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 .
Status of Claims
Claims 16-35 are pending in the instant application. Claims 1-15 are cancelled and claims 16-35 are added via the amendment filed October 17th, 2024.
Priority
This is a 35 U.S.C. 371 National Stage filing of International Application No. PCT/EP2023/059901 filed April 17th, 2023, which claims priority under 35 U.S.C. 119(a-d) to DE10 2022 204 660.9, filed May 12th, 2022. Receipt is acknowledged of papers submitted under 35 U.S.C. 119(a)-(d)
Information Disclosure Statement
The Information Disclosure Statement (IDS) filed July 11th, 2025 was considered by the Examiner.
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.
Claim(s) 16-17, 23-24 and 29-33 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Huang et al (CN 109430429 A, published March 8th, 2019, as cited on the IDS).
Regarding claim 16, Huang teaches a concentrated cream comprising, by weight percent, consisting of the following components: emulsifier 0.75-6.3%, gellan gum 0.01-0.2% and hydroxypropyl distarch phosphate 0.3-0.8% (summary of the invention, paragraph 6). Huang does not teach that the cream comprises acrylate.
Regarding claim 17, Huang teaches that the emulsion system is a stable water-oil emulsion system (background, paragraph 2).
Regarding claim 23, Huang further teaches that the cream comprises sorbitan monostearate 0.1-0.5% (summary of the invention, paragraph 4).
Regarding claim 24, Huang teaches that the sorbitan monostearate comprises 0.1-0.5% of the composition (summary of the invention, paragraph 4).
Regarding claims 29-30, Huang teaches that the hydroxypropyl distarch phosphate makes up 0.3-0.8% of the composition (summary of the invention, paragraph 6).
Regarding claims 31-32, Huang teaches that gellan gum makes up 0.01-0.2% of the composition (summary of the invention, paragraph 6).
Regarding claim 33, Huang teaches that the composition further comprises xanthan gum (summary of the invention, paragraph 6).
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.
Claim(s) 16-35 is/are rejected under 35 U.S.C. 103 as being unpatentable over Huang et al (CN 109430429 A, published March 8th, 2019, as cited on the IDS) in view of Hargraves et al (US 6,013,270, published January 11th, 2000).
Determining the scope and contents of the prior art. (See MPEP § 2141.01)
Regarding claim 16, Huang teaches a concentrated cream comprising, by weight percent, consisting of the following components: emulsifier 0.75-6.3%, gellan gum 0.01-0.2% and hydroxypropyl distarch phosphate 0.3-0.8% (summary of the invention, paragraph 6). Huang does not teach that the cream comprises acrylate.
Regarding claim 17, Huang teaches that the emulsion system is a stable water-oil emulsion system (background, paragraph 2).
Regarding claim 23, Huang further teaches that the cream comprises sorbitan monostearate 0.1-0.5% (summary of the invention, paragraph 4).
Regarding claim 24, Huang teaches that the sorbitan monostearate comprises 0.1-0.5% of the composition (summary of the invention, paragraph 4).
Regarding claims 29-30, Huang teaches that the hydroxypropyl distarch phosphate makes up 0.3-0.8% of the composition (summary of the invention, paragraph 6).
Regarding claims 31-32, Huang teaches that gellan gum makes up 0.01-0.2% of the composition (summary of the invention, paragraph 6).
Regarding claim 33, Huang teaches that the composition further comprises xanthan gum (summary of the invention, paragraph 6).
Ascertainment of the differences between the prior art and the claims. (See MPEP § 2141.02)
The prior art is deemed to anticipate instant claims 16-17, 23-24 and 29-33 where anticipation is the epitome of obviousness. In re Pearson, 494 F.2d 1399, 1402 (CCPA 1974)). Huang does not explicitly teach that the composition further comprises a fatty alcohol glucoside, glyceryl stearate, myristyl alcohol, short chain diols and wax.
Finding of prima facie obviousness --- rationale and motivation (See MPEP § 2142-2143)
However, Hargraves teaches a composition that comprises an oil-in-water emulsion with improved properties, including the ability to improve skin appearance. Hargraves teaches that the composition includes an oil-in-water emulsion with an agent that assists in the formation of liquid crystalline gel network structures (column 29, paragraph 3). Hargraves also teaches that the composition includes gellan gum (column 26, paragraph 3).
As such, one of ordinary skill in the art looking to improve the composition of Huang would look to the teachings of Hargraves as Hargraves teaches an improved cosmetic composition with an oil-in-water emulsion and an agent that assists in the formation of liquid crystalline gel network structures.
Regarding claim 18-22, Hargraves teaches that the emulsifier, in a weight percentage of 0.1 to 5% by weight of the composition, includes cetearyl glucoside (claim 28).
Regarding claims 25-26, Hargraves teaches that the composition also includes glyceryl stearate in a weight percentage of from about 0.1% to about 5% (columns 10-11).
Regarding claim 27, Hargraves further teaches that the composition may also include myristyl alcohol (column 10, paragraph 4).
Regarding claim 28, Hargraves teaches that shapes of particles include spherical and spheroidal (column 28, paragraph 2).
Regarding claim 34, Hargraves also teaches that the composition includes 0.25% by weight of diols containing from about 2 to about 12 carbons (column 27).
Regarding claim 35, Hargraves teaches that the composition includes lanolin wax (column 35, paragraph 1).
Conclusion
No claim is allowed.
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/A.G.K./Examiner, Art Unit 1626
/FEREYDOUN G SAJJADI/Supervisory Patent Examiner, Art Unit 1699
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