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 .
Status of claims
Claims 1-14 are cancelled. Claims 15-29 are new. Claims 15-29 are pending and under examination. The recent claim set was filed attached to the preliminary amendment filed on 6/17/2026, which was a copy of the amendment filed on 10/16/2024.
Priority
This application is a 371 of PCT/EP2023/060037, filed on 04/18/2023. Acknowledgment is made of applicant’s claim for foreign priority under 35 U.S.C. 119 (a)-(d). The certified copy has been filed in parent FRANCE 2203610, filed on 04/19/2022. Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 11/27/2024 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 15-20, 22-26, and 28 rejected under 35 U.S.C. 101 because they are directed to products of nature and amount to nothing significantly more. Claim 15 is directed to (i) one or more spherical filler(s) including perlite––perlite is naturally occurring amorphous volcanic glass, and can naturally occur spherically and have various sizes (e.g., 1-100 micrometers). Claim 15 also recites (ii) one or more filler(s) which are organic and possess an oil absorption capacity of greater than 10 mL/g--) ––cotton fiber is a naturally-occurring organic filler with an oil absorption capacity of at least 30 times its weight (i.e., 30g oil/1g cotton, ~33mL oil/1g cotton assuming an oil density of 0.9 g/mL) as evidenced by Wells et al. [column 5, lines 21-26] (US4832852A). Claim 15 also recites (iii) one or more native and/or modified starch, with such native starches (e.g., starches of corn) being naturally occurring. Claim 15 also claims the composition to be an inverse emulsion (i.e., water-in-oil), which can occur naturally as a crude oil-in-water emulsion as evidenced by Patel et al. [¶13] (US20090197978A1). Claim 16 merely states the absence of components from naturally occurring products. Claims 17-19 merely state concentrations of such naturally-occurring products. Claim 20 further limits the (i) one or more spherical filler(s) to the natural perlites as previously stated. Claim 22 merely distinguishes such naturally occurring products from each other. Claims 23 and 24 merely further limit the naturally occurring starches (e.g., starches of corn of claim 23, and hydrolyzed starches of claim 24). Claims 25 and 26 merely defines the ratios of such naturally-occurring products. Claim 28 is merely directed to use of such products of nature.
Claim Rejections - 35 USC § 112 (b)
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.
Claims 15-29 are 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.
Claims 15, 17, 20, 25, 26, and 28 recites the limitation “the fillers (i)”, "spherical fillers (i)”, or "the spherical fillers (i)” where the first recitations include “one or more”. It is unclear which of the one or more would constitute “the” since it includes various options of one or more. There is insufficient antecedent basis for these limitation in the claims. A suggested amendment is to alter the claim language to “the (i) one or more spherical filler(s)”.
Claims 15 and 28 recite the limitation “greater than 10 mL/g of fillers” in section (ii). There is insufficient antecedent basis for this limitation in the claims. A suggested amendment is to alter the claim language to “greater than 10 mL/g of the (ii) one or more filler(s) …”.
Claims 15 and 28 recite the limitation “said fillers being…” in section (ii). There is insufficient antecedent basis for this limitation in the claims. A suggested amendment is to alter the claim language to “said (ii) one or more filler(s) being…”.
Claims 16, 18-19, 21-25, and 27 are also rendered indefinite for being dependent to indefinite claim 15.
Claim 29 is also rendered indefinite for being dependent to indefinite claim 28.
Claims 18, 21-22, and 25-26 recites the limitation, "fillers (ii)”, "the fillers (ii)”, “filler(s) (ii)”, or “the filler(s) (ii)”. where the first recitations include “one or more”. It is unclear which of the one or more would constitute “the” since it includes various options of one or more. There is insufficient antecedent basis for these limitation in the claims. A suggested amendment is to alter the claim language to “the (ii) one or more filler(s)”.
Claim 21 states that the filler(s) (ii) of claim 15 are silica aerogel particles. However, claim 15 requires such fillers to be organic, yet silica aerogel particles by themselves are inorganic unless modified (e.g., by an organic coating), thus rendering the claim indefinite.
Claims 25 and 26 recite “the ratios between…”. However, the units of such ratios are not specified (e.g., by weight, volume, or molar), thus rendering the claims indefinite.
Claims 27, 28 and 29 recite the limitation “greater than 10 mL/g of fillers” in section (ii). There is insufficient antecedent basis for this limitation in the claim. A suggested amendment is to alter the claim language to “greater than 10 mL/g of the (ii) one or more filler(s) …”.
Claims 27, 28 and 29 recite the limitation “said fillers being…” in section (ii). There is insufficient antecedent basis for this limitation in the claim. A suggested amendment is to alter the claim language to “said (ii) one or more filler(s) being…”.
Claims 22, 23, 24, and 26 recite the limitations “the native and/or modified starch”, “the modified starch” and “the native or modified starch(es)” where the recitation in claim 15 is “one or more natural and/or modified starch(es)”. There is insufficient antecedent basis for this limitation in the claim. A suggested amendment is to refer to these with “the one or more native and/or modified starch(es)”, “the one or more or what is appropriate for the claim.
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.
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.
Claims 15-29 are rejected under 35 U.S.C. 103 as being unpatentable over Cossec et al. (WO2020127834A1) in view of Wellings (US20190216691A1) as evidenced by Daito-Kasei (DOC-AA01).
Cossec et al. discloses a composition, in particular comprising a physiologically acceptable medium, notably for coating keratin materials, more particularly for making up and/or caring for keratin materials, which is a cosmetic composition for making up and/or caring for keratin materials [¶abstract].
Regarding claim 15, Cossec et al. teaches that spherical fillers (i) such as spherical cellulose beads, namely Cellulobeads USF® (mean particle size of 4 micrometers as evidenced by Daito-Kasei, page 1, “Chemical and physical properties”) [¶636], can be used as soft-focus fillers [¶626]. Cossec et al. teaches that the composition may comprise organic fillers (ii) including silica aerogel particles such as VM-2270 [¶¶400, 425]––which the instant specification [¶64] identifies as an exemplary organic filler (ii). Cossec et al. further teaches such that such silica aerogel particles have an oil-absorbing capacity (measured at the wet point) ranging from 5 to 18 ml/g [¶414], and may be surface-modified with organic hexamethyldisilane as a hydrophobic coating [¶420]. Cossec et al. teaches that native and modified starches can be used in the composition [¶¶107, 110]. Cossec et al. teaches that the particle size distribution of the composition can be measured by its D[50] via Malvern [¶593], with D[50] representing the maximum size that 50% by volume of the particles have [¶595]. Cossec et al. teaches that the composition of the present invention may contain surfactants and dispersants [¶847], an aqueous phase: oily phase ratio of 5: 95% w/w [¶66]--––which implies the composition having the propensity to be a water-in-oil (or inverse) emulsion.
Regarding Claim 16, Cossec et al. omits the mandatory inclusion of microplastics, which obviates the absence of microplastics.
Regarding claim 17, Cossec et al. teaches that the composition may comprise from 0.2% to 40% by weight of such soft-soft-focus fillers (i.e., spherical fillers (i) such as spherical cellulose beads) [¶41].
Regarding Claim 18, Cossec et al. teaches that gelling agents (i.e., (ii) silica aerogel particles) may be present in the composition at concentrations ranging from 0.01 % to 20% w/w relative to the total weight of the composition [¶¶847, 849].
Regarding claim 19, Cossec et al. teaches that starch powders may be used as additional soft-focus fillers [¶626], with such fillers present in the composition at 0.2% to 40% w/w relative to the total weight of the composition [¶644].
Regarding claim 20, Cossec et al. teaches that that spherical fillers (i) such as spherical cellulose beads can be used as soft-focus fillers in the composition [¶626].
Regarding claim 21, Cossec et al. teaches that the composition may comprise (ii) silica aerogel particles as gelling agents [¶400].
Regarding claim 22, Cossec et al. teaches that both silica aerogels and native starches (e.g., potato starch, Cargill Gel™) can both be used in the composition [¶¶99, 107, 108, 400]. Cossec et al. further does not teach these components to be mutually exclusive.
Regarding claim 23, Cossec et al. teaches that the starches of the composition can be chosen, for example, from corn starch, rice starch, cassava starch, barley starch, potato starch, wheat starch, sorghum starch and pea starch [¶107]. Cossec et al. further teaches that the starch molecules may be derived from any plant source of starch, notably such as corn, potato, oat, rice, tapioca, sorghum, barley or wheat [¶114].
Regarding claim 24, Cossec et al. teaches that The modified starches used in the composition of the invention may be modified via one or more of the following reactions: pre-gelatinization, degradation (acid hydrolysis, oxidation, dextrinization), substitution (esterification, etherification), crosslinking (esterification), and bleaching [¶110].
Regarding claims 25 and 26, the previously stated concentration teachings of Cossec et al. (i.e., c., d., and e.) squarely overlaps with the required ratios of these present claims.
Regarding claim 27, the aforementioned teachings of Cossec et al. (a. to k.) explicitly disclose all required elements except the clear exclusion of microplastic and the composition being in the form of an inverse (water-in-oil) emulsion.
Regarding claims 28 and 29, Cossec et al. teaches that the invention also relates to a method for coating keratin materials, more particularly for making up and/or caring for keratin materials such as the skin, with such method comprising the application of the disclosed compositions to the keratin materials [¶abstract]. As for the remaining required compositional elements of these two claims, all of the aforementioned teachings of Cossec et al. (i.e., a. to l.) explicitly disclose them except for the clear exclusion of microplastic and the composition being in the form of an inverse (water-in-oil) emulsion.
However, Cossec et al. fails to explicitly teach such compositions being in the form of water-in-oil emulsion (i.e., an inverse emulsion) per claims 15 and 28, and also fails to explicitly teach the absence of microplastics per claim 16.
Wellings discloses microparticle compositions and their use in personal care, in particular to microparticle compositions comprising self-assembled biodegradable microparticles and their use, a method of preparing the microparticle compositions [¶1]. Wellings teaches that the composition may be used as skin-care and cosmetic products [¶14]. Wellings teaches that the personal care composition is substantially free from environmentally undesirable microplastics [¶¶3, 4, 18], and further teaches embodiments where the compositions explicitly do not contain such microplastics [¶123]. Wellings teaches that the composition may be in the form of a water-in-oil (W/O) emulsion [¶69].
It would have been obvious to a person of ordinary skill in the art, before the effective filing date of the claimed invention, to modify the cosmetic composition of Cossec et al. to be substantially free of microplastics and in the form of a water-in-oil (or inverse) emulsion, as taught by Wellings. This is because both Cossec et al. and Wellings are directed to cosmetic/personal-care compositions suitable for application to the skin or other keratin materials, and Wellings expressly teaches that such compositions may avoid micro-plastics and may be formulated as water-in-oil emulsions. A person of ordinary skill in the art would have thus been motivated to make the modification to provide a cosmetic composition having environmental and regulatory advantages associated with avoiding microplastics while using a prevalent and suitable cosmetic emulsion form for optimized stability. A person of ordinary skill in the art would have done so with a reasonable expectation of success because Cossec et al. already teaches a composition comprising aqueous and oily phases together with surfactants/dispersants, making emulsion formulation as a water-in-oil inverse emulsion a predictable formulation for cosmetics/personal care.
Conclusions
No claim is found allowable.
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Arya A. Bazargani, Ph.D.
Patent Examiner
Art Unit 1613
/MARK V STEVENS/Primary Examiner, Art Unit 1613
Prosecution Insights