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.
Previous Rejections
Applicant’s arguments, filed July 9, 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 Rejections and/or objections not reiterated from previous office actions are hereby withdrawn.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.
Claim Status
Claims 3, 5, 9, 13, 15, and 19 are cancelled.
Claims 1-2, 4, 6-8, 10-12, 14, 16-18, and 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- 2, 4, 6-8, 10-12, 14, 16-18, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Parker (US 2022/0175656 A1; of record), in view of Guyot-Ferreol (“How to Create and Adjust Various Shades of Foundation Adapted to Skin Tones,” of record).
This is a new rejection, necessitated by amendment.
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 also teaches deodorant compositions that do not leave a white residue (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.
Parker does not teach the newly added limitation to claim 1 of “the tint mixture comprising from 0.05 to 10 percent by mass of the composition, and a red colorant which comprises 6 to 38 percent of the tint mixture by mass, a yellow colorant which comprises 13 to 31 percent of the tint mixture by mass, and a black colorant which comprises 5 to 56 percent of the tint mixture by mass.”
Guyot-Ferreol teaches the missing element of Parker.
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 and Guyot-Ferreol teaches these skin shades may be accessed using the four basic colors. As set forth in MPEP 2144.05(A), "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In the instant case, Guyot-Ferreol’s teaching that: “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 bas c colors make it possible to create an infinite number of shades.” See page 4, “How to create the right shade.” Therefore, the person of ordinary skill would have had a reasonable expectation of success in selecting “red colorant which comprises 6 to 38 percent of the tint mixture by mass, a yellow colorant which comprises 13 to 31 percent of the tint mixture by mass, and a black colorant which comprises 5 to 56 percent of the tint mixture by mass” since Guyot-Ferreol teaches these four tints may be used to match or mimic the skin shades of Caucasian skin, African-American skin, Asian skin and Indian Skin. See page 2, “Plenty of skin tones.”
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).
For claims 4 and 6-8, 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 10, Parker teaches a deodorant base composition comprising yellow African shea butter, white African shea butter, organic virgin coconut oil, and flaked carnauba wax in an amount of 63-65% of the total formulation (Table 5, Formulations #1 and #2), overlapping 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 11, as discussed herein, Parker teaches a base comprising from 65-95% of the composition and cosmetic tinting mixture for matching a variety of skin tones comprising the claim tint colors, wherein it is within the skill of the ordinary practitioner to determine the claimed amounts. Parker also teaches deodorant compositions that do not leave a white residue (Abstract).
For claim 12, Parker teaches the composition of Table 5, Formulations #1 and #2 comprises a fragrance and is prepared as follows (pg 2, [0016]).
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For claim 14, Guyot-Ferreol teaches the cosmetic tinting mixture comprises titanium dioxide for white tint color. See pg 4.
For claim 16, Guyot-Ferreol teaches a cosmetic tinting mixture for matching the skin tones of African American subjects. See citation above.
For claims 16-18, Guyot-Ferreol teaches a cosmetic tinting mixture for matching or mimicking a variety of skin tones from white Caucasian to African American using the four tints of red, black, yellow, and white. See page 2, “Plenty of skin tones.”
For claim 20, Parker teaches the composition may be a roll-on solid deodorant (pg 4, claim 2).
The skilled artisan would have expected success in arriving at the claimed limitations of “the tint mixture comprising from 0.05 to 10 percent by mass of the composition, and a red colorant which comprises 6 to 38 percent of the tint mixture by mass, a yellow colorant which comprises 13 to 31 percent of the tint mixture by mass, and a black colorant which comprises 5 to 56 percent of the tint mixture by mass,” as discussed above, since Guyot-Ferreol teaches that these tints may be utilized to achieve a range of colors that mimics the skin tone Guyot-Ferreol teaches these four tints may be used to match or mimic the skin shades of Caucasian skin, African-American skin, Asian skin, and Indian Skin, and, therefore the modification of the tints taught by Guyot-Ferreol allow a greater range of colors than the cocoa or caramelized sugar (Table 5) colorants suggested by Parker. Since the deodorant composition of Parker prevents a white residue from forming on the skin, and the tints of Guyot-Ferreol are tinted red, yellow, and black, respectively, one of ordinary skill would not expect the deodorant of Parker, as modified by the colorants of Guyot-Ferreol, to leave a white residue on the skin after application. Thus, Guyot-Ferreol teaches there is a finite solution to obtain a match or mimic to essentially any skin tone.
MPEP 2144.05(A) sets forth the following:
When there is a design need or market pressure to solve a problem and there are a finite number of are identified, predictable solutions, a person of ordinary skill has good reason to pursue the known options within his or her technical grasp. If this leads to the anticipated success, it is likely the product not of innovation but of ordinary skill and common sense. In that instance the fact that a combination was obvious to try might show that it was obvious under §103."
In the instant case, the determination of the amounts of each of red, yellow, and black tints are not innovative in view of Guyot-Ferreol’s teaching of a means to accommodate Caucasian, African-American, Asian, and Indian the skin tones.
Examiner’s Reply to Attorney Arguments dated 7/9/2026
1. Rejection of rejected claims 1-10 under 35 U.S.C. § 103 over Scavone and Guyot-Ferreol,
and
2. Rejection of claims 11-20 under 35 U.S.C. § 103 over Scavone, Guyot-Ferreol, and Parker.
It is initially noted that, in view of applicant’s amendments to the claims, the prior art of Scavone is no longer cited in any of the present rejections.
The applicant argues that the combination of Scavone and Guyot-Ferreol does not teach a deodorant composition matching or mimicking skin tones.
The Examiner acknowledges the arguments presented, but does not consider them persuasive. The newly constituted rejection of claim 1, utilizing the prior art of Parker, teaches a deodorant in a roll-on formulation (pg 4, claim 2), as discussed in detail above.
The applicant argues that the combination of Scavone and Guyot-Ferreol does not suggest a deodorant composition that has a tint mixture" comprises "from 0.05 to 10 percent by mass of the composition", not a deodorant composition that does not form a white residue. The applicant further argues that Parker does not teach the limitation of a tint mixture comprising from 0.05 to 10 percent of the formulation.
The Examiner acknowledges the arguments presented, but does not consider them persuasive. The newly constituted rejection of claim 1, utilizing the prior art of Parker, teaches a deodorant comprising a tint mixture or colorant in an amount between 0.9 to 3.7% by volume of the total deodorant composition (pg 4, claim 4), within the claimed range.
Examiner’s Reply to Affidavit under 37 C.F.R. § 1.132 dated 7/9/2026
Applicant Jozette Bateman submitted an Affidavit or Declaration to the record on July 9, 2026. The applicant discloses a composition according to claim 1, and further discloses the composition prevents a white residue from forming. The applicant also alleges that the combination of Scavone, Guyot, and Parker fail to disclose a deodorant composition that prevents a white residue forming on the skin.
The Examiner acknowledges the arguments and evidence presented, but does not consider them persuasive. It is initially noted that the Affidavit does not refer to a specific composition. The applicant has provided only the wide ranges of red, yellow, and black tints recited in claim 1, and has provided no information regarding other ingredients present in the composition.
The Declaration states that “No kind of antiperspirant deodorant in my testing has been invisible on the skin during the testing of my product” and “There is no other deodorant available now or during my testing which prevents a white residue from forming on the skin after drying. Preventing white residue after the application and drying of deodorant as set forth in the patent application is a novel and non-obvious benefit of my deodorant composition. See items 2 and 5 of the Affidavit.
However, this is not the standard that must be applied to potential unexpected results. As set forth in MPEP 716.02(e), “An affidavit or declaration under 37 CFR 1.132 must compare the claimed subject matter with the closest prior art to be effective to rebut a prima facie case of obviousness.” The Affidavit lacks the required comparison with the closest prior art, as determined by the Examiner, namely that of Parker. As such, the allegation of unexpected or surprising results has not been demonstrated.
The applicant further alleges that “Adapting the tinting in foundation makeup is not ‘mimic[king] a skin tone’ as set forth in claims 1 and 11. Colorizing foundation makeup is for the purpose of providing a shade that compliments and accentuates the skin tone, without matching the skin tone.” See item 7 of the Affidavit.
The Examiner acknowledges the arguments and evidence presented, but does not consider them persuasive. The prior art of Guyot-Ferreol is titled “How to Create and Adjust Various Shades of Foundation Adapted to Skin Tones,” and the article describes compositions and methods for matching the desired skin shade of a wide range of skin colors. While Guyot-Ferreol does not expressly teach a deodorant composition for mimicking a desired skin tone, one of ordinary skill in the art would recognize that the colorization teachings of Guyot-Ferreol for make-up foundation would be readily applicable to other cosmetics such as a deodorant or antiperspirant.
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 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)272-0580. 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
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