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 .
Receipt if acknowledged for IDS filed 03/11/2025, 12/02/2024, and 06/24/2024.
Claims 1-12 are pending.
Priority
The application claims benefit of Korean application 10-2024-0055436 filed 04/25/2024.
Claim Rejections - 35 USC § 102
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 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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1 is/are rejected under 35 U.S.C. 102(a)(1) and 102(a)(2) as being anticipated by Lintner et al. (US 2008/0213198 A1).
Claim 1 is a cream comprising silica, talc, and kaolin. “Camouflage” is the characteristic property of the claimed composition to conceal. A composition comprising silica, talc, and kaolin inherently has or exhibits camouflage characteristic on the subject covered by the composition comprising silica talc, and kaolin. Military camouflage is the purpose or intended use of the composition comprising silica, talc, and kaolin. In the instant case, “military camouflage” does not structurally limit the cream composition but states that intended purpose/intended use of the composition. The body of the instant claim 1 fully and intrinsically sets forth all of the limitations of the claimed composition.
For claim 1, Lintner teaches a cream composition (see at least paragraphs [0055], [0056], [0132], [0151], [0229]) comprises kaolin, silica and talc (paragraphs [0132]). The comprising language is open.
Lintner teaches claim 1.
Claim(s) 1, 4, 7, 9 and 11 is/are rejected under 35 U.S.C. 102(a)(1) and 102(a)(2) as being anticipated by Howell et al. (US 20150190332 A1).
Claim 1 is a cream comprising silica, talc, and kaolin. “Camouflage” is the characteristic property of the claimed composition to conceal. A composition comprising silica, talc, and kaolin inherently has or exhibits camouflage characteristic on the subject covered by the composition comprising silica talc, and kaolin. Military camouflage is the purpose or intended use of the composition comprising silica, talc, and kaolin. In the instant case, “military camouflage” does not structurally limit the cream composition but states that intended purpose/intended use of the composition. The body of the instant claim 1 fully and intrinsically sets forth all of the limitations of the claimed composition. Howell teaches that its composition when applied to the skin improves and enhances the aesthetic appearance of skin by camouflaging the natural aging process, discoloration, chronic and cumulative damage to biological surfaces and imperfections on the surface (paragraph [0069]).
For claim 1, Howell discloses cream composition (paragraphs [0033], [0052], [0104]) comprising soft focus particles in amounts of from about 0.01 to about 15 wt%, about 0.5 to about 12.5 wt% and about 1 to about 10 wt% and the soft focus particles are silicon dioxide, silica, kaolin, talc, titanium dioxide, silica beads (paragraph [0084]).
For claim 4, the composition of Howell contains phenyl trimethicone as non-volatile oil (paragraph [0060]) and tocopheryl acetate as an antioxidant and in one embodiment the antioxidant is present at from about 0.001 to about 10 wt%, about 0.01 to about 5 wt% (paragraph [0103]).
For claim 7, the composition of Howell further comprises glycerin (paragraph [0105]) and octyl methoxycinnamate (ethylhexyl methoxycinnamate) as a sunscreen and present at 0.01 to about 70 wt% (paragraph [0101]). The composition of Howell also contains titanium dioxide (paragraph [0078], [0084]).
For claim 9, Howell’s composition contains acicular pigments which are transparent particles are red oxide, yellow oxide and black oxide and present at about 0.01 to about 15 wt%, 0.5 to about 12.5 wt%, 1 to 10 wt% (paragraph [0086]).
For claim 11, the composition of Howell is colored (at least the abstract, paragraph [0006], [0014]).
Therefore, Howell teaches claims 1, 4, 7, 9 and 11.
Claim(s) 1, 4, 6, 7, 9 and 11 is/are rejected under 35 U.S.C. 102(a)(1) and 102(a)(2) as being anticipated by FOUCAULT SOPHIE et al (WO 2022229557 A1 using Eng Trans from Espacenet).
Claim 1 is a cream comprising silica, talc, and kaolin. “Camouflage” is the characteristic property of the claimed composition to conceal. A composition comprising silica, talc, and kaolin inherently has or exhibits camouflage characteristic on the subject covered by the composition comprising silica talc, and kaolin. Military camouflage is the purpose or intended use of the composition comprising silica, talc, and kaolin. In the instant case, “military camouflage” does not structurally limit the cream composition but states that intended purpose/intended use of the composition. The body of the instant claim 1 fully and intrinsically sets forth all of the limitations of the claimed composition.
FOUCAULT SOPHIE discloses colored composition (paragraphs [0006]-[0008], [0017] and [0075]) which meet the limitation of claim 11. The composition is a care cream (paragraph [0019]), anti-blemish cream that provides moisturizing care and UV protection (paragraph [0024]) and tinted cream (paragraph [0160]). The composition comprises mineral fillers namely, talc, mica, silica, kaolin, titanium dioxide (paragraph [0129]).
Thus, for claim 1, the care cream, ant-blemish cream or tinted cream comprising kaolin, talc, silica, titanium dioxide teaches all the elements of the claims.
For claims 4 and 6, the composition of FOUCAULT SOPHIE further comprises vegetable oils namely plum oil which is domestica seed oil of claim 6; shea butter, avocado oil, olive oil or triglyceride (paragraph [0107]) which meets claim 4.
For claim 7, the composition of FOUCAULT SOPHIE further contains glycerin as moisturizing agent (paragraph [0142]) and titanium dioxide (paragraph [0129]).
For claim 9, FOUCAULT SOPHIE teaches the composition to contain pigments, iron black, yellow or red (paragraphs [0073], [0075], [0087], [0088], [0160]) and the pigment is present at 7%, 8% or 10% (paragraph [0160])
Therefore, FOUCAULT SOPHIE teaches all the elements of claims 1, 4, 6, 7, 9 and 11.
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.
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) 2-3, 5, 8, 10 and 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Howell et al. (US 20150190332 A1).
Claim 2 depends on claim 1. Claim 3 depends on claim 2. Claim 5 depends on claim 4. Claim 8 depends on claim 7. Claim 10 depends on claim 9 and claim 12 depends on claim 11.
Howell is described above to teach claims 1, 4, 7, 9 and 11.
Claims 1, 4, 7. 9 and 11 have been described above to be anticipated by the teachings of Howell.
Howell has been described above to teach claims 1, 4, 7, 9 and 11. The difference between Howell and claims 2-3, 5, 8 and 10 is that Howell does not teach the %amounts of the components.
Parts by weight based on 100 parts is the same as percent.
For claims 2 and 3, the soft particle kaolin is present at 0.01 to about 15 wt%, about 0.5 to about 12.5 wt% and about 1 to about 10 wt% (paragraph [0084]). The disclosed ranges 0.01 to about 15 wt%, about 0.5 to about 12.5 wt% and about 1 to about 10 wt% for kaolin overlap the claimed range of 1.6 parts (%) to 2.8 parts. The disclosed ranges 0.01 to about 15 wt%, about 0.5 to about 12.5 wt% and about 1 to about 10 wt% for silica overlaps the claimed range of 5 parts by weight to 9 parts by weight for silica and 3.5 parts by weight to 7.5 parts by weight for talc. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990); In re Geisler, 116 F.3d 1465, 1469-71, 43 USPQ2d 1362, 1365-66 (Fed. Cir. 1997). The disclosed range allows for 1.6 to 2.8 parts by weight (%) for kaolin; allows for 5 parts to 9.0 parts for silica; and allows for 3.5 parts to 7.5 parts by weight for talc.
For claim 5, the disclosed range of from about 0.001 to about 10 wt%, about 0.01 to about 5 wt% (paragraph [0103]) for tocopheryl acetate antioxidant overlaps the claimed range of 0.1 parts to 1.0 parts for tocopheryl acetate. The disclosed range allows for 0.1 part to 1 part.
For claim 8, the disclosed range of 0.01 to about 15 wt%, about 0.5 to about 12.5 wt% and about 1 to about 10 wt% (paragraph [0084]) for titanium dioxide overlaps the claimed range of 2 parts to 6 parts by weight for titanium dioxide. The disclosed range allows for 2 parts to 6 parts for titanium dioxide.
For claim 10, the disclosed range of about 0.01 to about 15 wt%, 0.5 to about 12.5 wt%, 1 to 10 wt% (paragraph [0086]) for red oxide, yellow oxide and black oxide pigments overlaps the claimed range of 0.5 parts to 1.5 parts for pigment and the disclosed range allows for 0.5 parts to 1.5 parts.
In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990); In re Geisler, 116 F.3d 1465, 1469-71, 43 USPQ2d 1362, 1365-66 (Fed. Cir. 1997).
For claim 12, the ordinary skilled artisan would expect the black oxide present at about 0.01 to about 15 wt%, 0.5 to about 12.5 wt%, 1 to 10 wt% (paragraph [0086]) would have predictably colored the composition.
Thus, Howell renders claims 2-3, 5, 8, 10 and 12 prima facie obvious.
No claim is allowed.
The specification has not been checked to the extent necessary to determine the presence of all possible minor errors. Applicant’s cooperation is requested in correcting any errors of which applicant may become aware in the specification.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BLESSING M FUBARA whose telephone number is (571)272-0594. The examiner can normally be reached 7:30 am-6 pm (M-T).
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Brian Yong Kwon can be reached at 5712720581. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/BLESSING M FUBARA/Primary Examiner, Art Unit 1613
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