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 .
DETAILED ACTION
This Final Office action is based on the 18/558506 application originally filed November 01, 2023.
Amended claims 1-6 and 8-15, filed February 18, 2026, are pending and have been fully considered. Claim 7 has been canceled.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 1-6 and 8-15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Simonnet et al. (US 2011/0150952) hereinafter “Simonnet” in view of Roulier et al. (US 2001/0006653) hereinafter “Roulier”.
Regarding Claims 1, 8, 14 and 15
Simonnet discloses in paragraph 0001, cosmetic and/or pharmaceutical care of keratin materials, and more particularly the skin.
Simonnet discloses in paragraph 0254, a composition may be provided in any of the galenic forms which may be envisaged.
Simonnet discloses in paragraph 0257, it may also be provided in the form of a cleansing, protective, treatment or care composition for the face, for the hands, for the feet, for the large anatomical folds or for the body (for example day creams, night cream, makeup-removing cream, anti-sun composition, protective or care body milks, after-sun milks, care lotion, gel or foam for the skin, as cleansing lotions); a makeup composition for the body or the face such as a foundation; a bath composition; a deodorant composition; an aftershave composition; a composition against insect bites; an anti-pain composition; a composition for treating certain skin diseases such as eczema, rosacea, psoriasis, lichens, severe pruritus.
Simonnet discloses in paragraph 0042, according to one variant embodiment, the physiologically acceptable medium, when it is in the liquid state, may be used to impregnate a substrate for application, in particular inside the second compartment, for example a fibrous substrate or a substrate of the sponge or wipe type. This substrate for application is then placed directly in the compartment dedicated for the physiologically acceptable medium. Simonnet discloses in paragraph 0043, for example, such substrates may be impregnated with an aqueous composition such as a makeup-removing lotion, a makeup-removing milk or a care agent for example, and, they are, after bringing into contact with the said lyophilizate, applied directly to the face, the body or the hair. These substrates may also be impregnated with an anhydrous composition containing, for example, a mixture of oils and surfactants.
Simonnet discloses in paragraph 0110, the surfactants suitable for the invention have an HLB greater than or equal to 12, in particular greater than or equal to 14, preferably greater than or equal to 16.
Simonnet discloses in paragraph 0128, the anionic surfactants may be chosen from alkyl ether sulphates, carboxylates, derivatives of amino acids, sulphonates, isethionates, taurates, sulphosuccinates, alkyl sulphoacetates, phosphates and alkyl phosphates, polypeptides and mixtures thereof.
Simonnet discloses in paragraph 0214, as fatty alcohol ethers, there may be mentioned, for example, the ethers of polyethylene glycol and of a fatty alcohol comprising from 8 to 30 carbon atoms, and in particular from 10 to 22 carbon atoms, such as the ethers of polyethylene glycol and of cetyl alcohol, stearyl alcohol, cetearyl alcohol (mixture of cetyl and stearyl alcohols). There may be mentioned for example the ethers containing from 1 to 200 and preferably from 2 to 100 oxyethylenated groups, such as those having the CTFA name Ceteareth-20, Ceteareth-30, and mixtures thereof.
Simonnet fails to specifically teach the claimed metal salt.
However, it is known in the art to add a metal salt to an aqueous phase of keratin materials, as taught by Roulier.
Roulier disclose in paragraph 0045, the use of the composition to obtain a transfer-resistant make-up product. When the make-up product also contains a latex, a product with good staying power is obtained.
Roulier discloses in paragraph 0034, it is possible to modify the rigidity of the compositions by adding thereto one or more salts which will increase this rigidity. These salts can be chosen from the salts of monovalent, divalent or trivalent metals, and more particularly alkali metal and alkaline-earth metal salts and in particular sodium and calcium salts. The ions constituting these salts can be chosen, for example, from carbonates, bicarbonates, sulphates, glycerophosphates, borates, chlorides, nitrates, acetates, hydroxides and persulphates, as well as the salts of α-hydroxy acids (citrates, tartrates, lactates, malates) or of fruit acids, or alternatively amino acid salts (aspartate, arginate, glycocholate, fumarate). The amount of salt can range from 0.01 to 2% of the total weight of the composition. Roulier further discloses in paragraph 0035, the salt is chosen from calcium, magnesium or strontium nitrate, calcium or magnesium borate, calcium, sodium, magnesium, strontium, neodymium or manganese chloride, magnesium or calcium sulphate and calcium or magnesium acetate, and mixtures thereof.
It would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to add a metal salt of Roulier to an aqueous phase of Simonnet. The motivation to do so, is to add water soluble compounds to the aqueous phase of the cosmetic composition to further aid in the cleaning and conditioning of keratinous substances.
Regarding Claims 2-4
Simonnet discloses in paragraph 0110, the surfactants suitable for the invention have an HLB greater than or equal to 12, in particular greater than or equal to 14, preferably greater than or equal to 16.
Simonnet discloses in paragraph 0128, the anionic surfactants may be chosen from alkyl ether sulphates, carboxylates, derivatives of amino acids, sulphonates, isethionates, taurates, sulphosuccinates, alkyl sulphoacetates, phosphates and alkyl phosphates, polypeptides and mixtures thereof.
Simonnet discloses in paragraph 0135, as derivatives of amino acids, mention may be made in particular of the alkali metal salts of amino acids, such as: sarcosinates, such as sodium lauroyl sarcosinate marketed under the name SARKOSYL NL 97® by the company Ciba or marketed under the name ORAMIX L 30® by the company Seppic, sodium myristoyl sarcosinate marketed under the name NIKKOL SARCOSINATE MN® by the company Nikkol, sodium palmitoyl sarcosinate marketed under the name NIKKOL SARCOSINATE PN® by the company Nikkol.
Simonnet discloses in paragraph 0154, the surfactants with an HLB greater than or equal to 12 described above may also be present in combination. The amount of surfactant with an HLB greater than or equal to 12 in the composition to be lyophilized may vary from 0.1% to 15% by weight, relative to the total weight of the said composition. Simonnet discloses in paragraph 0155, as for the lyophilizate, it may comprise from 0.5% to 40% by weight, by weight, of surfactant(s) with an HLB greater than or equal to 12, relative to the total weight of the said lyophilizate in the dry state.
Regarding Claims 5 and 6
Simonnet discloses in paragraph 0206, the emulsions generally contain at least one emulsifier chosen from amphoteric, anionic, cationic or nonionic emulsifiers, which are used alone or as a mixture. The emulsifiers are appropriately chosen according to the emulsion to be obtained (W/O or O/W). The emulsifiers are generally present in the composition in a proportion which may range for example from 0.3 to 30% by weight, relative to the total weight of the composition. Simonnet further discloses in paragraph 0207, for the O/W emulsions, there may be mentioned for example as emulsifiers, nonionic surfactants, and fatty alcohol ethers; ethers of a sugar and C8-C24 fatty alcohols, and mixtures thereof.
Simonnet discloses in paragraph 0214, as fatty alcohol ethers, there may be mentioned, for example, the ethers of polyethylene glycol and of a fatty alcohol comprising from 8 to 30 carbon atoms, and in particular from 10 to 22 carbon atoms, such as the ethers of polyethylene glycol and of cetyl alcohol, stearyl alcohol, cetearyl alcohol (mixture of cetyl and stearyl alcohols). There may be mentioned for example the ethers containing from 1 to 200 and preferably from 2 to 100 oxyethylenated groups, such as those having the CTFA name Ceteareth-20, Ceteareth-30, and mixtures thereof.
Regarding Claim 9
Simonnet discloses in paragraph 0151, the amphoteric and zwitterionic surfactants may be chosen for example from betaines.
Simonnet discloses in paragraph 0152, as betaines, mention may be made in particular of alkylbetaines such as for example cocobetaine such as the product marketed under the name DEHYTON AB-30® by the company Cognis, laurylbetaine such as the product marketed under the name GENAGEN KB® by the company Clariant, oxyethylenated (10 EO) laurylbetaine, such as the product marketed under the name LAURYLETHER (10 EO) BETAINE® by the company Shin Nihon Rica, oxyethylenated stearylbetaine (10 EO) such as the product marketed under the name STEARYLETHER (10 EO) BETAINE® by the company Shin Nihon Rica.
Simonnet discloses in paragraph 0154, the surfactants with an HLB greater than or equal to 12 described above may also be present in combination. The amount of surfactant with an HLB greater than or equal to 12 in the composition to be lyophilized may vary from 0.1% to 15% by weight, relative to the total weight of the said composition. Simonnet discloses in paragraph 0155, as for the lyophilizate, it may comprise from 0.5% to 40% by weight, by weight, of surfactant(s) with an HLB greater than or equal to 12, relative to the total weight of the said lyophilizate in the dry state.
Regarding Claims 11 and 12
Simonnet discloses in paragraph 0175, in a method for lyophilizing a microorganism or microorganisms, to further use at least one cryoprotectant.
Simonnet discloses in paragraph 0178, mention may also be made to this effect of starches and modified starches, but also glycols: glycerol, sorbitol, adonitol, propylene glycols, dipropylene glycols, butylene glycol, and amino acids and oligopeptides (2 to 25) such as glutamates, aspartates.
Simonnet discloses in paragraph 0183, the amount of cryoprotectant, in the composition to be lyophilized, may vary from 1 to 80% by weight, relative to the total weight of the said composition. Simonnet discloses in paragraph 0184, as for the lyophilizate, it may comprise from 5 to 70% by weight, of cryoprotectant(s) relative to the total weight of the said lyophilizate in the dry state.
Regarding Claim 13
Simonnet discloses in paragraph 0163, in the case where the microorganisms or their extracts exist in the form of an aqueous suspension in which the amount of active material may be between 0.1 and 15%, the amount of this suspension in the composition to be lyophilized may be between 1 and 90%.
Response to Arguments
Applicant’s arguments directed to the newly submitted claimed amendments, filed February 18, 2026, with respect to the rejection(s) of claim(s) 1-6 and 8-15 under Simonnet et al. (US 2011/0150952) hereinafter “Simonnet” in view of Garnier et al. (AU 757288 B2) hereinafter “Garnier” have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Simonnet et al. (US 2011/0150952) hereinafter “Simonnet” in view of Roulier et al. (US 2001/0006653) hereinafter “Roulier”.
Conclusion
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LATOSHA D HINES whose telephone number is (571)270-5551. The examiner can normally be reached Monday thru Friday 9:00 AM - 6:00 PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Prem Singh can be reached at 571-272-6381. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Latosha Hines/Primary Examiner, Art Unit 1771
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