DETAILED ACTION
Status of the Claims
Claims 1-20 are pending in the instant application. Claims 20 has been withdrawn based upon Restriction/Election as discussed below. Claims 1-19 are being examined on the merits in the instant application.
Advisory Notice
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Restriction/Election
Applicant's election without traverse of Group I drawn to compositions of matter, currently claims 1-19, in the reply filed on 05/26/2026 is acknowledged.
Applicants have elected the following species in the reply filed 05/26/2026: (a) a species of cosmetic composition with specificity to (i) one or more hydrophilic film forming polymers is VP/methacrylamide/vinyl imidazole copolymer, (ii) one or more water soluble solvents is ethanol, (iii) one or more hydrophobic film forming polymers is trialkylsiloxysilylcarbamoyl pullulan, (iv) one or more volatile hydrocarbons oils is isododecane, and (v) one or more emulsifiers is acrylamide/sodium acryloyldimethyltaurate copolymer, and (vi) one or more waxes of the discrete wax particles is carnauba wax particles.
The requirement is deemed proper and is therefore made FINAL.
Claim 20 have been withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected subject matter, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 05/26/2026.
Priority
The U.S. effective filing date has been determined to be 05/30/2024, the filing date of the instant application.
Information Disclosure Statement
The information disclosure statements submitted on 05/30/2025, 08/20/2025, and 09/29/2025 were filed before the mailing date of the first office action on the merits. 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 Objections
Claim 9 is objected to because of the following informalities: Claim 9 recites “The cosmetic composition of claim 8, wherein at least one of the one or more hydrophobic film forming polymers is selected from trialkylsiloxysilylcarbamoyl pullulan with alkyl groups comprising 1 to 6 carbon atoms.” The claim should recite in relevant parts “…wherein the one or more hydrophobic film forming polymers is selected from trialkylsiloxysilylcarbamoyl pullulan compounds with alkyl groups comprising 1 to 6 carbon atoms..” Appropriate correction is required.
Claim 12 is objected to because of the following informalities: Claim 12 recites “The skin perfecting composition of claim 1, wherein the cosmetic composition includes one or more polymeric emulsifiers selected polyacrylamide and acryloyldimethyltaurate polymers.” The claim should recite in relevant parts “…wherein the cosmetic composition includes one or more polymeric emulsifiers selected from polyacrylamide and acryloyldimethyltaurate polymers.” Appropriate correction is required.
Claim 16 is objected to because of the following informalities: Claim 16 in relevant parts recites “(c) about 0.5 to about 5 wt.% of one or more emulsifiers, wherein at least one of the one or more emulsifiers is a polymeric emulsifier selected from poloxamers (ethoxylated sorbitan), alkyl and polyalkyl ethers of poly(ethylene oxide), taurate copolymers, or combinations thereof.;” Applicant first should remove the period after “thereof”. Additionally, the recitation “wherein at least one of the one or more emulsifiers is a polymeric emulsifier selected from…” is awkwardly written and it should be amended to recite as “wherein the one or more emulsifiers is a polymeric emulsifier selected from…” Appropriate correction is required.
Claim Rejections - 35 USC § 112(b)
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 10, 12, 16, 18 and 19 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor, or for pre-AIA the applicant regards as the invention.
Claim 10 recites “The cosmetic composition of claim 9, wherein the trialkylsiloxysilylcarbamoyl pullulan compound is trimethylsiloxysilylcarbamoyl pullulan.” There is insufficient antecedent basis for the phrase “pullulan compound” in claim 9.
Claim 12 recites the limitation "The skin perfecting composition of claim 1" in line 1. There is insufficient antecedent basis for this limitation in the claim.
Claim 12 also uses incomplete improper Markush or selection language. Claim 12 further recites “wherein the cosmetic composition includes one or more polymeric emulsifiers selected polyacrylamide and acryloyldimethyltaurate polymers.” The phrase “selected polyacrylamide and acryloyldimethyltaurate polymers” is grammatically incomplete and indefinite. It is unclear whether the polymeric emulsifiers are required to be selected from the group consisting of polyacrylamide and acryloyldimethyltaurate polymers, whether the language is merely exemplary. Proper Markush or selection language (e.g., “selected from the group consisting of polyacrylamide and acryloyldimethyltaurate polymers”) is required to distinctly claim the intended subject matter.
Additionally, claim 1 already requires “about 0.5 to about 5 wt.% of one or more emulsifiers.” Claims 12 introduces “one or more polymeric emulsifiers” without clarifying whether these polymeric emulsifiers are intended to satisfy, further limit, or be in addition to the emulsifiers already recited in claim 1. The dual use of “emulsifiers”/ “polymeric emulsifier” without clear linkage renders the scope of claim 12 indefinite.
Claim 16 recites the limitation " The cosmetic composition of claim 1, wherein the one or more soft-focus powders are selected" in lines 1-2. There is insufficient antecedent basis for the one or more soft-focus powders in claim 1.
Claim 18 recites the limitation "the composition of claim 1" in line 1 – “wherein the composition has a pH of […]”. There is insufficient antecedent basis for this limitation in the claim.
Claim 19 is rejected as being indefinite because the claim recites “poloxamers (ethoxylated sorbitan)” in item (c), line 3. It is unclear what the polymeric emulsifier species “poloxamers (ethoxylated sorbitan)” should be considered because poloxamers are polyethylene oxide (POE) polypropylene oxide (PPO) triblock copolymers (POE-PPO-POE), and ethoxylated sorbitan is something different and distinct polysorbates, and there is not comma separating the distinct polymeric emulsifiers. Additionally, the portion in parentheses “(ethoxylated sorbitan)” is considered indefinite claim language because it is unclear if the limitation is required or not. Appropriate clarification 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 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.
Claims 1-19 are rejected under 35 U.S.C. 103 as being unpatentable over BICHON (US 2022/0016012 A1; published January, 2022) in view of FAIG (US 2021/0401702 A1; published December, 2021); FARRAN (US 2019/0201314 A1; published July, 2019) and THEMENS (US 2006/0159716 A1; published July, 2006).
Applicants Claims
Applicant claims a cosmetic composition comprising: (a) an aqueous carrier phase comprising: (i) about 1 to about 8 wt.% of one or more hydrophilic film forming polymers; (ii) about 1 to about 25 wt.% of one or more water soluble solvents; (iii) about 40 to about 80 wt.% of water; (b) an oil phase dispersed throughout the aqueous carrier phase, the oil phase comprising: (i) about 1 to about 8 wt.% of one or more hydrophobic film forming polymers; (ii) about 1 to about 15 wt.% of one or more volatile hydrocarbon oils; (c) about 0.5 to about 5 wt.% of one or more emulsifiers; and (d) about 1 to about 10 wt.% of discrete wax particles dispersed throughout the aqueous carrier phase; wherein all weight percentages are based on a total weight of the composition (instant claim 1).
Applicants have elected the following species in the reply filed 05/26/2026: (a) a species of cosmetic composition with specificity to (i) one or more hydrophilic film forming polymers is VP/methacrylamide/vinyl imidazole copolymer, (ii) one or more water soluble solvents is ethanol, (iii) one or more hydrophobic film forming polymers is trialkylsiloxysilylcarbamoyl pullulan, (iv) one or more volatile hydrocarbons oils is isododecane, and (v) one or more emulsifiers is acrylamide/sodium acryloyldimethyltaurate copolymer, and (vi) one or more waxes of the discrete wax particles is carnauba wax particles.
Claim interpretation: Applicant discloses that: “In addition, the cosmetic composition includes discrete wax particles dispersed throughout the cosmetic composition, which are independent and distinct from separate oil phase dispersed throughout the aqueous carrier phase. The cosmetic composition is not a typical oil-in-water emulsion because it includes three distinct phases: an aqueous phase, which serves as the carrier phase; and oil phase of droplets dispersed throughout the aqueous phase, like a typical oil-in- water emulsion; and a wax phase of discrete wax particles dispersed throughout the aqueous carrier phase. The wax particles are dispersed separate from the oil phase. Thus, the cosmetic composition may be referred to as an "oil/oil-in-water emulsion (O/O/W)" or a "wax/oil-in-water emulsion" considering it has two distinct fatty phases, an oil phase and a wax phase, both independently dispersed throughout the aqueous carrier phase.” (instant Specification, pp. 2-3, [0006]). However, the instant claims simply require “an oil phase dispersed throughout the aqueous carrier phase” and “discrete wax particles dispersed throughout the aqueous carrier phase” (items (b) and (c), respectively). The claim can be interpreted as (1) the discrete wax particles in the oil phase which is dispersed throughout the aqueous phase and (2) the wax particles separately dispersed throughout the aqueous phase, in which the oil phase is also separately dispersed. Broadest reasonable interpretation (MPEP §2111) includes (1) the discrete wax particles in the oil phase which is dispersed throughout the aqueous phase, which is the claim interpretation of the instant grounds of rejection.
Determination of the scope
and content of the prior art (MPEP 2141.01)
BICHON teaches cosmetic make-up composition with long-lasting skin-perfecting effect (title, see whole document). BICHON teaches that: “In the prior art, foundations are known to be used in the form of water-in-oil emulsions comprising silicone oils and hydrophobic treated pigments for good adhesion to the skin, and film-forming polymers to improve the wear of the deposit, but there is still a need to develop new compositions with a long-lasting skin-perfecting effect and a natural glow to the complexion.” ([0003]). And that: “However, the Applicant has shown that the use of a particular phenylated silicone oil, trimethyl pentaphenyl
trisiloxane, compared with other silicone or hydrocarbon gloss oils, in a composition in the form of an emulsion comprising oils, film-forming polymers and colouring materials, makes it possible to achieve this natural complexion radiance performance without compromising either the make-up result (natural coverage) or the cosmetic properties of its deposit (non-sticky and long-lasting deposit).” ([0004]).
BICHON teaches the inclusion of volatile oils – “The volatile hydrocarbon oil may be iso-hexyl neopentanoate or a hydrocarbon such as isododecane,” And that: “According to a particular embodiment, the composition of the invention comprises at least isododecane.” ([0065]-[0066]), and that: “The content of volatile hydrocarbon oils in the composition of the invention may range from 2 to 20% by weight, preferably from 5 to 12% by weight based on the total weight of the composition” ([0069])(instant claims 1 & 19, item ((b)(ii); instant claim 11).
BICHON teaches the inclusion of fat-soluble film-forming polymer ([0071]), “Film-forming polymer means a polymer capable of forming a continuous film on a support.” ([0073]). And including: “trialkylsiloxysilylcarbamoyl pullulans in which
the alkyl group comprises from 1 to 6 carbon atoms, and preferably trimethylsiloxysilylcarbamoyl pullulan (such as for example TSPL-30-ID from Shin-Etsu),” ([0079], [0091]), and that: “The fat-soluble film-forming polymer b) is present in a content ranging from 1 to 7% by weight, preferably from 2 to 5% by weight based on the total weight of said composition.” ([0095])(instant claims 1 & 19, item (b)(i); instant claims 8-10).
BICHON teaches the Aqueous Phase ([0096]), particularly that: “The aqueous phase of the composition according to the invention generally represents from 1 to 80% by weight, in particular from 20 to 60% by weight, based on the total weight of said composition.” ([0097])(instant claim 1 & 19, item (a)(iii)). BICHON further teaches that aqueous phase includes a water soluble solvent such as ethanol ([0098], [0100]), and teaches Test 1 Example including 10 wt.% ethanol (p. 7, Table 1), and Table 3 (p. 8)(instant claims 1 & 19, item (a)(ii); instant claim 7).
BICHON teaches the inclusion of water-soluble film-forming polymers ([0106]), including “In particular, the water-soluble film-forming polymer c) according to the invention is selected from vinylpyrrolidone homo- and copolymers, and mixtures thereof.” ([0109], [0113]), and that: “In particular, the water-soluble film-forming polymer c), in particular selected from vinylpyrrolidone/vinyl acetate (PVP/VA) copolymers, is present in a content ranging from 0.05 to 2% by weight” ([0117])(instant claim 1 & 19, item (a)(i); instant claims 4-6). BICHON does not teach Applicants elected species of hydrophilic film forming polymer - VP/methacrylamide/vinyl imidazole copolymer.
BICHON teaches the inclusion of fillers ([0118]), “The composition of the invention may further comprise at least one filler, preferably a soft-focus effect filler.” ([0119]). And that: “As 'soft-focus effect fillers' according to the invention, advantageous mention may be made of the fillers selected from the group consisting of: […] silica and silicate powders, amorphous silica microspheres, silica microbeads; silica/TiO2 composite powders; talc/TiO2/alumina/silica composite powders; polymethyl methacrylate (PMMA) powders; […].” (instant claims 15-16). BICHON teaches that: A composition according to the invention may comprise from 0.1 % to 20% by weight, preferably from 1 % to 10% by weight of filler(s), based on the total weight of said composition.” ([0127])(instant claim 19, item (e)).
BICHON teaches the inclusion of coloring materials ([0128]), “According to a particular embodiment, the colouring material(s) is (are) in particular selected from mineral and/or organic pigments, composite pigments (based on mineral and/or organic materials), dyes, nacres or pearlescent pigments, and mixtures thereof.” ([0131])(instant claim 17 & 19, item (f)).
BICHON teaches that: “The composition of the invention may further
comprise any additive customarily used in cosmetics such as UV filters, antioxidants, surfactants, gelling agents […].” ([0145]).
Ascertainment of the difference between
the prior art and the claims (MPEP 2141.02)
The difference between the rejected claims and the teachings of BICHON is that BICHON does not expressly teach the inclusion of the emulsifier species acrylamide/sodium acryloyldimethyltaurate copolymer (claim 1 & 19, item (c), claim 12), discrete wax particles that are carnauba wax particles (claim 1 & 19, item (d); claims 13 & 14). Additionally, BICHON does not expressly teach the pH of their compositions, however, the range claim of about 5 to about 8 (instant claim 18), however, it would have been within the ordinary level of skill to match the pH of the skin so as not to cause irritation of the same.
FAIG teaches cosmetic compositions providing unique sensation (title, see whore document), and particularly that: “The instant disclosure relates to cosmetic compositions providing a unique sensorial experience. Additionally, aspects of the instant disclosure relate to methods for treating damaged skin with cosmetic compositions.” ([0002]).
FAIG teaches that: “Typical skin damage includes fine lines, wrinkling, hyperpigmentation, sallowness, sagging, dark under-eye circles, puffy eyes, enlarged pores, visible dead skin, i.e., flaking, scaling, dryness, and roughness. Consumers desire to slow the gaining of skin damage and reduce the effects of aging, especially in the face and around the eyes. Radiant and clear skin appears youthful and is a sign of good health and vitality.” ([0005]). And that: “Accordingly, there is an ongoing need for new and improved formulations that improve the health and visual appearance of skin.” ([0006]).
FAIG teaches that: “The cosmetic compositions may also be useful in methods for treating and/or repairing skin damage due to photoaging, and diminishing the appearance of wrinkles, dark spots, and uneven skin texture.” ([0039]).
FAIG teaches the inclusion of “Polyvinylpyrrolidone (PVP) and Co-Polymers” including: “copolymers of vinylpyrrolidone, methacrylamide, and vinylimidazole (INCI: VP/Methacrylamide/Vinyl Imidazole Copolymer) is commercially available as LUVISET from BASF.” ([0137]). It would have been prima facie to select known vinylpyrrolidone homo- and copolymers, and mixtures thereof, as taught by BICHON, the known vinylpyrrolidone homo- and copolymers including VP/Methacrylamide/Vinyl Imidazole Copolymer taught by FAIG for compositions for improving the appearance of the skin by application of a cosmetic emulsion.
FAIG teaches the inclusion of isododecane ([0101]), and ethanol ([0116], [0118]). FAIG teaches the inclusion of waxes ([0078]) including carnauba wax ([0079]) but does not expressly teach the waxes as discrete carnauba wax particles. FAIG teaches the inclusion of thickening agents ([0127]) including “polymeric thickeners selected from the group consisting of ammonium polyacryloyldimethyl taurate” and “polyacrylamide” as well as “a mixture thereof” ([0128]), but does not teach the species acrylamide/sodium acryloyldimethyltaurate copolymer.
FARRAN teaches skin perfecting cosmetic compositions (title, see whole document), and particularly that: “The present disclosure relates to cosmetic compositions for application to the skin for providing an instantaneous and dramatic improvement to the appearance of skin, for example, by reducing the appearance of wrinkles, eye bags, pores, and skin imperfections such as scarring, dark spots (and uneven skin tone), dark circles, and roughness.” ([0002]).
FARRAN teaches the inclusion of Thickening Agents ([0059]) including that: “a preferred thickening agent is a crosslinked anionic copolymer of acrylamide and of 2-acrylamido-2-methylpropane sulfonic acid (AMPS) (e.g., acrylamide/sodium acryloyldimethyltaurate copolymer).” ([0060]). And that the amount is: “about 0.01 to about 10 wt.%, about 0.01 to about 5 wt. %, or about 0.1 to about 5 wt. % of at least one thickening agent, for example acrylamide/sodium acryloyldimethyltaurate copolymer;” ([0079])(instant claim 1 & 19, item (c)).
FARRAN teaches the inclusion of soft focus powders, and particularly including: “waxes, such as copernicia cerifera (carnauba) wax, […] The copernicia cerifera (carnauba) wax can be provided as a dispersion in water and alcohol.” ([0022], [0057])(instant claim 1, item (d)). As well as film-forming polymers including “LUVISET Clear (VP/MethacrylamideNinyl Imidazole Copolymer),” among others ([0046])(instant claim 1 & 19, item (a)(i)). FARRAN teaches the inclusion of water-soluble solvents ([0063]) including ethanol ([0064]) in an amount of about 0.01 to about 25 wt.% ([0068]), and water ([0069]).
THEMENS teaches cosmetic emulsion comprising solid particles (title, see whole document), and particularly that: “The present disclosure relates to a cosmetic composition for making up or caring for the skin, including the lips, in emulsion form, a method for making such composition, and a method of use thereof.” ([0002]), “The cosmetic composition according to the present disclosure can be a foundation, such as, for example, a foundation to be applied to the face or the neck, a concealer, a tinted cream, […].” ([0003]).
THEMENS teaches that: “During the aging process, various signs appear on the skin, being reflected, for example, by modification of the cutaneous functions and structure of the skin. The main clinical signs of cutaneous aging include the appearance of fine lines and deep wrinkles, which increase with age. A disruption of the "grain" of the skin can be observed, that is to say that the microrelief is less uniform and exhibits an anisotropic nature.” ([0005]).
THEMENS teaches that: “Other known methods for concealing imperfections
of the skin include using compositions comprising fillers said to have a soft-focus effect […] These compositions, by an optical effect, can tone down cutaneous imperfections or blemishes, such as blotches, wrinkles or fine lines.” ([0007]).
THEMENS teaches that: “There thus exists a need for a composition for making up or caring for the skin which can make it possible to obtain satisfactory concealment of the imperfections or blemishes of the skin, such as wrinkles, fine lines or blotches.” ([0010]). And that: “The inventors have discovered, surprisingly, that it is possible to obtain such a composition by the introduction, into the oily phase and into the aqueous phase of an emulsion, of particles chosen according to their size and/or their chemical nature.” ([0011]). And further that: “Accordingly, the present disclosure relates to a cosmetic composition for making up or caring for the skin in the form of an emulsion comprising an aqueous phase and an oily phase, wherein the aqueous phase comprises a dispersion of at least one wax particles with a mean size by volume of less than or equal to 1 µm, and the oily phase comprises a dispersion of particles with a mean size by volume of less than or equal to 15 µm.” ([0012]).
THEMENS teaches that: “According another embodiment of the present disclosure, the particles dispersed in the oily phase can be chosen from wax powders.” ([0066]). And that: “ The waxes present in the oily phase may be in the form of small particles having, for example, a mean size by volume ranging from 0.5 to 30 micrometres, such as ranging from 1 to 20 micrometres, or ranging from 5 to 10 micrometres, and subsequently denoted by the expression ‘micro waxes.’” ([0067]). And further that: “Among microwaxes which may be used in the compositions according to the present disclosure, non-limiting mention may be made of carnauba microwaxes, such as those sold under the name of "MicroCare 350®"1 by Micro Powders, […].” ([0068]). And further that: “The emulsion according to the present disclosure can comprise, in its oily phase, from 0.1 % to 15% by weight of waxes, with respect to the total weight of the composition. In one embodiment, the emulsion may comprise from 0.5% to 10% or from 0.5% to 8% by weight.” ([0073])(instant claim 1 & 19, item (d), instant claims 13-14).
THEMENS teaches inclusion of a volatile oil ([0074]-[0076], [0079]) in an amount ranging from 1% to 60% ([0084])(instant claim 1 & 19, item (b)(ii)). THEMENS teaches the inclusion of water ([0056]) in an amount of 10-80 wt.%, and ethanol ([0057]) in an amount of 1-20 wt.% ([0058])(instant claim 1 & 19, items (a)(ii) & (a)(iii)).
Regarding the ratio of (b)(i):(b)(ii) being in the range of 1:1 to 1:10 (instant claim 3), BICHON teaches “The fat-soluble film-forming polymer b) is present in a content ranging from 1 to 7% by weight, preferably from 2 to 5% by weight based on the total weight of said composition.” ([0095]) encompassing instant claim 1, item (b)(i), and teaches that: “According to a particular embodiment, the composition of the invention comprises at least isododecane.” ([0065]-[0066]), and that: “The content of volatile hydrocarbon oils in the composition of the invention may range from 2 to 20% by weight, preferably from 5 to 12% by weight based on the total weight of the composition” ([0069]). It would have been prima facie obvious to include an amount of fat-soluble film-forming polymer in the range of 1-5% such as 2.5 wt.% and a volatile oil in the range of 5-12% such as 6-8 wt.% clearly encompassing the claimed ratio range (instant claim 3 ratio range of (b)(i):(b)(ii)).
Regarding the ratio of (a)(i):(b)(i) being in the range of about 3:1 to about 1:3 (instant claim 3), BICHON teaches “The fat-soluble film-forming polymer b) is present in a content ranging from 1 to 7% by weight, preferably from 2 to 5% by weight based on the total weight of said composition.” ([0095]) encompassing instant claim 1, item (b)(i), and that: “In particular, the water-soluble film-forming polymer c), in particular selected from vinylpyrrolidone/vinyl acetate (PVP/VA) copolymers, is present in a content ranging from 0.05 to 2% by weight” ([0117]) encompassing instant claim 1, item (a)(i). It would have been prima facie obvious to include an amount of fat-soluble film-forming polymer (b)(i) in the range of 1-5% such as 2.5 wt.% and water-soluble film-forming polymer in the range of 0.05-2% such as 1 wt.% clearly encompassing the claimed ratio range (instant claim 3 ratio range of (a)(i):(b)(i)).
Regarding the claimed skin effect (instant claims 2 & 19) – “wherein the composition provides an immediate skin tightening effect upon application”, the examiner argues that this property would have been inherently present in the composition including the same constituent ingredients in the same amounts (MPEP §2112). Additionally, FARRAN teaches that “These polymers provide a tightening effect to the skin yet retain elasticity and therefore are able to follow facial movements without cracking and peeling.” in reference to water-dispersible film forming polymers ([0026]) of which “LUVISET Clear (VP/MethacrylamideNinyl Imidazole Copolymer),” is described ([0046]). Additionally, THEMENS teaches their compositions provide a skin tightening effect – “Among the materials having a tightening effect that may be used according to the present disclosure, nonlimiting mention may be made of colloidal particles of inorganic fillers or alternatively of aqueous microdispersions of wax particles as described above.” ([0044])(instant claims 2 and 19, “provides an immediate skin tightening effect upon application to the skin”).
Finding of prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to produce a cosmetic emulsion including hydrophilic film forming polymer(s), water and water-soluble solvent such as ethanol, an oil phase including hydrophobic film forming polymer(s), volatile oil(s), as taught by BICHON, and further to add beneficial ingredients for the same, including vinyl pyrrolidone copolymer species VP/Methacrylamide/Vinyl Imidazole Copolymer, as taught by FAIG & FARRAN, as well as surfactants (emulsifiers) such as polymeric emulsifier/thickeners such as acrylamide/sodium acryloyldimethyltaurate copolymer, as taught by FARRAN, as well as discrete wax particles, as suggested by THEMENS, to form a cosmetic composition for covering fine lines/wrinkles such as a foundation/concealer. One skilled in the art would have been motivated to do so because it is generally considered to be prima facie obvious to combine compositions, each of which is taught by the prior art to be useful for the same purpose, in order to form a composition that is to be used for an identical purpose. The motivation for combining them flows from their having been used individually in the prior art, and from the being recognized in the prior art as useful for the same purpose. As shown by the recited teachings, instant claims are no more than the combination of conventional components of cosmetic compositions for concealing/covering fine lines/wrinkles. It therefore follows that the instant claims define prima facie obvious subject matter. Cf. In re Kerkhoven, 626 F.2d 848, 205 USPQ 1069 (CCPA 1980)(MPEP §2144.06).
From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, as evidenced by the references, especially in the absence of evidence to the contrary.
In light of the forgoing discussion, the Examiner concludes that the subject matter defined by the instant claims would have been obvious within the meaning of 35 USC 103.
Claims 1-19 are rejected under 35 U.S.C. 103 as being unpatentable over BICHON (US 2022/0016012 A1; published January, 2022) in view of FAIG (US 2021/0401702 A1; published December, 2021); FARRAN (US 2019/0201314 A1; published July, 2019) and PISTORIO (US 2014/0105942 A1; published April, 2014).
Applicants Claims
Applicant claims a cosmetic composition, as discussed above.
Applicants elected species, is discussed above.
Claim interpretation: Applicants disclosure is discussed above. The instant claims simply require “an oil phase dispersed throughout the aqueous carrier phase” and “discrete wax particles dispersed throughout the aqueous carrier phase” (items (b) and (c), respectively). The claim can be interpreted as (1) the discrete wax particles in the oil phase which is dispersed throughout the aqueous phase and (2) the wax particles separately dispersed throughout the aqueous phase, in which the oil phase is also separately dispersed. Broadest reasonable interpretation (MPEP §2111) includes (2) the wax particles separately dispersed throughout the aqueous phase, in which the oil phase is also separately dispersed, which is the claim interpretation of the instant grounds of rejection.
Determination of the scope
and content of the prior art (MPEP 2141.01)
BICHON teaches cosmetic make-up composition with long-lasting skin-perfecting effect, as discussed above and incorporated herein by reference.
Ascertainment of the difference between
the prior art and the claims (MPEP 2141.02)
The difference between the rejected claims and the teachings of BICHON is that BICHON does not expressly teach the inclusion of the emulsifier species acrylamide/sodium acryloyldimethyltaurate copolymer (claim 1 & 19, item (c), claim 12), discrete wax particles that are carnauba wax particles (claim 1 & 19, item (d); claims 13 & 14). Additionally, BICHON does not expressly teach the pH of their compositions, however, the range claim of about 5 to about 8 (instant claim 18), however, it would have been within the ordinary level of skill to match the pH of the skin so as not to cause irritation of the same.
FAIG teaches cosmetic compositions providing unique sensation, as discussed above and incorporated herein by reference.
FARRAN teaches skin perfecting cosmetic compositions, as discussed above and incorporated herein by reference.
PISTORIO teaches aqueous wax dispersions (title, see whole document), and particularly that: “The present invention is directed to an aqueous dispersion comprising: (a) at least one solid wax particle having a particle size ranging from equal to or greater than 1 micron to about 100 microns and comprising at least one wax having a melting point of greater than 35° C.; (b) a surfactant mixture comprising at least one nonionic surfactant and at least one ionic surfactant; and ( c) water. The aqueous dispersion may be employed in compositions capable of delivering benefits to various substrates, for example, keratinous substrates such as skin and hair.” (abstract).
PISTORIO teaches that: “waxes are traditionally employed in a paste or pomade but may not be easily formulated in a spray or foam product, particularly at a concentration that will be sufficient to impart the desirable attributes obtained from a wax ingredient. The type of wax may also affect the stability and dispersion of the wax particles in the formulation since wax particles could agglomerate. Certain waxes may also result in an undesirable rough texture and/or sticky and tacky feel of the product and/or to the treated substrate. In paste formulas, waxes are first melted and then blended with oils, plasticizers, clays and/or any other additives. In other words, formulating with waxes still poses a challenge with respect to optimizing the benefits that can be obtained from the wax or waxes themselves. Thus, there still exists a need to improve how ingredients such as waxes, polymers, resins and oils can be formulated into various galenic forms, and at the same time, optimize the benefits derived from these ingredients and enhance the performance of other ingredients.” ([0005]).
PISTORIO teaches that: “Thus, it is an object of the present invention to provide a material comprising a wax, that is, a wax dispersion comprising wax particles having certain physical properties, wherein the wax dispersion can be employed in various galenic forms. It is also an object of the present invention to provide a novel way of imparting certain desirable properties to the surface of a substrate using said wax dispersion and/or compositions containing the wax dispersion.” ([0009]).
PISTORIO teaches that: “Furthermore, the aqueous dispersion of the present disclosure can be formulated into compositions of various galenic forms such as gels, mousses, lotions, creams, pastes, ointments, sprays and foams. It was found that when the aqueous dispersion of the present disclosure was added into one of these galenic forms, the solid wax particles remained homogeneously and finely dispersed in the composition and said composition is stable even during storage and exhibits no agglomeration or precipitation of the solid wax particles. Moreover, the resulting composition exhibits reduced or minimized stickiness or tackiness that is generally attributed to the use of waxes.” ([0038]), and that “The aqueous dispersion and compositions of the present disclosure are also useful in cosmetic applications for skin, lips, nails, and eyelashes such as makeup, skin care and sun care products, particularly, in allowing beneficial ingredients in these products to remain longer on these substrates as a result of the film or coating formed on the substrates.” ([0043]).
PISTORIO teaches that “Preferably, the solid wax particles in the aqueous dispersion of the present disclosure have a narrow particle size distribution, that is, the average difference in the particle sizes of the solid wax particles in an aqueous dispersion of the present disclosure is not more than about 20 microns, or not more than about 15 microns, or not more than about 10 microns, or not more than about 8 microns, or not more than about 6 microns, or not more than about 2 microns.” ([0048]). And that: “Examples of waxes comprising the at least one solid wax particle of the present disclosure include […] carnauba wax […].” ([0059]), and that: “According to one embodiment, hard waxes according to the present disclosure, include, but are not limited to, carnauba wax, […].” ([0067]). And further that: “The wax having a melting point of greater than 35° C. and comprising the at least one solid wax particle of the present disclosure may be employed in an amount ranging from about 10% to about 80% by weight, or preferably from about 15% to about 60% by weight, or preferably from about 20% to about 40% by weight, based on the total weight of the aqueous dispersion of the present disclosure, including all ranges and subranges therebetween.” ([0068])(instant claim 1 & 19, item (d)).
PISTORIO teaches the inclusion of emulsifying polymers ([0082]) including AMPSs ([0087])(instant claims 1, 19, item (c)).
PISTORIO teaches that: “Without being bound by any one theory, it is believed that the presence of an ionic surfactant, particularly, at the time of making the dispersion, reduces or minimizes the aggregation of the solid wax particles in the aqueous dispersion of the present disclosure. Thus, the surfactant mixture comprising at least one ionic surfactant acts as a dispersant to facilitate the uniform dispersion of the solid wax particles and to enhance the stabilization of the dispersion itself.” ([0196]). And that: “Those skilled in the art will select the best fit between the wax and surfactant in terms of type and% to get the best dispersions. For example, silicone waxes are generally found to be more compatible with silicone based surfactants.” ([0203]). PISTORIO teaches Aqueous Wax Dispersions that are non-aggregating and stable, and can be formulated into composition of various galenic forms useful for cosmetic application for skin ([0038], [0043]).
Finding of prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to produce a cosmetic emulsion including hydrophilic film forming polymer(s), water and water-soluble solvent such as ethanol, an oil phase including hydrophobic film forming polymer(s), volatile oil(s), as taught by BICHON, and further to add beneficial ingredients for the same, including vinyl pyrrolidone copolymer species VP/Methacrylamide/Vinyl Imidazole Copolymer, as taught by FAIG & FARRAN, as well as surfactants (emulsifiers) such as polymeric emulsifier/thickeners such as acrylamide/sodium acryloyldimethyltaurate copolymer, as taught by FARRAN, as well as an aqueous dispersion of discrete wax particles, as suggested by PISTOIRO, to form a cosmetic composition for covering fine lines/wrinkles such as a foundation/concealer. One skilled in the art would have been motivated to do so because it is generally considered to be prima facie obvious to combine compositions, each of which is taught by the prior art to be useful for the same purpose, in order to form a composition that is to be used for an identical purpose. The motivation for combining them flows from their having been used individually in the prior art, and from the being recognized in the prior art as useful for the same purpose. As shown by the recited teachings, instant claims are no more than the combination of conventional components of cosmetic compositions for concealing/covering fine lines/wrinkles. It therefore follows that the instant claims define prima facie obvious subject matter. Cf. In re Kerkhoven, 626 F.2d 848, 205 USPQ 1069 (CCPA 1980)(MPEP §2144.06).
From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, as evidenced by the references, especially in the absence of evidence to the contrary.
In light of the forgoing discussion, the Examiner concludes that the subject matter defined by the instant claims would have been obvious within the meaning of 35 USC 103.
Claims 18 is rejected under 35 U.S.C. 103 as being unpatentable over BICHON (US 2022/0016012 A1; published January, 2022) in view of FAIG (US 2021/0401702 A1; published December, 2021); FARRAN (US 2019/0201314 A1; published July, 2019), and THEMENS (US 2006/0159716 A1; published July, 2006), or alternatively, PISTORIO (US 2014/0105942 A1; published April, 2014) as applied to claims 1-19 above, and further in view of BAZIN (US 6,001,367; published December, 1999).
Applicants Claims
Applicant claims a cosmetic composition, as discussed above.
Applicants elected species, is discussed above.
Claim interpretation: is discussed above.
Determination of the scope
and content of the prior art (MPEP 2141.01)
BICHON teaches cosmetic make-up composition with long-lasting skin-perfecting effect, as discussed above and incorporated herein by reference.
Ascertainment of the difference between
the prior art and the claims (MPEP 2141.02)
The difference between the rejected claims and the teachings of BICHON is that BICHON does not expressly teach the inclusion of the emulsifier species acrylamide/sodium acryloyldimethyltaurate copolymer (claim 1 & 19, item (c), claim 12), discrete wax particles that are carnauba wax particles (claim 1 & 19, item (d); claims 13 & 14). Additionally, BICHON does not expressly teach the pH of their compositions, however, the range claim of about 5 to about 8 (instant claim 18), however, it would have been within the ordinary level of skill to match the pH of the skin so as not to cause irritation of the same. Particularly, BAZIN teaches cosmetic compositions containing dispersion of polymer system (title, see whole document), and particularly “The present invention relates to an anti-wrinkle composition containing a dispersion of a polymer system comprising at least one polymer of natural origin, and to the use of this polymer system as a tensioning agent in a cosmetic or dermatological composition. […] The composition obtained is used in particular for the immediate treatment of wrinkles and fine lines on the skin.” (abstract). BAZIN teaches that: “The pH of the composition is close to the pH of the skin, i.e. from about 5 to about 8 and preferably from 5.5 to 6.5.” (col. 5, lines 49-50).
FAIG teaches cosmetic compositions providing unique sensation, as discussed above and incorporated herein by reference.
FARRAN teaches skin perfecting cosmetic compositions, as discussed above and incorporated herein by reference.
THEMENS teaches cosmetic emulsion comprising solid particles, as discussed above and incorporated herein by reference.
PISTORIO teaches aqueous wax dispersions, as discussed above and incorporated herein by reference.
Finding of prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to produce a cosmetic emulsion including hydrophilic film forming polymer(s), water and water-soluble solvent such as ethanol, an oil phase including hydrophobic film forming polymer(s), volatile oil(s), as discussed above, the pH being close to the pH of the skin such as about 5 to about 8, as suggested by BAZIN.
From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, as evidenced by the references, especially in the absence of evidence to the contrary.
In light of the forgoing discussion, the Examiner concludes that the subject matter defined by the instant claims would have been obvious within the meaning of 35 USC 103.
Conclusion
Claims 1-19 are pending and have been examined on the merits. Clamis 9, 12 and 16 are objected to. Claims 10, 12, 16, 18 and 19 are rejected under 35 U.S.C. 112(b); and claims 1-19 are rejected under 35 U.S.C. 103. No claims allowed at this time.
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/IVAN A GREENE/Examiner, Art Unit 1619
/TIGABU KASSA/Primary Examiner, Art Unit 1619
1 The examiner cites MPI-Micro Powders “Microcare 350” product technical data sheet, 1-page.
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