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 . Claims included in the prosecution are claims 8-13 and 16-29.
Applicants' arguments, filed 11/18/2025, 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 Rejections and/or objections not reiterated from previous office actions are hereby withdrawn.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 Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
1. Claims 8, 9, 11-13, 16-18, 20, 26, 28 and 29 are rejected under 35 U.S.C. 103 as being unpatentable over Koike et al. (US 2019/0231656, Aug. 1, 2019) (hereinafter Koike) in view of Keller et al. (WO 2020/020859. Jan. 30, 2020) (hereinafter Keller).
Koike discloses a cosmetic method of protecting keratin material from pollutants comprising applying the keratin material with at least one cosmetic composition comprising at least one particle (abstract). The particle may be metal compounds, such as magnesium carbonate (¶ [0056]). The particle size of the particle is not limited (¶ [0050]). It is preferably that 90 vol. % or more of the particles have a number-average primary particle size ranging from 0.1 to 10 µm (¶ [0051]). The particle may be porous (¶ [0054]). The porosity of the particle may be characterized by a specific surface area of from 0.2 m2/g to 500 m2/g (¶ [0055]). The amount of particle in the composition may be from 0.01 to 20% by weight (¶ [0100]). The composition may comprise at least on oil (¶ [0101]). The oil may be a silicone oil (¶ [0103]). The composition may further comprise thickening agents and fragrances (¶ [0209]). The composition may be in the form of a cleanser (i.e., facial cleaning product) (¶ [0213]). The pollutants may be carbon black, carbon oxides, nitrogen oxides, sulfur oxides, hydrocarbons, organic volatiles, heavy metals, PM2.5, and mixtures thereof (¶ [0014]).
Koike differs from the instant claims insofar as not disclosing wherein the composition comprises hydromagnesite or precipitated hydromagnesite with a d50 of from 0.1 to 90 µm and an intra-particle intruded specific pore volume in the range from 0.05 to 2.3 cm3/g.
However, Keller discloses use of a particulate mineral material being functionalized with one or adsorption enhancing agents for scavenging and removing ionic metal contaminants from an aqueous medium (abstract). The metal contaminants are heavy metals (page 3, lines 27-28). The particulate mineral may be hydromagnesite (page 14, line 1). Hydromagnesite or basic magnesium carbonate, which is the standard industrial name for hydromagnesite, is a naturally occurring mineral. Besides natural hydromagnesite, synthetic hydromagnesite (or precipitated magnesium carbonates) can be prepared. The hydromagnesite may have an average particle size d50 of less than 20 µm (page 14, lines 7-26). Surface-reacted calcium carbonate (i.e., another particulate mineral material) has an intra-particle intruded specific pore volume in the range from 0.1 to 2.15 cm3/g (page 27, lines 28-29).
Generally, it is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use. See MPEP 2144.07. Koike discloses wherein the particle may be a magnesium carbonate and wherein pollutants include heavy metals. Therefore, it would have been obvious to one of ordinary skill in the art to have incorporated the hydromagnesite or precipitated hydromagnesite of Keller into the composition of Koike since it is a known and effective magnesium carbonate for removing heavy metals as taught by Keller.
In regards to instant claim 25, it would have been prima facie obvious to one of ordinary skill in the art to have formulated the hydromagnesite to have an intra-particle intruded specific pore volume in the range from 0.1 to 2.15 cm3/g since Koike discloses wherein the particle is porous and this is a known and effective porosity for particles that remove pollutants such as heavy metals as taught by Keller.
2. Claims 10 and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Koike et al. (US 2019/0231656, Aug. 1, 2019) (hereinafter Koike) in view of Keller et al. (WO 2020/020859. Jan. 30, 2020) (hereinafter Keller), and further in view of Afriat et al. (US 2002/0071820, Jun. 13, 2002) (hereinafter Afriat).
The teachings of Koike and Keller are discussed above. Koike and Keller do not teach wherein the pH of the composition is ≤ 8.5 or from 4 to 7.
However, Afriat discloses use in topical application of cubic gel particles as an antipollution agent, in particular as an anti-pollution cosmetic agent (abstract). The physiologically acceptable medium of the composition has a pH which is compatible with the skin and which preferably ranges from 3 to 8 and better still from 5 to 7 (¶ [0088]).
Accordingly, it would have been prima facie obvious to one of ordinary skill in the art to have formulated the composition of Koike to have a pH of from 5 to 7 motivated by the desire to make the composition compatible with skin as taught by Afriat.
3. Claim 27 is rejected under 35 U.S.C. 103 as being unpatentable over Koike et al. (US 2019/0231656, Aug. 1, 2019) (hereinafter Koike) in view of Keller et al. (WO 2020/020859. Jan. 30, 2020) (hereinafter Keller), and further in view of Cheung et al. (US 2019/0127232, May 2, 2019) (hereinafter Cheung).
The teachings of Koike and Keller are discussed above. Koike and Keller do not teach wherein an active agent is adsorbed or absorbed onto the hydromagnesite.
However, Cheung discloses a highly porous magnesium carbonate (abstract). A large pore size combined with a large surface area and a high total pore volume is important for applications utilizing adsorption, for example gas adsorption, and applications utilizing release of active compounds, for example fragrances that first are adsorb by the highly porous material and then released. Transition of the loaded compound can be controlled or hindered by the pore size of the highly porous magnesium carbonate (¶ [0066]). The highly porous magnesium carbonate is loaded with a cosmetic compound (claim 7).
The composition of Koike comprises fragrances. Accordingly, it would have been prima facie obvious to one of ordinary skill in the art to have the fragrance adsorbed onto the particulate material motivated by the desire to control its delivery as taught by Cheung. One of ordinary skill in the art would have had a reasonable expectation of success since Koike discloses wherein the particle is porous.
Response to Arguments
Applicant’s arguments have been considered but are moot because new rejections necessitated by Applicant’s amendment have been made.
Conclusion
Claims 8-13 and 16-29 are rejected.
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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/TRACY LIU/ Primary Examiner, Art Unit 1614