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 .
DETAILED ACTION
Status of the Claims
Claims 1-18 are cancelled. Claims included in the prosecution are claims 19-37.
Priority
This application is a DIV of 17/437,994 filed 09/10/2021 ABN which is a 371 of PCT/FR2020/050504 filed 03/11/2020 claiming benefit FRANCE 1902512 filed 03/12/2019.
Information Disclosure Statement
The Information Disclosure Statement (IDS)(s) submitted on 09/19/2024, 07/18/2025, 05/26/2026 is/are in compliance with the provisions of 37 CFR 1.97. Accordingly, this/these IDS(s) has/have been considered by the Examiner.
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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. § 103 (a) are summarized as follows:
Determining the scope and contents of the prior art.
Ascertaining the differences between the prior art and the claims at issue.
Resolving the level of ordinary skill in the pertinent art.
Considering objective evidence present in the application indicating obviousness or nonobviousness.
1. Claims 19-37 are rejected under 35 U.S.C. § 103 as being unpatentable over Darji et al. (US20190076809A1, as cited on IDS) in view of Dingley et al. (US9968525B2, May 15, 2010).
Darji et al. disclose a method to prepare porous metal oxide microspheres comprising a metal oxide, the method comprising forming a liquid dispersion of polymer nanoparticles and a metal oxide; forming liquid droplets of the dispersion; drying the liquid droplets to provide polymer template microspheres comprising polymer nanospheres and metal oxide; and removing the polymer nanospheres from the template microspheres to provide the porous metal oxide micro spheres, wherein the microspheres have an average diameter of from about 0.5 µm to about 100 µm, an average porosity of from about 0.10 to about 0.80 and an average pore diameter of from about 50 nm to about 999 nm (claim 1). The microspheres of Darji et al. read on the porous spheres comprising a metal oxide; the mean pore diameter 50-999 nm limitation of instant claims 19, mean pore diameter 220-300 nm of instant claim 23 and instant claim 28, and mean pore diameter ranging from 50 nm to 500 nm limitation of claim 36.
Darji et al. disclose microspheres having an average diameter of from about 0.5 µm to about 100 µm and an average porosity from about 0.10 to about 0.80 (claim 1). These teachings fall within or overlap with the claimed mean diameter 0.5-100 µm of instant claims 20-22 and claim 37, the claimed 1-75 µm of instant claim 27, the claimed 4.5-9.9 µm of instant claim 33; and the claimed mean porosity 0.10-0.90 and 0.10-0.80 of instant claim 20 and claim 21 respectively; mean porosity 0.45-0.65 of instant claim 27.
Darji et al. teach titania (i.e., titanium), silica as examples of the metal oxides (claims 12 and 25) to read on the metal oxide limitations of instant claim 24 and claim 25.
Darji et al. teach a composition comprising a substrate and the porous microspheres (claims 29-30 and 34-35). Darji et al. differ from the claimed invention wherein the cosmetic treatment method comprises steps of identifying an area and applying topically to this area a cosmetic composition.
However, Dingley et al. disclose a method for optically blurring the appearance of skin imperfections selected from the group consisting of wrinkles, fine lines, and pores comprising the step of applying to the skin an amount of a skin care or make-up composition effective to optically blur the appearance of said skin imperfection, the composition of the invention includes a gel system composed of a fractal network of nanoparticles, translucent macroparticles, titanium dioxide and color pigments, wherein the titanium dioxide weight percent of the total composition ranges between about 0.5% and 4.0%, and wherein the composition produces a diffused transmittance of greater than 55% when applied onto a biological surface (column 12, line 15, claim 32).
Dingley et al. disclose that the refractive index of the fractal particle does not match the refractive index of the macroparticle (column 9, line 42). The macroparticles of the invention have a particle size of between about 1-200 microns (column 9, line 50). Macroscopic particles can be metal oxide spheres (column 9, line 59).
Dingley et al. teach that it is understood by those skilled in the art that the composition can be applied to any part of the body where a blurring effect is desired such as to reduce wrinkles, fine lines, poses and skin imperfections (column 16, lines 51-54). The compositions taught can be used by topically applying to areas of the skin an effective amount of the compositions and that the effective amount can easily be determined by each user (column 16, lines 64-67).
It would have been prima facie obvious to a person of ordinary skill in the art, ahead of the effective filing date of the claimed invention, to incorporate the method of identifying and applying a composition comprising metal oxide spheres as taught by Dingley et al. to the composition taught by Darji et al. with expected results. One would be motivated to do so because Dingley et al. teach metal oxide spheres having a particle size range of 1-200 microns which resonates with the disclosure of microspheres having an average diameter of from about 0.5 µm to about 100 µm in the prior art of Darji et al. Dingley et al. disclose a method that utilizes a composition that does not mask the skin's natural pigmentation, but rather enhance it by making the skin more radiant and without a “cosmetic” look (column 13, lines 63-67). And also, the matte effect of porous oxide spheres and spread effect of fractal metal oxide particles are well-known in the art of cosmetic formulations (see Dingley, column 13, line 24, surface area and metal oxides). So applying the method of locating an area of skin (i.e., that has wrinkles) and applying the composition comprising metal oxide spheres/particles would easily be envisioned to achieve an improved appearance of the skin.
Regarding the cosmetic treatment method for improving the appearance of the skin and/or skin integuments etc. of instant claim 19 and the improving the organoleptic properties limitation of instant claim 30, intended use in the preamble in general are not limiting. The preambles’ intended use(s) provide antecedent basis for the positively recited steps. Nevertheless, since the prior art of Darji et al. in view of Dingley et al. teach compositions comprising porous metal oxide cosmetic formulation and teach a pore diameter that reads on that of the instant claims, to improve skin appearance and skin feel (see Dingley Example 2, column 19, line 67, “silky smooth” and “fresh”) the prior art renders obvious the claimed method. Applicants have the burden of providing and showing objective evidence to indicate that the prior art of record is incapable of achieving the claimed method.
Regarding claim 26, Darji et al. disclose porous microspheres comprising from about 60.0 wt% to about 99.9 wt% metal oxide, based on the total weight of the microspheres (claim 24) and from about 0.1 wt% to about 40.0 wt% of one or more light absorbers (claim 26) to read on the porous spheres comprising 60-99.9% metal oxide and 0.1-40% light-absorbing agents limitation.
Regarding claim 29, the claim recites that 100% of the composition can encompass spheres. Darji et al. teach the same spheres instantly claimed, which reads on a “composition” having the spheres present in a concentration of 100% by weight ([0119], see Examples 1; [0124] see Example 4). Further, compositions are cosmetically suitable and that the cosmetic media in a final composition may be a minor or a major part of a final composition ([0056]).
Regarding claim 31 and claim 32, Darji et al. disclose compositions comprising a substrate and the present porous microspheres; for example, cosmetic formulations ([0008]). Darji teaches a composition which is an oil-based formulation (i.e., an oily composition) (claims 30 and 35). Dingley et al. disclose the gel system may be incorporated in cosmetically acceptable vehicles, such as but not limited to, gel, emulsion, emulsified gel, and serum (column 12, line 28) to read on the limitations of claim 31 and claim 32.
Regarding claim 34, Darji et al. differs from the claimed invention in which the spheres are in the cosmetic composition, in a concentration range from 0.5% to 5% by weight, relative to the total weight of the composition.
However, Dingley et al. teach a cosmetic composition wherein the titanium dioxide weight percent of the total composition ranges between about 0.5% and 4.0% (claim 1). The composition comprises
It would have been prima facie obvious to a person of ordinary skill in the art, ahead of the effective filing date of the claimed invention, to apply the concentration range taught by Dingley et al. to the composition of Darji et al. for the similar purpose of employing an effective amount to deliver the desired skin improving effect. Dingley et al. teach metal oxide spheres can be used in the compositions. Likewise, one of ordinary skill in the art would have been motivated to use experimentation to determine the optimal amount spheres in the formulation to create a cosmetic composition to apply to the skin in need of said aesthetic improvements (i.e., wrinkles).
Regarding claim 35 (i.e., consist exclusively of a metal oxide), Darji et al. teach that the polymer is removed (e.g., via calcination ([0014]); drying via microwave irradiation in a thermal oven, under vacuum, in the presence of a desiccant) off and leaves only the metal oxide behind ([0025]). As these processes are well known in the art, a skilled artisan would immediately expect that the process would yield spheres that would consist exclusively of a metal oxide.
Conclusion
Claims 19-37 are rejected. No claims are allowed.
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/Karen A Ketcham/Examiner, Art Unit 1614
/ALI SOROUSH/Supervisory Patent Examiner, Art Unit 1614
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