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 1-14 are presented for examination.
Claim Rejections - 35 USC § 112
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.
Claim 1 is 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 applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 is indefinite as to the phrases “substantially” and “essentially”. The terms “substantially and essentially” in claim 1 are relative terms which renders the claim indefinite. The terms “substantially and essentially” are not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. Such terms fail to set forth the metes and bounds of the claimed invention.
Claims dependent on claim 1 are also rejected, since they have all the limitations of claim 1.
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.
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) 1-14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Valverde et al. (US 20200085723 submitted by the applicant) in view of Kutsch (US 6,149,895).
The claims are drawn to a cosmetic composition, comprising:
a continuous fatty phase comprising one or more fatty substances; a colorant dispersed in the continuous fatty phase, wherein the colorant comprises a substrate;
at least one xanthene dye; and
a siloxane surface treatment, wherein the cosmetic composition is essentially free of piperidinol compounds, and wherein the cosmetic composition is substantially free of water.
Regarding claim 1, Valverde teaches a cosmetic formulation comprising a continuous oily phase, a linear volatile silicone oil and pigments; more particularly example 1 describes an W/O emulsion containing docamethylpentasiloxane, vinyl dimethicone/methicone silsesquioxane cross- polymer (d), Polyglyceryl-4 diisostearate/polyhydroxystearate/sebacate See para [0090] and table 1. Valverde teaches the particles with a metallic glint that may be used in the invention are in particular chosen from particles of at least one metal and/or of at least one metal derivative particles comprising a monomaterial or multimaterial organic or mineral substrate, at least partially coated with at least one layer with a metallic glint comprising at least one metal and/or at least one metal derivative, and mixtures of said particles. See Para [0134]. The use of specific metals is taught in Para [0134}. See Para [0137]. The use of the xanthene dye is taught in Para [0259]. The use of Siloxysilicate resins such as trimethylsiloxysilicate (TMS) resins as a polymer is taught in Paras [0193] and [0202]. Valverde teaches the water concentration of water is preferably less than 1%. See Para [0022]. The determination of low concentration of piperidinol compounds would have been obvious to a person skilled in the absence of evidence to the contrary.
Regarding claim 2, the determination of the amounts of benzotriazole compounds is considered to be within the skill of artisan in the absence of evidence to the contrary.
Regarding claim 3, the determination of the amounts of UV-stabilizing compounds is considered to be within the skill of artisan in the absence of evidence to the contrary.
Regarding claim 4, Valverde teaches the composition of the invention comprises an oily continuous phase. Said phase is liquid (in the absence of structuring agent) at room temperature (20-25° C.). It is organic and water-immiscible. See Para [0043].
Regarding claim 5, Valverde teaches the use of metal salt in Paras [0134], [0137 and [0236].
Regarding claim 6, Valverde teaches the use of xanthene dye, but does not teach such dye comprises disodium 2',4',5',7'-tetrabromo-4,5,6,7-tetrachlorofluorescein. However, Kutsch teaches acid Red 92 is also called Phloxine B, Cyanosin, and a variety of other common names. It is characterized as a red, anionic, xanthene dye. It is made by condensing two moles of resorcinol with one mole of tetrachlorophthalic anhydride to form 4,5,6,7-tetrachlorofluorescein. The tetrachlorofluorescein is then tetrabrominated in the 2',4',6' 7'-positions and that product is converted to the disodium salt. See column 7, lines 13-24. Kutsch makes clear that xanthene is made of disodium 2',4',5',7'-tetrabromo-4,5,6,7-tetrachlorofluorescein.
Regarding claim 7, the determination optimum proportions or amounts of colorant is considered to be within the skill of artisan in the absence of evidence to the contrary.
Regarding claim 8, the use of dimethicone is taught in Para [0111].
Regarding claim 9, the determination of the concentration of substrate and coating is considered to be within the skill of the artisan. Furthermore, Valverde teaches that The coating may represent from 0.1% to 20% by weight and in particular from 0.5% to 5% by weight, relative to the total weight of the coated pigment. See Para [0155].
Regarding claim 10, Valverde teaches as examples of W/O emulsifying surfactants, mention may be made of alkyl esters or ethers of sorbitan, of glycerol, of polyol. See Para [0294].
Regarding claim 11, Valverde teaches the use of fatty acid esters of glycerol as non-volatile hydrocarbon-based oil. See Para [0099].
Regarding claim 12, Valverde teaches the silicone resins may be soluble or swellable in silicone oils. These resins are crosslinked polyorganosiloxane polymers. See Para [0186] and {0202].
Regarding claim 13, Valverde teaches the use of monoalcohols of 1-5 carbon atoms. Such alcohols have 1-5 carbon atoms and not 1-4 carbon atoms. Furthermore, the determination of the type of alcohol used is within the skill of artisan in the absence of evidence to the contrary.
Regarding claim 14, Valverde teaches the use of the cosmetic composition on the skin. See the abstract, Para [0001], [0002] and [0018].
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ZOHREH A FAY whose telephone number is (703)756-1800. The examiner can normally be reached Monday-Friday 9:30AM-6:00.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sue Liu can be reached at571-272-5539. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ZOHREH A FAY/Primary Examiner, Art Unit 1617
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