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 .
Claim Rejections - 35 USC § 102/103
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.
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.
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) 1-7 is/are rejected under 35 U.S.C. 102(a)(1)) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over Horie et al., (CN115304068).
Horie et al. teaches “a method for producing silicon dioxide particles and use thereof in cosmetic compositions. The present disclosure also relates to a spherical shape of silicon dioxide particles comprising (SiO4/2) repeating units” (Abstract).
Concerning claim 5, the silicon particles are also taught to have “a D90/D10 particles size distribution of about 1.3 or less as measured by laser diffraction and is spherical and has a sphericity of 0.9 or more as defined by a minor axis/major axis” (p. 2, 2nd paragraph of translation). “[T]he silica particles have a median particle size (D50) of about 0.5µm-50µm” and “a BET surface area of about 0.1m2/g to about 100m2/g” (p. 3, 4th and 5th paragraphs)
The cosmetic products comprising the silicon dioxide particles have “excellent spreadability, feeling and good adhesion to the skin, less cosmetic collapse . . . “ (p. 3, 2nd paragraph), which speaks to a degree of aggregation of 60% or more insofar as it is a condition where “an interaction between the silica particles is large and adhesion between the particles is improved, resulting in a soft and moist feel when spread on skin” (Specification p. 5, para. [0016]).
Concerning claim 6, the prior art teaches several cosmetic formulations comprising the spherical silica particles, e.g. “Powdery eye shadow” (see p. 11 of translation).
Concerning claim 7, the cosmetic formulations “further comprises one or more personal care ingredients”, such as, “fumed silica or hydrated silicon dioxide” (silica powders other than the silica powder for a cosmetic material) (p. 8 last paragraph through p. 9).
The prior art teaches a specific embodiment of spherical particles having a D50 of “3.8 µm, the particle since distribution D90/D10 is 1.11 and the BET specific surface area is 1.32m2/g” (p. 9 Example 1), as per claims 4-5.
Since the prior art contains substantially the same components in the same relative proportions as instantly claimed, i.e. silica particles having a sphericity of 0.9 or more, it would be expected to inherently possess the same chemical and physical properties, such as a degree of aggregation of 60% or more, a stress relaxation rate of 18% or less, a shearing cohesion of 2.0 kPa or more.
The prior art is anticipatory insofar as it teaches silica particles having an average circularity of 0.75 or more. Assuming for the sake of argument that the prior art teaches is not specific enough to give rise to anticipation it would have been obvious to provide silica particles having an average circularity of 0.75 or more of cosmetic material, since the prior art teaches silicon particles for cosmetic formulations having a sphericity of 0.9 or more.
Conclusion
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Any inquiry concerning this communication or earlier communications from the examiner should be directed to WALTER E WEBB whose telephone number is (571)270-3287 and fax number is (571) 270-4287. The examiner can normally be reached from Mon-Fri 7-3:30.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sahana Kaup can be reached (571) 272-6897. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Walter E. Webb
/WALTER E WEBB/Primary Examiner, Art Unit 1612
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