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 .
Applicant’s arguments, filed 07/10/2026, 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 Rejections and/or objections not reiterated from previous office actions are hereby withdrawn.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 1-34 are pending and under examination.
Claim Objections
Claim 20 stands objected to because of the following informalities: “where the at least C3 or C4 alkanediol or alkanediol(s)” should read “where the at least one C3 or C4 alkanediol”, in order to be consistent with the terminology of claim 1, and to remove the redundant “alkanediol and alkanediol”. Appropriate correction is required.
Claim Rejections - 35 USC § 103
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 (i.e., changing from AIA to pre-AIA ) 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.
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 1-24 and 28-34, stand rejected under 35 U.S.C. 103 as being unpatentable over Clavel et al (US 20140079656 A1, hereinafter “Clavel”), in view of B&B (B&B Cosmetic Ingredients (Preservatives & Moisturizer), Jul 2020, pp. 1-40, hereinafter "B&B") and Rood et al (US 20170239271 A1, hereinafter "Rood").
Clavel teaches water-in-oil emulsion compositions comprising in a physiologically acceptable medium, an oil phase containing macadamia oil (non-volatile hydrocarbon oil) at 2 wt%, n-undecane + n-tridecane (volatile alkane) at 14.00 wt%, an aqueous phase dispersed in the oil phase, polyglyceryl-6-polyricinoleate at 6 wt%, glycerol at 5 wt%, water at 29.3 wt%, sorbitol (aqueous soln. at 70%) at 8 wt%, ethanol at 5 wt%, yellow, red, and black iron oxide coated with aluminum stearoylglutamate (colorant), titanium dioxide coated with aluminum stearoylglutamate (colorant), natural calcium carbonate (filler), modified hectorite (lipophilic gelling agent), etc. (ex. 9, ¶ 105). The compositions may be devoid of silicone (¶ 145). The compositions comprise at least one polyol, wherein the at least one polyol make it possible to formulate emulsions comprising a fatty continuous phase, in particular of water-in-oil emulsion type, having satisfactory, or even improved, properties, both in terms of comfort on application and in terms of stability (abs, ¶ 19). The at least one polyol with at least one polyglyceryl polyricinoleate confers on the composition improved comfort on application and improved stability (¶ 26). The polyol may comprise a mixture of polyols including 1,3-propanediol, propylene glycol, butylene glycol, etc. (¶ 97). The composition may comprise from 2-25 wt% of polyols (¶ 101). The oil phase may comprise a content ranging from 5-95% by weight, relative to the total weight of the composition (¶ 117). Other suitable non-volatile hydrocarbon based oils include olive oil (¶ 135). The nonvolatile oil may range from 1-50 wt% (¶ 70). Volatile oils may be included, such as isododecane, isodecane, or isohexadecane (¶ 130). The volatile linear alkanes that are suitable include n-nonane (C9), n-decane (C10), n-undecane (C11), n-dodecane (C12), etc., and mixtures thereof (¶ 58). The compositions may comprise mixtures of nonvolatile oils, including nonvolatile hydrocarbon oils (¶ 135). The compositions may also comprise at least one colorant, including particle pigments such as titanium dioxide, iron oxide, etc. (pearlescent pigments, etc. (¶¶ 204-206, 215). The compositions are applied to keratin materials for making up and/or caring for keratin materials (abs, ¶ 27, claim 41). Moisturizers can be included (¶ 247). Clavel teaches those skilled in the art can select agents and the contents thereof as a function of the desired effect, as well as adjust the nature and amount of the additives present in the compositions in accordance with the invention by means of routine operations, such that the cosmetic properties and the properties of comfort on application and of stability that are desired for these compositions are not thereby affected (¶¶ 251, 254).
Clavel does not teach a particular embodiment comprising the C3 or C4 alkanediols as instantly claimed, an embodiment with the volatile branched alkanes of claim 5, an embodiment as instantly claimed with a mixture of C9-C12 alkanes of claim 7, an embodiment as instantly claimed further comprising an additional nonvolatile hydrocarbon oil of claim 10, an embodiment with the ratio of claims 11 and 13, nor a particular embodiment with the amount of C3 or C4 alkanediols of claims 20 and 21.
Additional motivation for including at least one C3 or C4 alkanediol is provided by B&B, where the reference teaches 1,3-propanediol, when used in combination with glycerin (i.e., glycerol), can increase the moisturizing effect and reduce sticky feeling of glycerin (pg. 29). 1,3-propanediol is suitable for skincare cosmetics as a cosmetic solvent, humectant, emollient, and preservative booster (pg. 28). 1,3-propanediol gives light skin feeling, easy spreadable performance, and is a non-skin irritable with good anti-microbial boosting effect (pg. 28).
Additional motivation for including at least one C3 or C4 alkanediol is provided by Rood, where the reference teaches dermatological emulsion compositions, where it was known to include emollients and humectants in order to soften the skin and stabilize and control moisture content of the compositions (abs, para 33). Glycerin, when used in combination with propylene glycol or butylene glycol, enhanced the penetration of the skin by the compositions (para 34). The humectants were preferably included at no greater than about 15 wt%, preferably no greater than 10 wt% (¶ 34).
Regarding claim 1, the composition of example 9 of Clavel discloses a composition in the form of a water-in-oil emulsion in a physiologically acceptable medium, comprising a continuous oil phase comprising macadamia oil (nonvolatile vegetable oil), and a mixture of n-undecane + n-tridecane (volatile alkane), an aqueous phase dispersed in the oily phase, polyglyceryl-6-polyricinoleate (polyglycerol polyricinoleate surfactant), glycerol, etc. The composition appears to be free of silicone.
Regarding the at least one C3 or C4 alkanediol of claim 1, it would have been obvious to further include a polyol comprising at least one C3 or C4 alkanediol, such as 1,3-propanediol, propylene glycol, butylene glycol, etc., where mixtures of polyols were taught to be suitable, and where these polyols, when used in combination with polyglyceryl polyricinoleate surfactants, have improved properties in terms of both comfort and improved stability, as taught by Clavel. Additional motivation for the particular selection of C3 or C4 alkanediols is provided by B&B and Rood, where the combination of glycerol and 1,3-propanediol, propylene glycol, and butylene glycol, were known to have an improved moisturizing effect, compared to when used alone. Further, B&B teaches a reduction in the sticky feeling of glycerin when combined with 1,3-propanediol, and provides compositions with a light skin feeling that is easy spreading, non-skin irritable, and with good anti-microbial boosting effect. The skilled artisan would recognize that the above mentioned improvements would be desired for the cosmetic emulsions of Clavel, where Clavel is directed compositions for good comfort upon application to keratin materials, in particular the skin.
Regarding the weight ratio of claim 1, where the composition made obvious above comprises 5 wt% glycerol, and the total amount of polyols may range from 2-25 wt%, as taught by Clavel, it would have been obvious to include the at least one C3 or C4 alkanediols within that range, thereby resulting in ratios overlapping the instantly claimed ratios. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I). Further, it would have been well within the relative skills of the skilled artisan to routinely optimize the ratios of polyols, in order to achieve desired comfort and stability properties for desired use, where polyols were known to be included to improve comfort and stability. See MPEP 2144.05(II)(A).
Regarding claim 2, it appears that the composition made obvious above has an oily phase content of 51.7 wt%, falling within the claimed range.
Purely arguendo, if the calculations were to be incorrect, it would have been obvious to formulate the compositions with an oily phase from 5-95 wt%, as taught by the reference.
Regarding claim 3, the composition made obvious above comprises macadamia nut oil, thereby meeting the claimed limitation.
Regarding claim 4, the composition made obvious above comprises macadamia nut oil at 2 wt%, falling within the claimed range.
Regarding claim 5, it would have been obvious to include at least one volatile branched alkane, such as isododecane, etc., where the reference teaches the inclusion of volatile oils are suitable, such to achieve desired emulsion properties, etc.
Regarding claims 6 and 8, the composition made obvious above comprises a mixture of n-undecane and n-tridecane, thereby meeting the claimed limitation.
Regarding claim 7, it would have been obvious to substitute a mixture of C9-C12 alkanes for the mixture of n-undecane and n-tridecane, where mixtures of nonvolatile linear alkanes including n-nonane (C9), n-decane (C10), n-undecane (C11), and n-dodecane (C12), are taught by Clavel.
Regarding claim 9, the composition made obvious above comprises n-undecane and n-tridecane at 16.10 wt%, falling within the claimed range.
Regarding claim 10, it would have been obvious to further include a nonvolatile hydrocarbon based oil to the composition made obvious above, where mixtures of nonvolatile oils are suitable.
Regarding claim 11, where the nonvolatile oils may range from 1-50 wt%, as taught by Clavel, it would have been obvious for the skilled artisan to include the additional nonvolatile hydrocarbon oil in a concentration of less than or equal to 50 wt%. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I).
Regarding claim 12, the ratio of the macadamia oil to the volatile alkanes in the composition made obvious above is 2:14, falling within the claimed range.
Regarding claim 13, where the total amount of nonvolatile oil can be 1-50 wt%, and the volatile alkanes can be 1-50 wt%, it would have been obvious for the skilled artisan to adjust the amount of the oils and the volatile alkanes within the disclosed ranges, thereby overlapping the instantly claimed weight ratios. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I).
Regarding claim 14, the composition made obvious above comprises water at 29.3 wt%, falling within the claimed range.
Regarding claim 15, the composition made obvious above comprises glycerol at 5 wt%, falling within the claimed range.
Regarding claim 16, the composition made obvious above comprises polyglyceryl-6-ricinoleate, thereby meeting the claimed limitation.
Regarding claim 17, the composition made obvious above comprises the at least one polyglyceryl polyricinoleate surfactant at 6 wt%, falling within the claimed range.
Regarding claims 18 and 19, where the inclusion of at least one C3 or C4 alkanediol is made obvious above, it would have been obvious to select from those suitable polyols taught by the reference, such as 1,3-propanediol, where the polyols, and mixtures thereof, were known to improve comfort and stability properties of the compositions.
Regarding claim 20, it would have been obvious to include the at least one C3 or C4 alkanediol made obvious above in known amounts suitable for polyols, such as 2-25 wt%, as taught by Clavel, overlapping the claimed range. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I). Further, purely arguendo, if for some reason the inclusion of the C3 or C4 alkanediols in the ranges instantly claimed were not obvious in view of Clavel, it would have been obvious to include known amounts of humectants, such as propylene glycol, butylene glycol, etc., in amounts of preferably no more than 10 wt%, as taught by Rood, overlapping the claimed range. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I).
Regarding claim 21, where the composition made obvious above comprises 5 wt% glycerol, and the total amount of polyols may range from 2-25 wt%, as taught by Clavel, it would have been obvious to include the at least one C3 or C4 alkanediols within that range, thereby resulting in ratios overlapping the instantly claimed ratios. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I). Further, it would have been well within the relative skills of the skilled artisan to routinely optimize the ratios of polyols, in order to achieve desired comfort and stability properties for desired use, where polyols were known to be included to improve comfort and stability. See MPEP 2144.05(II)(A).
Regarding claims 22-24, the composition made obvious above further comprises sorbitol at 8 wt%, thereby meeting the claimed limitations.
Regarding claims 28 and 29, the composition made obvious above comprises ethanol at 6.3 wt%, thereby meeting the claimed limitation.
Regarding claim 30, where the composition made obvious above comprises inorganic particle pigments comprising iron oxide and titanium oxide, it appears the limitation of a pulverulent colorant is met.
Regarding claim 31, the composition made obvious above comprises natural calcium carbonate, a filler as taught by Clavel.
Regarding claims 32 and 33, the composition made obvious above comprises modified hectorite (a modified clay), a lipophilic gelling agent as taught by Clavel.
Regarding claim 34, it would have been obvious to apply the composition made obvious above to keratin materials for purposes of making up and/or caring for keratin materials, as taught by Clavel.
Response to Arguments
Applicants assert that adding no alkanediol (comparative example 1) and adding C5 alkanediol (comparative example 3) resulted in unstable compositions. Applicants assert there are no teachings in Clavel that would lead the skilled artisan to expect superior stability in compositions resulting from combining glycerol and alkanediol consisting of at least one C3 or C4 alkanediol, as shown by examples 1 and 2 of the present application. Applicants assert Clavel lists pentylene glycol (C5 compound) among its suitable polyols, which Applicants assert was shown in comparative example 3 of the present application as being unstable. Applicants assert nothing in B&B and Rood compensate for Clavel’s deficiencies, and there are no teachings in there references that would lead the skilled artisan to combine glycerol and alkanediol as claimed with a reasonable expectation of producing a stable composition.
Respectfully, this argument is not persuasive. Clavel teaches that the inclusion of a polyol, which includes C3 and C4 alkanediols as discussed above, result in water-in-oil emulsions having satisfactory, or even improved, properties, both in terms of comfort on application and in terms of stability. Accordingly, it would be expected that the inclusion of the alkanediols compared to none would have resulted in improved stability based on the teachings of Clavel. Regarding the particular selection of C3 or C4 alkanediol, while the Examiner recognizes that Clavel recites a list of polyols, including C3, C4, and C5 alkanediols, additional motivation for selecting C3 or C4 alkanediols specifically was provided by B&B and Rood, where the combination of glycerol and 1,3-propanediol, propylene glycol, and butylene glycol, were known to have an improved moisturizing effect, compared to when used alone. Further, B&B teaches a reduction in the sticky feeling of glycerin when combined with 1,3-propanediol, and provides compositions with a light skin feeling that is easy spreading, non-skin irritable, and with good anti-microbial boosting effect. The skilled artisan would recognize that the above mentioned improvements would be desired for the cosmetic emulsions of Clavel, where Clavel is directed compositions for good comfort upon application to keratin materials, in particular the skin. From this, the skilled artisan would have had motivation to specifically select C3 or C4 alkanediols over the other listed polyols of Clavel, for the above mentioned benefits. Upon their selection, the functional and physical properties of the combination, including stability, would be the same. Purely arguendo, even if unexpected results were established, the particular embodiments comparing butylene glycol (C4 alkanediol) and propanediol (C3 alkanediol) to pentylene glycol (C5 alkanediol) are not commensurate in scope with the instant claims. The working embodiments recite a single specific combination of components in a single amount, only appearing to differ in the particular alkanediol chosen. Where the instant claims recite each component as a broad class of components, and in any amount, it does not appear that the results are reasonably representative of the full scope of the instant claims, where the stability and other properties would be expected to vary with varying amounts and combinations of the particular components.
Claims 25-27 stand rejected under 35 U.S.C. 103 as being unpatentable over Clavel et al (US 20140079656 A1, hereinafter “Clavel”), B&B (B&B Cosmetic Ingredients (Preservatives & Moisturizer), Jul 2020, pp. 1-40, hereinafter "B&B"), and Rood et al (US 20170239271 A1, hereinafter "Rood"), as applied to claims 1-24 and 28-34, and further in view of Dow et al (US 6589922 B1, hereinafter “Dow”).
Clavel, B&B, and Rood are discussed above.
The references do not specifically disclose an embodiment comprising at least one monoester of saturated and linear C7-C14 carboxylic acid and of glycerol of instant claims 25-27.
Dow teaches non-irritating skin cleansing compositions, where the inclusion of glyceryl monoesters were known to contribute to the moisturizing properties and the mildness of the compositions (abs, col 3 ln 7-10). The glycerol monoesters may have a fatty acid chain length between C8 and C22 (col 3 ln13-16). A preferred glyceryl monostearate was glyceryl laurate (col 3 ln 22-26). Suitable concentrations of glyceryl monoesters were known to be from about 0.1 to about 5 wt% (col 3, ln 17-21). The compositions comprise an oil phase added to an aqueous phase, followed by subsequent mixing (ex. 1).
Regarding claims 25 and 26, where one of the goals of Clavel is to improve the comfort of the compositions upon application, it would have been obvious to modify the composition made obvious by above by further including a glyceryl monoester, such as glyceryl laurate, in order to provide the composition with added moisturization and mildness, as taught by Dow, where both are directed to emulsion compositions for application to keratin materials. The skilled artisan would recognize that added moisturization of compositions that can be applied to keratin materials (i.e., skin, hair) is desirable for improved comfort.
Regarding claim 27, it would have been obvious to include known amount of the glyceryl laurate made obvious above, such as from about 0.01 to about 5 wt%, as taught by Dow, overlapping the claimed range. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I).
Response to Arguments
Applicants assert nothing in Dow compensate for Clavel’s deficiencies, and there are no teachings in there references that would lead the skilled artisan to combine glycerol and alkanediol as claimed with a reasonable expectation of producing a stable composition.
Respectfully, this augment is not persuasive. Where Clavel, B&B and Rood make obvious a stable composition, it appears to the limitations are met. Dow was simply cited for teaching glyceryl laurate was known to improve moisturization and mildness of the compositions.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-34 stand provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over the claims of copending Application No. 18/860,116 (reference application), hereinafter ‘166, in view of Clavel et al (US 20140079656 A1, hereinafter “Clavel”), B&B (B&B Cosmetic Ingredients (Preservatives & Moisturizer), Jul 2020, pp. 1-40, hereinafter "B&B"), Rood et al (US 20170239271 A1, hereinafter "Rood"), and Dow et al (US 6589922 B1, hereinafter “Dow”). Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of ‘166 disclose a composition for caring for and/or making up keratin materials comprising a continuous oil phase comprising at least one plant oil as instantly claimed, and at least one volatile alkane as instantly claimed, at least one aqueous phase dispersed in the oil phase, at least one polyol, including a mixture of propanediol and glycerol, and at least one non-silicone polyglycerolated non-ionic surfactant, including poyglyceryl-6-polyricinoleate, etc. Also disclosed is a method of applying the composition to keratin materials.
The claims of ‘166 do not disclose 1,3-propanediol specifically, the specific amount of the C3 or C4 alkanediols, the ratio of C3 or C4 alkanediols to glycerol, the particular sugar alcohols of claim 23, the amount of sugar alcohols of claim 24, the specific monoester of saturated and linear C7-C14 carboxylic acid and of glycerol of claim 26, their amounts, the amount of monoalcohol of claim 29, nor wherein the gelling agent is modified clays.
It would have been obvious to include 1,3-propanediol as the specific C3 or C4 alkanediols, which is taught to be suitable for water-in-oil emulsion compositions comprising polyols by Clavel. Further, 1,3-propanediol was known to have synergistic properties when combined with glycerol, as taught by B&B above and for the same reasons.
It would have been obvious to include known amounts of the polyols, such as those taught by Clavel, for the same reasons discussed above. Further, it would have also been obvious to include known amounts of the polyols suitable for the combination with glycerol, such as 10% or less, as taught by Rood, for the same reasons discussed above.
It would have been obvious to adjust the amount of each polyol component within the known ranges taught by Clavel above, thereby overlapping the claimed ratios.
It would have been obvious to select from known sugar alcohols suitable for water-in-oil emulsion compositions, such as sorbitol, and in known amounts, as taught by Clavel above.
It would have been obvious to select from known monoesters of saturated and linear C7-C14 carboxylic acid and of glycerol, including glyceryl laurate, and in known amounts, as taught by Dow for the same reasons discussed above.
It would have been obvious to include known amounts of monoalcohols suitable for water-in-oil emulsion compositions, such as those taught by Clavel above for the same reasons.
It would have been obvious to select from known lipophilic gelling agents suitable for water-in-oil emulsions, such as modified hectorite (i.e., modified clay), as taught by Clavel above.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Response to Arguments
Applicants assert the double patenting rejections do not render the claimed subject matter obvious for the same reasons above.
Respectfully, this argument is not persuasive. The claims stand rejected for the same reasons above and of record.
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 JOSHUA A ATKINSON whose telephone number is (571)270-0877. The examiner can normally be reached M-F: 9:00 AM - 5:00 PM + Flex.
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/JOSHUA A ATKINSON/Examiner, Art Unit 1612
/SAHANA S KAUP/Supervisory Primary Examiner, Art Unit 1612
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