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 .
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 11/05/24, 12/05/24 and 1/22/25 were submitted in a timely manner. The submission 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 § 112
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 6 and 13-15 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.
Regarding claims 6 and 13-15, the phrase "such as" renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Claim Rejections - 35 USC § 102
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) 1-7, 9-11, 13-15, 19 and 21-23 is/are rejected under 35 U.S.C. 102a1 as being anticipated by Constantine et al (GB 2537650 A hereafter Constantine).
Constantine discloses a solid cosmetic composition comprising a vegetable butter, a first and second emulsifier and inert powders that measure from about 2%, a color and a fragrance [abstract, pg. 1, lin. 30-pg. 2, lin. 10]. The first emulsifier with an HLB between 2 and 9 can be polyoxyether of laurel alcohol [pg. 9, lin. 10]. The second emulsifier is PEG-6 [pg. 9. Lin. 10-15]. The vegetable butter is present at least 50% of the solid composition [pg. 4, lin. 5-10]. The vegetable butter is cocoa, murmuru butter [pg. 6, lin. 10-15]. The first emulsifier of or the second emulsifier can be present in a concentration of at least 5 % [Table 1] The inert powders include kaolin where the inert particles are present about 2% [pg. 16, lin. 25, Table 1]. These disclosures render the claims anticipated.
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 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.
Claim(s) 1-27 is/are rejected under 35 U.S.C. 103 as being unpatentable over the combined disclosures of Constantine et al (GB 2537650 A hereafter Constantine) in view of Fava Bekisz et al (US 2015/0297473 hereafter Fava).
As discussed above Constantine discloses a solid cosmetic comprising a vegetable butter, first and second emulsifying agent, inert particles along with and colors and fragrances. The formulation is formed in a method comprising forming a first composition comprising the vegetable butter, emulsifier and second emulsifier and the remaining powders, fragrances and colors [page 16, lin. 34- pg. 18, lin. 20]. The formulation comprise similar inert powders as the instant claims include kaolin clay, however is silent to the specific powders of claims 16-18. The inclusion of such compounds into solid cosmetic formulation is well known int h art as seen in the Fava patent.
Fava discloses a solid cosmetic formulation comprising at least a vegetable butter, emulsifying agent and additional materials such as inert particles and powders [Examples]. The vegetable butter include illipe butter [0036]. While the emulsifying agent can have a n HLB from 15 to 20 such as fatty acid esters [0017-0018]. The inter powder can be present from 1-25% [0011]. These compound can include silica, hydrated silicates, clay, talc [0045-0047]. It would have been obvious to include these inter powders into the formulation of Constantine as they disclose similar components to solve the same problem.
Regarding the specific ratios and concentrations of components, it is the position of the Examiner that these limitations do not distinguish over the prior art. The prior art combination discloses the general conditions of the claims providing a solid cosmetic formulation with the same components in general ranges of the instant claims. Any optimization of these ranges would be within the limits of those of ordinary skill in the art and would be arrived upon through routine experimentation in the art. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. See In re Aller, 220 F.2d 454 105 USPQ 233, 235 (CCPA 1955).
With these aspects in mind it would have been obvious to combine the prior art with an expected result of a stable solid cosmetic formulation. It would have been obvious to include the inert powders of Fava into the formulation of Constantine as they solve the same problem and have similar components. It would have been obvious to combine the prior art, optimizing the components with an expected result of stable solid cosmetic formulation.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICAH PAUL YOUNG whose telephone number is (571)272-0608. The examiner can normally be reached Monday through Friday, 9:00 am to 5:30 pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Michael Hartley can be reached at 5712720616. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/MICAH PAUL YOUNG/Primary Examiner, Art Unit 1618
Prosecution Insights