-17 would yield predictable results thus making them of obviousness as modification of a known product with a known technique is within the purview of the skilled artisan. This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1-17 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-19 of copending Application No. 18543636 (reference application) in view of Special Chem (Ceramide NP. Special Chem. (2023, March 23). https://www.specialchem.com/cosmetics/inci-ingredients/ceramide-np, hereafter Chem). Although the claims at issue are not identical, they are not patentably distinct from each other.
18543636 claim a cosmetic composition comprising:(a) a hydrophobic polymer formed as a reaction product of a natural or food- derived oil and a methacrylate or acrylate polymer; (b) one or more solvents capable of solubilizing the hydrophobic polymer of (a); (c) one or more surfactants; and (d) water; wherein the composition is an oil-in-water emulsion (claim 1; according to the claim limitations of the instant claims 1-2 and 19). Claim 2 of 18543636 claims the hydrophobic polymer is the reaction product of a natural or food-derived oil and a methacrylate polymer (according to the claim limitations of the instant claims 1-2 and 19). Claim 3 of 18543636 claims the natural or food-derived oil is a drying oil or semi-drying oil selected from linseed oil, sunflower oil, tung oil, fish oil, cottonseed oil, soybean oil, or combinations thereof (according to the claim limitations of the instant claims 1-3, 8, and 19). Claim 4 of 18543636 claims the polymer is derived from monomers selected from isobutyl methacrylate, methyl methacrylate, ethyl methacrylate, n- butyl methacrylate, and combinations thereof (according to the claim limitations of the instant claims 1-2, 4, 7-8, and 19). Claim 5 of 18543636 claims the hydrophobic polymer is the reaction product of about 50 to about 85 parts by weight of the natural or food-derived oil and about 15 to about 50 parts by weight of the methacrylate or acrylate polymer (according to the claim limitations of the instant claims 5-6 and 19). Claim 6 of 18543636 claims the hydrophobic polymer is the reaction product of about 72 to about 77 parts by weight of the natural or food-derived oil and about 23 to about 28 parts by weight of a methacrylate polymer (according to the claim limitations of the instant claims 5-6 and 19). Claim 7 of 18543636 claims polymer is isobutyl methacrylate polymer (according to the claim limitations of the instant claims 1-2, 4, 7-8, and 19). Claim 8 of 18543636 claims the hydrophobic polymer is the reaction product of linseed oil and poly(isobutyl methacrylate) (according to the claim limitations of the instant claims 1-4, 7-8, and 19). Claim 9 of 18543636 claims the one or more solvents capable of solubilizing the reaction product of (a) have a dispersion component (D), a polar component (P), and a hydrogen bonding component (H), and a distance (Ra) of less than or equal to 13.4 MPa0.5 per Hansen Solubility Parameters, wherein the distance (Ra) is defined by formula (I):
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408
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(according to the claim limitations of the instant claim 9). Claim 10 of 18543636 claims the at least one of the one or more solvents capable of solubilizing the reaction product of (a) is selected from polycitronellol acetate, caprylic/capric triglyceride, isododecane, isohexadecane, tetradecane, isopropyl myristate, isopropyl alcohol, octyldodecanol, ethanol, phenoxyethanol, castor oil, and mixtures thereof (according to the claim limitations of the instant claims 9-10). Claim 11 of 18543636 claims at least one of the one or more surfactants is a biosurfactant and claim 12 of 18543636 claims the biosurfactant is a glycolipid (according to the claim limitations of the instant claim 14). Claim 13 of 18543636 claims the glycolipid is selected from sophorolipids, rhamnolipids, trehalose lipids, mannosylerythritol lipids, and combinations thereof (according to the claim limitations of the instant claims 14 and 19). Claim 14 of 18543636 claims the glycolipid is a rhamnolipid (according to the claim limitations of the instant claims 14 and 19). Claim 15 of 18543636 claims at least one of the one or more surfactants is selected from anionic surfactants, nonionic surfactants, amphoteric surfactants, or combinations thereof (according to the claim limitations of the instant claims 15 and 19). Claim 16 of 18543636 claims the composition comprises an anionic surfactant selected from sulfate surfactants, glutamate surfactants, acyl taurates, alkanoyl isethionates, alkyl succinates, alkyl sulphosuccinates, N-alkoyl sarcosinates, alkyl phosphates, alkyl ether phosphates, alkyl ether carboxylates, alpha-olefin sulphonates, or combinations thereof (according to the claim limitations of the instant claims 15-17 and 19). Claim 17 of 18543636 claims a composition comprising:(a) about 10 to about 40 wt.% of a hydrophobic polymer formed as a reaction product of a natural or food-derived oil and a methacrylate or acrylate polymer; (b) about 1 to about 15 wt.% of one or more solvents capable of solubilizing the hydrophobic polymer of (a); (c) about 20 to about 60 wt.% of a plurality of surfactants, wherein the plurality of surfactants comprises: (c)(i) about 15 to about 30 wt.% one or more biosurfactants; and (c)(ii) about 5 to about 20 wt.% one or more surfactants other than (c)(i); (d) about 10 to about 50 wt.% of water; wherein all percentages by weight are based on a total weight of the composition (according to the claim limitations of the instant claims 1-2 and 19). Claim 18 of 18543636 claims a cosmetic composition comprising:(a) about 0.5 to about 10 wt.% of a hydrophobic polymer formed as a reaction product of a natural or food-derived oil and a methacrylate or acrylate polymer; (b) about 0.1 to about 50 wt.% of one or more solvents capable of solubilizing the hydrophobic polymer of (a); (c) about 0.5 to about 10 wt.% of a plurality of surfactants; and (f) about 50 to about 95 wt.% of water; wherein the composition is an oil-in-water emulsion, and all percentages by weight are based on a total weight of the composition(according to the claim limitations of the instant claims 1-2 and 19). Claim 19 of 18543636 claims a cosmetic composition comprising: (a) about 0.5 to about 10 wt.% of a hydrophobic polymer formed as a reaction product of a natural or food-derived oil and a methacrylate or acrylate polymer; (b) about 0.1 to about 20 wt.% of one or more solvents capable of solubilizing the reaction product of (a); (c) about 1 to about 10 wt.% of a plurality of surfactants, wherein the plurality of surfactants comprises: (c)(i) about 1 to about 8 wt.% of one or more biosurfactants; (c)(ii) about 0.1 to about 6 wt.% of one or more surfactants other than (c)(i); and (f) about 60 to about 90 wt.% of water; wherein the composition is an oil-in-water emulsion, and all percentages by weight are based on a total weight of the composition (according to the claim limitations of the instant claims 1-2 and 19).
18543636 fails to teach the addition of a skin active agent, such as ceramide, as in instant claims 1, and 11-13.
As outlined above, Chem teaches ceramide NP is one of several types of ceramides found naturally in skin and a cosmetic ingredient (title and page 1). Chem teaches ceramide NP helps improve the look and feel of dry or dehydrated skin thanks to its water retention properties (page 3, paragraph 2). Chem teaches that ceramide NP reinforces skin’s barrier strength, so it better resets external stressors and thus contributes to supple, resilient, hydrated skin overall (page 3, paragraph 2).
It would be obvious to one skilled in the art before the effective filing date of the claimed invention would claim a cosmetic composition comprising a cleansing composition comprising a hydrophobic polymer, one or more solvents, one or more surfactants, and water as outlined by 18543636 by addition of a skin agent, such as ceramide NP, as outlined by Chem under TSM, see MPEP 2143(G). As outlined by Chem, adding ceramide NP reinforces the skin barrier strength and improves the look and feel of dry or dehydrated skin which would motivate someone skilled in the art to advantageously combine ceramide NP with the composition of 18543636 as it would have a reasonable expectation of success. This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Conclusion
No claims allowed.
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Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Bethany Barham can be reached at (571) 272-6175. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/BETHANY P BARHAM/Supervisory Patent Examiner, Art Unit 1611
/A.N.I./Examiner, Art Unit 1611