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
The Applicant’s reply filed on 4/16/26 is acknowledged. Claims 1-13 are pending. Claim 13 has been withdrawn. Claims 2-11 have been amended. Claims 1-12 are under consideration.
Rejections Withdrawn
The rejection of Claims 2-11 under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite is withdrawn in view of the amended claims.
Rejections Maintained and New Grounds of Rejections
Information Disclosure Statement
Acknowledgement is made of Applicant’s information disclosure statements (IDS) submitted on 2/26/26. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement has been considered by the examiner.
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.
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.
Claims 1-12 are rejected under 35 U.S.C. 103 as being unpatentable over Mc Dermott et al. (US 2013/0253072; cited in IDS) as evidenced by Eckart (VISIONAIRE Bright Silver Sea; 2021), BASF (Cloisonne; 2018), and Rohrer et al. (Paint and Coating Pigments; 2018).
Mc Dermott et al. teach a solid cosmetic makeup and/or care composition in the form of a powder comprising, in a physiologically acceptable medium, at least: a fatty phase containing at least one silicone polyamide and a silicone resin, and—at least one pulverulent phase containing at least perlite (e.g. abstract). Mc Dermott et al. teach that the pulverulent phase comprises nacres and reflective particles (e.g. paragraphs 0075 and 0089). Mc Dermott et al. exemplify eyeshadow compositions comprising
(a) the reflective pigment aluminum Visionaire Bright Silver Sea (i.e. at least one flake-type aluminum pigment) (e.g. paragraph 0109; Example 4); and
(b) the nacre mica-titanium oxide-brown black iron oxides Cloisonne Nu Antique Bronze (i.e. at least one flake-type black pigment) (e.g. paragraph 0093; Examples 1-3).
Regarding Claims 1, 2, 7, and 12, it would have been obvious to one of ordinary skill in the art at the time of filing to combine examples 1 and 4 to result in a composition comprising both (a) at least one flake-type aluminum pigment and (b) at least one flake-type black pigment. It would have been obvious to one of ordinary skill in the art to combine the elements as claimed by known methods with no change in their respective functions, and the combination yielding nothing more than predictable results. One of ordinary skill in the art would have predicted success because Mc Dermott teaches that the composition may comprise mixtures of reflective particles and nacres together (e.g. paragraphs 0075 and 0089) and one of ordinary skill would have been motivated in order to provide the benefits of both types of pigments. "It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980).
Regarding Claims 3 and 4, as evidenced by Eckart, Visionaire Bright Silver Sea has a particle size less than 45 µm. In addition, as evidenced by the instant Specification, Visionaire Bright Silver Sea is within the claimed ranges for particle size and thickness (e.g. pages 4-5).
Regarding Claim 5, as evidenced by Eckart and the instant Specification on page 5, Visionaire Bright Silver Sea is silica-coated aluminum flake.
Regarding Claims 6, 10, and 11, Mc Dermott et al. exemplify 8.5 wt% Visionaire Bright Silver Sea (e.g. Example 4) and 13 wt% Cloisonne Nu Antique Bronze (e.g. Example 1) based on the total composition weight. The combination would result in 21.5 wt% total pigment and therefore 39.5 wt% Visionaire Bright Silver Sea and 60.5 wt% Cloisonne Nu Antique Bronze based on the total weight of pigments, which are within the claimed ranges. This would also result in a ratio of (a):(b) of approximately 1:1.53, which is within the claimed range.
Regarding Claim 8, as evidenced by BASF, Cloisonne Nu Antique Bronze has a diameter of 8-40 µm, which is within the claimed range.
Regarding Claim 9, as evidenced by Rohrer et al., pearlescent oxide-coated mica platelets can range from 4 microns to 1,000 microns across and are approximately 0.5 micron thick, although synthetic micas can achieve thicknesses of less than 0.25 micron, which are within the claimed range (e.g. page 1).
Response to Arguments
Applicant's arguments filed 4/16/26 have been fully considered but they are not persuasive.
Applicant argues that "Cloisonne Nu Antique Bronze" from Engelhard (now BASF) as a "flake-type black pigment” is a bronze colored pigment, not a black pigment.
This is not found persuasive. The claim does not exclude colors other than black, and does not otherwise define the “flake-type black pigment”. The instant Specification on page 6 recites, “The term "black" here may be used to mean substantially black. The term "substantially black" may be used to mean for purposes of this disclosure that the black color is
distinguished by sufficient blackness, that is of low L* value, and the "a*" and "b*" values are
around the zero point. The black may contain overtones of other colors such as gold, red, green etc.” Therefore, it appears to be within Applicant’s definition of “black” that other colors mat be present. McDermott et al. disclose “…the black nacres with a gold tint sold especially by the company Engelhard under the name Nu antique bronze 240 AB (Timica)” (e.g. paragraph 0093). Example 1 of McDermott et al. describes the pigment as “Mica-titanium-brown, black iron oxides”. The instant claim 7 recites that “the (b) at least one flake-type black pigment is chosen from black iron oxide, graphite, and mica or synthetic mica coated with back iron oxide or carbon black”. Therefore the claims have been met. Applicant may wish to further define the structure of the claimed flake-type black pigment.
Conclusion
No claim is allowed.
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 extension fee 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 date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to NICOLE PLOURDE BABSON whose telephone number is (571)272-3055. The examiner can normally be reached M-Th 8-4:30; F 8-12:30.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, David Blanchard can be reached on 571-272-0827. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/NICOLE P BABSON/ Primary Examiner, Art Unit 1619
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