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 Objections
Claims 1, 12 and 18 are objected to because of the following informalities: the claims recite the abbreviation “PMMA”, which is not used in any dependent claims. There the limitation should be deleted. Appropriate correction is required.
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.
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(s) 2-10 are rejected under 35 U.S.C. 103 as being unpatentable over Gray et al. (US Patent Pub. 2012/0258055, disclosed by applicant) in view of McCormick et al. (US Patent Pub. 2010/0310871, disclosed by applicant).
Gray et al. disclose a composition and method for protecting a keratinous substrate from harmful UV rays by providing a mineral sunscreen composition with high SPF properties that is stable and avoids re-agglomeration of sunscreen actives thereby providing a non-whitening and cosmetically elegant composition (Abstract and [0004]). Gray et al. disclose the composition comprises inorganic sunscreen actives, such as iron oxide, titanium dioxide or zinc oxide at a concentration of 0.1% to about 50% by weight ([0061], [0062], and [0097]). Gray et al. disclose the composition comprises hydroxyapatite at a concentration of 0.1% to about 30% ([0039] and [0044]), which meets the limitation of “therapeutically effective amount” as described in the instant specification of about 0.7-1.25% of an SPF booster that provides a SPF of at least 30. Gray et al. disclose the composition comprises silicone oils, such as cyclopentasiloxane in an amount of about 1% to about 60% ([0117] and [0183]) Gray et al. disclose the composition comprises hectorite clay at a concentration of from about 0.1% to about 1.25% by weight ([0036] and [0037]). The composition of Gray et al. is free of butyloctyl salycilate, styrene/acrylates copolymer, polymethyl methacrylate of derivatives thereof, tropolone, polyethylene glycol compounds and organic sunscreen filters. Gray et al. disclose examples have significantly greater absorbance through wavelength rage of about 290 nm through about 390 nm (FIG. 1, [0234]). Gray et al. disclose a W/O composition comprising polyglyceryl isostearate, which meets the limitation of polyglyceryl fatty acid ester compound, at a concentration of 1% to about 8% ([0104] and [0109]).
Gray et al. differs from the instant claims insofar as they do not disclose wherein the zinc oxide is a mesoporous zinc oxide.
McCormick et al. disclose mesoporous zinc oxide powder that are of a sufficiently large size to not raise concerns about product safety or stability, that when dispersed in a transparent matrix provide substantial visible transparency combined with minimal or no whitening ([0009]). McCormick et al. disclose the mesoporous particles range in size from 0.2 to 10 microns, which meets the limitation of non-nano of the instant claims ([0052]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have used mesoporous zinc oxide as the zinc oxide of Gray et al. motivated by the desire to provide a powder that are of a sufficiently large size to not raise concerns abut product safety or stability, that when dispersed in a transparent matrix provide substantial visible transparency combined with minimal or no whitening as taught by McCormick.
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Gray et al. (US Patent Pub. 2012/0258055, disclosed by applicant) in view of McCormick et al. (US Patent Pub. 2010/0310871, disclosed by applicant) and Kuehnle et al. (US Patent Pub. 20200232003).
Gray in view of McCormick is discussed above and differs from the instant claims insofar as they do not disclose the diatomaceous algae materials of instant claim 11.
Kuehnle et al. disclose compositions, including sunscreens, comprising microalgal cells including diatoms, i.e. Cyclotella, Frafilaria, Gomphonema, and Navivula (Abstract and [0108]). Kuehnle et al. disclose microalgal cells increase SPF of sunscreen compositions and also provide moisturizing, hydrating, softening, smoothing, rejuvenating, soothing, protecting and restoring the skin ([0216] and reference claim 33).
It would have been obvious to one of ordinary skill in the art before the effective filing date of he claimed invention to have included the claimed diatomaceous algae materials to the composition of Gray in view of McCormick motivated by the desire to increase the SPF of the sunscreen composition as taught by Kuehnle.
Claim(s) 12-23 are rejected under 35 U.S.C. 103 as being unpatentable over Gray et al. (US Patent Pub. 2012/0258055, disclosed by applicant) in view of McCormick et al. (US Patent Pub. 2010/0310871, disclosed by applicant) and Paulucci et al. (US Patent Pub. 20210059911, disclosed by applicant).
Gray in view of McCormick is discussed above and differs from the instant claims insofar as they do not disclose a composition comprising calcium sodium borosilicate or dimethicone and acylates/dimethicone copolymer.
Paulucci et al. disclose a sunscreen composition comprising dimethicone (and) acrylates/dimethicone copolymer at a concentration of about 0.1 to 5 wt. % and calcium/sodium borosilicate ([0069] and [0194]).
It is prima facie obviousness to select a known material based on its suitability for its intended use. Also, established precedent holds that it is generally obvious to add known ingredients to known compositions with the expectation of obtaining their known function. MPEP 2144.07. Therefore, it would have been obvious to have used ingredients known for sunscreen compositions.
Conclusion
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/NANNETTE HOLLOMAN/Primary Examiner, Art Unit 1612