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 present application claims the benefit of Foreign application KR10-2024-0018193 filed 02/06/2024. Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55, although it is noted that no English translation was provided.
Status of the Application
Receipt is acknowledged of Applicant’s claimed invention, filed 02/03/2025, in the matter of Application N° 19/043,831. Said documents have been entered on the record. The Examiner further acknowledges the following:
Claims 1-11 are pending.
Claims 1-11 are presented for examination and rejected as set forth below.
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.
Claims 1-3 and 6-11 are rejected under 35 U.S.C. 103 as being unpatentable over Wang (US20020176831A1), as evidenced by HLB Calculator (2025), and in further view of Nichols (US20020197221A1).
Applicant’s claims are directed to a lip cosmetic composition, comprising: an aryl-based green colorant; and titanium dioxide (TiO2) coated with a hydrophilic compound. Note that application to lips is an intended use that does not provide structural patentable weight for a composition claim.
When Applicant recites “aryl-based”, this provides enough structural context to define the claim (i.e., an aryl group must be present in the molecular structure of the green colorant). Further note, that although green and blue colorants of instant claim 10 have the potential to be subjectively interpreted (e.g., a teal colorant could be considered both or none, of the green and/or blue category, the classification of a green or blue colorant appears widely accepted in the Art based on naming convention, such as Fast Green FCF, ultramarines, blends of blues and yellows, etc.), and therefore, the categorization of green and blue colorants is considered broadly in line with literature convention.
Further note, due to the uploading software used at the USPTO, the Examiner cannot visually observe the color of the drawings (i.e., they are provided as black and white), such as Figure 5 (filed 02/03/2025) that compares cosmetic colors, nor will the Applicant be able to see colors of the Examiner’s uploads (i.e., Applicant should download their own copy of any references incorporating colored images from the web).
Wang teaches colored cosmetics, in particular lipsticks, that may be simple single layered varieties or complex multi-layered looks in smooth application [0011], including blending colors into novel shades and palettes of ranges of color shades [0002-0003, 00008]. Furthermore, Wang teaches strategies to blend pigments and colorants into liquid bases [0005], including by surface treating pigments with water-dispersible compounds [0005-00012].
Regarding claim 1, 6, and 9-10: Wang teaches a lipstick (reads on instant claim 9) cosmetic (abstract, Wang – claim 10), that includes a hydrophilic colorant (Wang – claim 1). Wang further teaches that the hydrophilic colorant (e.g., titanium dioxide [0025]) is surface treated (“or have been modified to be hydrophilic/water-dispersible” [0025]) with a water-dispersible (or hydrophilic) polymer (reads on a hydrophilic compound) [0007, 0025], and also, hydrogenated lecithin (a non-polymeric hydrophilic compound that, as evidenced by HLB calculator, hydrogenated lecithin has a defined, inherent HLB property value of 9 (see about pg 17 or term search), which falls in between the 8-18 range of instant claim 6, and thus, hydrogenated lecithin reads on claim 6, which depends from claim 1). Wang teaches the purpose of the pigment surface treatment is to improve the blending of the pigment into the liquid base, that provides for smooth application [0004-0012].
Wang further that includes a non-limiting list of colorants, where combinations are obvious [0025], and can form greens [0039], making green obvious for selection (i.e., there is no requirement to select a blue colorant [0039], as recited in claim 10), and where color blending with one or more colorants is obvious, (e.g., white titanium dioxide [0025] + green colorants [0025]) [0025, 0039], for a PHOSITA to achieve desirable shades of green, based on mixing amounts (i.e., “The cosmetic industry has a long-standing interest in the development of various shades of color and palettes of ranges of color shades.” [0008]). Wang acknowledges the nonlimiting nature of the disclosure (i.e., variations and modifications known to a PHOSITA fall within the scope of the disclosure) [0042].
Regarding claim 7: Wang teaches the hydrophilic colorant in 0.1-50 wt% (Wang – claim 12).
Regarding claim 8: Wang teaches oil-in water emulsion formulations [0032] and dispersion lipstick formulations [0008].
Regarding claim 11: Wang teaches a method of applying that involves a lipstick (Wang – claims 18-20 and 29).
In summary, Wang teaches lipstick compositions comprising modified titanium dioxide (i.e., a white colorant) and green colorants. However, Wang does not teach the specific “aryl-based” green colorant (instant claims 2-3).
Nichols teaches Green No. 3 (i.e., Fast Green FCF, which contains aryl groups) [0126] and anthraquinones (i.e., aryl containing) [0123] for cosmetic use to color the lips [0002-0005], that are combinable with other oxide based pigments [0118-0119]. Nichols further teaches providing “any number of different colors by varying the color of the pigment employed” to create an array of “custom, personalized colors” [0065].
It would have been prima facie obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to modify the lipstick compositions of Wang by selecting Green No. 3 and/or anthraquinone-based dyes, as taught by Nichols, because Nichols teaches Green No. 3 and/or anthraquinone-based dyes to functionally color cosmetic compositions for application and coloring of the lips. The selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination in Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945). Thus, Wang teaches a non-limiting group of water-dispersible colorants (i.e., modified and/or water soluble/insoluble such as titanium dioxide and green colorants) [0025], with direct suggestion of the color green [0039]. Similarly, Nichols teaches Green No 3 as combinable with other oxide based pigments [0118-0119] to color the lips, and furthermore, Green No 3 is an inherently water-dispersible ingredient due to its chemical structure, that would be functionally productive in Wang’s compositions.
Claims 1-11 are rejected under 35 U.S.C. 103 as being unpatentable over Wang (US20020176831A1) and Nichols (US20020197221A1), as evidenced by HLB Calculator (2025), as applied to claims 1-3 and 6-11 above, and in further view of Fukushima (JPS61286310A; machine translation provided).
As discussed above, the combined Prior Art teaches the instant composition of claim 1, including a colorant (e.g., titanium dioxide [0025]) that is surface treated (“or have been modified to be hydrophilic/water-dispersible” [0025]) with a water-dispersible (or hydrophilic) polymer, in combination with green colorants. However, they do not teach the specific hydrophilic compounds that modify and/or coat the titanium dioxide (instant claims 4 and 5).
Fukushima teaches makeup cosmetics for skin (abstract), that provide alginic acid and/or sodium alginate as hydrophilic polymers to modify titanium dioxide in order to obtain a more dispersible ingredient [0001], whereby the comparative examples (i.e., where there is no coating on the pigment) generally demonstrated inferior results (pg 6-12), in line with the general benefits of the disclosure (i.e., has high adhesion and safety to the skin, is smooth, spreads well, has a moist feel, has good makeup retention and mechanical properties [0001]).
It would have been prima facie obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to select the hydrophilic compound for surface treatment of pigments for the lipstick compositions of Wang and Nichols, with the hydrophilic molecule of sodium alginate and/or alginic acid, as taught by Fukushima, because Fukushima teaches sodium alginate and/or alginic acid as one of several compounds that can coat pigments to improve the overall properties of resulting composition (i.e., has high adhesion and safety to the skin, is smooth, spreads well, has a moist feel, has good makeup retention and mechanical properties [0001], in comparison to the cosmetic compositions that contain uncoated pigment), whereby Wang is invested in the uniformity/blending of pigments in liquid bases [0004-0006], smooth application [0011], moisture balance [0009], and Wang further generally teaches surface modification of pigments such as titanium dioxide (e.g., “modified to be hydrophilic/water-dispersible”) [0025].
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to RAJAN PRAGANI whose telephone number is (703)756-5319. The examiner can normally be reached 7a-5p EST (M-Th).
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/R.P./Examiner, Art Unit 1614 10/5/2026
/SEAN M BASQUILL/Primary Examiner, Art Unit 1614
