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 Status
Claims 1-8, and 11 are currently pending and under examination herein.
Claims 1-8, and 11 are rejected.
Priority
This application is a 371 of PCT/EP2020/058246 filed 03/25/2020. The application claims benefit to priority under 35 U.S.C. §119 to foreign application patent application number, CHINA PCT/CN2019/080317, filed 03/29/2019 and European Patent Application No. 19172948.2, filed on May 07,2019, and is acknowledged. Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55. In this action, all claims 1-8, and 11 are examined for an effective filing date of 03/29/2019. In future actions, the effective filing date of one or more claims may change, due to amendments to the claims, or further analysis of the disclosure(s) of the priority application(s).
Information Disclosure Statement
The Information Disclosure Statements filed on 09/03/2021 and 01/08/2024, are in compliance with the provisions of 37 CFR 1.97 and has been considered. Signed copies of the list of references cited from the IDS are included with this Office Action.
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Drawings
No drawings are submitted.
Objection: Specification
The disclosure is objected to because of the following informalities:
Abstract is objected to because it exceeds 150 words (see MPEP 1826). A corrected abstract of the disclosure is required and must be presented on a separate sheet, apart from any other text. (see MPEP § 608.01(b)).
The disclosure is objected to because it contains an embedded hyperlink and/or other form of browser-executable code, for example PGPUB Specification [0015-0017]. Applicant is required to delete the embedded hyperlink and/or other form of browser-executable code; references to websites should be limited to the top-level domain name without any prefix such as http:// or other browser-executable code. See MPEP § 608.01.
The listing of references in the specification is not a proper information disclosure statement, for example PGPUB Specification [0018-0023]. 37 CFR 1.98(b) requires a list of all patents, publications, or other information submitted for consideration by the Office, and MPEP § 609.04(a) states, "the list may not be incorporated into the specification but must be submitted in a separate paper." Therefore, unless the references have been cited by the examiner on form PTO-892, they have not been considered.
Appropriate correction is required.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-8, and 11 are rejected under 35 U.S.C. 101 because the claimed invention is directed to abstract ideas without significantly more.
The instant rejection reflects the framework as outlined in the MPEP at 2106.04:
Framework with which to Evaluate Subject Matter Eligibility:
(1) Are the claims directed to a process, machine, manufacture, or composition of matter;
(2A) Prong One: Do the claims recite a judicially recognized exception, i.e. a law of nature, a natural phenomenon, or an abstract idea;
Prong Two: If the claims recite a judicial exception under Prong One, then is the judicial exception integrated into a practical application (Prong Two); and
(2B) If the claims do not integrate the judicial exception, do the claims provide an inventive concept.
Framework Analysis as Pertains to the Instant Claims:
With respect to step (1): yes, the claims are directed to a method for determination of a pollution protection factor/PPF of a cosmetic composition as a tool to assess/grade cosmetic compositions based on their efficacy of protection from the harmful effects of pollution, therefore the answer is "yes".
With respect to step (2A)(1), the claims recite abstract ideas. To determine if the claims recite any concepts that equate to an abstract idea, law of nature, or natural phenomenon, MPEP at 2106.03 taught abstract ideas include mathematical concepts (mathematical formulas or equations, mathematical relationships, and mathematical calculations), certain methods of organizing human activity, and mental processes (including procedures for collecting, observing, evaluating, and organizing information (see MPEP 2106.04(a)(2)). In the instant application, the claims recite the following limitations that equate to an abstract idea with mathematical concepts.
With respect to the instant claims, under the step (2A)(1) evaluation, the claims are found to direct to abstract ideas that fall into the grouping of mathematical concepts (in particular mathematical relationships between data for PPF).
The claims directing to abstract ideas are as follows:
Mathematical concepts:
Claim 1: calculating the pollution protection factor by the equation F.
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Claim 1: expressing it on a scale of 0 to 1, where (1−α) indicates corresponding potential residual damage to the skin… where (1−β) indicates corresponding potential residual damage to the skin… (1 - R) indicates corresponding potential residual damage to the skin.
Claims 2-6, and 8: … expressing it on a scale of 0-1 …assigned a score…
Natural phenomenon:
Claim 1: where (1−α) indicates corresponding potential residual damage to the skin… where (1−β) indicates corresponding potential residual damage to the skin… where (1−γ) indicates corresponding potential residual damage to the skin.
Claim 2-6, and 8: correspondingly said potential residual [skin] damage …
Hence, the claims explicitly recite elements that, individually and in combination, constitute abstract ideas and natural phenomenon.
With respect to step (2A), under the broadest reasonable interpretation (BRI), the instant claims a method for determination of a pollution protection factor/PPF of a cosmetic composition as a tool to assess/grade cosmetic compositions based on their pollution protection efficacy from its harmful effects.. Instant claims are therefore directed to the judicial exceptions of abstract groupings, mathematical concepts (calculating … equation F) which can also be performed with the human mind with pen and paper and natural phenomena (where (1−α) indicates corresponding potential residual damage to the skin… where (1−β) indicates corresponding potential residual damage to the skin).
Because the claims do recite judicial exceptions, direction under step (2A)(2) provides that the claims must be examined further to determine whether they integrate the abstract ideas into a practical application (MPEP 2106.04(d). A claim can be said to integrate a judicial exception into a practical application when it applies, relies on, or uses the judicial exception in a manner that imposes a meaningful limit on the judicial exception. This is performed by analyzing the additional elements of the claim to determine if the abstract idea is integrated into a practical application (MPEP 2106.04(d).I.; MPEP 2106.05(a-h)). If the claim contains no additional elements beyond the judicial exception, the claim is said to fail to integrate into a practical application (MPEP 2106.04(d).III).
With respect to the instant recitations, the claims recite the following additional elements considered for practical application:
Claim 1: a step of testing, by any known test method, the ability (a) of the cosmetic composition to render ineffective at least one type of pollutant present on skin and expressing it on a scale of 0 to 1, where (1 - a) indicates corresponding potential residual damage to the skin, wherein said composition comprises at least one ingredient known to render ineffective said at least one type of pollutant and said ingredient is an anti-inflammatory or antioxidant; (b) a step of testing, by any known test method, the ability (R) of the cosmetic composition to inhibit the contact of at least one type of pollutant with skin and expressing it also on a scale of 0 to 1, where (1 - R) indicates corresponding potential residual damage to the skin wherein said composition comprises at least one ingredient known to inhibit the contact of at least one type of pollutant with skin and wherein said ingredient is a sunscreen, a barrier enhancer or a polymer, further followed by; (c) a step of testing, by any known test method, the ability (y) of the cosmetic composition to remove at least one type of pollutant present on the skin, expressing it also on a scale of 0 to 1, where (1 - y) indicates corresponding potential residual damage to the skin, and
Claim 2: wherein when said ingredient is found to have a comparatively weaker anti-inflammatory effect said ability (a) is taken to be 0.2 and when said ingredient is found to have a comparatively stronger anti-inflammatory effect said ability (a) is taken to be 0.75, and correspondingly said potential residual damage is 0.8 and 0.25.
Claim 3: wherein when said ingredient is found to have a comparatively weaker antioxidant effect said ability (a) is taken to be 0.2 and when ingredient is found to have a comparatively stronger anti-inflammatory effect said ability (a) is taken to be 0.8, and the potential residual damage is 0.8 and 0.2.
Claim 4: wherein if the sun protector factor (SPF) of said sunscreen is greater than 15, the corresponding ability (R) is taken to be 0.5 and if SPF of said sunscreen is less than or equal to 15, the corresponding ability (R) is taken to be 0.2 and correspondingly the potential residual damage is 0.5 and 0.8.
Claim 5: wherein when a strong barrier enhancer is present the corresponding ability (R) is taken to be 0.7 and where a weak barrier enhancer is present, the corresponding ability (R) is taken to be 0.2 and correspondingly the residual damage is in the range of 0.3 to 0.8.
Claim 6: wherein when, in view of the presence of the polymer, the inhibition of the contact of said at least one type of pollutant with skin is found to be >70%, the corresponding ability (1) is assigned a score of 0.7 on the scale of 0 to 1 and when said inhibition is found to be <30% the corresponding ability (1) is assigned a score of 0.2 on the scale of 0 to 1 and correspondingly the residual damage is 0.3 and 0.8.
Claim 7: wherein said composition comprises at least one ingredient known to remove at least one type of pollutant present on the skin
Claim 8: wherein when said composition is a cleanser which removes 75 to 85% of said at least one type of pollutant present on the skin the corresponding ability is assigned a score of 0.4 on the scale of 0 to 1 and when said composition is a cleanser which removes 85 to 95% of said at least one type of pollutant present on the skin the corresponding ability is assigned a score of 0.7 on the scale of 0 to 1, and when said composition is a cleanser which removes 95 to 100% of said at least one type of pollutant present on the skin the corresponding ability is assigned a score of 0.8 on the scale of 0 to 1, and correspondingly the residual damage is 0.6, 0.3 and to 0.2.
Claim 11: wherein said PPF is a number between 0 and 75.
Said steps that are “in addition” to the recited judicial exception in the instant claims represent those of mere field of use limitations (a step of testing, by any known test method, the ability (a) of the cosmetic composition to render …) to implement in the recited judicial exception and do not impart meaning to said recited judicial exception, such that is applied in a practical manner. Further with respect to the additional elements in the instant claims, these steps direct to mere data gathering and handling (the polymer, the inhibition of the contact of said at least one type of pollutant with skin is found to be >70% cleanser which removes 75 to 85% of said at least one type of pollutant present on the skin the corresponding ability is assigned a score of 0.4 on the scale of 0 to 1) to carry out the abstract idea without imposing any meaningful limitation on the abstract idea. Thereby these steps are insignificant extra-solutions activity steps and are insufficient to integrate an abstract idea into a practical application. (MPEP 2106.05(g).
As such, the claims are lastly evaluated using the step (2B) analysis, wherein it is determined that because the claims recite abstract ideas, and do not integrate that abstract ideas into a practical application, the claims also lack a specific inventive concept. The judicial exception alone cannot provide the inventive concept or the practical application and that the identification of whether the additional elements amount to such an inventive concept requires considering the additional elements individually and in combination to determine if they provide significantly more than the judicial exception. (MPEP 2106.05.A i-vi).
With respect to the instant claims, the additional elements of data gathering, instructions, and field of use limitations described above do not rise to the level of significantly more than the judicial exception. As directed in the Berkheimer memorandum of 19 April 2018 and set forth in the MPEP, determinations of whether or not additional elements (or a combination of additional elements) may provide significantly more and/or an inventive concept rests in whether or not the additional elements (or combination of elements) represents well-understood, routine, conventional activity. Said assessment is made by a factual determination stemming from a conclusion that an element (or combination of elements) is widely prevalent or in common use in the relevant industry, which is determined by either a citation to an express statement in the specification or to a statement made by an applicant during prosecution that demonstrates a well-understood, routine or conventional nature of the additional element(s); a citation to one or more of the court decisions as discussed in MPEP 2106(d)(II) as noting the well-understood, routine, conventional nature of the additional element(s); a citation to a publication that demonstrates the well-understood, routine, conventional nature of the additional element(s); and/or a statement that the examiner is taking official notice with respect to the well-understood, routine, conventional nature of the additional element(s).
With respect to the instant recitations, the claims recite the following additional elements considered for inventive concepts:
Claim 1: a step of testing, by any known test method, the ability (a) of the cosmetic composition to render ineffective at least one type of pollutant present on skin and expressing it on a scale of 0 to 1, where (1 - a) indicates corresponding potential residual damage to the skin, wherein said composition comprises at least one ingredient known to render ineffective said at least one type of pollutant and said ingredient is an anti-inflammatory or antioxidant; (b) a step of testing, by any known test method, the ability (R) of the cosmetic composition to inhibit the contact of at least one type of pollutant with skin and expressing it also on a scale of 0 to 1, where (1 - R) indicates corresponding potential residual damage to the skin wherein said composition comprises at least one ingredient known to inhibit the contact of at least one type of pollutant with skin and wherein said ingredient is a sunscreen, a barrier enhancer or a polymer, further followed by; (c) a step of testing, by any known test method, the ability (y) of the cosmetic composition to remove at least one type of pollutant present on the skin, expressing it also on a scale of 0 to 1, where (1 - y) indicates corresponding potential residual damage to Claim 1: a step of testing, by any known test method, the ability (a) of the cosmetic composition to render ineffective at least one type of pollutant present on skin and expressing it on a scale of 0 to 1, where (1 - a) indicates corresponding potential residual damage to the skin, wherein said composition comprises at least one ingredient known to render ineffective said at least one type of pollutant and said ingredient is an anti-inflammatory or antioxidant; (b) a step of testing, by any known test method, the ability (R) of the cosmetic composition to inhibit the contact of at least one type of pollutant with skin and expressing it also on a scale of 0 to 1, where (1 - R) indicates corresponding potential residual damage to the skin wherein said composition comprises at least one ingredient known to inhibit the contact of at least one type of pollutant with skin and wherein said ingredient is a sunscreen, a barrier enhancer or a polymer, further followed by; (c) a step of testing, by any known test method, the ability (y) of the cosmetic composition to remove at least one type of pollutant present on the skin, expressing it also on a scale of 0 to 1, where (1 - y) indicates corresponding potential residual damage to the skin, and
Claim 2: wherein when said ingredient is found to have a comparatively weaker anti-inflammatory effect said ability (a) is taken to be 0.2 and when said ingredient is found to have a comparatively stronger anti-inflammatory effect said ability (a) is taken to be 0.75, and correspondingly said potential residual damage is 0.8 and 0.25.
Claim 3: wherein when said ingredient is found to have a comparatively weaker antioxidant effect said ability (a) is taken to be 0.2 and when ingredient is found to have a comparatively stronger anti-inflammatory effect said ability (a) is taken to be 0.8, and the potential residual damage is 0.8 and 0.2.
Claim 4: wherein if the sun protector factor (SPF) of said sunscreen is greater than 15, the corresponding ability (R) is taken to be 0.5 and if SPF of said sunscreen is less than or equal to 15, the corresponding ability (R) is taken to be 0.2 and correspondingly the potential residual damage is 0.5 and 0.8.
Claim 5: wherein when a strong barrier enhancer is present the corresponding ability (R) is taken to be 0.7 and where a weak barrier enhancer is present, the corresponding ability (R) is taken to be 0.2 and correspondingly the residual damage is in the range of 0.3 to 0.8.
Claim 6: wherein when, in view of the presence of the polymer, the inhibition of the contact of said at least one type of pollutant with skin is found to be >70%, the corresponding ability (1) is assigned a score of 0.7 on the scale of 0 to 1 and when said inhibition is found to be <30% the corresponding ability (1) is assigned a score of 0.2 on the scale of 0 to 1 and correspondingly the residual damage is 0.3 and 0.8.
Claim 7: wherein said composition comprises at least one ingredient known to remove at least one type of pollutant present on the skin
Claim 8: wherein when said composition is a cleanser which removes 75 to 85% of said at least one type of pollutant present on the skin the corresponding ability is assigned a score of 0.4 on the scale of 0 to 1 and when said composition is a cleanser which removes 85 to 95% of said at least one type of pollutant present on the skin the corresponding ability is assigned a score of 0.7 on the scale of 0 to 1, and when said composition is a cleanser which removes 95 to 100% of said at least one type of pollutant present on the skin the corresponding ability is assigned a score of 0.8 on the scale of 0 to 1, and correspondingly the residual damage is 0.6, 0.3 and to 0.2.
Claim 11: wherein said PPF is a number between 0 and 75.
These additional elements do not contribute significantly more to well-known and conventional steps to obtain PPF performed routine cosmetic skin testing/protection parameters (neutralization, barrier, and removal), and analyzed by one with ordinary skill in the art as of the effective filing date. The instant claims and references cited in the specification (skin pollution index [0018], oxidative stress/Oxidation Protection Factor OPF [0020], Radical Status Factor (RSF) [0021]), recite routine steps (testing…rendering ineffective…anti-inflammatory…barrier enhancer…antioxidant effect…inhibition of the contact) known in the art by cosmetic chemists. These limitations equate to well-understood, routine and conventional activities as evidenced by:
Note: citations from the instant application are italicized in the following section and mapped to citations from the references which are underlined.
Mausner/Chanel 1996 US5571503 taught cosmetic composition according to the present invention incorporates a new combination of ingredients particularly designed to provide significant protection of the skin from several damaging components of environmental pollution, while also providing significant protection against moisture loss and damage due to free radical activity and ultraviolet light, both UV-A and UV-B [Abstract]. Cosmetic compositions according to the present invention provide significantly improved moisturization, free radical and ultraviolet light protection, while, for the first time, innovatively providing significant protection against several specific pollutants in the environment. In particular, the anti-pollution complex reduces the damaging effect of hydrogen chloride by 25%, of formaldehyde by 10%, of chloroform by 49%, of anoxia by 235%, of sulfur dioxide by 31%, of carbon monoxide by 73%, of tobacco smoke by 80%, of car exhaust fumes by 35%, and of nitrogen dioxide by 45% [Col 18 L25-40]. Although a number of cosmetic compositions for use on the skin or over the eyes already exist, there is a need for a simple-to-apply and effective all-in-one cosmetic treatment, such as a cosmetic composition that can be formulated for use on the skin or over the eyes, that can simultaneously: (1) reduce the damaging effect of exposure to the sun; (2) reduce damage due to free radicals; (3) reduce moisture loss; and (4) very importantly, protect the skin against the most damaging environmental pollutants [Background].
Mary Kay 2012 US20120282195A1 [PTO 892 cited] taught a cosmetic composition for improvement and protection of the skin based on multiple skin conditions, such as antioxidant, hyperpigmentation, and oiliness based on bioassays to confirm efficacy of the active extracts/components. They can be formulated as a cleanser product, a toner product, a moisturizer product... Additionally, each of the lipoxygenase inhibitors can also have further functionalities that can be beneficial to skin. For instance, the first lipoxygenase inhibitor can also be an antioxidant and a MMP-1 inhibitor. The second lipoxygenase inhibitor can be an antioxidant, a MMP-1 inhibitor, and a tyrosinase inhibitor. The third lipoxygenase inhibitor can be an antioxidant and a MMP-1 inhibitor. Further, the combined extracts can be used to treat a variety of skin conditions by applying a composition having said extracts to skin in need of such treatment [0009]. Extracts identified in Table 1, these data suggest that any number of different combinations of such extracts can be used in a product to produce a multi-functional product. Alternatively, the extracts can be used individually, which still can result in a product having multiple benefits… Using Antioxidant (AO) Assays, the bioassay measures the total anti-oxidant capacity of an extract. The assay relies on the ability of antioxidants in the sample to inhibit the oxidation [0257-0267]. The percent inhibition of lipoxygenase activity was calculated compared to non-treated controls to determine the ability of test extracts to inhibit the activity of purified enzyme… This combination can also inhibit MMP-1 activity, tyrosinase activity, and protect skin cells from oxidative damage caused by free-radicals and reactive oxygen species. [00264].
Jahwa and Jiang YF 2016 CN 106290176A disclosed a method of testing to skin clean force calculation. Its cleaning force η: η=(a is calculated with following formula1-a2)/(a1-a0)。) against air pollutants…
There is no active step of making novel tests or skin findings, which is unconventional. Data (results of testing, by any known test method) are merely manipulated data to be used in the judicial exception. The additional elements do not comprise an inventive concept when considered individually or as an ordered combination, as evidenced by the cited references teaching the combination of elements as well as the individual elements themselves, that transforms the claimed judicial exception into a patent-eligible application of the judicial exception.
With respect to the instant claims, the steps (calculating the pollution protection factor by the equation F) and additional elements (testing, by any known test method, cosmetic composition, pollutant, ingredient, polymer, sunscreen, strong barrier enhancer, antioxidant, cleanser) involving mathematical relationships and algorithmic mental steps do not comprise an inventive concept when considered individually or as an ordered combination that transforms the claimed judicial exception into a patent-eligible application of the judicial exception. Therefore, the claims do not amount to significantly more than the judicial exception itself (Step 2B: No). As such, claims 1-8, and 11 are not patent eligible.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
Claims 1-8, and 11 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention.
Claim 1 recites the term “any known test method” in “a step of testing, by any known test method” and “ingredient known to render” is a relative term which renders the claim indefinite. The metes and bounds of claim 1 with respect to known term, this is indefinite as it is impossible to determine what tests/ingredients are to be included, or excluded within the bounds of the claim.
Claim 1 recites the term “ineffective” in “ingredient known to render ineffective is a relative term which renders the claim indefinite. The metes and bounds of claim 1 with respect to ineffective term, this is indefinite as it is impossible to determine what ingredients are to be included, or excluded within the bounds of the claim. The term “ineffective” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree of rank for variables and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
Claims 2 and 3 recite the term “comparatively stronger” and “comparatively weaker”, for example in “have a comparatively stronger anti-inflammatory effect,” is a relative term which renders the claim indefinite. The metes and bounds of claims 2 and 3 with respect to comparatively stronger/weaker terms, this is indefinite as it is impossible to determine what ingredients are to be included, or excluded within the bounds of the claim. Said terms are not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
Claim 3 recites “comparatively weaker antioxidant effect… and when ingredient is found to have a comparatively stronger anti-inflammatory effect… and correspondingly the potential residual damage is 0.8 and 0.2” is indefinite as to if different features are being compared antioxidant vs. anti-inflammatory or if this should be interpreted in light of claim 2 for examination purposes between comparatively weaker/stronger antioxidant effect.
Claim 5 recites the term “strong…weak in “wherein when a strong/weak barrier enhancer is present” is a relative term which renders the claim indefinite. The metes and bounds of claim 5 with respect to strong/weak terms, this is indefinite as it is impossible to determine what ingredients with said effects are to be included, or excluded within the bounds of the claim. Said terms are not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
Claims 1-6 and 8 limitations regarding residual damage as both present or potential as well a specific numbers and a range (claim 5). It is unclear how the number (alpha (a), beta (B), gamma (y)) are being “taken to be …”, (strong/week, SPF <>15, >70%/30%, etc.) when they are qualitatively resulting from an undefined “known testing method” and then converted to a secondary numerical score (how is this score determined and assigned a value between 0-1). Further, how can the residual damage value result from (1-B) in claim 5 and yet still be a range of results when the equation F indicates it should equal a discrete value as with claims 2-4 (1-#)).
Said limitations fail to particularly point out and distinctly claim the active steps to render present/potential pollutant effects when any test is applied to a range of qualitative or quantitative parameters. The minimally sufficient limitations required to achieve the invention is not present in the independent claims.
Clarification is requested by amendment of claim language.
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 § 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.
Instant claims 1-8, and 11 are rejected under 35 U.S.C. 103 as being obvious over Bahwei G [2018 CN108785201A; herein Bahwei IDS cited];in view of
Wong M [July 2018; herein Wong, IDS cited].
A. Bahwei G and Chen HS 2018 CN108785201A
B. Wong M July 2018: Review of PM2.5 and Air-Pollution Protection Factor (APPF) to Support Standardization of Testing Proposal, Aqua Skin Care white paper; July 2018, XP055639481; retrieved from the Internet: URL: aquaskincare.ca/wp-content/upoads/2018/07/Aqua-Skincare-APPF-white-paper-2018.pdf, p4-7.
Note: citations from the instant application are italicized in the following section and mapped to citations from the references which are underlined.
Regarding instant claim 1 recites:
A method of determination of a pollution protection factor (PPF) of a cosmetic composition, comprising:
(a) a step of testing, by any known test method, the ability (α) of the cosmetic composition to render ineffective at least one type of pollutant present on skin and expressing it on a scale of 0 to 1, where (1−α) indicates corresponding potential residual damage to the skin, wherein said composition comprises at least one ingredient known to render ineffective said at least one type of pollutant and said ingredient is an anti-inflammatory or antioxidant;
(b) a step of testing, by any known test method, the ability (β) of the cosmetic composition to inhibit the contact of at least one type of pollutant with skin and expressing it also on a scale of 0 to 1, where (1−β) indicates corresponding potential residual damage to the skin wherein said composition comprises at least one ingredient known to inhibit the contact of at least one type of pollutant with skin and wherein said ingredient is a sunscreen, a barrier enhancer or a polymer, further followed by;
(c) a step of testing, by any known test method, the ability (γ) of the cosmetic composition to remove at least one type of pollutant present on the skin, expressing it also on a scale of 0 to 1, where (1−γ) indicates corresponding potential residual damage to the skin, and calculating the pollution protection factor by the equation F.
F PPF=-log(1-α)×(1-β)×(1-γ)0.047
The prior art to Bahwei disclosed a method of:
Reference claim 1 taught compounding an anti-pollution cosmetic composition (with a pollution protection factor (PPF) ) with the skin protection factor (beta-sunscreen, a barrier enhancer or a polymer), the energy supplement (alpha- render ineffective at least one type of pollutant present on skin) and the skin detoxification factor reduces adherence of the air pollutant PM2.5 particles on skin surface (gamma-to remove at least one type of pollutant present on the skin).
Bahwei taught specific testing implementation of said target protective compositions by performing corresponding protective factors tests for anti-adsorption capacity, oxidation resistance, etc according to this field with routine techniques, such as those prepared or bought by commercial channels [see “Specific Implementation mode”] (a step of testing, by any known test method).
Bahwei taught the effects of its anti-pollution cosmetic composition incorporates the skin protection factor, the skin detoxification factor, and the energy supplement factor, so that the anti-pollution cosmetic composition has triple effects of protecting, detoxifying and supplementing skin energy. The anti-pollution cosmetic composition is effective in resisting physical and chemical attacks such as dust, haze, automobile exhaust, PM2.5, ultraviolet rays and the like in the environment when being applied to cosmetics. Moreover, by regulating and controlling the content of the skin protection factors, the skin toxin expelling factors, and the energy supplement factors in the anti-pollution cosmetic composition, the functional effect of each factor is exerted to the maximum extent by regulating and controlling the content of each of the skin protection factors [Abstract, Invention Content, Tables 1-3].
However, Bahwei does not teach expressing results on a scale of 0 to 1 and indicates corresponding potential residual damage to the skin, where (1−α)… (1−β) …(1−γ) indicates corresponding potential residual damage to the skin, and calculating the pollution protection factor by the equation F.
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The prior art to Wong taught evaluating the Air Pollution Protective Factor of cosmetic compounds with skin testing and imaging for oxidative effects (mitochondrial toxicity) and barrier effects, to support validation of APPF of skin care products with standardized testing and scoring [Wong at p5].
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The delta is analogous to potential residual damage to the skin. Wong evaluated APPF cosmetic compositions with the above equation [p5] which analyzes APPF through calculating quantity of pollutants before and after exposure on imaging against protective power/APPF, resulting in good correlation in reduction of pollutant particles on skin depending on APPF/dosage [Wong at p5-7: Result & Conclusion].
Applying the KSR standard of obviousness to Bahwei and Wong, the Examiner concluded that the combination of the standardized algorithm for evaluating cosmetic benefit claims as disclosed by Wong, with the testing analysis in multifunctional cosmetic compounding as disclosed in Bahwei, represents a combination of known art elements, which would yield predictable results, instant application’s numerical value (PPF) for succinctly summarizing target skin benefits [see MPEP 2141]. The use of mathematical modeling concepts as taught by Wong in this combination would have further served to achieve the predictable result of a convenient cosmetic benefit score because the mainstream consumer can more easily grasp a single, consolidated value on package marketing without wading through the vast regulatory policy and the array of anti-pollution science in an ever-expanding cosmetics landscape [Wong at p9]. Such a combination is merely a “predictable use of prior art elements according to their established function “ KSR Int’l 7, 127. Ct. at 1740. For examination purposes, the mathematical algorithms and testing analysis techniques applied are generally known by those having skill in the art of computational biochemistry and are not matters of invention but routine optimization of a marketing product score given the instant disclosure. Using the known techniques of mathematical modeling to provide a targeted score would have been prima facie obvious to one of ordinary skill in the art at the time of filing, absent evidence to the contrary.”
Regarding instant claims 2 recites:
wherein when said ingredient is found to have a comparatively weaker anti-inflammatory effect said ability (α) is taken to be 0.2 and when said ingredient is found to have a comparatively stronger anti-inflammatory effect said ability (α) is taken to be 0.75, and correspondingly said potential residual damage is 0.8 and 0.25.
The prior art to Bahwei taught compounding an anti-pollution cosmetic composition (with a pollution protection factor (PPF) ) with the skin energy supplementation with effects of skin moisturizing effect, relieving pain and itching, and removing freckles (alpha- anti-inflammatory effects which render ineffective at least one type of pollutant present on skin) [Bahwei at Abstract, Invention Content, Tables 1-3].
However, Bahwei does not teach expressing results on a scale of 0 to 1 and indicates corresponding potential residual damage to the skin, where (1−#) indicates corresponding potential residual damage to the skin, and calculating the pollution protection factor by the equation F.
The prior art to Wong taught evaluating the Air Pollution Protective Factor of cosmetic compounds with skin testing and imaging for the factors of oxidative effects (mitochondrial toxicity), barrier effects, to support validation of APPF of skin care products with standardized testing and scoring. The delta is analogous to potential residual damage to the skin. Wong evaluated APPF cosmetic compositions with an equation [p5] which analyzes APPF through calculating quantity of pollutants before and after exposure on imaging against protective power/APPF, resulting in good correlation of reduction of pollutant particles on skin depending on APPF/dosage [Wong at p5-7].
Regarding instant claim 3 recites:
wherein when said ingredient is found to have a comparatively weaker antioxidant effect said ability (α) is taken to be 0.2 and when ingredient is found to have a comparatively stronger anti-inflammatory effect said ability (α) is taken to be 0.8, and correspondingly the potential residual damage is 0.8 and 0.2.
The prior art to Bahwei taught compounding an anti-pollution cosmetic composition (with a pollution protection factor (PPF) ) with the skin energy supplementation (alpha- antioxidant effects which render ineffective at least one type of pollutant present on skin) [Bahwei at Abstract, Invention Content, Tables 1-3].
The prior art to Wong taught evaluating the Air Pollution Protective Factor of cosmetic compounds with skin testing and imaging for the factors of oxidative effects (mitochondrial toxicity), barrier effects, to support validation of APPF of skin care products with standardized testing and scoring (corresponding potential residual damage to the skin, where (1−#) indicates corresponding potential residual damage to the skin, and calculating the pollution protection factor by the equation F). The delta is analogous to potential residual damage to the skin. Wong evaluated APPF cosmetic compositions with an equation [p5] which analyzes APPF through calculating quantity of pollutants before and after exposure on imaging against protective power/APPF, resulting in good correlation of reduction of pollutant particles on skin depending on APPF/dosage [Wong at p5-7].
Regarding instant claim 4 recites:
wherein if the sun protector factor (SPF) of said sunscreen is greater than 15, the corresponding ability (β) is taken to be 0.5 and if SPF of said sunscreen is less than or equal to 15, the corresponding ability (β) is taken to be 0.2 and correspondingly the potential residual damage is 0.5 and 0.8..
The prior art to Bahwei taught compounding an anti-pollution cosmetic composition (with a pollution protection factor (PPF) ) with the skin energy supplementation against effects of ultraviolet rays and the like in the environment when being applied to cosmetics (sunscreen effects which render ineffective at least one type of pollutant present on skin) [Bahwei at Abstract, Invention Content, Tables 1-3].
The prior art to Wong taught evaluating the Air Pollution Protective Factor of cosmetic compounds with skin testing and imaging for the factors of oxidative effects (mitochondrial toxicity), barrier effects, to support validation of APPF of skin care products with standardized testing and scoring. The delta is analogous to potential residual damage to the skin. Wong evaluated APPF cosmetic compositions with an equation [p5] which analyzes APPF through calculating quantity of pollutants before and after exposure on imaging against protective power/APPF, resulting in good correlation of reduction of pollutant particles on skin depending on APPF/dosage [Wong at p5-7].
Regarding instant claim 5 recites:
wherein when a strong barrier enhancer is present the corresponding ability (β) is taken to be 0.7 and where a weak barrier enhancer is present, the corresponding ability (β) is taken to be 0.2 and correspondingly the residual damage is in the range of 0.3 to 0.8.
The prior art to Bahwei taught compounding an anti-pollution cosmetic composition (with a pollution protection factor (PPF) ) with the anti-adhesion efficacy test/Table 1 (barrier enhancer effects which render ineffective at least one type of pollutant present on skin) [Bahwei at Abstract, Invention Content, Tables 1-3].
The prior art to Wong taught evaluating the Air Pollution Protective Factor of cosmetic compounds with skin testing and imaging for the factors of barrier enhancer (mitochondrial toxicity), barrier effects, to support validation of APPF of skin care products with standardized testing and scoring. The delta is analogous to potential residual damage to the skin. Wong evaluated APPF cosmetic compositions with an equation [p5] which analyzes APPF through calculating quantity of pollutants before and after exposure on imaging against protective power/APPF, resulting in good correlation of reduction of pollutant particles on skin depending on APPF/dosage [Wong at p5-7].
Regarding instant claim 6 recites:
wherein when, in view of the presence of the polymer, the inhibition of the contact of said at least one type of pollutant with skin is found to be >70%, the corresponding ability (β) is assigned a score of 0.7 on the scale of 0 to 1 and when said inhibition is found to be <30% the corresponding ability (β) is assigned a score of 0.2 on the scale of 0 to 1 and correspondingly the residual damage is 0.3 and 0.8.
The prior art to Bahwei taught compounding an anti-pollution cosmetic composition (with a pollution protection factor (PPF) ) with the anti-adhesion efficacy test/Table 1 (barrier enhancer effects which render ineffective at least one type of pollutant present on skin) [Bahwei at Abstract, Invention Content, Tables 1-3].
The prior art to Wong taught evaluating the Air Pollution Protective Factor of cosmetic compounds with skin testing and imaging for the factors of barrier enhancer (mitochondrial toxicity), barrier effects, to support validation of APPF of skin care products with standardized testing and scoring. The delta is analogous to potential residual damage to the skin. Wong evaluated APPF cosmetic compositions with an equation [p5] which analyzes APPF through calculating quantity of pollutants before and after exposure on imaging against protective power/APPF, resulting in good correlation of reduction of pollutant particles on skin depending on APPF/dosage [Wong at p5-7].
Regarding instant claim 7 recites:
wherein said composition comprises at least one ingredient known to remove at least one type of pollutant present on the skin.
The prior art to Bahwei recites a compounding an anti-pollution cosmetic composition (with a pollution protection factor (PPF) ) with the skin protection factor (beta-sunscreen, a barrier enhancer or a polymer), the energy supplement (alpha- render ineffective at least one type of pollutant present on skin) and factor the skin detoxification factor especially reduces adherence of the air pollutant PM2.5 particles on skin surface (to remove at least one type of pollutant present on the skin). [Abstract, Invention Content, Tables 1-3].
Regarding instant claim 8 recites:
wherein when said composition is a cleanser which removes 75 to 85% of said at least one type of pollutant present on the skin the corresponding ability is assigned a score of 0.4 on the scale of 0 to 1 and when said composition is a cleanser which removes 85 to 95% of said at least one type of pollutant present on the skin the corresponding ability is assigned a score of 0.7 on the scale of 0 to 1, and when said composition is a cleanser which removes 95 to 100% of said at least one type of pollutant present on the skin the corresponding ability is assigned a score of 0.8 on the scale of 0 to 1, and correspondingly the residual damage is 0.6, 0.3 and to 0.2.
The prior art to Bahwei taught compounding an anti-pollution cosmetic composition (with a pollution protection factor (PPF)) with the skin protection factor (beta-sunscreen, a barrier enhancer or a polymer), the energy supplement (alpha- render ineffective at least one type of pollutant present on skin) and factor the skin detoxification factor especially reduces adherence of the air pollutant PM2.5 particles on skin surface (to remove at least one type of pollutant present on the skin). [Abstract, Invention Content, Tables 1-3].
Regarding instant claim 11 recites:
wherein said PPF is a number between 0 and 75.
The prior art to Bahwei taught a compounding an anti-pollution cosmetic composition (with a pollution protection factor (PPF) ) with the skin protection factor (beta-sunscreen, a barrier enhancer or a polymer), the energy supplement (alpha- render ineffective at least one type of pollutant present on skin) and factor the skin detoxification factor especially reduces adherence of the air pollutant PM2.5 particles on skin surface (to remove at least one type of pollutant present on the skin). [Abstract, Invention Content, Tables 1-3].
The prior art to Wong taught evaluating the Air Pollution Protective Factor of cosmetic compounds with skin testing and imaging for the factors of barrier enhancer (mitochondrial toxicity), barrier effects, to support validation of APPF of skin care products with standardized testing and scoring (wherein said PPF is a number between 0 and 75.) The delta is analogous to potential residual damage to the skin. Wong evaluated APPF cosmetic compositions with an equation [p5] which analyzes APPF through calculating quantity of pollutants before and after exposure on imaging against protective power/APPF, resulting in good correlation of reduction of pollutant particles on skin depending on APPF/dosage [Wong at p5-7].
Conclusion
No claims are allowed.
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/VR/
Examiner
Art Unit 1685
/MARY K ZEMAN/Primary Examiner, Art Unit 1686
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