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 § 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.
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) 1-2 and 4-10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kawachi et al. (JP 2022-070661 A; published 13 May 2022; of record; citations herein to English machine translation filed by applicant 08 January 2025; of record) in view of Hosoda et al. (JP 2010-275223 A; published 09 December 2010; of record; citations herein to English machine translation filed by applicant 08 January 2025; of record).
Kawachi et al. discloses oil-in-water sunscreen cosmetics (title) with moist feeling (paragraph [0001]) containing hydrophobized metal oxide fine particles (paragraph [0011]) wherein the cosmetic may contain an ultraviolet ray absorbent and/or moisturizer (paragraph [0019]) wherein Formulation 1 sunscreen emulsion contains 13 wt% isostearic acid-treated zinc oxide (i.e., hydrophobically treated pigment particles), 0.05 wt% hydroxypropyl methylcellulose stearoxy ether (i.e., a water-soluble alkyl-substituted polysaccharide derivative, hydrophobic-modified HPMC), 1 wt% polyhydroxystearic acid, 2 wt% isodecyl neopentanoate (i.e., a polar oil), 15 wt% hydrogenated polyisobutene and 1 wt% dimethicone (i.e., oils), 1 wt% glyceryl PEG-60 isostearate (i.e., nonionic surfactant with HLB 16), 0.1 wt% xanthan gum and 0.5 wt% sodium acrylate-sodium acryloyldimethyl taurate copolymer/isohexadecane/polysorbate 80 (i.e., aqueous phase thickeners) (paragraph [0035]) wherein the composition may be a foundation (i.e., makeup) (paragraph [0037]) wherein % is by mass (i.e., weight) (paragraph [0010]).
Kawachi et al. does not disclose that the particles have mean particle size of 200-500 nm as claimed.
Hosoda et al. discloses sunscreen cosmetic with zinc oxide fine particles wherein the zinc oxide fine particles are preferably hydrophobized and preferably have average primary particle diameter of 0.2-0.3 µm to effectively shield ultraviolet rays (abstract).
It would have been prima facie obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to combine the teachings of Kawachi et al. and Hosoda et al. by making the sunscreen cosmetic of Kawachi et al. as discussed above wherein the hydrophobized zinc oxide fine particles therein have average primary particle diameter of 0.2-0.3 µm (i.e., 200-300 nm) as suggested by Hosoda et al., with a reasonable expectation of success. A person of ordinary skill in the art before the effective filing date of the claimed invention would have been motivated to do so to make a sunscreen cosmetic that effectively shield ultraviolet rays as suggested by Hosoda et al., and given that Kawachi et al. teaches inclusion of hydrophobized zinc oxide fine particles, and given that Hosoda et al. teaches that 200-300 nm is a suitable average primary particle diameter range for hydrophobized zinc oxide fine particles in sunscreen cosmetics, and the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination per MPEP 2144.07.
Claim(s) 1-10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kawachi et al. in view of Hosoda et al. as applied to claims 1-2 and 4-10 above, and further in view of Gubernick (U.S. Patent No. 4,005,210; issued 25 January 1977).
Kawachi et al. and Hosoda et al. are relied upon as discussed above.
Kawachi et al. and Hosoda et al. do not disclose 50 mass% or greater of the oil is polar oil as in claim 3.
Gubernick discloses skin moisturizer comprising about 2 to about 20% isodecyl neopentanoate (abstract).
It would have been prima facie obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to combine the teachings of Kawachi et al., Hosoda et al., and Gubernick by making the cosmetic of Kawachi et al. in view of Hosoda et al. as discussed above with the isodecyl neopentanoate therein in an amount of about 2-20 wt% as suggested by Gubernick, with a reasonable expectation of success. A person of ordinary skill in the art before the effective filing date of the claimed invention would have been motivated to do so because Kawachi et al. discloses inclusion therein of 2 wt% isodecyl neopentanoate and suggests inclusion of moisturizers, and about 2-20% isodecyl neopentanoate is suitable for moisturizing per Gubernick, and a range can be disclosed in multiple prior art references instead of a single prior art reference per MPEP 2144.05(I), and the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination per MPEP 2144.07.
Such range of about 2-20 wt% results in an amount of polar oil in the oil in the cosmetic of Kawachi et al. in view of Hosoda et al. and Gubernick of 2-20 wt% in (15 + 1 + 2-20) wt%, or 2-20 in 18-36, or about 11-56%, which overlaps the claimed range of 50% or more, and a prima facie case of obviousness exists where prior art and claimed ranges overlap per MPEP 2144.05(I).
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHAEL B. PALLAY whose telephone number is (571)270-3473. The examiner can normally be reached Monday through Friday from 8:30 AM to 5:00 PM Eastern Time.
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/MICHAEL B. PALLAY/Primary Examiner, Art Unit 1617
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