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 . Claims included in the prosecution are claims 1-20.
Applicants' arguments, filed 08/28/2026, 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 Rejections and/or objections not reiterated from previous office actions are hereby withdrawn.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 Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1-20 rejected under 35 U.S.C. 103 as being unpatentable over Yokogi et al. (US 2020/0113796, Apr. 16, 2020) (hereinafter Yokogi) in view of Rabe et al. (US 2004/0086474, May 6, 2004) (hereinafter Rabe) and China et al. (US 2003/0133895, Jul. 17, 2003 (hereinafter China).
Yokogi discloses a method of applying a customized personal care product comprising the following steps: (i) mixing an aqueous personal care composition and one or more solid discrete particles (i.e., claimed powdered cosmetic composition) of a mixture composition to make a customized personal care product, wherein the mixture composition comprises a surfactant and a high melting point fatty compound; and (ii) applying the customized personal care product to a targeted surface (claim 15). The solid discrete particle preferably comprises 100% of the mixture composition (¶ [0062]). The solid discrete particle preferably has a particle size of from about 1 micrometer to about 2000 micrometer (¶ [0063]). The surfactant may be a mixture of two or more cationic surfactants. Suitable cationic surfactants include mono-long alkyl quarternized ammonium salt (i.e., quaternary ammonium compound) (¶ [0095]). Mono-long alkyl quaternized ammonium salts useful are those having the formula (I):
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wherein one of R75, R76, R77 and R78 is an alkyl group from 12 to 30 carbon atoms, the remainder of R75, R76, R77 and R78 are independently an alkyl group of from 1 to about 4 carbon atoms, and X- selected from the group consisting of Cl, Br, CH3OSO3, C2H5OSO3, and mixtures thereof (¶ [0097]). Examples of such mono-long alkyl quaternized ammonium salt cationic surfactants include behenyl trimethyl ammonium salt and stearyl trimethyl ammonium salt (¶ [0098]). Suitable high melting point fatty compounds include fatty alcohols having from about 14 to about 30 caron atoms (¶ [0107]). Preferred fatty alcohols include, for example, cetyl alcohol (having a melting point of about 56°C) and stearyl alcohol (having a melting point of about 58-59°C) (¶ [0108]). The solid discrete particles of a mixture composition may comprise 41 wt. % surfactant (i.e., quaternary ammonium compound) and 49 wt. % fatty alcohol (page 13). The mixture composition may further contain a benefit agent (¶ [0071]). The benefit agent can be contained in the mixture composition at a level from about 0.1% to about 90% (¶ [0083]). The personal care composition may be a hair care composition (claim 13). The personal care composition may comprise from about 40% to about 99% water (¶ [0048]) and 6.5 wt. % of the solid discrete particles of a mixture composition (page 12).
Yokogi differs from the instant claims insofar as not disclosing wherein the composition comprises a hydration enhancer and a stabilizing carrier.
However, Rabe discloses a cosmetic kit comprising a cosmetic benefit agent (abstract). The cosmetic benefit agent may be one or more absorbents. These absorbents are useful for achieving the uptake of various fluids that are commonly present on the skin, e.g., perspiration, oil, and/or sebum. Suitable absorbents include cornstarch, rice starch, tapioca starch, and mixtures thereof (¶ [0029]).
Generally, it is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use. See MPEP 2144.07. Yokogi discloses wherein the solid discrete particles of a mixture composition comprises about 0.1% to about 90% of a benefit agent. Accordingly, it would have been obvious to one of ordinary skill in the art to have incorporated cornstarch, rice starch, and/or tapioca starch (i.e., hydration enhancers/stabilizing carriers) into the solid discrete particles of a mixture composition of Yokogi since they are known and effective benefit agents in that they are useful for achieving the uptake of various fluids that are commonly present on the skin, e.g., perspiration, oil, and/or sebum as taught by Rabe.
The combined teachings of Yokogi and Rabe do not teach wherein the solid discrete particles of a mixture composition without the benefit agent as a hardness of from 250 to 600 positive force (g).
However, China discloses a pressed powder cosmetic composition having a hardness of ess than about 600 grams (claim 16).
Accordingly, it would have been prima facie obvious to one of ordinary skill in the art to have formulated the solid discrete particles of a mixture composition of Yokogi to have a hardness of less than about 600 grams since Yokogi does not disclose a hardness value and this is a known and effective hardness for powder cosmetics as taught by China.
In regard to instant claim 11, as noted on page 6, last paragraph of the instant specification, the stabilizing carrier contributes to stability in high humidity and high temperature. As noted on page 7, lines 11-12, suitable stabilizing carriers include corn starch, tapioca starch, and rice starch. Therefore, since it would have been obvious to one of ordinary skill in the art to have incorporated corn starch, tapioca starch, and/or rice starch into the composition of the prior art as discussed above, the composition of the prior art necessarily has the claimed properties.
In regard to instant claim 12 reciting free-flowing powder easily dispensable through a small orifice, as discussed above, Yokogi discloses solid discrete particles (i.e., no agglomerated) having a particle size of about 1 micrometer to about 2000 micrometers, which is within the claimed range. Therefore, the solid discrete particles of Yokogi are free-flowing and would be dispensable through a small orifice like the claimed invention.
In regard to instant claim 15 reciting wherein the powdered cosmetic composition is hydrated with shear, as discussed above, Yokogi discloses mixing (i.e., shearing) an aqueous personal care composition and one or more solid discrete particles of a mixture composition.
Response to Arguments
Applicant argues that Yokogi effectively teaches away from the need for any other additional ingredients, such as the hydration enhancers of the present application, in the mixture composition.
The Examiner does not find Applicant’s argument to be persuasive. Yokogi specifically discloses in paragraph [0071] wherein the mixture composition may further contain a benefit agent. Thus, additional ingredients may be included in the mixture composition and Applicant’s argument is unpersuasive.
Applicant argues that Yokogi fails to teach that the aqueous personal care composition requires a stabilizing carrier.
The Examiner does not find Applicant’s argument to be persuasive. As this is a 103 obviousness rejection, no one piece of prior art is required to teach each and every claim limitation. As discussed in the rejection, Rabe provided motivation to incorporate a stabilizing carrier into the mixture composition of Yokogi. As such, Applicant’s argument is unpersuasive.
Applicant argues that Yokogi fails to contemplate within the closed group presented, as signified by the “selected from the group consisting of” language utilized, a benefit agent in the mixture composition as comprising hydration enhancers and stabilizing carriers per the present application.
The Examiner does not find Applicant’s argument to be persuasive. Yokogi discloses in paragraph [0084] that “[p]referably, such benefit agent is selected from the group consisting of:.” Thus, the teachings of Yokogi does not limit the benefit agent to the ones recited since they are merely preferred embodiments. As such, Applicant’s argument is unpersuasive.
Conclusion
Claims 1-20 are rejected.
No claims are allowed.
THIS ACTION IS MADE FINAL. 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 TRACY LIU whose telephone number is (571)270-5115. The examiner can normally be reached Mon-Fri 9 am - 5 pm.
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/TRACY LIU/Primary Examiner, Art Unit 1614
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