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 Application
Claims 1-11 are pending in this application.
No claim amendments have been submitted.
All pending claims are under examination.
Information Disclosure Statement
Receipt of the Information Disclosure Statement filed on November 18, 2024 is acknowledged. A signed copy is attached to this application.
The listing of references in the specification is not a proper information disclosure statement. 37 CFR 1.98(b) requires a list of all patents, publications, or other information submitted for consideration by the Office, and MPEP § 609.04(a) states, "the list may not be incorporated into the specification but must be submitted in a separate paper." Therefore, unless the references have been cited by the examiner on form PTO-892, they have not been considered.
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.
Claims 1-4, 6-7, and 11 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Puna-D’Antonio (WO 98/20855).
Puna-D’Antonio discloses a conditioning shampoo (abstract). The composition includes a pearling pigment and smectite clay (page 2, lines 8-10). The composition additionally comprises water (page 2, line 22). The pearling pigment is blends of mica and titanium dioxide or mica coated with titanium dioxide (page 7, lines 6-8). It is noted that mica and titanium dioxide are hydrophilic.
Regarding claim 2, as noted above, the mica can be uncoated.
Regarding claim 3, the pigment has a particle size of 2-85 microns (page 7, lines 8-9).
Regarding claim 4, smectite (montmorillonite) clay is disclosed (page 6, lines 10-11).
Regarding claim 6, the example disclosed on page 9 utilizes dimethicone. It is noted that dimethicone is an organic powder.
Regarding claim 7, the example disclosed on page 9 utilizes dl-panthenol which is a moisturizing agent.
Regarding claim 11, the amount of the pearling agent is from 0.01 to 0.2% (page 7, lines 11-12) and the amount of the smectite clay is 0.05 to 3.0% (page 6, lines 22-24), which is within the instantly claimed range.
Claims 1-2, 4-7, and 10-11 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Fujii et al. (JP 2009062309A).
Fujii discloses a cosmetic for cleansing the skin contains:
(A) hydroxyapatite having the surface covered with an N-acylated amino acid and/or a salt thereof, and
(B) a clay mineral, preferably one or more kinds selected from the group consisting of kaolin, talc and mica and one or more kinds selected from the group consisting of bentonite, montmorillonite, saponite and hectorite.
Optionally, (C) a polyhydric alcohol can be incorporated therein (abstract).
Fujii, additionally discloses as a suitable component (B), kaolin, talc, mica, bentonite, montmorillonite, saponite, hectorite are preferably used from the viewpoint of excellent removal of sebum dirt. Among these, kaolin, talc, mica are preferred. It is more preferable to use in combination one or more selected from the group consisting of and one or more selected from the group consisting of bentonite, montmorillonite, saponite and hectorite (Best Mode).
The cosmetic composition additionally discloses purified water can be included (Best Mode).
As noted above, mica is hydrophilic.
Example 3 discloses:
5.0% saponite;
5.0% mica; and
Purified water.
Regarding claim 2, mica is not disclosed to be coated or having a functionalized surface.
Regarding claim 4, as noted above, montmorillonite, saponite and hectorite are disclosed.
Regarding claim 5, as noted above, hydroxyapatite is disclosed for inclusion. It is noted that hydroxyapatite is an inorganic powder.
Regarding claim 6, Example 3 additionally disclose carboxyvinyl polymer, which is an organic powder.
Regarding claim 7, as noted above, the composition is disclosed to optionally comprise a polyhydric alcohol. The instant specification in paragraph 0027 discloses polyhydric alcohols are moisturizing agents.
Regarding claim 10, as noted above, example 3 discloses 5.0% mica.
Regarding claim 11, as noted above, example 3 discloses 5.0% mica and 5% saponite, thereby meeting the ratio recited in the instant claim.
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 5 is rejected under 35 U.S.C. 103 as being unpatentable over Puna-D’Antonio (WO 98/20855).
The teachings of Puna-D’Antonio are discussed above.
Regarding claim 5, Puna-D’Antonio additionally discloses suitable coemulsifiers/suspending agents that are capable of ensuring the stability of the silicone emulsion and maintaining the pearl pigment suspended in the shampoo matrix during the normal shelf life of the shampoo include inorganic clays, such as magnesium aluminum silicate (page 6, lines 7-13). The preferred magnesium aluminum silicate is sold under the tradename Veegum, which is a powder.
While magnesium aluminum silicate is an alternative to the montmorillonite clay, it has been held that combinations of two or more compositions each of which is taught by the prior art to be useful for the same purpose in order to form a third composition which is to be used for the very same purpose. In re Susi, 58 CCPA 1074, 1079-80, 440 F.2d 442, 445, 169 USPQ 423, 426 (1971); In re Crockett, 47 CCPA 1018, 1020-21, 279 F.2d 274, 276-77, 126 USPQ 186, 188 (1960). As the court explained in Crockett, the idea of combining them flows logically from their having been individually taught in prior art. Therefore, since each of the reference teach that montmorillonite clay and magnesium aluminum silicate are effective ingredients in compositions as coemulsifiers/suspending agents in the conditioning shampoo, it would have been obvious to combine them with the expectation that such a combination would be effective as a coemulsifiers/suspending agents in shampoo composition. Thus, combining them flows logically from their having been individually taught in prior art.
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Fujii et al. (JP 2009062309A) in view of Scafidi (US 5,683,683).
The teachings of Fujii are discussed above.
Fujii does not disclose the viscosity of the cleansing composition.
Scafidi discloses body wash compositions to impart conditioning properties to the skin (abstract).
It is disclosed suitable viscosities provide functional and esthetic properties to the composition (column 5, lines 7-9).
Regarding claim 8, body wash compositions are viscous mixtures with viscosity in the range of 2000 to 20000 centipoise (column 11, lines 40-42).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the invention to have adjusted the viscosity of the skin cleansing composition in order to create a skin care formulation which has the desired effect on the skin including acting as a humectant and provide moisturizing properties.
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Fujii et al. (JP 2009062309A) in view of Barron et al. (The Ultimate Guide to pH and Your Skin, March 8, 2022).
The teachings of Fujii are discussed above.
Fujii does not disclose the viscosity or the pH of the cleansing composition.
Barron discloses common pH of skin care products.
Regarding claim 9, Barron discloses cleansers have a pH of 4.5-7.
Applicant’s attention is directed to MPEP 2144.05 which discloses a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the invention to have adjusted the pH of the final composition in order to create a skin care formulation which has the desired effect on the skin, in order to gain the visible benefits of the ingredients.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MELISSA S MERCIER whose telephone number is (571)272-9039. The examiner can normally be reached M-F 6:30 am to 4 pm EST.
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/MELISSA S MERCIER/ Primary Examiner, Art Unit 1615
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