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 .
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 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.
Claim Status
Claims 1-20 are pending and are examined on the merits in this prosecution.
CLAIM REJECTIONS
Obviousness Rejection
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 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.
1) Claims 1-10 are rejected under 35 U.S.C. 103 as being unpatentable over Scavone (US 2006/0263313 A1), in view of Guyot-Ferreol (“How to Create and Adjust Various Shades of Foundation Adapted to Skin Tones,” downloaded 2-21-2026 from https://sensient-beauty.com/insights/how-to-create-and-adjust-various-shades-of-foundation-adapted-to-skin-tones/; available on the internet 3/15/2019).
Scavone teaches antiperspirant compositions comprising: (a) from about 0.1% to about 30% by weight of the composition, of a high-efficacy antiperspirant active; (b) from about 0.05% to about 15% by weight of the composition, of a malodor reducing agent; (c) from about 0.1% to about 35% by weight of the composition, of a thickening agent; (d) from about 10% to about 99% by weight of the composition, of an anhydrous liquid carrier; (e) from about 5 ppm to about 20% by weight of the composition, of a primary fragrance; and (f) from at least about 5 ppm by weight of the composition, of a secondary fragrance that is distinct from the primary fragrance (Abstract). Scavone teaches the composition also contains dyes and/or colorants (pg 8, [0090]). Scavone teaches that the product should provide little or no visible residue after application to the skin (pg 1, [0010]).
Scavone does not teach the coloring element as a “tint mixture that mimics a skin tone.
Guyot-Ferreol teaches the missing element of Scavone.
Guyot-Ferreol teaches a cosmetic tinting mixture for matching a variety of skin tones (Title). Guyot-Ferreol teaches “In general, foundation colors are developed using mineral oxides: titanium dioxide for white, and iron oxides for yellow, red and black. Various combinations of the four basic colors make it possible to create an infinite number of shades.” See pg 4. It is noted that Guyot-Ferreol does not specifically teach a deodorant composition, but one of ordinary skill would recognize that the skin tone composition taught by Guyot-Ferreol are readily applicable to any cosmetic, including a deodorant.
For claim 2, Guyot-Ferreol teaches a cosmetic tinting mixture for matching a variety of skin tones from white Caucasian to African American (pg 2), and Scavone teaches that the cosmetic product should provide little or no visible residue after application to the skin; in order for a composition to contain colorants and leave no visible residue after skin application, the color must be homogeneously distributed in the base.
For claims 3-8, Guyot-Ferreol teaches a cosmetic tinting mixture comprising “mineral oxides: titanium dioxide for white, and iron oxides for yellow, red and black. Various combinations of the four basic colors make it possible to create an infinite number of shades.” See pg 4.
For claim 9, the person of ordinary skill would have had a reasonable expectation of success in selecting a tint mixture comprising a red colorant (6-38%), a yellow colorant (13-31%), and a black colorant (5-56%) of the tint mixture since Guyot-Ferreol teaches a cosmetic tinting mixture comprising “mineral oxides: titanium dioxide for white, and iron oxides for yellow, red and black. Various combinations of the four basic colors make it possible to create an infinite number of shades.” The person of ordinary skill in the art would have found it obvious to optimize within the color ranges taught by Guyot-Ferreol because Guyot-Ferreol teaches that an infinite number of shades can be obtained using only titanium dioxide and iron oxides for yellow, red and black.
For claim 10, as discussed above, Scavone teaches a base composition that comprises from about 0.1% to about 35% by weight of the composition of a thickening agent and from about 10% to about 99% by weight of the composition, of an anhydrous liquid carrier (Abstract), overlapping the claimed range of the base element.
2) Claims 11-20 are rejected under 35 U.S.C. 103 as being unpatentable over Scavone (cited above), in view of Guyot-Ferreol (cited above) and Parker (US 2022/0175656 A1).
The teachings of Scavone and Guyot-Ferreol are discussed above.
The combination of Scavone and Guyot-Ferreol does not teach the amount of ting mixture that mimics a skin tone recited in claim 11.
Parker teaches the missing element of the combination of Scavone and Guyot-Ferreol.
Parker teaches a deodorizing composition configured to match the user's skin tone. The deodorizing composition is pigmented to match different skin colors ranging from tan to dark brown to avoid leaving a white residue visible on darker skin or clothing (Abstract).
Parker teaches the colorant is “present in an amount between 0.9 to 3.7 % by volume of the total deodorant composition” (pg 4, claim 20), an amount within the claimed range. Because the claimed range overlaps with the range disclosed by the prior art, a prima facie case of obviousness exists.
For claim 12, Scavone teaches “Antiperspirant compositions of the present invention may further comprise a primary fragrance to help cover or mask malodors resulting from perspiration (pg 6, [0064]).
For claims 13-18, as discussed above, cosmetic tinting mixture comprising “mineral oxides: titanium dioxide for white, and iron oxides for yellow, red and black in order to mimic a broad range of skin tones.
For claim 19, the person of ordinary skill would have had a reasonable expectation of success in selecting a tint mixture comprising a red colorant (6-38%), a yellow colorant (13-31%), and a black colorant (5-56%) of the tint mixture since Guyot-Ferreol teaches a cosmetic tinting mixture comprising “mineral oxides: titanium dioxide for white, and iron oxides for yellow, red and black. Various combinations of the four basic colors make it possible to create an infinite number of shades.” The person of ordinary skill in the art would have found it obvious to optimize within the color ranges taught by Guyot-Ferreol because Guyot-Ferreol teaches that an infinite number of shades can be obtained using only titanium dioxide and iron oxides for yellow, red and black.
For claim 20, Scavone teaches the deodorant is in the form of roll-ons and solid sticks (pg 8, [0091]).
The skilled artisan would have expected success in utilizing the amount of tint mixture taught by Parker in the deodorant composition taught by the combination of Scavone and Guyot-Ferreol because the claimed composition requires an amount of tint mixture of 0.05% to 10% and Parker teaches a deodorant composition to match the skin tone of the wearer comprising an amount of tint mixture within the claimed range.
CONCLUSION
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHAEL P COHEN whose telephone number is (571)270-7402. The examiner can normally be reached on M-Th 8:30-5:30; F 9-4.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sahana S. Kaup, can be reached on (571) 272-6897. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MICHAEL P COHEN/Primary Examiner, Art Unit 1612