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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 06/12/2026 has been entered.
Status of the Claims
Claims 3, 5, 6, 7-11, 12, 14, and 15 have been cancelled.
Claims 1, 2, 4, and 13 are pending and under current examination.
All rejections not reiterated have been withdrawn.
A terminal disclaimer is on file for copending applications 17/601,704; 17/601,317; 17/601,252; 17/601,341; 17/601,347; 17/796,584; 17/796,580; 17/796,578; and 17/796,577.
Allowable Subject Matter
Claim 4 objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Claim Objections
Claims 1 and 4 are objected to because of the following informalities:
The examiner recommends amending claim 1, in both line 3 and in line 11 and also in claim 4, lines 2-3 to recite “selected from the group consisting of” in order to comply with preferred US Markush language format.
A comma is missing between the words “C-phycocyanin” and “vitamin B” in claim 1, line 11.
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 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.
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.
Claims 1, 2, and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Kajiya et al. (US 20100292509; Publication date: 11/18/2010).
With regard to claims 1 and 2, Kajiya discloses a composition for ameliorating bloating, lymphedema, wrinkles, or obesity (0001) for application to the skin (0020). The composition is therefore compatible with cosmetic use, as required by the preamble of instant claim 1. Example 10, an o/w milky liquid, contains zinc oxide (i.e. a zinc oxide phosphor) particles and 0.05% sodium hexametaphosphate (0045).
The example composition does not contain the claimed water-soluble thickeners; however Kajiya teaches adding thickeners to the compositions (0031) and xanthan gum is present in other examples (see, e.g. 0041). It would have been prima facie obvious to include xanthan gum in example 10 because such was within the broader teaches of Kajiya.
With regard to claim 13, as noted above, the example composition is an emulsion.
Response to Arguments
With regard to claim 4, the examiner finds Applicant’s arguments and the Declaration, both filed 06/12/2026 to be persuasive, therefore this claim is not rejected under 35 USC 103, and additional searching has not uncovered any prior art that anticipates claim 4.
Applicant's arguments and the declaration filed 06/12/2026 have been fully considered but they are not persuasive with regard to claims 1, 2, and 13.
On pages 3-7 of the remarks, Applicant traverses the obviousness rejection by describing the contents of the declaration filed 06/12/2026. In response, the examiner refers to the declaration in the following paragraphs:
On pages 2 and 3 of the declaration Declarant summarizes data contained in the instant specification and characterizes “cell activation” as promoting collagen and hyaluronic acid production. This argument addresses the examiner’s concern that the phrase “cell activation” is vague and its practical significance unclear. Declarant’s comments also clarify the role of the water soluble thickener in the observed differences in UV wavelength conversion reported in the instant specification.
As noted in prior Office actions, MPEP 716.02(b) details the burden on Applicant to establish that results in a side-by-side comparison to the closest prior art are unexpected and significant. Specifically, Applicant must establish that differences in results are in fact unexpected and unobvious and are of both practical and statistical significance. Additionally, evidence of unexpected properties must be commensurate in scope with the claims.
Insomuch as the arguments that the invention possesses unexpectedly superior properties apply to the new grounds of rejection set forth above, they are addressed as follows:
Rejected claims 1, 2, and 13 embrace compositions comprising the listed water soluble thickeners, sodium hexametaphosphate, and zinc oxide particles (zinc oxide phosphor). The closest prior art teaches an example that contains both sodium hexametaphosphate, and zinc oxide particles as well as thickeners such as sodium acrylate/2-acrylamido-2-methylpropanesulfonate copolymer (see Kajiya, example 10, cited in the rejection above). Thus, the data do not establish a nexus between the difference between the claimed invention and the closest prior art and the allegedly unexpected property. Moreover, as explained previously, with respect to zinc oxide particles the improvement on adding sodium hexametaphosphate to the composition is not clearly unexpected. In searching the prior art, the examiner has found that sodium hexametaphosphate is frequently added to cosmetics containing metal oxide particle, including zinc oxide, in order to improve dispersion of the particle. As detailed in the previous rejection of the claims over Fukushima, Wang, Tsai, and Ono (each already of record), sodium hexametaphosphate was known to improve dispersion of metal oxide particles and improved dispersion of the particles results in superior UV absorption (and inherent conversion of the emitted wavelength). As pointed out in the previous rejection Wang, in the analogous art of sunscreen compositions, discloses that titanium dioxide and zinc oxide particles lose their efficacy as sunscreen agents when they agglomerate into larger particles (page 211, left col). Tsai, in the analogous art of metal oxide particle suspensions that may be used for sunscreens (title, page 1, left col), discloses that sodium hexametaphosphate is an effective dispersant for titanium oxide nanoparticles (abstract). In view of the evidence of record, the improvement of UV wavelength conversion observed in compositions according to the instant invention that contain zinc oxide as the UV wavelength converter do not appear to have been unexpected.
Finally, regarding the comment in the remarks (page 7) and declaration (pages 5-6) that the effect on UV wavelength conversion is synergistic, the experiments presented in the specification do not address synergy. In order to establish a synergistic effect, a supra-additive result would need to have been demonstrated over the compositions containing either the UV wavelength conversion substance alone or only the sodium hexametaphosphate, all other ingredients being equivalent.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KATHERINE PEEBLES whose telephone number is (571)272-6247. The examiner can normally be reached Monday through Friday: 9 am to 3 pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Ali Soroush can be reached at (571)272-9925. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/KATHERINE PEEBLES/ Primary Examiner, Art Unit 1617
Prosecution Insights