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 .
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.
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.
Claim(s) 1-13, 15-16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hutson et al., (US 2019/0374450) in view of Sensient Beauty (Sensient Beauty.com, published 2023).
Hutson et al. teaches cosmetic compositions “with increased color shade stability comprising organic pigments and rutile TiO2. The combination of specific ingredients disclosed herein prevents the color migration often associated with organic pigments including azo based dyes and lakes” (Abstract). “Without wishing to be bound by theory, it is believed that certain TiO2 components are able to prevent hydrolysis of organic components thereby conferring color stability” (p. 1, para. [0007]).
The compositions are designed “for topical application to human integuments, including skin and lips” (p. 1, para. [0002]), as per claim 16.
“In some embodiments, the external (continuous) phase is an emollient oil phase [fatty phase comprising fatty substances]. For example, the continuous oil phase may comprise any suitable oils for emulsions, including, without limitation, vegetable oils; fatty acid esters; fatty alcohols; isoparaffins such as isododecane and isoeicosane; hydrocarbon oils such as mineral oil, petrolatum, and polyisobutene; polyolefins and hydrogenated analogs thereof (e.g., hydrogenate polyisobutene); natural or synthetic waxes; silicone oils such as dimethicones, cyclic silicones, and polysiloxanes; and the like” (p. 5-6, para. [0071]). “Waxes and/or fillers may also be optionally added”, wherein waxes include “glyceryl monostearate” (7, para. [0082]), which is a fatty aid ester of a polyol, as per claim 11.
The reference teaches minimizing the amount of wax “if the composition is liquid” (p. 7, para. [0087]), and expresses that “products according to the invention may have the consistency of a semi-viscous liquid or paste” (p. 8, para. [0094]), as per claim 2.
“Substrates suitable for forming lakes include, without limitation, mica, bismuth oxychloride, sericite, alumina, aluminium, copper, bronze, silver . . .” (p. 3, para. [0039]). Note: the instant specification discloses “alumina” as an example of a metal salt, i.e. an aluminum salt (see p. 9, para. [0052] of the instant specification). Accordingly, the prior art teaches at least one metal salt substrate, as per claim 5.
“The compositions may comprise, for example, one or more dyes, toners or lakes”, including “Certified D&C and FD&C colorants” such as “Red 28” (p. 3, para. [0038]; see also [0040]), which is a xanthene dye also known as disodium 2’,4’,5’,7’-tetrabromo-4,5,6,7-tetrachlorofluorescein, as per claim 1, 3-4, 6.
The prior art teaches a specific embodiment, e.g., “Specific Embodiment 18” (p. 13, paras. [0147]-[0151]), which is a “glycerin-in-oil emulsion comprising: (a) from 0.1% to 10% rutile pigmentary TiO2 by weight of the composition; and (b) from 1% to 10% organic pigments [clm. 7] (e.g., Red 7, Red 6, Red 27, Red 33, Blue 1, Yellow 5, etc.) by weight of the composition. (c) from 20% to 50% silicone [oil/fatty phase; clm. 15] by weight of the composition; and (d) from 1% to (e.g., 1% to 10%, 20% to 30%, 30% to 40%, etc.) glycerin by weight of the composition” (Id.) Here, the phrase glycerin-in-oil suggests an external (continuous/predominant) oil phase and glycerin (polyol) within the external fatty phase, as per claim 10. This embodiment is also free of C1-C4 monoalcohols and C1-C4 monoacetates, as per claim 12.
In regard to claim 13, Hutson et al. teaches incorporating “broad band range of UVB and UVA, protection such as oxtocrylene . . .”, which may be present “in an amount rangeing from at or 0.01% to or including 70% by weight of the composition” (p. 9, para. [0097]). Octocrylene is commonly used in sunscreens and cosmetics for enhancing photostability of the composition in addition to protecting the skin.
In regard to claim 9, Hutson et al. does not teach where the concentration of the substrate is greater than the concentration of the aloe. However, it would have been obvious to optimize a range for each in view of their plain enumeration in the prior art. “Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical” (MPEP 2144.05. II.A.) "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). In this case, the teaching of a substrate and a surface treatment establishes a general condition of the claim, wherein the adjustment of particular conventional working conditions of the substrate and the aloe, is deemed merely a matter of judicious selection and routine optimization which is well within the purview of the skilled artisan. Accordingly, this type of modification would have been well within the purview of the skilled artisan and no more than an effort to optimize results.
The reference further teaches, “The pigments, and specifically the organic pigments, may be surface treated” (p. 4, para. [0048]), wherein “[t]he surface treatment may be any such treatment that modifies the surface of the modifying agent and/or the first colorant” (Id. para. [0049]), wherein suitable treatments include “aloe” (p. 5, para. [0049]). Note: aloe is hydrophobic, as per claim 8.
“The surface treatment may be any such treatment that modifies the surface of the modifying agent and/or the first colorant. For example, the surface treatment may make the pigments more hydrophobic or more dispersible in a vehicle or may increase the adhesion of the pigments to a modifying agent” (Id. p. 4).
Compounds further include “lecithin”, which suffices as a vegetable fatty compound, as per claim 8. Note: "It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980) (see MPEP 2144.06 sec. I).
The prior art is not anticipatory insofar as it does not require an aloe surface treatment.
For the sake of completion the Examiner, cites Sensient Beauty, which provides additional motivation for selecting aloe as the surface treatment for colorants in the cometic of Hutson et al.
Sensient Beauty teaches the importance of surface treatments in cosmetics: “Surface treatments hold a pivotal role in the cosmetics and personal care industry, acting as a crucial link between raw pigments and the final formulations of various products, ensuring that color vibrancy, stability, and overall performance meet the high standards expected by consumers. These treatments effectively shield pigments from a range of environmental factors, including light exposure and the effects of air, which can result in color fading and other undesirable changes over time, thus maintaining the pigments’ original color intensity and extending their longevity significantly” (p. 1, 1st paragraph).
Sensient Beauty further teaches, “The technical prowess of ALOE Surface Treatment extends further with its exceptional compatibility in emulsions, opening doors for versatile applications across various product types . . . One of the most remarkable aspects of ALOE Surface Treatment is its ability to carry a high pigment load, ensuring that your cosmetics are nothing short of vibrant and long-lasting. And all of this comes without a trace of odor, guaranteeing a sensory experience that aligns perfectly with your brand’s essence” (3rd page, 2nd paragraph).
It would have been obvious to a person having ordinary skill in the art at the time of applicant’s filing to cosmetic composition comprising a continuous fatty phase of one or more fatty substances; a colorant, including a substrate, a dye and an aloe surface treatment, dispersed in the fatty phase, in view of Hutson et al. The artisan would have been further motivated to utilize aloe as the surface treatment for the advantage of its exceptional compatibility in emulsions and its ability to carry a high pigment load, as taught by Sensient Beauty.
2) Claim(s) 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hutson et al., (US 2019/0374450) in view of Sensient Beauty (Sensient Beauty.com, published 2023) as applied to claim 1 above, and further in view of Ciba (Ingredient Protection-UV Light Stabilizers, cited in IDS).
The combination of Hutson et al. and Sensient Beauty, which is taught above, differs from claims 14 insofar as it does not teach UV-stabilizers selected from benzotriazole.
Ciba teaches “Tinogard” and “Cibafast’ as “Benzotriazole Light Stabilizers” for home and personal care applications (p. 1).
The stabilizers “are distinct water and oil soluble products that protect colors and other ingredients in Home and Personal Care products from UV radiation and oxidation processes” (p. 4).
It would have been obvious to a person having ordinary skill in the art at the time of applicant’s filing to add benzotriazole UV-stabilizers to the cosmetic compositions of Hutson et al. for the advantage of protecting the colorants and other ingredients from UV radiation and oxidation processes, as taught by Ciba.
Conclusion
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Any inquiry concerning this communication or earlier communications from the examiner should be directed to WALTER E WEBB whose telephone number is (571)270-3287 and fax number is (571) 270-4287. The examiner can normally be reached from Mon-Fri 7-3:30.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sahana Kaup can be reached (571) 272-6897. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Walter E. Webb
/WALTER E WEBB/Primary Examiner, Art Unit 1612