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 .
Drawings
The drawings are objected to because the applicant has not numbered the pages. For drawings, a separate series of page numbers is to be used. The number of each sheet of the drawings must consist of two Arabic numerals separated by an oblique stroke, the first being the sheet number and the second being the total number of sheets of drawings. For example, "2/5" would be used for the second sheet of drawings where there are five in all. Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
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 1-3, 5-6 and 9-13 are rejected under 35 U.S.C. 103 as being unpatentable over Harold McNamara et. al. (WO2022104063A2).
Regarding claims 1 and 6, McNamara teaches of personal care compositions comprising microbially produced oil (see abstract) and teaches the oil to be produced by oleaginous yeast (see claim 1), such as Aspergillus (see para. 54). McNamara also teaches wherein “polymers are routinely used in many personal care and cosmetic products” (see para. 138) and teaches “depending on the polymer, it may act as a thickener, structuring agent, emulsifier, emollient, moisturizer, delivery (“carrier”) system (for example, to deliver an active ingredient), film former (for example, nail polish), or to waterproof (for example waterproof make-up and sunscreen). As will be understood by one skilled in the art, the choice of polymer in a personal care or cosmetic product depends on the application, formulation, and desired result” (see para. 140). McNamara teaches natural or synthetic waxes (for example rice bran wax) (see para. 141). McNamar also teaches “beeswax is a common component in oil-based balms. A wax-ester blend derived from an oleaginous microorganism may be used in place of beeswax in personal care compositions” (see para. 154). McNamara teaches of biologically active ingredients (see para. 151). McNamara also teaches including solubilizers (see para. 7 and claim 81).
Regarding claims 1 and 11, McNamara also teaches the microbial oil components in a bottle or tube (see Figures 13A-13C and para. 26) and tubes are known to be hollow.
McNamara also teaches the resulting products were evaluated for stick firmness , payoff on skin, feel, slip, gloss/glow, sheen, and color of the skin (see para. 230), and teaches creating microbial oils for producing palmitic acid esters as emollients, emulsifiers and stabilizers in lipstick (see 213) and lip balms (see table 14 and para. 230), skin repair serums (see table 13).
Regarding claims 2-3 and 5, McNamara teaches biologically active ingredients such as vitamin C and salicylic acid (see para. 152), and salicylic acid and vitamin C are both cosmetic components when so broadly claimed and not defined.
Regarding claim 9, McNamara teaches alumina silk powder in formulations (see example 16, para. 232), which is a known texturing agent.
Regarding claim 10, McNamara teaches Silica (see example 16, para. 232).
Regarding claims 12-13, McNamara teaches “ In some embodiments, the personal care composition is a solid, liquid, cream, lotion, spray, gel, or foam” (see para. 93).
McNamara teaches multiple variations of cosmetic formulations which comprise of a wax, and a fermented oil with active ingredients however does not specifically teach the tube as a delivery system. McNamara teaches of the required limitations which are merely the components within a hollow tube. McNamara also teaches creating compositions with specific firmness and creating stick-based cosmetics. Therefore it would have been obvious to create a delivery system for delivering an active skincare ingredient comprising a tube and a composition provided within the tube, wherein the composition comprises a base wax and a fermented oil and an active solubilized ingredient. McNamara teaches creating skincare formulations which comprise of the instant ingredients and formulations, thus the instant invention is prima facie obvious.
Claims 4 is rejected under 35 U.S.C. 103 as being unpatentable over Harold McNamara et. al. (WO2022104063A2) as applied to claims 1-3, 5-6 and 9-13 above, and further in view Davide Costo Lucco and Stafano Luca Indaco (US11980779B2).
McNamara teaches the instant invention however is silent on the composition comprising a primer.
Lucco teaches of cosmetic articles in the form of a stick comprising a cosmetic product with solid or pasty consistency (see claim 1), such as a product for lips, eyes, face, or body, for example and in more detail: a lipstick, a lip balm, a foundation, a concealer, a primer (see field of the invention 2nd para.). Lucco teaches many cosmetic articles, in particular articles for make-up, are marketed in stick form, i.e. in a cylindrical form, in the form of a tube with a twist-up and down mechanism, and are therefore solid (think of lipsticks, lip balms, foundations, and deodorants, among others). This format has the advantage of making the cosmetic easier to use, as you can apply it more accurately in the desired area, without touching the cosmetic product with your hands (see first para. of background art).
Therefore it would have been obvious to persons having ordinary skill in the art to include a primer in the cosmetic invention taught by McNamara because as Lucco teaches primers can be in the form of solid or pasty stick cosmetic products and are known to come in tubes that can twist-up and down for easy application.
Claims 7-8 are rejected under 35 U.S.C. 103 as being unpatentable over Harold McNamara et. al. (WO2022104063A2) as applied to claims 1-3, 5-6 and 9-13 above, and further in view of Issac Cohen et. al. (US9468589B2).
McNamara teaches the instant invention however is silent on the composition comprising light diffusing microspheres.
Cohen’s general disclosure is to composite particles for improving the ashy, chalky or mask-like appearance of color cosmetic compositions on the skin (see abstract).
Cohen teaches a color cosmetic composition “containing a total colorant component consisting of (a) 30 to 80 parts of composite particulates consisting of a fused agglomerate of 40-60% colorant and 60-40% of a clear or translucent thermoplastic Polymethylmethacrylate (PMMA) having a refractive index ranging from 1.1 to 1.6, a melting point of 50 to 200° C. and a density ranging from about 0.5 to 5 grams/cm3, and (b) 70 to 30 parts of colorant not in composite particulate form wherein said fused agglomerate is not in the form of a collapsed microsphere” (see claim 1) and teaches the composition can contain natural waxes (see claim 6) and can be in the form of aqueous gels or dispersions, emulsions, or anhydrous compositions, and in the liquid, semi-solid or solid form (see III cosmetic compositions, column 13, lines 13-15).
Cohen also teaches that the natural or synthetic organic wax to use can be tribehenin (see 4 Natural or synthetic organic wax, column 24, line 12).
Therefore it would have been obvious to persons having ordinary skill in the art to include PMMA microspheres in McNamara’s cosmetic composition as they are known for being able to refract light and for improving the ashy, chalky or mask-like appearance of color cosmetic compositions on the skin.
Conclusion
Currently no claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JACOB ANDREW BOECKELMAN whose telephone number is (571)272-0043. The examiner can normally be reached Monday-Friday 8am-5pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Anand Desai can be reached at 571-272-0947. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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JACOB A BOECKELMANExaminer, Art Unit 1655
/ANAND U DESAI/Supervisory Patent Examiner, Art Unit 1655
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