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 .
Claim Status
Applicants’ amendments and arguments filed 03/04/2025 have been fully considered. Rejections and/or objections not reiterated from previous office actions are hereby withdrawn. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application.
Claim 20 remains withdrawn.
Claims 21-23 are newly added.
Claims 1 are 14 are amended.
Claims 1-19 and 21-23 are examined on the merits.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 03/23/2026, 04/28/2026, and 07/15/2026 are being considered by the examiner. The submission is in compliance with the provisions of 37 CFR 1.97. The non-patent literature document labeled “Preliminary Search Report and Written Opinion issued on August 8, 2024 for corresponding French Application No. FR 2401852” does not have an English translation, therefore, the document is not being considered.
Terminal Disclaimer
The terminal disclaimer filed on 05/08/2026 disclaiming the terminal portion of any patent granted on this application has been reviewed and is accepted. The terminal disclaimer has been recorded.
Maintained Rejections Updated to Account for Amendments
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.
Response to Applicant’s Arguments
Applicant’s arguments filed on 05/08/2026 have been considered.
In regards to 35 USC § 103 rejection over Zhen in view of Mitra, Applicant argues the oil-in-water emulsions of the present invention are surprisingly both stable and effective for delivering skin active agents deep into the skin. Further, Applicant argues that Zhen is concerned with skin care composition that can be used on sensitive skin and have a soothing effect. Further, Applicant arguments that Zhen does not teach an embodiment combining all the features, just two separate embodiments. Then, Applicant argues that Zhen does not teach the polymer is a hydrophobic polymer formed a reaction product of a natural or food-derived oil and a methacrylate or acrylate polymer. Applicant continues this argument by stating the Mitra is concerned with a cleaning composition and does not suggest that the polymer would provide enhanced penetration of active agents to the skin. Applicant next argues that obviousness requires reasoning as to why a person of ordinary skill at the time of invention would have selected and combined those prior art and would have a predictable result.
In regards to Applicant’s argument that the present application is directed towards an invention that is both stable and effective for delivering skin active agents deep into the skin, it is first noted that Applicant’s instant claims are directed towards a cosmetic composition generically and not “A stable cosmetic composition” or “A active ingredient deep skin penetrating cosmetic composition”. It is also noted that Zhen teaches the active ingredient Bletilla Striata Polysaccharide (BSP) in the present invention can be absorbed on the skin (page 2, last paragraph). In regards to Applicant’s argument that Zhen does not teach an individual embodiment, but instead 2 embodiments together teaching the limitations of the instant claims, it is not that the current rejection is a 35 USC § 103 rejection and not a 35 USC § 102 rejection. Under 35 USC § 103 rejection, a reference is analyzed using its broadest teachings. MPEP 2123 [R-5]. “[W]hen a patent simply arranges old elements with each performing the same function it had been known to perform and yields no more than one would expect from such an arrangement, the combination is obvious”. KSR v. Teleflex, 127 S,Ct. 1727, 1740 (2007)(quoting Sakraida v. A.G. Pro, 425 U.S. 273, 282 (1976). “[W]hen the question is whether a patent claiming the combination of elements of prior art is obvious”, the relevant question is “whether the improvement is more than the predictable use of prior art elements according to their established functions.” (Id.). Addressing the issue of obviousness, the Supreme Court noted that the analysis under 35 USC 103 “need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.” KSR v. Teleflex, 127 S.Ct. 1727, 1741 (2007). The Court emphasized that “[a] person of ordinary skill is… a person of ordinary creativity, not an automaton.” Id. at 1742. A person of ordinary skill in the art who is not an automaton is capable of producing the method of the instant claims with predictable results. In regards to Applicant’s argument that Zhen does not teach the hydrophobic polymer of instant claim 1, it is noted that Applicant is arguing against Zhen alone and not addressing Mitra which cures deficiency of the hydrophobic polymer in Zhen. In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). In regards to Applicant’s argument against Mitra not teaching penetration, it is again noted that this is not a limitation of the instant claims and Mitra is a secondary reference that cures the deficiencies of Zhen. In regards to Applicant’s argument against obviousness and motivation to combine, it is first noted that both Zhen and Mitra are directed towards cosmetic skin cleansing compositions. Additionally, Mitra provides the beneficial motivation to combine 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) as it binds and removes sebum, makeup, dirt, pollution, dead skin, and other unwanted material from the skin ([0013]). It is also noted that Applicant has failed to provide any reasoning or evidence as to why Zhen in view of Mitra would not provide predictable results. The MPEP 2111.03(III) states “applicant has the burden of showing that the introduction of additional steps or specific components which would materially change the characteristics of the claimed invention.” In summary, Applicants have failed to properly demonstrate how and which additional components materially affect the basic and novel characteristics of the claimed composition.
In summary, the examiner is not persuaded by Applicant’s arguments. The rejections of record are maintained and updated for claim amendments.
In regards to 35 USC § 103 rejection over Zhen in view of Mitra and Hosny, Applicant argues that Hosny does not cure the deficiencies of Zhen in view of Mitra in regards to teaching the composition having a droplet size of about 10 nm to about 2µm. Applicant furthers this argument by stating that Hosny is concerned with producing an oregano essential oil-based nano emulsion that would have antibacterial and antifungal effects again oral microbia and improve oral health.
In response to Applicant’s arguments, it is noted that Zhen, Mitra, and Hosny are all directed towards oil in water emulsion compositions. As outlined above, Hosny teaches these compositions have better visual transparency, better performance, and more physical stability than standard emulsion compositions (page 5466, paragraphs 3-4) which as outlined above would motivate someone of ordinary skill in the art to combine the teaches of Hosny with those of Zhen and Mitra. Again Applicant is reminded that the MPEP 2111.03(III) states “applicant has the burden of showing that the introduction of additional steps or specific components which would materially change the characteristics of the claimed invention.” In summary, Applicants have failed to properly demonstrate how and which additional components materially affect the basic and novel characteristics of the claimed composition.
In summary, the examiner is not persuaded by Applicant’s arguments. The rejections of record are maintained and updated for claim amendments.
In regards to the Double Patenting rejections, Applicant’s approved terminal disclaimer overcomes the rejections of record, therefore the rejections are withdrawn.
Conclusion
No claims are 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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/BETHANY P BARHAM/Supervisory Patent Examiner, Art Unit 1611
/A.N.I./ Examiner, Art Unit 1611
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