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 .
Response to Amendment
The amendment filed 3/11/2026 has been entered.
Claim Rejections - 35 USC § 101
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1, 5-6 and 9 are rejected under 35 U.S.C. 101 because the claimed invention is directed to law of nature without significantly more. The claim(s) recite(s) a naturally occurring product i.e., a cosmetic skin hydrating complex comprising the combination of cocoa butter (Theobroma cacao), trehalose and linseed oil (Linum usitatissimum), including trehalose lipid of new claim 9. The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception, for the reasons set forth in the office action mailed 11/19/2025.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim(s) 1 and 5-8 are rejected under 35 U.S.C. 103 as being unpatentable over US 8178106 to Hines et al (Hines) in view of CN 109998961 to Fu et al. 3, for the reasons set forth in the office action mailed 11/19/2025.
Claim(s) 1 and 5-8 are rejected under 35 U.S.C. 103 as being unpatentable over CN 109998961 to Fu et al in view of US 8178106 to Hines et al (Hines), for the reasons set forth in the office action mailed 11/19/2025.
Claim(s) 1 and 5-8 are rejected under 35 U.S.C. 103 as being unpatentable over JP 2001039848 to Nakajima et al (Nakajima) in view of US 8178106 to Hines et al (Hines) and CN 109998961 to Fu et al, for the reasons set forth in the office action mailed 11/19/2025.
Claims 1 and 5-9 are rejected under 35 U.S.C. 103 as being unpatentable over US 8178106 to Hines et al (Hines) in view of CN 109998961 to Fu et al as applied to claims 1 and 5-8 above, and further in view of Vecino et al (CRITICAL REVIEWS IN BIOTECHNOLOGY, 2017). 10, for the reasons set forth in the office action mailed 11/19/2025.
Alternatively Claims 1 and 5-9 are rejected under 35 U.S.C. 103 as being unpatentable over U CN 109998961 to Fu et al in view of US 8178106 to Hines et al (Hines) as applied to claims 1 and 5-8 above, and further in view of Vecino et al (CRITICAL REVIEWS IN BIOTECHNOLOGY, 2017), for the reasons set forth in the office action mailed 11/19/2025.
Claim(s) 1 and 5-9 are rejected under 35 U.S.C. 103 as being unpatentable over JP 2001039848 to Nakajima et al (Nakajima) in view of US 8178106 to Hines et al (Hines) and CN 109998961 to Fu et al is/are as applied to claims 1 and 5-8 above, and further in view of Vecino et al (CRITICAL REVIEWS IN BIOTECHNOLOGY, 2017), for the reasons set forth in the office action mailed 11/19/2025.
Response to Amendment
The declaration under 37 CFR 1.132 filed 3/11/2026 is insufficient to overcome the rejection of claims 1 and 5-9 based upon: Claims 1, 5-6, and 9 under 35 U.S.C. § 101 as allegedly being directed to a law of nature without significantly more; Claims 1 and 5-8 under 35 U.S.C. § 103 as allegedly being obvious over Hines et al. ("Hines") in view of Fu et al. ("Fu"), and over Fu in view of Hines; Claims 1 and 5-8 under 35 U.S.C. § 103 as allegedly being obvious over Nakajima et al. ("Nakajima") in view of Hines and Fu; Claims 1 and 5-9 under 35 U.S.C. § 103 as allegedly being obvious over Hines in view of Fu and Vecino et al. ("Vecino"), and over Fu in view of Hines and Vecino; and Claims 1 and 5-9 under 35 U.S.C. § 103 as allegedly being obvious over Nakajima in view of Hines, Fu, and Vecino, as set forth in the last Office action because: the declaration only purports that data demonstrates that 0.1-1.5 wt % trehalose maintained skin microbiota with respect to S. xylosus and had active hydration benefits from as shown by a previous declaration. The declaring statements do not overcome either the 101 or 103 rejections.
As far as the 101 rejection, the declaration only states that trehalose (it appears trehalose alone) has a certain property regarding skin microbiota. The statement does not show the claimed combination of naturally occurring products as set forth in claim 1 has markedly different characteristics. When a claim is to a nature based product, the markedly different characteristics analysis should be to the entire product. This clearly has not been shown. Further, the declaration fails to specifically provide the data that supports this statement so that a determination of markedly different characteristics can be made. It only provides data for trehalose and inulin. The relevance of this data is unclear.
The declaration also fails to overcome the 103 rejection. The declaration does not appear to provide any unexpected result but merely shows a property of trehalose (apparently alone). Note, the instant claims are drawn to a composition comprising trehalose, cocoa butter and linseed oil. The discovery of an unappreciated property of the prior art does not render and old composition patentable. The declaration also fails to provide any showing of unexpected results as it does not provide a clear comparison with the closest prior art, fails to provide any reasoning as to why the data is unexpected and fails to provide data that is commensurate in scope with the instant claims, as it only shows ranges of trehalose and inulin. The relevance of this data is unclear.
Applicant’s arguments filed 3/11/2026 are not found persuasive as they refer to the assertions made in the declaration, which has been addressed hereinabove. The previously filed declaration has also been addressed in the office action mailed 11/19/2025. In short, applicant’s arguments that the claimed % of trehalose provides markedly different characteristics and unexpected results is not found persuasive for the reasons set forth above. The discovery of a previously unappreciated property of a prior art composition does not automatically render the old composition patentable. Clearly as set forth in the previous office action, the instantly claimed combination is a combination of naturally occurring products, which are known in the prior art to be combined.
Conclusion
No claims are allowed at this time.
THIS ACTION IS MADE FINAL. 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.
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/Michael G. Hartley/ Supervisory Patent Examiner, Art Unit 1618
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