DETAILED ACTION
Status of the Application
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claims 2-20 are withdrawn.
Claim 1 is pending and represents all claims currently under consideration.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 01/29/2026 has been entered.
Response to Arguments
Applicant's arguments filed 01/29/2026 have been fully considered but they are not persuasive.
Applicant argues that the trade name TweenTM was amended to be accompanied by its generic terminology in the previous response, and the remaining terms are not amenable to being accompanied by generic terminology (Remarks, pages 9-10). This argument is not persuasive, because the objection was not fully addressed. The amendment filed 07/31/2025 recites “Tween”, and should read “TweenTM”, and each of the remaining terms is also missing a proper symbol. Each term should include a proper symbol indicating use in commerce such as ™, SM , or ® following the term.
Applicant argues that the amended claim language of “wherein said lyzate comprises a fraction of non-polar molecules” shows a clear structural difference in relation to Paufique and Blum. Applicant states that Paufique teaches an enzymatic hydrolyzate aimed at obtaining oligosaccharides (polar molecules), and the claimed lyzate obtained by high-pressure homogenization of dedifferentiated cells contains a specific non-polar fraction that is structurally distinct (Remarks, page 11). This argument is not persuasive, because as previously stated, it would have been prima facie obvious to one of ordinary skill in the art to utilize high-pressure homogenization as taught by Blum, because Blum teaches this method has an advantageous simple and low-cost application (Blum, page 4, paragraph 0070). Further, Paufique teaches an active ingredient which is a hydrolyzate of Helichrysum stoechas (Paufique, claim 8), and teaches the active ingredient has a sugar or oligosaccharide content of 42% (Paufique, page 14, 2nd paragraph), which does not teach away from the presence of non-polar molecules in the remaining 58%. Paufique further teaches filtration and purification of neutral carbohydrates (i.e., non-polar molecules) from the active ingredient (Paufique, page 14, 2nd paragraph).
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Should applicant desire to obtain the benefit of foreign priority under 35 U.S.C. 119(a)-(d) prior to declaration of an interference, a certified English translation of the foreign application must be submitted in reply to this action. 37 CFR 41.154(b) and 41.202(e).
Failure to provide a certified translation may result in no benefit being accorded for the non-English application.
Claim 1 is considered to have an effective filing date of 02/15/2021.
Modified/Maintained Objections to the Specification
The use of the terms Tween™, D-Squame, Hitachi, Agilent, Agilent Technologies, Waters, and Thermo Scientific, which are trade names or marks used in commerce, has been noted in this application. The term should be accompanied by the generic terminology; furthermore the term should be capitalized wherever it appears or, where appropriate, include a proper symbol indicating use in commerce such as ™, SM , or ® following the term.
Although the use of trade names and marks used in commerce (i.e., trademarks, service marks, certification marks, and collective marks) are permissible in patent applications, the proprietary nature of the marks should be respected and every effort made to prevent their use in any manner which might adversely affect their validity as commercial marks.
Modified/Maintained 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.
Claim 1 is rejected under 35 U.S.C. 103 as being unpatentable over Paufique (FR 3040625 A1 Translation; IDS reference, 08/16/2022), further in view of Blum (US 20080299092 A1). Paufique and Blum were previously cited by the Examiner.
Regarding claim 1, Paufique teaches a cosmetic composition for use on the skin (i.e., suitable for topical administration; Paufique, claim 1) comprising a hydrolyzate (i.e., a lyzate) of Helichrysum stoechas (Paufique, claim 8), which is taught to have a moisturizing effect (Paufique, page 16, 1st paragraph). Paufique further teaches complete homogenization of the composition (Paufique, page 16, 1st paragraph), and teaches the filtration and purification of neutral carbohydrates (i.e., the lyzate comprises non-polar molecules; Paufique, page 14, 2nd paragraph), but does not specify homogenization at high pressure and does not specify the cells of the lyzate of Helichrysum stoechas to be dedifferentiated. Blum teaches a cosmetic preparation (i.e., suitable for topical administration) comprising dedifferentiated plant cells (Blum, abstract) using a whole cell lysate (i.e., lyzate; Blum, page 2, paragraph 0028), which is produced by high pressure homogenization of the plant cells (Blum, page 3, paragraph 0045).
Paufique and Blum do not teach an analysis of the lyzate by high pressure liquid chromatography as claimed. However, the U.S. Patent Office is not equipped with analytical instruments to test prior art compositions for the infinite number of ways that a subsequent applicant may present previously unmeasured characteristics. When as here, the prior art appears to contain the exact same ingredients and applicant's own disclosure supports the suitability of the prior art composition as the inventive composition component, the burden is properly shifted to applicant to show otherwise.
Paufique and Blum are both considered to be analogous to the claimed invention, because both are in the same field of cosmetic compositions for topical use comprising cell lysates. It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the teachings of Paufique to have utilized dedifferentiated cells as taught by Blum as the specific type of Helichrysum stoechas cells in preparing the lysate, because Blum teaches dedifferentiated plant cells have a positive influence on the protection and activation of skin stem cells (Blum, page 2, paragraph 0024), and to have utilized high pressure homogenization as the specific type of homogenization, because Blum teaches high pressure homogenization has an advantage of its simple and low-cost application (Blum, page 4, paragraph 0070).
Conclusion
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/C.P.J./Examiner, Art Unit 1613
/BRIAN-YONG S KWON/Supervisory Patent Examiner, Art Unit 1613
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