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 .
Status of the Claims
Claims 1, 4, 5, 11, and 16-20 are pending and under current examination.
Withdrawn Claim Objections and Rejections
All objections to claims 1, 11, and 16 are withdrawn in view of the amendments to the claims filed 3/12/2026.
All rejections under 35 U.S.C. 112(b) are withdrawn in view of the amendments to the claims filed 3/12/2026.
All rejections under 35 U.S.C. 102 are withdrawn in view of the amendments to the claims filed 3/12/2026.
All rejections not reiterated have been withdrawn.
Claim Rejections - 35 USC § 103
Applicant’s amendments to the claims filed 3/12/2026 have necessitated the new grounds of rejection.
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.
Claims 1, 4-5, 16, 18 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Kunz (U.S. Patent Application No. 2016/0355611, publication year: 2016) in view of France-Aimee (FR3017049A1, publication date: 8/7/2015, citations refer to machine translation, of record), as evidenced by Cosmetic Ingredient Review (International Journal of Toxicology, pg. 91-120; publication year: 2006, of record).
Determination of the scope and the content of the prior art
(MPEP §2141.01)
Regarding claims 1, 18, and 20, Kunz teaches a base composition comprising a biopolymer, water and additional cosmetic, dermatological or pharmaceutical ingredients or additions such as amino acids [0068-0071 and 0078]. The biopolymer is selected from hyaluronic acid and sodium carboxy methyl cellulose [0064]. The base composition is lyophilized during production under controlled temperature conditions to facilitate a controlled and defined degradation of the biopolymer [0058]. The molecular weight of the hyaluronic acid may be as low as 100kDa depending on the pH and maximum process temperature (Figure 8 and Figure 10).
Regarding claims 4 and 5, Kunz teaches the relevant limitations of claim 1 above.
Regarding claim 16, Kunz teaches the relevant limitations of claim 1 above. Kunz also teaches that the method for preparing the composition comprises providing a base composition comprising a biopolymer and lyophilizing said composition [0056-0058].
Ascertainment of the Difference Between Scope of the Prior Art and the Claims
(MPEP §2141.02)
Regarding claims 1 and 4-5, Kunz does not teach the inclusion of a basic, hydrophilic, or acidic amino acid. However, this deficiency is cured by France-Aimee.
France-Aimee teaches a composition comprising a natural polysaccharide of an extract of mucilaginous or animal plant origin which is densified by at least one additional polysaccharide. The composition may include one or more cosmetic active agents, including amino acids such as cysteine, arginine, hydrolyzed rice proteins or glycine (pg. 1, paragraph 4-pg. 2, first paragraph and pg. 4, first paragraph). The composition may be dehydrated by freeze-drying (pg. 5, third paragraph). Cosmetic Ingredient review teaches that hydrolyzed rice proteins contain glutamic acid, arginine, aspartic acid, lysine, and histidine (pg. 96, Table 11).
Finding of a Prima Facie Obviousness Rationale and Motivation
(MPEP §2142-2143)
Regarding claims 1 and 4, the idea for combining compounds each of which is known to be useful for the same purpose, in order to form a composition which is to be used for the same purpose, flows logically from their having been used individually in the prior art. See In re Kerkhoven 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980). As shown by the recited teachings, the instant claims define nothing more than the concomitant use of conventional amino acids used in freeze-dried compositions comprising a biopolymer. It would follow that the recited claims define prima facie obvious subject matter. See MPEP 2144.06.
Claims 11, 17, and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Kunz (U.S. Patent Application No. 2016/0355611, publication year: 2016) in view of France-Aimee (FR3017049A1, publication date: 8/7/2015, citations refer to machine translation, of record), as applied to claims 1, 4-5, 16, 18 and 20 above, and further in view of Brummer et. al. (Colloids and Surfaces, pages 89-94; publication year: 1999, of record) and SensorsONE (dyn/cm2-Dyne per Square Centimeter Pressure Unit, available 5/26/2014, of record), as evidenced by Cosmetic Ingredient Review (International Journal of Toxicology, pg. 91-120; publication year: 2006, of record).
Determination of the scope and the content of the prior art
(MPEP §2141.01)
Regarding claims 11, 17, and 19, the relevant limitations have been rendered obvious in the obviousness rejection of claim 1 above except for the hardness of the secondary composition.
Regarding claims 11 and 17, Kunz teaches the relevant limitations of claim 1 above. Kunz also teaches that the final composition can serve as a basis for emulsions with low viscosity, serum-like liquids, masks, creams, cream masks, patches or segments for topical applications [0084].
Ascertainment of the Difference Between Scope of the Prior Art and the Claims
(MPEP §2141.02)
Regarding claims 11 and 17, Kunz does not does not teach that the hardness of the second composition emulsion should be 5 dyne/cm2 or more. However, this deficiency is cured by Brummer and SensorsONE.
Brummer teaches that sheer stress is a measure of viscosity (pg. 91, Figure 1) and that cosmetic creams have a viscosity maximum in the order of magnitude of 1000 Pa (pg. 89, Abstract). SensorsONE teaches that dyne/cm2 is mainly used for pressures associated with the measurement of shear stress (pg. 1, second paragraph) and that there is 0.1 Pa in 1 dyne/cm2, so 1000 Pa is equivalent to 10,000 dyne/cm2 (pg. 1, first paragraph).
Finding of a Prima Facia Obviousness Rationale and Motivation
(MPEP §2142-2143)
Regarding claims 11 and 17, it would merely be a matter of routine for one having ordinary skill in the art to optimize the hardness of the emulsion that comprises the second composition of Kunz. One of ordinary skill would have been motivated to adjust the hardness of the emulsion in order to optimize the feel of the cream on the skin of the user. The artisan of ordinary skill would have had reasonable expectation of success because Brummer teaches the dynamic viscosity of creams is correlated to the primary skin feeling when applying an emulsion and that cosmetic creams have a viscosity maximum in the order of magnitude of 1000 Pa, or 10,000 dyne/cm2. See MPEP 2144.05.
Response to Arguments
Applicant’s arguments, filed 3/12/2026, with respect to the rejection of claims 1, 4, 5, and 16 under 35 U.S.C. 103 over France-Aimee have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new grounds of rejection is made over Kunz in view of France-Aimee.
Conclusion
No claims are allowed.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 ELIZABETH ANNE MEYERS whose telephone number is (571)272-2271. The examiner can normally be reached Monday-Friday 8am-5pm ET.
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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.
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ELIZABETH ANNE MEYERSExaminer, Art Unit 1617
/ALI SOROUSH/Supervisory Patent Examiner, Art Unit 1614
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