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 .
Withdrawn Rejections:
Applicant's amendments and arguments filed on 06/30/2026 are acknowledged and have been fully considered. The Examiner has re-weighed all the evidence of record. Any rejection and/or objection not specifically addressed below is herein withdrawn.
The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set of rejections and/or objections presently being applied to the instant application.
The application is examined in view of the reaction product of linseed oil and isobutyl methacrylate polymer as specific hydrophobic polymer; titanium oxide as specific UV filter agent; rhamnolipid as specific surfactant and caprylic / capric triglyceride as specific solvent. Claims 1, 9-14, 18 and 21-25 read on the elected species and are under examination; Claims 15-17 and 19 do not read on the elected specie and are withdrawn from consideration.
Claims 1, 9-25 are pending; claims 1, 9-14, 18 and 21-25 are under examination.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 04/28/2026 is being considered by the examiner.
Terminal Disclaimer
The terminal disclaimer filed on 06/30/2026 disclaiming the terminal portion of any patent granted on this application which would extend beyond the expiration date of US patent application 18544195, 18544254, 1854423, 18543636 and 18544312 has been reviewed and is accepted. The terminal disclaimer has been recorded.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102 of this title, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1, 9-14, 18 and 21-25 are rejected under 35 U.S.C. 103 as being unpatentable over Mitra et al. (US20220249342) in view of DeSanto (US20080213194), Klofta et al. (US20120058165), Fumagalli et al. (US20140023600) Deckner et al. (US20050008680) and Edelson et al. (US20140099342).
.
Determination of the scope and content of the prior art
(MPEP 2141.01)
Mitra et al. teaches A cosmetic cleansing composition includes a cosmetic carrier system, and a cleansing coagulant system that includes at least one of each of an oil and a viscosity modifier, the viscosity modifier selected from synthetic (including petrochemical based) and natural polymers. The coagulant system can congeal and form a viscoelastic fluid to bind and remove sebum, makeup, dirt, pollution, dead skin and other unwanted material from skin (abstract). In various embodiments, the disclosure provides a cosmetic cleansing composition comprising: (a) cleansing coagulant system comprising: i. an oil component; and ii. a polymer component; and (b) a cosmetic carrier system comprising one or more phases selected from the group consisting of a water phase, an oil phase, and combinations thereof. The coagulant system can congeal and form a viscoelastic fluid to bind and remove sebum, makeup, dirt, pollution, dead skin and other unwanted material from skin. In some embodiments, the cleansing coagulant system that includes at least one of each of an oil and a viscosity modifier includes a natural based or food derived oil, such as linseed oil, and a methacrylate polymer components, such as poly(isobutyl methacrylate). In some embodiments, the cleansing coagulant system is prepared as a reaction product of an oil component selected from the group consisting of glycerides, fatty acids, alkenes, and alkynes, with a polymer component, for example a synthetic polymer component such as a methacrylate or acrylate polymer component. In some embodiments, the cleansing coagulant system is prepared as a homogenous thermal reaction product. In some other embodiments, the reaction product may be produced using other reaction components that drive the formation of the reaction product that forms the cosmetic coagulant system ([0008-0014]). In accordance with the various embodiments, the at least one oil in the cleansing coagulant system is present in a range from about 30% to about 45%, by weight, based on the weight of the cleansing coagulant system, and the at least one polymer is present in a range from about 0.1% to about 20%, by weight, based on the weight of the cleansing coagulant system. In some embodiments, the cleansing coagulant system is present in the cosmetic cleansing composition in a range from about 1% to about 25%, by weight, based on the weight of the cosmetic cleansing composition, and the cosmetic carrier system is present in the range from about 75% to about 99%, by weight, based on the weight of the cosmetic cleansing composition ([0022-0023]). In some embodiments, the formed cosmetic coagulant system includes a solvent. The solvent may be provided together with the cosmetic coagulant system or it may be provided in the cosmetic carrier system. In some embodiments, the solvent comprises oil. In some embodiments, the solvent comprises glycerin, C1-4 alcohols (such as ethanol, isopropyl alcohol), organic solvents, fatty alcohols, fatty ethers, fatty esters, polyols, glycols, vegetable oils, mineral oils, liposomes, laminar lipid materials, water, or any combinations thereof. In one embodiment, the amount of C1-4 alcohol is about 1-10% ([0027, 0096-0097]). The cosmetic cleansing composition may be any suitable cosmetic cleansing composition, such as, but not limited to, an anhydrous cleansing oil, foaming cleanser, a cleansing milk, lotion or cream, an emulsion such as a water-in-oil or oil-in-water emulsion, or a multi-phase composition comprising at least one water phase, and is easy on the skin, efficiently removes makeup, sebum, dirt and skin debris without smudging, and provides a soft and smooth skin feel after use. The cosmetic cleansing composition in any of the product forms may be either a leave-on or a rinse-off formulation ([0033]). In some embodiments, the cosmetic cleansing compositions may include one or more polar emollient. Emollients are oil-phase ingredients selected from esters, triglycerides, ethers, carbonates, alcohols, oils, butters, fatty acids, and their combinations thereof. The amount of each of the at least one polar emollient, when present, is present in the cosmetic cleansing composition in a range of from about 1% to about 12% by weight ([0080-0084]). In accordance with some embodiments, water may be present in the cosmetic cleansing compositions in a range from about 1% to about 90%, or any suitable combination, sub-combination, range, or sub-range thereof by weight, based on the weight of the cosmetic cleansing composition ([0089]). The pH of the cosmetic cleansing composition is not limited but is generally between 3.0 and 7.0 ([0091]). In some embodiments, the cosmetic cleansing composition may optionally include one or more surfactant in a range from about 1% to about 5%, based on the weight of the cosmetic cleansing composition ([0101-0102]). One of ordinary skill in the art, however, will appreciate that other ranges are within the scope of the invention ([0105]). The cleansing composition may include additional active compounds such as sun filter in an amount of about 0.1% to 30% ([0130, 0135]). An article according to the disclosure is moist to the touch. It exhibits the advantage of being comfortable during application to the skin and having a nourishing effect due to the presence of an oily phase. When it is used for cleaning or removing makeup from the skin, an article according to the disclosure is passed over the skin, while possibly leaving it applied for a time sufficient for the makeup products to be dissolved in the impregnating composition of the article, and then the skin is wiped. The skin can also optionally be rinsed subsequently. The article according to the invention is preferably a cosmetic article appropriate for caring for and/or treating the skin of the face, body or hands and for cleaning or removing makeup from the skin of the face and/or body. It can also be used for caring for the hair and for removing makeup from the eyes ([0157]). In some embodiments of the cosmetic cleansing composition, the cosmetic cleansing composition is a product form selected from the group consisting of an anhydrous cleansing oil, a foaming cleanser, a cleansing milk, a cleansing lotion, a cleansing cream, a water-in-oil emulsion, an oil-in-water emulsion, a multi-phase composition comprising at least one water phase ([0182]).
DeSanto teaches rhamnolipid-based formulations to clean, disinfect, deodorize, and act as an antimicrobial and antifungal agent for living and working environments. In addition, the present invention relates to the use of rhamnolipids to create a bio-film when applied to a surface, which prevents the growth of bacteria and fungus (abstract). The majority of the surfactants used by the prior art are derived from petroleum sources. These chemical surfactants pose significant environmental risks because they form harmful compounds from incomplete biodegradation in water or soil. In recent years, the prior art is showing an increase in the use of bio-surfactants, because they are an environmentally friendly alternative to petroleum-derived surfactants and their potential use in different areas, such as the food industry, agriculture, pharmaceuticals, cosmetic, and oil industries. Rhamnolipid bio-surfactant secreted from Pseudomonas Aeruginosa, is a naturally occurring extracellular glycolipid that is found in the soil and on plants. Rhamnolipids are powerful bio-surfactants that provide a great antibacterial and antifungal activity, and low toxicity levels, which make them an attractive alternative to the known petroleum derived surfactant used in the pharmaceutical industry, the petroleum industry, agriculture, personal care products, animal cleaning products, and other applications ([0005-0007]). After intense research and development, the present inventor discovered that rhamnolipids can be used to clean, disinfect, deodorize, and act as an antimicrobial and an antifungal agent for living and working environments. In addition, the present inventor discovered that rhamnolipids can also be used in cleaning solutions for humans and animals ([0019]). The personal care product may be a deodorant, sunscreen lotion, cosmetic composition, soap, cleanser, toothpaste, lotion or mouthwash ([0032]; claims 1 and 18). In general, the rhamnolipid preparation (“crude” or partially purified therefrom) is diluted to a final concentration of less than 70%. In various embodiments of the invention, the final formulations contain in the range of about 5% to about 70% rhamnolipid preparation, with preferred formulations being about 65%, or about 35%, or about 25%, or about 10% or about 5% or less of the rhamnolipid preparation in the final formulation ([0043]). Furthermore, the present invention provides rhamnolipid formulations and methods for their use in personal hygiene and care products. Rhamnolipids act as an antimicrobial agent and a surfactant in personal care products ([0069]).
Klofta et al. teaches A lotion for opacifying a wet wipe (abstract). In some embodiments, the incorporation of particulate opacifiers, brighteners, or colorants into the wetting lotion may contribute to improved cleaning performance. In some embodiments, the opacifier, brightener, or colorant may provide skin benefits, such as rash healing benefits, reduced friction between the wipe and surface upon which it is used, improved cleaning, or protection from damaging ultra-violet radiation from the sun. Opacifying, brightening, or coloring the lotion rather than the substrate may be more economical (i.e., less expensive) than increasing the basis weight of the wipe substrate ([0032]). Opacifiers may include inorganic materials, such as titanium dioxide, zinc oxide ([0034]). Some inorganic particles, such as zinc oxide or titanium dioxide, may be relatively more noticeable if they do transfer to a surface, and, therefore, may be acceptable at lower concentrations, such as concentrations of less than 5%, or less than 2% ([0038]). The lotion may comprise a first opacifying agent at a level between 0.1% and 10%, or between 0.1% and 5%, or between 0.1% and 2%, weight of the opacifying agent to weight of the lotion. The lotion may be a personal cleansing composition. A personal cleansing composition may comprise a surfactant, an emollient, a film-former, particles, preservatives, skin care agents, and/or other additives ([0065]).
Fumagalli et al. teaches a composition for enhancing the overall quality of the skin and for treating aging skin (abstract). The composition of the invention can comprise additional cosmetically-functional agents. Skin bleaching and lightening agents, such as hydroquinone, kojic acid, arbutin, ascorbic acid and derivatives thereof, extracts (e.g., mulberry extract, placental extract) as well as titanium dioxide and Zinc oxide (0045, 0050]).Visual skin enhancers, that mask the appearance of any number of skin imperfections such as age spots, fine lines, wrinkles and blemishes, for example titanium dioxide, Zinc oxide and iron oxides and organic particulates that diffuse light when deposited on the skin. ([0065]). The additional cosmetically-functional agents can be used in concentrations from 0.01 to 30% by weight of the skin care composition ([0066]). The skin care compositions according to the invention can be formulated as skin lotions, skin creams, body butters, after-shower lotions, after-cleansing lotions, cleansing milk, after-shave products, deodorant products, antiperspirant products, sun care preparations and self-tanning creams. ([0072]).
Deckner et al. teaches composition impregnating the wipe is commonly and interchangeably called lotion, soothing lotion, soothing composition, oil-in-water emulsion composition, emulsion composition, emulsion, cleaning or cleansing lotion or composition. All those terms are hereby used interchangeably and indicate the dual basic function of the composition of the present invention: enhanced cleansing and delivery of a skin effect ([0050]). Emollients particularly suited for the present invention are selected from a list comprising Dimethiconol, Dimethicone, Cyclopentasiloxane, Caprylic/Capric Triglyceride, C.sub.12-C.sub.15 Alykylbenzoate or a mixture of Caprylic Capric Triglyceride and Bis-PEG/PPG-16/16 PEG/PPG-16/16 Dimethicone, and any combination thereof ([0070]).
Edelson et al. teaches a topical formulation comprising a nanoemulsion comprising oily particles dispersed within an aqueous dispersion medium, wherein the majority of the oily particles have diameters between approximately 10 and approximately 300 nanometers (claim 181). Cosmetic formulation: The term "cosmetic formulation" is used herein to refer to a topically applied composition that contains one or more agents having cosmetic properties. To give but a few examples, a cosmetic formulation may be a skin softener, nutrition lotion type emulsion, cleansing lotion, cleansing cream, skin milk, emollient lotion, massage cream, emollient cream, make-up base, lipstick, facial pack or facial gel, cleaner formulation such as shampoos, rinses, body cleanser, hair-tonics, or soaps, and/or a dermatological composition such as a lotion, ointment, gel, cream, patch and/or spray ([0025]). Nanoemulsion: An emulsion is traditionally defined in the art "as a system . . . consisting of a liquid dispersed with or without an emulsifier in an immiscible liquid usually in droplets of larger than colloidal size" Medline Plus Online Medical Dictionary, Merriam Webster (2005). The term "nanoemulsion," as used herein, refers to an emulsion in which at least some of the droplets (or particles) have diameters in the nanometer size range. As will be understood by those of ordinary skill in the art, a nanoemulsion is characterized by droplets or particles one thousand fold smaller than microemulsion droplets or particles. Nanoparticle: As used herein, the term "nanoparticle" refers to any particle having a diameter of less than 1000 nanometers (nm). In some embodiments, a nanoparticle has a diameter of less than 300 nm, as defined by the National Science Foundation. In some embodiments, a nanoparticle has a diameter of less than 100 nm as defined by the National Institutes of Health. Those of ordinary skill in the art will appreciate that, the term "nanoparticle" as used herein describes the dispersed phase in a dispersion or emulsion ([0031-0032]).
Ascertainment of the difference between the prior art and the claims
(MPEP 2141.02)
The difference between the instant application and Mitra et al. is that Mitra et al. do not expressly teach rhamnolipid, titanium oxide, Caprylic/Capric Triglyceride and droplet size of about 10nm to about 1 um. This deficiency in Mitra et al. is cured by the teachings of DeSanto, Klofta et al., Fumagalli et al., Deckner et al. and Edelson et al.
Finding of prima facie obviousness
Rational and Motivation (MPEP 2142-2143)
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the invention of Mitra et al., as suggested by DeSanto, Klofta et al., Fumagalli et al., Deckner et al. and Edelson et al., and produce the instant invention.
Mitra et al. teaches a leave-on cosmetic cleanser composition comprising cleansing coagulant system comprising a reaction product of specific oil and isobutyl methacrylate polymer (component (a) in applicant’s claim 1); about 1-10% of solvent such as ethanol (not elected component (b) in applicant’s claim 1); 0.1% to 30% of sun filter (encompassing component (c) in applicant’s claim 1); 1-5% of surfactant (component (d) in applicant’s claim 1); water (component (e) in applicant’s claim 1) and 1-12% of emollient in the form of oil in water emulsion. Mitra et al. is silent about rhamnolipid, titanium oxide, Caprylic/Capric Triglyceride and droplet size of about 10nm to about 1 um.
One of ordinary skill in the art would have been motivated to include rhamnolipid in the cleanser composition because rhamnolipid is a suitable surfactant in the cleanser composition. MPEP 2144.07. Under guidance from Mitra et al. teaching surfactant in the cleanser composition; DeSanto teaching rhamnolipid as environmentally friendly surfactant in cleanser composition; since it is advantage to have environmentally friendly surfactant, it is obvious to have rhamnolipid in the cleanser composition and produce instant claimed invention with reasonable expectation of success.
One of ordinary skill in the art would have been motivated to include about 1 to about 25% of titanium dioxide because titanium dioxide is a suitable ingredient in leave-on cleansing lotion. MPEP 2144.07. Under guidance from Mitra et al. teaching sun filter in cleansing lotion, Klofta et al. teaching cleansing lotion comprising 0.1-5% of titanium dioxide for benefits such as skin healing benefits and protection from damaging ultra-violet radiation from the sun; Fumagalli et al. teaching 0.1 to 30% of titanium dioxide in lotion for skin lightening and masking the appearance of any number of skin imperfections; since it is advantage to do so, it is obvious for one of ordinary skill in the art to include about 1 to about 25% of titanium dioxide and produce instant claimed invention with reasonable expectation of success.
One of ordinary skill in the art would have been motivated to include Caprylic/Capric Triglyceride because Caprylic/Capric Triglyceride is a suitable ingredient in cleanser composition. MPEP 2144.07. Under guidance from Mitra et al. teaching triglyceride emollient in the cleanser composition, Deckner et al. teaching Caprylic/Capric Triglyceride as emollient in cleanser composition, it is obvious for one of ordinary skill in the art to include Caprylic/Capric Triglyceride and produce instant claimed invention with reasonable expectation of success.
One of ordinary skill in the art would have been motivated to have droplet size of emulsion from 10nm to about 1 um because this is optimization under prior art condition or through routing experimentation. MPEP 2144.05. Under guidance from Edelson et al. teaching cleansing lotion in the form of O/W emulsion (dispersion) having droplet diameter from 10nm to about 300nm, it is obvious for one of ordinary skill in the art to have droplet size of emulsion from 10nm to about 1 um and produce instant claimed invention with reasonable expectation of success.
Regarding claims 1, 10-11, 13-14, 18, 21-25, prior art teaches leave-on cleansing lotion composition comprising cleansing coagulant system comprising a reaction product of linseed oil and isobutyl methacrylate polymer, about 1-5% of rhamnolipid as surfactant, 0.1-5% of titanium dioxide, 1-12% of Caprylic/Capric Triglyceride (also as solvent) as emollient and water at about 1% to about 90% in the form of oil in water emulsion with droplet size of 10nm to about 300nm. The limitation of sunscreen is not limiting since it is intended use. Since the emulsion has nano size of droplet (10nm -300nm), the composition is expected to have greater transparent. The property of improved water resistance in claim 1 and those properties in claim 25 are regarded as inherency of prior art composition. Since prior art teaches the same or substantially same composition, this same or substantially same composition is expected to have the same properties. . "[T]he discovery of a previously unappreciated property of a prior art composition, or of a scientific explanation for the prior art’s functioning, does not render the old composition patentably new to the discoverer." Atlas Powder Co. v. IRECO Inc., 190 F.3d 1342, 1347, 51 USPQ2d 1943, 1947 (Fed. Cir. 1999). Thus the claiming of a new use, new function or unknown property which is inherently present in the prior art does not necessarily make the claim patentable. In re Best, 562 F.2d 1252, 1254, 195 USPQ 430, 433 (CCPA 1977).
Regarding the limitation of the reaction product of specific oil and isobutyl methacrylate polymer in claim 1, Mitra et al. teaches linseed oil in the cleansing coagulant system is present in a range from about 30% to about 45%, by weight, based on the weight of the cleansing coagulant system, and the at least one polymer is present in a range from about 0.1% to about 20%, by weight, based on the weight of the cleansing coagulant system. In some embodiments, the cleansing coagulant system is present in the cosmetic cleansing composition in a range from about 1% to about 25%, by weight. When the linseed oil is 45%, isobutyl methacrylate is 15%, the linseed oil in the reaction product of oil and polymer is 45/(45+15)=75%, and the isobutyl methacrylate is 25%. When the cleansing coagulant system is 10% of final cosmetic cleansing composition, the amount of reaction product of oil and polymer is 10%x (45%+15%)=6%.
Regarding claim 9, Caprylic/Capric Triglyceride is the elected solvent, which has a distance (Ra) less than 13.4 MPa0.5 according to applicant’s specification (Table 1). Furthermore, applicants submitted that the elected Caprylic/Capric Triglyceride read on claim 9 in response to election on 03/23//2026, then elected Caprylic/Capric Triglyceride must have the property cited in claim 9. "[T]he discovery of a previously unappreciated property of a prior art composition, or of a scientific explanation for the prior art’s functioning, does not render the old composition patentably new to the discoverer." Atlas Powder Co. v. IRECO Inc., 190 F.3d 1342, 1347, 51 USPQ2d 1943, 1947 (Fed. Cir. 1999). Thus the claiming of a new use, new function or unknown property which is inherently present in the prior art does not necessarily make the claim patentable. In re Best, 562 F.2d 1252, 1254, 195 USPQ 430, 433 (CCPA 1977).
Regarding claim 12, no organic UV filtering agent is required.
In light of the forgoing discussion, the Examiner concludes that the subject matter defined by the instant claims would have been obvious within the meaning of 35 USC 103.
From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole was prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, as evidenced by the references, especially in the absence of evidence to the contrary.
Response to Argument:
Applicants argue that Mitra is not particularly concerned with sunscreen comprising mineral UV filtering agents and which compositions are long-lasting, withstand washing, and minimize whitening, as achievable according to the present invention. Mittra does not disclose or suggest that the hydrophobic polymers therein could or would contribute to improving the resistance of the composition to water and its transparency on skin, as achievable according to the present invention. All related arguments are incorporated herein by reference.
In response to this argument; This is not persuasive. The test for obviousness is not whether the prior art is concerned with the special feature of applicant’s claimed invention, nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. 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). As discussed in the above 103 rejection, Mitra et al. is relied on for teaching sun filter in cleansing lotion, Klofta et al. teaching cleansing lotion comprising 0.1-5% of titanium dioxide for benefits such as skin healing benefits and protection from damaging ultra-violet radiation from the sun (as sun block); Fumagalli et al. teaching 0.1 to 30% of titanium dioxide in lotion for skin lightening and masking the appearance of any number of skin imperfections; since it is advantage to do so, it is obvious for one of ordinary skill in the art to include about 1 to about 25% of titanium dioxide and produce instant claimed invention with reasonable expectation of success. Edelson et al. is relied on for teaching cleansing lotion in the form of O/W emulsion (dispersion) having droplet diameter from 10nm to about 300nm, it is obvious for one of ordinary skill in the art to have droplet size of emulsion from 10nm to about 1 um and produce instant claimed invention with reasonable expectation of success. Thus, Mitra et al. teaches the genus of sun block, Klofta et al. teaches titanium dioxide as a species of sun block and can not be regarded as teaching away, and one artisan in the art has guidance to pick a sun block titanium dioxide from a list of additives, and Fumagalli et al. is relied on for teaching additional benefit of titanium dioxide. Therefore, the combination of prior art teaches each limitation of applicant’s claimed invention, expressly or inherently.
Applicants argue that Mitra also teaches anhydrous formulation and no surfactant is required.
In response to this argument: this is not persuasive. Mitra teaches O/W Emilson and surfactant in one embodiment and this meet the limitation of O/W emulsion and surfactant. The recitation of other formulation such as anhydrous does not make any particular formulation including O/W emulsion less obvious. Therefore, the 103 rejection is still proper.
Applicants argue about hindsight.
In response to this argument: this is not persuasive. In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). Therefore, the 103 rejection is still proper.
Applicants argue about case laws and all related arguments are incorporated herein by reference.
In response to this argument: this is not persuasive. It is unclear how those case laws are related to the current 103 rejection. As discussed in the above 103 rejection and response to arguments, applicants have done no more than starting from Mitra et al., to choose rhamnolipid as environmentally friendly surfactant under guidance from DeSanto; choose titanium dioxide as sun block under guidance from Klofta et al. and Fumagalli et al.; and optimize the droplet of emulsion to 100nm to 300nm under guidance from Edelson et al. All these modifications are within skill of one artisan in the art and there is no inventive steps involved, Furthermore, no unexpected results has been produced, and this is obvious.
MPEP 2141 III states: “The proper analysis is whether the claimed invention would have been obvious to one of ordinary skill in the art after consideration of all the facts.” Respectfully, after weighing all the evidence, the Examiner has reached a determination that the instant claims are not patentable in view of the preponderance of evidence and consideration of all the facts which is more convincing than the evidence which has been offered in opposition to it.
Conclusion
No claim is allowed.
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JIANFENG SONG. Ph.D. whose telephone number is (571)270-1978. The examiner can normally be reached M-F 8-5.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Brian-Yong Kwon can be reached at (571)272-0581. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JIANFENG SONG/Primary Examiner, Art Unit 1613
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