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 .
The previous claim rejection made under 35 U.S.C. 112 (b) which was indicated in the Office action dated March 25, 2025, has been withdrawn in view of applicant’s amendments made to claims 2-4, 6-8 and 11-14.
All previous claim rejections made under 35 U.S.C. 103 are maintained for reasons of record.
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.
Claims 1-6, 8 and 10-14 are rejected under 35 U.S.C. 103 as being unpatentable over PAUFIQUE (WO2017121965 A1, filed on July 20, 2017, cited by applicant) in view of Neubourg (US 20110097281 A1, published on April 28, 2011) and PENTAVITIN (Pentavitin binds to keratin in skin to keep the moisture balance, DSM, January 1, 2009, cited in IDS) and as evidenced by Lin et al. (US 20180072817 A1, published March 15, 2018) (“Lin” hereunder).
Paufique teaches a method of treating atopic dermatitis in human, dogs or cats, the method comprising topically applying to the skin of the subject a composition comprising 0.05-1 wt % Ophiopogon japonicus root extracts in a physiologically and dermatologically acceptable medium, pharmaceutically acceptable vehicle. See translation, Abstract; p. 13, the last full paragraph. Such composition can be in the form of a lotion, cream, gel, a paste or a foam. See translation, p. 13, line 7 from the bottom; present claims 1, 2, 5. Although Paufique teaches that dermatologically acceptable adjuvants can be added to the composition, the reference fails to teach panthenol and saccharide isomerate. See translation, p. 14-15.
Neubourg teaches a foaming skin cream comprising an aqueous emulsion comprising panthenol. The reference teaches that panthenol supports wound healing of skin, increases the moisture retention ability of the skin, has caring properties and increases the elasticity of the skin, supports the new formation of skin cells, and promotes the regeneration of the new cells. Panthenol also reliefs itching and has anti-inflammatory properties. See [0019-0020]. The foam cream formulation is an aqueous emulsion dispensed from an aerosol spray. See [0033]
It would have been obvious to one of ordinary skill in the art before the effective filing date of the present application to modify the teachings of Paufique and incorporate panthenol into the composition as motivated by Neubourg. The skilled artisan would have been motivated to do so, as 1) both references are directed to methods of treating skin and 2) Neubourg teaches that panthenol supports wound healing of skin, increases the moisture retention of the skin, supports the new formation of skin cells and promotes the regeneration of the new cells. Since Paufique and Neubourg both teach cream and foam formulation, the skilled artisan would have had a reasonable expectation of successfully producing a stable foam composition comprising Ophiopogon japonicus and panthenol and use it to treat the skin of humans or animal.
According to Pentavitin, saccharide isomerate is commercially available and useful in formulations for dry, xerotic skin conditions. The reference teaches that saccharide isomerate exerts superior moisture retention.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the present application to modify the teachings of Paufique and incorporate saccharide isomerate into the composition as motivated by Pentavitin, as the latter teaches its use in treating dry skin. As the reference teaches the compatibility of the hydrocarbon complex in a cosmetic formulation, the skilled artisan would have had a reasonable expectation of successfully producing a safe and stable composition with improved moisture retention by combining the teachings of the references.
Regarding claim 3, Neubourg teaches that panthenol is used in an amount between 0.2-20 wt %. Given the suggested workable range, optimization of the concentration range by routine experimentations would have been prima facie obvious.
Regarding claim 4, Pentavitin teaches that the suggested concentration for saccharide isomerate is 1-5 %.
Regarding claims 5 and 10, Paufique and Neubourg teach a foam composition, and Pentavitin teaches that saccharide isomerate is incorporated into an aqueous phase; combining the teaching of the references to make a foam comprising the Ophiopogon japonicus extract, panthenol and saccharide isomerate would have been prima facie obvious. Neubourg particularly teaches a foam cream formulation which is an aqueous emulsion dispensed from an aerosol spray and appears to be in the form of mousse. See [0033]
Regarding claims 6 and 8, although Paufique teaches using surfactants, the reference fails to teach the specific surfactants of the present claims. The foam cream formulation of Neubourg contains 1-20 wt % of panthenol and 0.1-5 wt % of Protelan LS 9011, which is sodium Cocoyl sarcosinate. See Neubourg, Example; Lin, paragraph [0068]. Thus, using such formulation in Neubourg to make a stable foam cream comprising Ophiopogon japonicus and panthenol, and an acyl sarcosinate surfactant would have been prima facie obvious.
Regarding claim 11, as Paufique teaches that the disclosed formulation is suitable for treating atopic dermatitis in animals, using the resulting comprising of the combined teachings of the references for veterinary purposes would have been prima facie obvious.
Regarding claims 12 and 13, Paufique teaches that Ophiopogon Japonicus extract acts on the adhesion of bacteria on the skin and in particular limits the adhesion of Staphylococcus aureus on the skin. See translation, p. 42, last connecting paragraph.
Regarding claim 14, Neubourg teaches that the foaming composition is dispensed from a pressurized spray container/dosage form with the aid of a propellant. See [0033]. Thus, making such a treatment device containing the foaming cream composition of the combined references would have been prima facie obvious.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Paufique, Neubourg and Pentavitin as applied to claims 1-6, 8 and 10-14 above, and further in view of Vielhaber et al. (US 20100239695 A1, published on September 23, 2023) (“Vielhaber” hereunder).
Regarding claim 7, Neubourg teaches using sodium Cocoyl sarcosinate, but fails to teach the surfactants of the present claim.
Vielhaber teaches that sodium cocoyl sarcosinate and sodium lauroyl sarcosinate are both anionic surfactants suitable for veterinary application. See [0177].
It is prima facie obvious to combine or substitute art-recognized functional equivalents known for the same purposes. See MPEP 2144.06. Since Vielhaber establishes that the anionic surfactant used in the Neubourg formulation and sodium lauroyl sarcosinate are well known in topical formulations for veterinary use, combining the two or substituting one for the other would have been prima facie obvious.
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Paufique, Neubourg and Pentavitin as applied to claims 1-6, 8, 10-13 above, and further in view of BARRERA et al. (US 20150147286 A1, published May 28, 2015) (“Barrera” hereunder).
Paufique, Neubourg and Pentavitin fail to teach galactomannan.
Barrera teaches that cationic galactomannan is a well-known deposition aid used in consumer products which include veterinary products. See [0066, 0232]. The reference teaches that cationic galactomannans include cationic guar gums such as hydroxypropyl guar, which is commercially available under the trade name Jaguar C13. The reference teaches a leave-on hair conditioner comprising 2-hydroxy—3-(trimethylamonio)propylether chloride guar gum.
It would have been obvious to one of ordinary skill in the art before the filing date of the present application to modify the teachings of the combined references by further incorporating to the resulting composition a cationic galactomannan such as the hydroxypropyl guar used in Barrera. The skilled artisan would have been motivated to do so, as 1) all references are directed to delivery of beneficial therapeutic or conditioning agents on skin or hair, and 2) Barrera teaches the use of the cationic polymer as a deposition aid in personal and well as veterinary products. Since the reference suggests that the cationic polymer can be used in various formulations including gels, mousses, skin care compositions, etc., the skilled artisan would have had a reasonable expectation of successfully producing a stable veterinary composition which provides enhanced retention of the therapeutic agents (e.g., Ophiopogon japonicus and panthenol) delivered to the skin or hair.
Response to Arguments
Applicant's arguments filed on June 25, 2025 have been fully considered but they are not persuasive.
Applicant argues that Paufique fails to teach or suggest the addition of both panthenol and saccharide isomerate nor that the composition is of the non-rinsed type.
In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). In this case, the motivation to combine panthenol and saccharide isomerate with the Paufique composition is supported by the teachings of Neubourg and Pentavin. It is also noted that the Paufique compositions are directed to leave-on formulations, including lotion, cream, gel, paste or foam.
Applicant also argues that the claimed composition achieves a synergistic effect of improvement of the skin barrier and moisturization function, while also reducing biofilm formation and/or adhesion, reducing the presence of pathogenic bacteria of their development and enhancing coat condition. Applicant argues that these effects are the results of the specific combination of Ophiopogon extract, panthenol and saccharide isomerate. The examiner respectfully points out that such results are expected based on the teachings of the references. For example, Paufique teaches:
Its mode of action is based on inflammation (the inflammation markers and genes linked to inflammation), the skin barrier function (the epidermal cohesion markers and the genes associated with differentiation) and the organization and conformation of the epidermal lipids. It thus consolidates the epidermal structure and the integrity and resistance of the skin barrier, so as to limit the adhesion of bacteria to the skin.
See US Equivalent, US 11311596 B2, col. 3, lines 19 – 26. And Neubourg and Pentavin teach that panthenol and saccharide isomerate, respectively, provide increased moisture retention to the skin. As the Paufique composition is intended for treating both human and animal skin, and it would have been obvious to one of ordinary skill in the art that the combined composition would be suitable for human or veterinary use.
Conclusion
No claims are allowed.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to GINA JUSTICE whose telephone number is (571)272-8605. The examiner can normally be reached M-F 9:00 AM - 5 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, BETHANY BARHAM can be reached at 571-272-6175. 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.
/GINA C JUSTICE/
Primary Examiner, Art Unit 1617