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 .
Priority
The instant application was filed 18 November 2024 and the Applicant claims priority to foreign application KR10-2023-0164911 filed 23 November 2023. A certified copy of the foreign document has been provided. However, an English translation of the foreign document cannot be found. Therefore, the effective filing date of the instant application is 18 November 2024.
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.
Claim(s) 1-12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Nguyen et al. (WO 2023/100140 A1; cited in IDS).
Regarding claim 1, Nguyen teaches a cosmetic composition (abs, entire teaching) that may comprise polyglyceryl-5 laurate (pg. 5), bentonites or hectorites (pg. 13), magnesium aluminum silicate (pg. 13), and titanium dioxide (pg. 15).
Regarding claim 2, the composition may comprise polyglyceryl-5 laurate (pg. 5).
Regarding claim 3, the amount of polyglyceryl surfactant may be 0.5-15% (pg. 7).
Regarding claim 4, the composition may comprise bentonites or hectorites (pg. 13).
Regarding claim 5, the amount of bentonite may be 0.1-5% (pg. 14).
Regarding claim 6, the composition may comprise magnesium aluminum silicate (pg. 13), hectorites, or bentonites (pg. 13).
Regarding claim 7, the amount of bentonite or hectorite may be 0.1-5% (pg. 14).
Regarding claim 8, the composition may comprise titanium dioxide (pg. 15).
Regarding claim 9, the amount of pigments may be 0-25% (pg. 15).
Regarding claim 10, the pigments may be surface treated with lauroyl lysine (pg. 15).
Regarding claim 11, an example of the viscosity range can be found in Figure 2. For example, the range is shown as roughly 10-1,000 Pa-s (10,000-1,000,000 cps).
Regarding claim 12, Nguyen teaches a range for the stress (Pa), which is a measure of structural strength (pg. 27). For example, the stress value may be 1 Pa (10 dyne/cm2). Stress values as a measurement of structural strength is interpreted as addressing the limitation of “hardness” of a cosmetic composition.
Nguyen does not teach an exact combination of a polyglyceryl-based emulsifier, oil-based thickener, water-phase thickener, and a pigment in claim 1.
In regards to selecting the combination of a polyglyceryl-based emulsifier, oil-based thickener, water-phase thickener, and a pigment in claim 1, “[w]hen a patent simply arranges old elements with each performing the same function it had been known to perform and yields no more than one would expect from such an arrangement, the combination is obvious.” KSR v. Teleflex, 127 S.Ct. 1727, 1740 (2007) (quoting Sakraida v. A.G.Pro, 425 U.S. 273, 282 (1976)). “When the question is whether a patent claiming the combination of elements of prior art is obvious,” the relevant question is “whether the improvement is more than the predictable use of prior art elements according to their established functions.” (Id.). Addressing the issue of obviousness, the Supreme Court noted that the analysis under 35 USC 103 “need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.” KSR at 1741. The Court emphasized that “[a] person of ordinary skill is… a person of ordinary creativity, not an automaton.” Id. at 1742.
Consistent with this reasoning, it would have been obvious to have selected various combinations of various disclosed ingredients from within a prior art disclosure, to arrive at compositions “yielding no more than one would expect from such an arrangement.”
Nguyen teaches a cosmetic composition (abs, entire teaching) that may comprise polyglyceryl-5 laurate (pg. 5), bentonites or hectorites (pg. 13), magnesium aluminum silicate (pg. 13), and titanium dioxide (pg. 15), whereas the claimed invention is directed towards a cosmetic composition comprising a polyglyceryl-based emulsifier, an oil-phase thickener, a water-phase thickener, and a pigment. Since Nguyen teaches the individual components of the claimed composition, it is obvious for one of ordinary skill in the art to select the different combinations of ingredients to arrive at the claimed invention with a reasonable expectation of success.
Conclusion
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/D.A.K./Examiner, Art Unit 1613
/ANDREW S ROSENTHAL/Primary Examiner, Art Unit 1613
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