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 .
Applicants' arguments, filed July 8, 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 Rejections and/or objections not reiterated from previous office actions are hereby withdrawn.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.
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims
Claim Rejections - 35 USC § 102 – Anticipation (Revised)
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1-3, 5 and 10-13 are rejected under 35 U.S.C. 102(b) as being anticipated by Mintel (Foundation) as evidenced by Luxe Joie.
Mintel discloses a foundation comprising jojoba oil (wax of plant origin), candelilla (wax of plant origin), silica silylate (aerogel silica), cellulose gum (gelling agent), microcrystalline cellulose (particulate cellulosic compound), coconut alkanes (hydrocarbon-based oil), sorbitan olivate (nonionic surfactant) and xanthan gum (gelling agent) (page 26).
The composition is a foundation and therefore it would be applied to the skin. Therefore, this would meet the cosmetic process for caring for keratin materials.
Mintel anticipates the instant claims.
Response to Arguments
The foundation composition also comprises jojoba esters, which is another name for hydrogenated jojoba oil as evidenced by Luxe Joie, which discloses a synonym of jojoba esters is hydrogenated jojoba oil. Therefore the rejection is maintained.
Claim Rejections - 35 USC § 103 – Obviousness (Maintained Rejection)
Claims 1 and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Lorant (FR 2986428) in view of Pays et al. (EP 1396256). The rejection is maintained and further applied to claims 2-6 and 10-13.
Lorant discloses a composition to treat keratin materials comprising a hydrophobic silica aerogel (Abstract). The silica has the INCI name silica silylate. The composition may be formulated into an emulsion and include fatty phase. The fatty phase includes any fatty substance that is liquid at ambient temperature and atmospheric pressure, generally oils, or that is solid at ambient temperature and atmospheric pressure, such as waxes, or any pasty compound. The fatty phase generally comprises at least one volatile or non-volatile oil Including hydrocarbon oils, in particular of animal or vegetable origin, synthetic oils, silicone oils, fluorinated oils, or mixtures thereof. The waxes that may be used in a composition according to the invention are chosen from waxes, solid at room temperature, of animal, vegetable, mineral or synthetic origin, and mixtures thereof. A particular embodiment comprises a wax having a melting point greater than 35 ° C or even 55 ° C. These include beeswax, vegetable waxes such as carnauba wax; Polyglycerolated vegetable waxes (mimosa / jojoba / sunflower) and hydrogenated castor oil. Nonionic surfactants may also be used in the compositions.
Lorant differs from the instant claims insofar as it does not disclose the amount of a wax of plant origin.
Pays et al. disclose composition for keratin fibers. The composition may comprise waxes from 0.1 to 40% and 20 to 40% (instant claim 9). Waxes include rice wax, carnauba wax, wax Candelilla, as well as hydrogenated jojoba oil, oil isomerized jojoba such as trans isomerized partially hydrogenated jojoba oil.
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. It would have been obvious to one of ordinary skill in the art prior to filing the instant application to have used hydrogenated jojoba oil in an amount of 20% in the composition of Lorant because it is a suitable jojoba oil and amount for cosmetics for keratin fibers.
Response to Arguments
The Examiner submits that in regards to the examples in Table 1, any differences between the claimed invention and the prior art may be expected to result in some differences in properties. The issue is whether the properties differ to such an extent that the difference is really unexpected. See MPEP 716.02. One of ordinary skill in the art would reasonably conclude that there would be some variation in the properties of the composition because the waxes have divergent properties. Therefore, it cannot be determined if the results are a difference in degree or a difference in kind. Further, in regards to the results it is not clear what the difference is between +++ and ++. One would reasonably conclude there would be some differences in the way a composition feels, when comparing a hydrogenated jojoba oil, a beeswax and a shea butter because the components themselves have different feels. Therefore, the results are not persuasive. In regards to Pays, Pays was used to disclose that different types of waxes may be used in personal care compositions. It is not clear whether the results in the instant specification are unexpected. Therefore, the rejection is maintained.
Obvious – Type Double Patenting
1) Claims 1-6 and 9-13 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim1-15 of U.S. Patent No. 18/722,641. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims are coextensive insofar as they both recite a composition comprising a particulate cellulosic compound, silica aerogel and a wax of plant origin. The instant claims differ from the copending claims insofar as they do not recite a semicrystalline polymer. However, the instant claims recite open language and do not exclude other components. Therefore the instant claims are obvious over the copending claims.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Response to Arguments
For the same reasons as asserted above, the instant claims are obvious over the copending claims.
2) Claims 1-6 and 9-13 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-13 of U.S. Patent No. 18/722,647. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims are coextensive insofar as they both recite a composition comprising a particulate cellulosic compound and silica aerogel. The instant claims differ from the copending claims insofar as they do not recite a semicrystalline polymer. However, the instant claims recite open language and do not exclude other components. Therefore the instant claims are obvious over the copending claims.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Response to Arguments
For the same reasons as asserted above, the instant claims are obvious over the copending claims.
Conclusion
Claims 1-6 and 9-13 are rejected.
No claims 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 LEZAH ROBERTS whose telephone number is (571)272-1071. The examiner can normally be reached Monday-Friday 11:00-7:30.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sahana Kaup can be reached at 571-272-6897. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/LEZAH ROBERTS/ Primary Examiner, Art Unit 1612
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