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 .
Status of Application
Receipt of the Preliminary Amendment filed on February 26, 2024 is acknowledged.
Claims 1-7 are pending in this application.
All pending claims are under examination in this application.
Information Disclosure Statement
Receipt of the Information Disclosure Statement filed on February 26, 2024 is acknowledged. A signed copy is attached to this office action.
Claim Objections
Claim 1 is objected to because of the following informalities:
Regarding claim 1, the recitation of “(hereinafter referred to as “component (A)”)”; “(hereinafter referred to as “component (B)”)”; “(hereinafter referred to as “component (C)”)”; “(hereinafter referred to as “component (D)”)”; and “(hereinafter referred to as “component (E)”)” is redundant and unnecessary. The components are already listed as (A) –(E).
Regarding claim 2, the claim is objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims. The closest prior art is that of Yamada (JP 2019108286; cited on IDS dated February 26, 2024), as discussed below. There is not disclosure of a combination disclosed in the instant claim within the teachings or motivation within the prior art to utilized such a combination.
Appropriate correction is required.
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.
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 and 3-7 are rejected under 35 U.S.C. 103 as being unpatentable over Yamada (JP 2019108286; cited on IDS dated February 26, 2024) in view of Goldner et al. (US 4,119,712).
Yamada discloses water-in-oil emulsion compositions having excellent stability and spreading properties on the skin and excellent freshness, as well as having excellent feeling of use without sliminess and stickiness.
The composition contains:
Dipolyhydroxystearate PEG-30 (component B);
Ester oil that is semi-solid at 25 ˚C (component A);
Diglyercin; and
Water (component E) (abstract).
It is noted that semi-solid ester oils exist in a paste-like state at room temperature.
While there are numerous silicone based components recited in the Examples, it is noted that the required components do not recite a silicone. The components recited are drawn to optional additional excipients.
Regarding claim 3, examples of ester oils include (phytosteryl/isostearyl/cetyl/stearyl/behenyl) dimer dilinoleic acids (paragraph 0013).
Regarding claim 6, examples 24 and 25 disclose 1.0% of component B and 15% and 14% of component E.
Regarding claim 7, the compositions can be used as foundations and make up based (paragraph 0002).
Yamada does not disclose C or D.
Goldner discloses make up foundations in the form of water in oil emulsions (examples).
Example 5 disclose a water in oil emulsion comprising beeswax and ozokerite (component C) and isopropyl myristate and mineral oil (component D).
Regarding claim 4, as noted above, Example 5 disclose beeswax and ozokerite (component C).
Regarding claim 5, as noted above, Example 5 disclose isopropyl myristate and mineral oil (component D).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the invention to have included components C and D are disclosed in Goldner into the composition of Yamada since they are disclosed as being routinely incorporated into water in oil emulsions as emollient and thickener excipients.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MELISSA S MERCIER whose telephone number is (571)272-9039. The examiner can normally be reached M-F 6:30 am to 4 pm EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Robert A Wax can be reached at 571-272-0623. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MELISSA S MERCIER/Primary Examiner, Art Unit 1615
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