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 03/27/2026 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 Rejections and/or objections not reiterated from previous office actions are hereby withdrawn.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.
Claims 4 and 7 are canceled.
Claims 1-2, 5, 8-10, and 12 are amended.
Claim 13 remains withdrawn.
Claims 1-3, 5-6, and 8-12 are examined on the merits.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 03/27/2026 is being considered by the examiner. The submission is in compliance with the provisions of 37 CFR 1.97. The foreign patent listed in the IDS does not have an English translation, thus it is not being considered.
Claim Interpretation
Regarding claim 1, as to the limitation of 'for caring for and/or making up keratin materials' it is noted that the instant claims are composition claims and future intended use is not given patentable weight. Thus any composition comprising (i) at least one structuring agent selected from saturated C14-C22 fatty acids;(ii) at least one hydrophilic gelling agent capable of swelling in water to form a microgel in the form of particles with a particle size of 50-400 pm; and (iii) at least one surfactant will meet this limitation.
In regards to claim 1, as to the limitation of 'capable of swelling in water to form a microgel in the form of particles with a particle size of 50-400µm' it is noted that the instant claims are composition claims and future intended use, such as in a microgel in the form of particles with a particle size of 50-400µm, is not given patentable weight. Thus any composition in the form of an oil in water emulsion comprising (i) at least one structuring agent selected from saturated C14-C22 fatty acids, (ii) at least one hydrophilic gelling agent, and (iii) at least one surfactant, will meet this limitation.
New Rejections Necessitated by Claim 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) 1-3, 5-6, and 8-12 are rejected under 35 U.S.C. 103 as being unpatentable over Liu et al. (CN112716844A, published 04/30/2021, priority date 01/13/2021, Google English translation, hereafter Liu) in view of Deckner (Deckner, G. (2016, August 5). Lamellar Gel Network Technology: A Primer. Prospector Knowledge Center. https://www.ulprospector.com/knowledge/4712/pcc-lamellar-gel-network-technology-a-primer/, hereafter Deckner).
Liu claims a hand cream with 0.5-1.5% glyceryl stearate, 2-6% stearic acid, 0.2-1% sodium polyacrylate, 0.01-0.03% sodium hydroxide, and 0.004-0.01% lactic acid (claim 1; according to the claim limitations of the instant claims 1-3, 5-6, and 8-12). Liu further claims a method for preparing the hand cream by emulsification of an oil phase and water phase respectively (claim 6; according to the claim limitations of the instant claims 1 and 12). Liu teaches in the oil in water phase separation method, fine particle components are precipitated (page 13, paragraph 6; according to the claim limitations of the instant claim 1). Lastly, Liu teaches the invention belongs to the technical filed of cosmetic preparation (page 2, paragraph 2; according to the claim limitations of the instant claims 1 and 11). Further, Liu teaches the specific components within the composition form a colloidal network structure on the epidermis, and have an antioxidant effect (page 7, paragraph 3; according to the claim limitations of the instant claim 1). Liu teaches the hand cream comprises chrysanthemum flower extract, bisabolol, ethylhexyl stearate, glycerin, glyceryl stearic acid Esters, palmitic acid, stearic acid, ubiquinone, phenoxyethanol, cetearyl alcohol, cetyl palmitate, glyceryl cocoate, sodium stearoyl glutamate, caprylyl glycol, polydiethylene glycol methylsiloxane, sodium polyacrylate, sodium hydroxide, lactic acid, potassium sorbate, sodium benzoate, fragrance, water (abstract; according to the claim limitations of the instant claim 1).
Although Liu teaches a colloidal structure and an emulsion, it fails to explicitly teach a lamellar-microgel inter-penetration network (IPN) as in instant claim 1.
Deckner teaches lamellar gel network technology, specifically lamellar gel networks (LGNs) are combinations of low and high HLB crystalline surfactants that form colloidal structures that can swell and thicken water (page 1, title and first paragraph). Further, Deckner teaches the gel network is stabilized by lamellar bilayers of surfactant, which bind water and specifically defines lamellar gel network as a network formed by bilayer sheets where the alkyl chains in the bilayers are essentially in a frozen, non-melted state (page 1, first paragraph). Deckner teaches these systems have viscoelastic properties and shear thin when applied to the skin (page 1, first paragraph). Deckner teaches LGNs are important because most oil-in-water skin-care emulsions sold globally are based on LGNs stabilized with polymers (page 1, first paragraph). Further, Deckner teaches recommended low-HLB crystalline surfactants to include glyceryl stearate (page 3, recommended low-HLB crystalline surfactants). Deckner teaches recommended high-HLB surfactants to include sodium stearoyl glutamate (page 3, recommended high-HLB surfactants). Deckner teaches the advantages of LGNs to include: good moisturizing properties; stabilize some actives; prolong release of oil-soluble actives; make waterproof/water-resistant products; very low in skin-irritation potential; very cost effective (page 1, The advantages of LGNS).
First, it would be obvious to one skilled in the art before the effective filing date of the claimed invention to modify an hand cream emulsion comprising glyceryl stearate, sodium stearoyl glutamate, stearic acid, sodium polyacrylate, sodium hydroxide, and lactic acid as outlined by Liu by the structural addition of a lamellar gel network comprising glyceryl stearate and sodium stearoyl glutamate as outlined by Deckner under TSM, see MPEP 2143(G). As outlined by Deckner, a LGN has good moisturizing properties, stabilizes some actives, prolongs release of oil-soluble actives, makes waterproof/water-resistant products, has very low in skin-irritation potential, and is very cost effective which would motivate someone skilled in the art to advantageously combine the LGN with the composition of Liu as it would have a reasonable expectation of success. Secondly, it would be obvious to one skilled in the art before the effective filing date of the claimed invention to claim a hand cream emulsion comprising glyceryl stearate, sodium stearoyl glutamate, stearic acid, sodium polyacrylate, sodium hydroxide, and lactic acid as outlined by Liu with the ready for improvement with the known technique of stabilizing oil-in-water skin-care emulsions with lamellar gel network polymers as outlined by Deckner. Adding the forementioned components to a hand cream oil-in-water emulsion comprising glyceryl stearate as claimed by instant claim 1 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.
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 1-3, 5-6, and 8-12 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3-4, 6, 8-10, 13, 15, and 19 of copending Application No. 17/682,819 (reference application) in view of Deckner (Deckner, G. (2016, August 5). Lamellar Gel Network Technology: A Primer. Prospector Knowledge Center. https://www.ulprospector.com/knowledge/4712/pcc-lamellar-gel-network-technology-a-primer/, hereafter Deckner). Although the claims at issue are not identical, they are not patentably distinct from each other.
17/682,819 claims a cosmetic composition in the form of an oil in water emulsion comprising (i) a salt-stable polymeric system comprising polyacrylate crosspolymer-6, xanthan gum, and one or more clay, wherein: the polyacrylate crosspolymer-6 is present in the cosmetic composition in a range from about 0.1% to about 1.4%, by weight, based on the total weight of the cosmetic composition (claim 1; according to the claim limitations of the instant claims 1 and 12). Claim 1 of 17/682,819 further claims the composition comprises (ii) at least one acidic skin active present in the form of a cosmetically acceptable acid (according to the claim limitations of the instant claims 1 and 11). Furthermore, claim 1 of 17/682,819 claims the composition comprises (iii) one or more neutralizing agents to provide a pH in a range of about 4.5 to about 7.5 (according to the claim limitations of the instant claim 9). Claim 3 of 17/682,819 claims the at least one skin active to be selected from the group consisting of ascorbic acid, citric acid, lactic acid, glycolic acid, mandelic acid, salicylic acid, malic acid, azelaic acid, kojic acid, chlorogenic acid, ferulic acid, zinc PCA, gallic acid, hyaluronic acid, and combinations thereof (according to the claim limitations of the instant claim 11). Claims 4 and 15 of 17/682,819 claims the neutralizing agent is selected from the group consisting of sodium hydroxide, potassium hydroxide, and combinations thereof and is present in a range from about 0.1% to about 5%, by weight, based on the total weight of the cosmetic composition (according to the claim limitations of the instant claims 9 and 10). Claim 6 of 17/682,819 claims the composition further comprising one or more additives present in either the water or the oily phase, selected from the group consisting of capryloyl salicylic acid, citric acid, hydroxypropyl tetrahydropyrantriol, pentaerythrityl tetra-di-t-butyl hydroxyhydrocinnamate, sodium hydroxide, trisodium ethylenediamine disuccinate, mica (and) lauroyl lysine, synthetic fluorphlogopite (and) titanium dioxide (and) magnesium silicate (and) tin oxide, synthetic fluorphlogopite (and) titanium dioxide (and) tin oxide, titanium dioxide, tocopherol, phenylethyl resorcinol, sodium hyaluronate, phenoxyethanol, hydroxyacetophenone, crosspolymer, trisodium ethylenediamine disuccinate, butylene glycol, caprylyl glycol, pentylene glycol, and combinations thereof and wherein the cosmetic composition optionally excludes one or all of the ingredients selected from the group consisting of gellan, stearic acid, plant butters over 5%, high levels of saturated fatty alcohols/acids above C16, ammonium acryloyldimethyltaurate/vp copolymer, hydroxyethyl acrylate/sodium acryloyldimethyl taurate copolymer, acrylates/beheneth-25 methacrylate copolymer, and combinations thereof (according to the claim limitations of the instant claims 1 and 12). Claim 8 of 17/682,819 claims the composition comprises at least one oil and claim 9 of 17/682,819 claims the oil to be selected from the group consisting of mono- and polyglyceryl esters of a fatty acid, ethers of a sugar and of C8-C24 fatty alcohols, fatty acid esters of polyalkylene glycol, C14-C24 fatty alcohols (according to the claim limitations of the instant claims 1 and 12). Furthermore, claim 8 of 17/682,819 claims the composition comprises at least one emulsifier and claim 10 claims the emulsifier is selected from the group consisting of cetearyl alcohol (and) cetearyl glucoside, glyceryl isostearate, glycol stearate, polyglyceryl-10 laurate, sodium dilauramidoglutamide lysine, steareth-20, and combinations thereof (according to the claim limitations of the instant claims 1 and 11-12). Claim 11 of 17/682,819 claims a cosmetic composition in the form of a direct oil in water emulsion comprising (i) a salt-stable polymeric system that includes polyacrylate crosspolymer-6, present in a range from about 0.2% to about 1.2%, by weight, based on the total weight of the cosmetic composition; (ii) one or more cosmetically acceptable acids, the total amount of cosmetically acceptable acid present in a range from about 4% to about 15%, by weight; and (iii) a neutralizing agent present to provide a pH in a range from about 4.5 to about 7.5, wherein the cosmetic composition resists phase separation, pilling and gellifying, and confers a creamy texture; and an oil phase comprising at least one oil, wherein the composition further comprising at least one emulsifier (according to the claim limitations of the instant claims 1-3). Claim 13 of 17/682,819 claims the at least one emulsifier is selected from the group consisting of cetearyl alcohol (and) cetearyl glucoside, glyceryl isostearate, glycol stearate, polyglyceryl-10 laurate, sodium dilauramidoglutamide lysine, steareth-20, and combinations thereof (according to the claim limitations of the instant claims 1 and 12). Lastly, claim 19 of 17/682,819 claims the composition further comprising one or more additives present in either the water or the oily phase, selected from the group consisting of capryloyl salicylic acid, citric acid, hydroxypropyl tetrahydropyrantriol, pentaerythrityl tetra-di-t- butyl hydroxyhydrocinnamate, sodium hydroxide, trisodium ethylenediamine disuccinate, mica (and) lauroyl lysine, synthetic fluorphlogopite (and) titanium dioxide (and) magnesium silicate (and) tin oxide, synthetic fluorphlogopite (and) titanium dioxide (and) tin oxide, titanium dioxide, tocopherol, phenylethyl resorcinol, sodium hyaluronate, capryloyl salicylic acid, phenoxyethanol, hydroxyacetophenone, crosspolymer, trisodium ethylenediamine disuccinate, butylene glycol, caprylyl glycol, pentylene glycol, and combinations thereof and wherein the cosmetic composition optionally excludes one or all of the ingredients selected from the group consisting of gellan, stearic acid, plant butters over 5%, high levels of saturated fatty alcohols/acids above C16, ammonium acryloyldimethyltaurate/vp copolymer, hydroxyethyl acrylate/sodium acryloyldimethyl taurate copolymer, acrylates/beheneth-25 methacrylate copolymer, and combinations thereof (according to the claim limitations of the instant claims 1-3, 5-6, and 8-12).
17/682,819 fails to teach the composition is a lamellar-microgel inter-penetration network as in instant claim 1.
As outlined above, Deckner teaches lamellar gel network technology, specifically lamellar gel networks (LGNs) are combinations of low and high HLB crystalline surfactants that form colloidal structures that can swell and thicken water (page 1, title and first paragraph). Further, Deckner teaches the gel network is stabilized by lamellar bilayers of surfactant, which bind water and specifically defines lamellar gel network as a network formed by bilayer sheets where the alkyl chains in the bilayers are essentially in a frozen, non-melted state (page 1, first paragraph). Deckner teaches these systems have viscoelastic properties and shear thin when applied to the skin (page 1, first paragraph). Deckner teaches LGNs are important because most oil-in-water skin-care emulsions sold globally are based on LGNs stabilized with polymers (page 1, first paragraph). Further, Deckner teaches recommended low-HLB crystalline surfactants to include glyceryl stearate (page 3, recommended low-HLB crystalline surfactants). Deckner teaches recommended high-HLB surfactants to include sodium stearoyl glutamate (page 3, recommended high-HLB surfactants). Deckner teaches the advantages of LGNs to include: good moisturizing properties; stabilize some actives; prolong release of oil-soluble actives; make waterproof/water-resistant products; very low in skin-irritation potential; very cost effective (page 1, The advantages of LGNS).
First, it would be obvious to one skilled in the art before the effective filing date of the claimed invention to modify the cosmetic oil in water emulsion outlined by 17/682,819 by the structural addition of a lamellar gel network as outlined by Deckner under TSM, see MPEP 2143(G). As outlined by Deckner, a LGN has good moisturizing properties, stabilizes some actives, prolongs release of oil-soluble actives, makes waterproof/water-resistant products, has very low in skin-irritation potential, and is very cost effective which would motivate someone skilled in the art to advantageously combine the LGN with the composition of 17/682,819 as it would have a reasonable expectation of success. Secondly, it would be obvious to one skilled in the art before the effective filing date of the claimed invention to claim the cosmetic emulsion outlined by 17/682,819 with the ready for improvement with the known technique of stabilizing oil-in-water skin-care emulsions with lamellar gel network polymers as outlined by Deckner. Adding the forementioned components to a cosmetic oil-in-water emulsion as claimed by instant claim 1 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.
Claims 1-3, 6, and 8-12 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-6, 9, and 12-13 of U.S. Patent No. US12036304B2 in view of Liu et al. (CN112716844A, published 04/30/2021, priority date 01/13/2021, Google English translation, hereafter Liu), and in view of Deckner (Deckner, G. (2016, August 5). Lamellar Gel Network Technology: A Primer. Prospector Knowledge Center. https://www.ulprospector.com/knowledge/4712/pcc-lamellar-gel-network-technology-a-primer/, hereafter Deckner).. Although the claims at issue are not identical, they are not patentably distinct from each other.
US12036304B2 claims a salt-stable cosmetic composition in the form of an oil in water emulsion comprising (i) a salt-stable polymeric system comprising a polymer blend comprising polyacrylate crosspolymer-6, acrylamide/sodium acryloyldimethyltaurate copolymer, and one or more gum; (ii) at least one acidic skin active present in the form of a cosmetically acceptable acid; and (iii) one or more neutralizing agents to provide a pH in a range from about 4.5 to about 7.5 (claim 1; according to the claim limitations of the instant claims 1 and 11). Claim 1 of US12036304B2 further claims the concentration of polymer to be not more than about 1.5% (according to the claim limitations of the instant claim 6). Claims 3 and 9 of US12036304B2 claims the one acidic skin active to be selected from a group consisting of ascorbic acid, citric acid, lactic acid, glycolic acid, mandelic acid, salicylic acid, malic acid, azelaic acid, kojic acid, chlorogenic acid, ferulic acid, zinc PCA, gallic acid, hyaluronic acid, and combinations thereof (according to the claim limitations of the instant claim 11). Claim 4 of US12036304B2 claims the composition comprises one or more cosmetically acceptable acids, present, in a range from about 4-15% (according to the claim limitations of the instant claim 3). Claims 2 and 5 of US12036304B2 claims the composition comprises an oil and claim 13 of US12036304B2 claims the composition comprises at least one oil is selected from the group consisting of octyldodecanol, Glycine soja (soybean) oil, hydrogenated lecithin, isononyl isononanoate, isocetyl stearoyl stearate, dicaprylyl ether, isopropyl lauroyl sarcosinate, dicaprylyl carbonate, and combinations thereof (according to the claim limitations of the instant claims 1 and 12). Claim 6 of US12036304B2 claims the neutralizing agent is present in an amount from about 0.1-5% (according to the claim limitations of the instant claim 10). Claim 12 of US12036304B2 claims the neutralizing agent is selected from the group consisting of sodium hydroxide, potassium hydroxide, and combinations thereof (according to the claim limitations of the instant claim 9).
Although US12036304B2 claims a cosmetically acceptable acid in an amount from about 4-15%, it fails to claims the acid is a saturated C14-C22 fatty acid as in instant claim 1 and 12. Furthermore, US12036304B2 fails to claim the concentration of surfactant as in instant claims 8 and 12. Lastly, US12036304B2 fails to teach the composition is a lamellar-microgel inter-penetration network as in instant claim 1.
As outlined above, Liu claims a hand cream with 0.5-1.5% glyceryl stearate, 2-6% stearic acid, 0.2-1% sodium polyacrylate, 0.01-0.03% sodium hydroxide, and 0.004-0.01% lactic acid.
Further, as outlined above, Deckner teaches lamellar gel network technology, specifically lamellar gel networks (LGNs) are combinations of low and high HLB crystalline surfactants that form colloidal structures that can swell and thicken water (page 1, title and first paragraph). Further, Deckner teaches the gel network is stabilized by lamellar bilayers of surfactant, which bind water and specifically defines lamellar gel network as a network formed by bilayer sheets where the alkyl chains in the bilayers are essentially in a frozen, non-melted state (page 1, first paragraph). Deckner teaches these systems have viscoelastic properties and shear thin when applied to the skin (page 1, first paragraph). Deckner teaches LGNs are important because most oil-in-water skin-care emulsions sold globally are based on LGNs stabilized with polymers (page 1, first paragraph). Further, Deckner teaches recommended low-HLB crystalline surfactants to include glyceryl stearate (page 3, recommended low-HLB crystalline surfactants). Deckner teaches recommended high-HLB surfactants to include sodium stearoyl glutamate (page 3, recommended high-HLB surfactants). Deckner teaches the advantages of LGNs to include: good moisturizing properties; stabilize some actives; prolong release of oil-soluble actives; make waterproof/water-resistant products; very low in skin-irritation potential; very cost effective (page 1, The advantages of LGNS).
It would be obvious to one skilled in the art before the effective filing date of the claimed invention would claim a cosmetic oil-in-water emulsion comprising a polymer, a cosmetically acceptable acid, and a surfactant as outlined by US12036304B2 with the simple substitution of stearic acid for the cosmetically acceptable acid as outlined by Liu. Simple substitution of one cosmetic acid for another is within the purview of the skilled artisan and would yield predictable results. Furthermore, it would be obvious to one skilled in the art before the effective filing date of the claimed invention to claim a cosmetic oil-in-water emulsion comprising a polymer, a cosmetically acceptable acid, and a surfactant at the desired concentrations as outlined by US12036304B2 with the ready for improvement with the known technique of adjusting the concentration of the surfactant as outlined by Liu. Adjusting the forementioned component of a cosmetic oil-in-water emulsion comprising a polymer, a cosmetically acceptable acid, and a surfactant at as claimed by instant claims 8 and 12 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. Further, it would be obvious to one skilled in the art before the effective filing date of the claimed invention to modify the cosmetic oil in water emulsion outlined by US12036304B2 by the structural addition of a lamellar gel network as outlined by Deckner under TSM, see MPEP 2143(G). As outlined by Deckner, a LGN has good moisturizing properties, stabilizes some actives, prolongs release of oil-soluble actives, makes waterproof/water-resistant products, has very low in skin-irritation potential, and is very cost effective which would motivate someone skilled in the art to advantageously combine the LGN with the composition of US12036304B2 as it would have a reasonable expectation of success. Additionally, it would be obvious to one skilled in the art before the effective filing date of the claimed invention to claim the cosmetic emulsion outlined by US12036304B2 with the ready for improvement with the known technique of stabilizing oil-in-water skin-care emulsions with lamellar gel network polymers as outlined by Deckner. Adding the forementioned components to a cosmetic oil-in-water emulsion as claimed by instant claim 1 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.
Claims 1-3, 5-6, and 8-12 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-2, 10, 15, 18, 20, and 22 of U.S. Patent No. US9526678B2 in view of Deckner (Deckner, G. (2016, August 5). Lamellar Gel Network Technology: A Primer. Prospector Knowledge Center. https://www.ulprospector.com/knowledge/4712/pcc-lamellar-gel-network-technology-a-primer/, hereafter Deckner).. Although the claims at issue are not identical, they are not patentably distinct from each.
US9526678B2 claims a cosmetic composition comprising (a) an emulsifying system comprising (i) at least one lipophilic emulsifying surfactant and the composition is in the form of an oil-in-water emulsion (claims 1-2; according to the claim limitations of the instant claim 1). US9526678B2 claims the component (a)(i) is present in an amount from about 0.2-3% by weight (claim 7; according to the claim limitations of the instant claims 1 and 8). Claim 1 of US9526678B2 further claims the composition comprises (b) less than about 5% of at least one film forming polymer selected from an ethylene/acrylic acid copolymer, styrene/acrylates copolymer, and mixtures thereof (according to the claim limitations of the instant claims 1, 6, and 12). Claim 15 of US9526678B2 claims the composition further comprises at least one surfactant in an amount from about 0.1-10% (according to the claim limitations of the instant claims 1 and 8). Claim 18 of US9526678B2 claims the lipophilic emulsifying surfactant is selected from glyceryl stearate, glycerol Stearate citrate, glyceryl ricinoleate, polyethylene glycol stearate, and mixtures thereof (according to the claim limitations of the instant claims 1 and 12). Claim 1 of US9526678B2 claims the composition has at least one viscosity increasing agent and claim 10 of US9526678B2 claims the viscosity increasing agent is present in an amount from about 0.1-5% (according to the claim limitations of the instant claims 1, 6, and 12). Claim 20 of US9526678B2 claims the viscosity increasing agent (c) is selected from ammonium acryloy dimethyltaurate/steraeth-25 methacrylate crosspolymer, sodium polyacrylate, and mixtures thereof (according to the claim limitations of the instant claims 1, 5, and 12). Claim 22 of US9526678B2 claims a cosmetic composition comprising a) from about 0.7% to about 7%, by weight, of an emulsifying system comprising (i) from about 0.2% to about 3%, by weight, of at least one lipophilic emulsifying surfactant selected from glyceryl stearate; (c) from about 0.1% to about 5%, by weight, of at least one viscosity increasing agent selected from ammonium acryloydimethyltaurate/steraeth-25 methacrylate crosspolymer, sodium polyacrylate, and mixtures thereof; and (i) from about 0.1% to about 10%, by weight, of at least one surfactant selected from stearic acid, sorbitan sesquioleate, and mixtures thereof (according to the claim limitations of the instant claims 1-3, 5-6, and 8-12).
US9526678B2 fails to teach the composition is a lamellar-microgel inter-penetration network as in instant claim 1.
As outlined above, Deckner teaches lamellar gel network technology, specifically lamellar gel networks (LGNs) are combinations of low and high HLB crystalline surfactants that form colloidal structures that can swell and thicken water (page 1, title and first paragraph). Further, Deckner teaches the gel network is stabilized by lamellar bilayers of surfactant, which bind water and specifically defines lamellar gel network as a network formed by bilayer sheets where the alkyl chains in the bilayers are essentially in a frozen, non-melted state (page 1, first paragraph). Deckner teaches these systems have viscoelastic properties and shear thin when applied to the skin (page 1, first paragraph). Deckner teaches LGNs are important because most oil-in-water skin-care emulsions sold globally are based on LGNs stabilized with polymers (page 1, first paragraph). Further, Deckner teaches recommended low-HLB crystalline surfactants to include glyceryl stearate (page 3, recommended low-HLB crystalline surfactants). Deckner teaches recommended high-HLB surfactants to include sodium stearoyl glutamate (page 3, recommended high-HLB surfactants). Deckner teaches the advantages of LGNs to include: good moisturizing properties; stabilize some actives; prolong release of oil-soluble actives; make waterproof/water-resistant products; very low in skin-irritation potential; very cost effective (page 1, The advantages of LGNS).
First, it would be obvious to one skilled in the art before the effective filing date of the claimed invention to modify the cosmetic oil in water emulsion outlined by US9526678B2 by the structural addition of a lamellar gel network as outlined by Deckner under TSM, see MPEP 2143(G). As outlined by Deckner, a LGN has good moisturizing properties, stabilizes some actives, prolongs release of oil-soluble actives, makes waterproof/water-resistant products, has very low in skin-irritation potential, and is very cost effective which would motivate someone skilled in the art to advantageously combine the LGN with the composition of US9526678B2 as it would have a reasonable expectation of success. Secondly, it would be obvious to one skilled in the art before the effective filing date of the claimed invention to claim the cosmetic emulsion outlined by US9526678B2 with the ready for improvement with the known technique of stabilizing oil-in-water skin-care emulsions with lamellar gel network polymers as outlined by Deckner. Adding the forementioned components to a cosmetic oil-in-water emulsion as claimed by instant claim 1 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.
Response to Applicant’s Arguments
Applicant’s arguments filed on 03/27/2026 are being considered.
In regards to the 35 U.S.C. 102(a)(1) rejection,
Applicant argues that the newly amended claims now recite “wherein the composition comprises a lamellar-microgel inter-penetration network (IPN)” and provides examples to demonstrate how a lamellar structure results in a desirable texture, suitable consistency, and good spreadability with a non-sticky feel.
In response to Applicant’s arguments, it is first noted that the previous rejection over Lui was a 35 U.S.C. 102(a)(1) rejection. Applicant’s instant claims are now rejected under 35 U.S.C. 103 over Lui in view of Deckner. As outlined above in the new 35 U.S.C. 103 rejection, Liu teaches a colloidal structure and an emulsion (claim 6 and page 7, paragraph 3), however it fails to explicitly teach a lamellar-microgel inter-penetration network (IPN). Deckner renders this deficiency by teaching most oil-in-water skin-care emulsions sold globally are based on lamellar gel network technology, specifically lamellar gel networks (LGNs) stabilized with polymers (page 1, first paragraph) and further teaches LGNs have advantages to include: good moisturizing properties; stabilize some actives; prolong release of oil-soluble actives; make waterproof/water-resistant products; very low in skin-irritation potential; very cost effective (page 1, The advantages of LGNS). Thus, as outlined above, one would be motivated to modify the teaches of Lui by the structural addition of a lamellar gel network as in the instant claims and arguments.
Therefore, Applicant’s arguments are not found persuasive over the newly added 35 U.S.C. 103 rejection over Lui in view of Deckner.
In regards to the double patenting rejections, Applicant requests the rejections to be held in abeyance until the time of allowance.
Applicant is reminded that a request to hold abeyance is an improper response to a double patenting rejection. Therefore, the rejections are maintained and updated to account for claim amendments.
Conclusion
No claims 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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