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 Status
Claims 1-12 are pending and presented for examination on the merits.
Priority
The application was filed 12/19/2024.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 3/25/25 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Claim Objections
Claim 4 is objected to because of the following informalities: “pertoselinic” is a misspelling of petroselinic. Appropriate correction is required.
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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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.
Claims 1-12 are rejected under 35 U.S.C. 103 as being unpatentable over Hiban et al. (US20210220243; hereinafter Hiban2021) and Hiban et al. (US20220192934; hereinafter Hiban2022) and LeGrow et al. (US6489274).
This application currently names joint inventors. In considering patentability of the claims under 35 U.S.C. 103, the examiner presumes that the subject matter of the various claims was commonly owned at the time any inventions covered therein were made absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and invention dates of each claim that was not commonly owned at the time a later invention was made in order for the examiner to consider the applicability of 35 U.S.C. 103(c) and potential 35 U.S.C. 102(e), (f) or (g) prior art under 35 U.S.C. 103.
Applicant claims, for example:
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Level of Ordinary Skill in the Art
(MPEP 2141.03)
MPEP 2141.03 (I) states: “The “hypothetical ‘person having ordinary skill in the art’ to which the claimed subject matter pertains would, of necessity have the capability of understanding the scientific and engineering principles applicable to the pertinent art.” Ex parte Hiyamizu, 10 USPQ2d 1393, 1394 (Bd. Pat. App. & Inter. 1988). The level of skill is that of a cosmetic shampoo/body wash research chemist, as is the case here, then one can assume comfortably that such an educated artisan will draw conventional ideas from shampoo and body wash formulations— without being told to do so.
In addition, the prior art itself reflects an appropriate level (MPEP 2141.03(II)).
Determination of the scope and content of the prior art
(MPEP 2141.01)
Regarding claims 1, 4, 9 and 10, Hiban2021 teaches a surfactant composition comprising:
15-100% by weight anionic surfactant acyl isethionate (Claims 1 and 6);
An amphoteric and/or zwitterionic surfactant (Claim 1) such as a betaine (Claim 8) in an amount from 0.1 to 45% by weight and preferably from 0.5 to 35%1 [0020];
A C6-C14 acid or alcohol (Claim 1) such as lauric acid (C12) (Claim 8) in an amount of from 0.1 to 16% [0021], thus overlapping the claimed range of less than 1.5% by weight;
30-85% water (Claim 1), which overlaps the claimed range of from 70-92% water;
From 40-85% by weight of anionic surfactant acyl taurate (Claims 5 and 7);
Oil soluble actives PPAR agonist 12-hydroxystearic acid (Claim 15), petroselinic acid and conjugated linoleic acid and mixtures thereof in an amount of from 0.001 to 1.5% [0062, 0065].
Thus, Hiban2021 teaches a wash composition from 1.5 to 4.5% by weight of an anionic surfactant comprising at least 80% by weight of acyl isethionate and acyl taurate based on total weight of the anionic surfactant that is substantially free of polymeric thickener and suspending agent.
Regarding claim 2, Hiban2021 teaches adding from 0.5, 1, 1.5 or 2% by weight nonionic surfactant [0045].
Regarding claim 6, the wash composition of Hiban2021 is substantially free of a sulfate-based surfactant, paraben, hydantoin, isothiazolinone, phthalate, soap, acrylate-based thickener, dioxane and silicone oil.2
Regarding claim 7, Hiban2021 teaches from 0.0 to 35% and preferably from 2 to 12% by weight humectant glycerin [0072] and from 0 to 15% and preferably from 0.75 to 4.5% by weight salt [0022].
Regarding claim 8, Hiban2021 teaches adding, for example 4-ethyl resorcinol (Claim 16), 4-hexyl resorcinol (Claim 17), thymol, terpineol [0062], retinyl palmitate, retinyl propionate, retinol [0063] and glycerin [0072].
Regarding claim 9, Hiban2021 teaches a pH from 4.5 to 10 (Claim 10) and a viscosity from 3000 to 12000 cps (Claim 14), which overlap the claimed pH range of from 5.8 to 8.2 and viscosity of from 500 to 25000 mPa-s.3 Hiban2021 also teach adding from 0.01 to 2.0% by weight of a preservative where: “Cosmetic chemists are familiar with appropriate preservatives and routinely choose them to satisfy the preservative challenge test and to provide product stability.” [0066].
Regarding claims 11 and 12, Hiban2021 teaches that the composition is to be applied to skin and hair and washed off with water [0018], thereby by washing a surface by contacting the skin and/or hair surface with the composition and rinsing the composition off with water.
Regarding claims 1, 3, 5, and 7-8, Hiban2022 teach human body cleansing compositions (Title; [0001]) comprising acyl isethionate and acyl taurate in a ratio of about 1:1 that produces enhanced lather (Abstract; claims 1-2 and 13). Hiban2022 suggest adding from 0 to 10% by weight pearlizers such as ethylene glycol monostearate which are useful in enhancing the appearance of cosmetic properties of the product [0087-0088]. Hiban2022 also teach adding preservatives [0089] and antimicrobials such as benzoyl peroxide and anti-acne agents such as salicylic acid, lactic acid and glycolic acid [0075-0076]. See also [0077-0084] teaching, for example, thymol and resorcinols.
Regarding claims 1, 3, 5 and 7, LeGrow et al. teach rinse off compositions comprising pearlescent agents (Abstract) such as a body wash or shampoo (Claim 14) where preferred “perlescent[sic]and opacifying agents are ethylene glycol esters of fatty acids having from 16 to 22 carbon atoms. More preferred are ethylene glycol stearates, both mono- and distearate. Preferably the perlescent[sic] and opacifying agents are present at levels from 0.01 % to 5% by weight, more preferred from 0.2% to 1.3% by weight.” (Column 7, lines 48-54; and claims 10-13). LeGrow et al. also teach 0.1 to 2% by weight sodium benzoate as a preservative (Column 6, lines 56-67).
Ascertainment of the difference between the prior art and the claims
(MPEP 2141.02) and Finding of prima facie obviousness
Rational and Motivation (MPEP 2142-2143)
1. The difference between the instant application and Hiban2021 is that Hiban2021 do not expressly teach a wash composition with from 0.05 to 1 % by weight of a pearlescent agent homogeneously dispersed in the wash composition, the pearlescent agent comprising from 0 to 100% by weight glycol distearate wherein the pearlescent agent is 90-100% or 92-100% glycol distearate; the acyl isethionate and acyl taurate are present at a weight ratio from 1:3 to 3:1 or from 1:2 to 2:1 or from 1:1.5 to 1.5 to 1 or from 1:1.2 to 1 to 1.2:1 or from 1.15:1 to 1:1.15 or from 1:1; wherein the PPAR agonist and pearlescent agent are present at a weight ratio of where PPAR agonist/pearlescent agent is from 0.2 to 1.4 and the pearlescent agent is from 15 to 100% by weight glycol distearate or adding sodium benzoate. This deficiency in Hiban2021 is cured by the teachings of Hiban2022 and LeGrow et al.
1. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the wash composition of Hiban2021 with from 0.05 to 1% by weight of a pearlescent agent homogeneously dispersed in the wash composition, the pearlescent agent comprising from 0 to 100% by weight glycol distearate wherein the pearlescent agent is 90-100% or 92-100% glycol distearate; the acyl isethionate and acyl taurate are present at a weight ratio from 1:3 to 3:1 or from 1:2 to 2:1 or from 1:1.5 to 1.5 to 1 or from 1:1.2 to 1 to 1.2:1 or from 1.15:1 to 1:1.15 or from 1:1; wherein the PPAR agonist and pearlescent agent are present at a weight ratio of where PPAR agonist/pearlescent agent is from 0.2 to 1.4 and the pearlescent agent is from 15 to 100% by weight glycol distearate or adding, for example, sodium benzoate, benzoyl peroxide, salicylic acid and lactic acid, as suggested by Hban2022 and LeGrow et al., and produce the instant invention.
One of ordinary skill in the art would have been motivated to do this because in this art Hiban2022 teaches adding 0 to 10% by weight pearlizers such as ethylene glycol monostearate to acyl isethionate and acyl taurate surfactant human body cleansing compositions because they are useful in enhancing the appearance of cosmetic properties of the product and LeGrow et al. direct the artisan to employing glycol distearate. Consequently, the ordinary artisan is motivated to enhance the appearance of the composition of Hiban2021 by adding 0-100%, 15-100%, 90-100% or 92-100% glycol distearate pearlescent agent in an amount of from 0.05-1% in the wash composition and homogeneously dispersing it in the composition for uniformity with a reasonable expectation of success. Since the combined references render obvious 0.05-1% glycol distearate pearlescent agent and 0.08 to 1% or from 0.15 to 0.25% PPAR agonist 12-hydroxstearic acid, then the ratio of PPAR agonist to glycol distearate pearlescent agent of 0.2 to 1.4 is merely a matter of routine optimization by the ordinary artisan. See MPEP 2144.05 (II) (A): “[W]here 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.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). Furthermore, a wash composition comprising from 1 to 7% by weight glycerine, from 0.01 to 4% by weight salt, PPAR agonist which is 90 to 100% by weight 12-hydroxystearic acid, and pearlescent agent which is 90 to 100% by weight glycol distearate is rendered obvious over the combined references. Regarding the weight ratio of acyl isethionate and acyl taurate, Hiban2022 teach that a ratio of about 1:1 generates consumer desirable properties of a superior and enhanced lather volume while maintaining lather creaminess (Abstract; [0005]). Accordingly, the ordinary artisan is motivated to optimize the weight ratio of acyl isethionate and acyl taurate to about 1:1 in the wash composition of Hiban2021 for those desirable properties. Regarding adding sodium benzoate and fatty acid of claim 9, Hiban2021 suggest adding preservatives known to the cosmetic chemist as well as fatty acids as discussed above. LeGrow et al. direct the artisan to sodium benzoate. Thus, the ordinary artisan would have a reasonable expectation of success in using a preservative amount of the conventional preservative sodium benzoate in the wash composition of Hiban2021. Regarding benzoyl peroxide, lactic acid and salicylic acid, Hiban2021 is open to the inclusion of active agents and Hiban2022 suggest adding benzoyl peroxide, salicylic acid and lactic acid as benefit agents that can provide a sustained effect on skin problems [0074]. Consequently, it would appear that the claimed components of instant claim 8 are obvious to add to the wash composition of Hiban2021 for their beneficial properties.
In light of the forgoing discussion, the Examiner concludes that the subject matter defined by the instant claims would have been obvious within the meaning of 35 USC 103.
From the combined teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole was prima facie obvious to one of ordinary skill in the art at the time the invention was made, as evidenced by the combined references, especially in the absence of evidence to the contrary.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ERNST V ARNOLD whose telephone number is (571)272-8509. The examiner can normally be reached M-F 7-3:30.
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/ERNST V ARNOLD/Primary Examiner, Art Unit 1613
1 Regarding overlapping ranges, see MPEP 2144.05(I): In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976).
2 The specification teaches that “substantially free” can include 0.0% for the components (Page 5, lines 14-34).
3 Centipoise (cP or cps) and millipascal-seconds (mPa-s or mPas) are identical in value.
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