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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 4/23/2026 has been entered.
Election/Restrictions
Claims 12-13 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected group, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 7/12/2024.
Response to Arguments
All of Applicant’s arguments filed 4/23/2026 have been fully considered.
In summary, Applicant argues that Kitagawa is directed to biosurfactants having a single sugar unit, whereas each species recited in amended claim 1 has two sugar units.
This is not persuasive. Kitagawa teaches that the biosurfactant can be a sophorolipid [0035] which is a suitable biosurfactant of instant claim 1a. While the working examples of Kitagawa are limited to MEL-A, MEL-B and MEL-C, the teachings of Kitagawa are not limited to working examples or preferred embodiments. Kitagawa specifically teaches that sophorolipid is a suitable biosurfactant for use, therefore, its use is prima facie obvious.
In summary, Applicant argues that Kitagawa teaches that its biosurfactant is an additive combined with a separate cleansing composition, not itself is the cleansing surfactant.
This is not persuasive as a compound and its properties are inseparable. Kitagawa teaches a sophorolipid as claimed in the claimed amounts, thus the sophorolipid would inherently function as a cleansing surfactant. Furthermore, as identified by Applicant, Kitagawa states “the biosurfactant has a detergent property…” which demonstrates a cleansing action (i.e. detergent).
Applicant reiterates that in view of the structural and functional differences, it would not have been obvious to replace Kitagawa single sugar unit biosurfactant with the claimed two sugar unit species.
This is not persuasive for the same reason discussed above. Kitagawa specifically teaches a sophorolipid as a suitable biosurfactant for use.
In summary, Applicant argues that the claimed biosurfactant and carboxybetaine polymer provide an unexpected effect.
Applicant arguments regarding the unexpected effect of the claimed composition (pg. 16) are not persuasive as the data presented is not commensurate in scope with the instant claims as very specific compositions and ingredients were tested and Applicant has not established a trend in the exemplified data.
Applicant remarks that the data is commensurate in scope, however, the data presented tests a single species of sophorolipid, rhamnolipid and carboxybetaine polymer, but the claims are directed to a much broader genus. The data presented always utilizes a pH of 7 along with 2% of the biosurfactant and 0.03% of the polymer, no other amounts are tested.
Maintained 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.
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) 1-11 and 14-15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kitagawa (US 2010/0004472) and Takeda (US 2006/0275235).
Kitagawa discloses a cosmetic for skin roughness improvement/skin care containing a biosurfactant (Abs).
Regarding claims 1(a), 2 and 6: Kitagawa teaches that a suitable biosurfactant for use includes sophorolipid [0035]. Kitagawa teaches the biosurfactant to be used in amounts ranging from 0.001-20%, preferably 3-10% [0054].
Regarding claims 7 and 9: Kitagawa teaches that the biosurfactant can be dissolved in a nonionic surfactant [0056]. Working Examples 12 and 13 comprise a biosurfactant along with 5.7 or 4% nonionic surfactant. The compositions are free of anionic, cationic and ionic surfactants. While the Examples do not teach the use of sophorolipid, thus is taught to be a suitable biosurfactant for use, thus the substitution of the exemplified MEL-B for sophorolipid is prima facie obvious.
Regarding claim 10: Working Examples 12 and 13 of Kitagawa comprise water in amounts of 79.1 and 78.5% respectively.
Regarding claim 11 and 14: Kitagawa teaches compositions which can be formulated as cleansing compositions such as makeup removers, shampoos and body soaps [0063].
However, Kitagawa does not teach the composition to comprise a carboxybetaine polymer as recited by instant claim 1(a).
Takeda teaches cosmetic compositions, such as hair treatments such as shampoos comprising cation-modified galactomannan polysaccharides which provide conditioning (Abs and [0021]). Takeda teaches that various kinds of cationic water-soluble polymers and amphoteric water-soluble polymers can be added to enhance the conditioning effect of the composition. These polymers are preferably added in amounts of 5% or less [0030], reading on instant claim 8. A suitable amphoteric water-soluble polymers is N-methacryloyloxyethyl N,N-dimethylammonium-α-methylcarboxybetaine and alkyl methacrylate (Yukaformer SM) [0033 and 0055]. Yukaformer SM is used a shampoo in amounts of 0.2 and 0.4% (Tables 2 and 6). It was found that when using Yukaformer SM the conditioning effects were enhanced without disturbing the performance of the cation-modified galactomannan polysaccharides [0090].
Regarding claim 3-5: Yukaformer SM (N-methacryloyloxyethyl N,N-dimethylammonium-α-methylcarboxybetaine and alkyl methacrylate) reads on a copolymer of carboxybetaine monomers and alkyl (meth)acrylate and reads on the structure of formula (2) wherein R3=methacylate groups; y=2; z=1, R4=H; R5=H, R6=methyl and R7=methyl.
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 modify the teachings of Kitagawa with those of Takeda. One of skill in the art would have been motivated to add up to 5% of Yukaformer SM to the composition of Kitagawa to provide a conditioning effect. One of skill in the art would have a reasonable expectation of success as both Kitagawa and Takeda teaches composition for application to skin and hair which can be formulated as shampoos and Takeda teaches that it is customary to add additional ingredients into the hair treatment formulations if they provide an added benefit [0044].
Regarding claim 15: The rejection above makes obvious the inclusion of only Yukaformer SM as a conditioning agent, and not the inclusion of the cation-modified galactomannan polysaccharide and Kitagawa does not teach polysaccharides, this the composition are said to be free of polysaccharides.
Conclusion
No claims are allowable.
All claims are identical to or patentably indistinct from, or have unity of invention with claims in the application prior to the entry of the submission under 37 CFR 1.114 (that is, restriction (including a lack of unity of invention) would not be proper) and all claims could have been finally rejected on the grounds and art of record in the next Office action if they had been entered in the application prior to entry under 37 CFR 1.114. Accordingly, THIS ACTION IS MADE FINAL even though it is a first action after the filing of a request for continued examination and the submission under 37 CFR 1.114. See MPEP § 706.07(b). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Jennifer A Berrios whose telephone number is (571)270-7679. The examiner can normally be reached Monday-Thursday from 9am-4pm and Friday 9am-3:30pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Brian Kwon can be reached on (571) 272-0581. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JENNIFER A BERRIOS/Primary Examiner, Art Unit 1613
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