DETAILED ACTION
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 . 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 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.
Election/Restrictions
Applicant’s election of the species of component A (glyceryl tri(caprylate/caprate/myristate/stearate)) and component B (is glyceryl (behenate/eicosanedioate)) in the reply filed on 19 June 2026 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
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.
Claims 1-16 are rejected under 35 U.S.C. 103 as being unpatentable over Gotou et al. (US Patent Application Publication 2006/0062752) in view of PCT Patent Application Publication WO 2021/132032. The above PCT patent publication is not in English, and as such the equivalent document Iida et al. (US Patent Application Publication 2023/0051587) will be referenced to support the rationale of this rejection.
Gotou et al. discloses oil-based cosmetics (abstract). One ingredient present (element (a)) is an oil gelling agent (id.). One specific example of such an agent taught by Gotou et al. is glyceryl (behenate/eicosanedioate) (paragraphs [17 & 20] & example 9), and this is the elected species of oily gelling agent (component (B)). Thus, this component is read upon by the suggestion of Gotou et al.
Gotou et al. also suggests an oil based ingredient (b) (abstract).Examples of such ingredients include liquid oils (paragraph [29]) such as liquid paraffin (id.). This is an oil component which is liquid at 25 ºC (as stated by the instant specification at paragraphs [22-23]), and reads upon instantly recited component (C).
Instant claim 1 recites the inclusion of a specific ester as component (A), with the elected species being glyceryl tri(caprylate/caprate/myristate/stearate). Such an ingredient is not taught by Gotou et al. Gotou et al. does suggest oils such as ester oils (paragraph [29]), but not this specific oil.
Iida et al. discloses external preparations for sin which comprise oils (abstract). Useful oils include ester oils such as the glyceryl tri(caprylate/caprate/myristate/stearate) sold under the trade name Salacos 334 (table 1).
Therefore, it would have been prima facie obvious to one of ordinary skill in the art at the time of filing to have used the ester oils glyceryl tri(caprylate/caprate/myristate/stearate) sold under the trade name Salacos 334 as the ester oil in the composition taught by Gotou et al. 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.
Independent instant claim 1 recites further limitations to the amounts of these ingredients. The amount of the oil gelling agent (a) taught by Gotou et al. is from 0.5 to 30 wt% (paragraph [28]). The amount of oil based ingredient (b) taught by Gotou et al. is from 1 to 95 wt% (paragraph [30]). And the amount of ester oil glyceryl tri(caprylate/caprate/myristate/stearate) sold under the trade name Salacos 334 shown useful by Iida et al. is 1 wt% (table 1). These amounts, and their relative amounts, do not read upon the ranges instantly recited. However, they do overlap. And in cases involving overlapping ranges, where the instantly claimed ranges “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists. See MPEP 2144.05.
Instant claims 2-7 further limit components (A) and (B), and are read upon by the above cites species for these ingredients.
Instant claims 8-13 recite further limitations that the compositions in a cosmetic preparation, and such form is taught by Gotou et al. (abstract).
Instant claims 14-16 recite the inclusion of additional ingredients. And Gotou et al. suggests including water (paragraph [50]), powders, and surfactants (paragraph [47]).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Brian Gulledge whose telephone number is (571) 270-5756. The examiner can normally be reached Monday - Friday 7am - 4pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Fereydoun Sajjadi can be reached at (571) 272-3311. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Brian Gulledge/Primary Examiner, Art Unit 1699
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