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 .
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.
Claim Status
Applicant’s preliminary amendment of 02/26/2026 is acknowledged. Claims 1, 3, 9, 17, 19, 26, 29, 34, 36, and 45 are amended; claims 2, 4-8, 10, 12, 14, 16, 18, 20, 22-25, 28, 30-31, 33, 35, and 38-42 are cancelled; and claims 46 is new. Claims 1, 3, 9, 11, 13, 15, 17, 19, 21, 26-27, 29, 32, 34, 36-37, and 43-46 are currently pending and are examined on the merits herein.
Priority
The instant application is a 371 of PCT/US2021/026582 filed on 04/09/2021 and
claims benefit of U.S. Application No. 63/007,490 filed on 04/09/2020 as reflected in the
filing receipt mailed on 01/18/2023.
Applicant’s claim for the benefit of a prior-filed application under 35 U.S.C. 119(e)
or under 35 U.S.C. 120, 121, 365(c), or 386(c) is acknowledged. Applicant has not complied with one or more conditions for receiving the benefit of an earlier filing date
under 35 U.S.C. 119(e) as follows:
The later-filed application must be an application for a patent for an invention
which is also disclosed in the prior application (the parent or original nonprovisional
application or provisional application). The disclosure of the invention in the parent
application and in the later-filed application must be sufficient to comply with the
requirements of 35 U.S.C. 112(a) or the first paragraph of pre-AIA 35 U.S.C. 112,
except for the best mode requirement. See Transco Products, Inc. v. Performance
Contracting, Inc., 38 F.3d 551, 32 USPQ2d 1077 (Fed. Cir. 1994).
The disclosure of the prior-filed applications, U.S. Application No. 63/007,490
and PCT/US2021/026582, fail to provide adequate support or enablement in the
manner provided by 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph for one
or more claims of this application.
Instant claim 9 recites a limitation drawn to “basic flow energy”, for which
the prior applications do not provide support.
Instant claim 11 recites a limitation drawn to “conditioned bulk density”, for
which the prior application does not provide support.
Therefore, the effective filing date of instant claims 1-3, 13, 15, 17, 19, 21, 26-
27, 29, 32, 34, 36-37, and 43-45 is 04/09/2020.
The effective filing date of instant claims 9 and 11 is 04/09/2022.
Information Disclosure Statement
The information disclosure statements (IDS) submitted on 02/26/2026 and 03/17/2026 are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statements have been considered by the examiner.
Withdrawn Objections and Rejections
Applicant’s amendments to the claims have overcome the previous objections to the claims. Thus, the objections are hereby withdrawn.
Applicant’s amendments to the claims have overcome/rendered moot the previous 102 rejections. Thus, the rejections are hereby withdrawn.
Applicant’s amendment and introduction of new claims have prompted the new/revised grounds of rejection presented herein. The previous 103 rejections are withdrawn in favor of the new/revised grounds of rejection presented below. Applicant’s arguments insofar as they pertain to the revised grounds of rejection are addressed herein.
Claim Rejections - 35 USC § 112(b)
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 36 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 36 recites the limitation “relative to the colloidal material” in lines 2-3. There is insufficient antecedent basis for this limitation in the claim. Claim 36 depends from claim 26, which does not recite “a colloidal material”. It is unclear whether the limitation is referring to the polysaccharide gum of claim 26 or to a different colloidal material. Therefore, the scope of the claim is indefinite. For the purposes of compact prosecution in the prior art rejections below, the Examiner is interpreting the claim to mean “relative to the polysaccharide gum”, for which antecedent basis is provided in parent claim 26.
Claim Interpretation
Under a broadest reasonable interpretation, words of the claim must be given
their plain meaning, unless such meaning is inconsistent with the specification. The
plain meaning of a term means the ordinary and customary meaning given to the term
by those of ordinary skill in the art at the time of the invention. Note: MPEP 2173.01.
Therefore, the terms "silicon" and "sulfur" as recited in the claims 1 and 26 are
interpreted to mean elemental silicon and elemental sulfur.
Regarding the term "base composition" recited in claims 37 and 43, Applicant
provides no limiting definition of "base composition" in the specification. Therefore, the
Examiner is interpreting any additional ingredient(s) with which the claimed colloidal
material, water-insoluble inorganic, and cross-linking agent are combined as sufficient
to meet the claim limitation so long as the ingredient(s) is/are safe for personal care
use.
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.
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, 3, 9, 15, 17, 19, 21, 26-27, 29, 32, 34, 36-37, and 43-46 are rejected under 35 U.S.C. 103 as being unpatentable over Chen (CN109646712A; published: 04/19/2019; PTO-892 of instant action) in view of Cui (CN104706725A; published: 06/17/2025; PTO-892 of instant action) and Mbah et al. (AJOPRED, vol. 4, p. 19-24; published: 2012; PTO-892 of instant action).
Chen, throughout the reference, teaches a colloidal sulfur liquid dressing for treating skin diseases cause by parasites and microorganisms, and a preparation method thereof (Abstract, Claims, and Paragraph 0009).
Chen further teaches that the colloidal sulfur is comprised of nano-sized sulfur powder coated with gum arabic to form microcapsules, which allows for solubilization and slow release of sulfur, eliminates adverse reactions cause by direct contact of sulfur, and forms a film to prevent further infection (Paragraphs 0015 and 0061).
Regarding claims 1 and 3: The colloidal sulfur composition of Chen comprises sulfur, which reads on the instantly claimed water-insoluble inorganic, and gum arabic (same substance as acacia gum), which reads on the instantly claimed polysaccharide gum.
Regarding claims 15: Chen teaches that the mass ratio of sulfur to gum arabic in the colloidal sulfur is 1:2 to 5 (also written as 5:1), and preferably comprises 75% by weight of sulfur and 25% by weight of gum arabic (Paragraphs 0021-0022). The amount of sulfur lies within and thus reads on the instantly claimed range.
Regarding claim 17: The amount of gum arabic lies within and thus reads on the instantly claimed range.
Regarding claim 21: Chen teaches that the microcapsules can be uniformly distributed in water to form a colloidal solution (Paragraph 0021). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to manipulate the amount of water in the colloidal solution in order to produce a formulation with a desired consistency and particle distribution.
Regarding claim 26: The colloidal solution taught by Chen comprises sulfur, gum arabic (same substance as acacia gum), and water, which respectively read on the instantly claimed water-soluble inorganic, polysaccharide gum, and water.
Regarding claim 27: Chen teaches a method wherein colloidal sulfur and anthraquinones from rhubarb are dissolved in water to obtain Solution A, which is subsequently used to prepare a colloidal sulfur liquid dressing (Claim 10). Because Chen teaches that the final colloidal sulfur liquid dressing comprises by weight: 0.5 – 15 parts of colloidal sulfur, 0.5 – 5 parts of anthraquinones from rhubarb, and 39.5 – 84.9 parts of water (Claim 1), an ordinarily skilled artisan could at once envisage an embodiment wherein Solution A comprises 15 parts of colloidal sulfur, 5 parts of anthraquinones, and 39.5 parts water. The amount of water in the solution equates to approximately 66 wt.% (39.5 / 59.5 parts by weight), lies within and thus reads on the instantly claimed range.
Regarding claim 29: Gum arabic (same substance as acacia gum) reads on the instantly claimed polysaccharide gum.
Regarding claim 32: Based on Chen’s preferred embodiment of colloidal sulfur, which comprises 75 wt.% sulfur and 25 wt.% gum arabic, the amount of sulfur in Solution A equates to approximately 19 wt.% (calculated by Examiner: [(15 * 0.75) / 59.5] * 100), which lies within and thus reads on the instantly claimed range.
Regarding claim 34: The amount of gum arabic in Solution A equates to approximately 6 wt.% (calculated by Examiner: [(15 * 0.25) / 59.5] * 100), which lies within and thus reads on the instantly claimed range.
Regarding claims 37 and 43: The method of Chen comprises a step wherein Solution A and Solution C (e.g. lavender essential oil, silicone, and propylene glycol) are added to Solution B (e.g. hyaluronic acid, ceramide, water, polyhexamethylene guanidine, Tween 80, and polyethylene glycol 40) and mixed to obtain the colloidal sulfur liquid dressing (Claim 10). Because Solution A, which reads on both the composition of instant claim 1 and the aqueous composition of instant claim 26, is combined with Solutions B and C, which each contain ingredients that are safe for personal care use and thus read on the instantly claimed base composition (see “Claim Interpretation” above), the colloidal sulfur liquid dressing of Chen reads on the instantly claimed personal care compositions.
Regarding claim 44: Chen further teaches the insecticidal, acaricidal, bactericidal, and antipruritic effects of colloidal sulfur (Paragraph 0061). As discussed above in relation to claim 21, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to manipulate the relative amounts of water and sulfur within the colloidal solution using 75 wt.% sulfur, which lies within and thus renders obvious the claimed range, as a starting point for routine optimization in order to produce a well-balanced formulation with a desired consistency and particle distribution, as well as a desired potency and therapeutic effect (Paragraph 0061).
However, Chen does not expressly teach that the colloidal sulfur composition further comprises the metal aluminate of claims 1, 26, and 46, the basic energy flow of claim 9, the amount of metal aluminate recited in claims 19, 36, and 45.
Cui, also drawn to transdermal therapeutics, teaches that magnesium aluminate, among a limited list of others, is a suitable agent for crosslinking hydrophilic polymers, including arabic gum, when they are used to deliver therapeutically active ingredients (Abstract and Paragraphs 0029 and 0031).
Mbah, throughout the reference, teaches that crosslinking of polymers—particularly acacia gum, also known as gum arabic—is done to improve the polymers’ physiochemical properties (Page 19, R. Col.). Mbah further recognizes that crosslinked polysaccharides may be used for coating medicinally active substances or drugs for the purpose of controlled delivery (Page 20, L. Col.).
Regarding claims 1, 26, and 46: As discussed above, Chen teaches that the purpose of encapsulating the sulfur in gum arabic is to form a slow-release system for colloidal sulfur, which has a variety of therapeutic effects (Paragraph 0061). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the colloidal sulfur microcapsules of Chen by further including a crosslinking agent, such as the magnesium aluminate of Cui, which is an art-recognized crosslinking agent of gum arabic, in order to manipulate the physiochemical properties of the gum arabic coating, as taught by Mbah, to achieve a desired sulfur release rate.
Regarding claim 19: Cui further teaches that mixing hydrophilic polymer and crosslinking agent in mass ratio of 6-10:0.1-0.3 along with water forms a uniform hydrogel (Claim 5). Because the colloidal sulfur microcapsules of Chen are ultimately mixed with water, an ordinarily skilled artisan would reasonably expect that the microcapsules also assume gel form, as evidenced by Mbah, which teaches that gel particle formation is a mechanistic outcome that flows naturally from water molecules interacting with the polar groups on the polymer backbone or side chains (Pages 20 and 22, L. Cols.). Thus, an ordinarily skilled artisan would reasonably look to the teachings of Cui to determine what concentration of magnesium aluminate is suitable for crosslinking gum arabic. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to manipulate the concentration of magnesium aluminate using 0.4 wt.%, which lies within and thus renders obvious the instantly claimed range, as a starting point for routine optimization (calculated by Examiner based on the colloidal sulfur microcapsules of Chen comprising 25 wt.% gum arabic and the mass ratio of 6:0.1 hydrophilic polymer to crosslinking agent taught by Cui) in order to achieve a gum arabic coating with desired physiochemical properties.
Regarding claims 36 and 45: Using the same reasoning as applied to instant claim 19, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to manipulate the concentration of magnesium aluminate using 0.1 wt.% magnesium aluminate (calculated by Examiner based on the Solution A of Chen comprising 6 wt.% gum arabic and the mass ratio of 6:0.1 hydrophilic polymer to crosslinking agent taught by Cui), which lies within and thus renders obvious the instantly claimed range, as a starting point for routine optimization in order to achieve a gum arabic coating with desired physiochemical properties. Regarding the instantly claimed amount of magnesium aluminate relative to gum arabic, 0.1 wt.% of magnesium aluminate is approximately 2 wt.% of the 6 wt.% gum arabic present in modified Solution A, which lies within and thus renders obvious the instantly claimed range.
Regarding claim 9: While the combination of Chen, Cui, and Mbah is silent as to the basic flow energy of the colloidal sulfur particles, the instant specification discloses that the basic flow energy of 100 wt.% sulfur is 166 mJ, and a composition comprising gum arabic, sulfur, and cross-linking agent has a basic flow energy of 118 mJ (Instant Specification, Paragraph 103, Table 3). Because of the extremely high basic flow energy of sulfur in the absence of colloidal material and cross-linking agent, and because the prior art composition comprises the same amounts of the required ingredients, including gum arabic and a related aluminate cross-linking agent selected from the group recited in instant claim 46, a skilled person in the art would have reason to believe that the prior art composition would have a basic flow energy of less than about 85% of the basic flow energy of 100 wt.% unprocessed sulfur, as evidenced by the instant specification (Instant Specification, Paragraph 103, Table 3).
An ordinarily skilled artisan would reasonably expect success in modifying the colloidal sulfur of Chen with the prior art teachings as proposed because crosslinked polysaccharides like gum arabic are known to be used as coatings for medicinally active substances like sulfur, and magnesium aluminate is an art-recognized crosslinking agent of gum arabic.
Claims 1, 3, 9, 11, 13, 15, 17, 19, 21, 26-27, 29, 32, 34, 36-37, and 43-46 are rejected under 35 U.S.C. 103 as being unpatentable over Chen (CN109646712A; published: 04/19/2019; PTO-892 of instant action) in view of Cui (CN104706725A; published: 06/17/2025; PTO-892 of instant action) and Mbah et al. (AJOPRED, vol. 4, p. 19-24; published: 2012; PTO-892 of instant action), as applied to claims 1, 3, 9, 15, 17, 19, 21, 26-27, 29, 32, 34, 36-37, and 43-46 above, and further in view of Carson et al. (ASM Handbook, vol. 7, p. 287-301; published: 1998; PTO-892 of 04/22/2025) and Goalard (HAL Open Science, p. 1-6; published: 08/09/2006; PTO-892 of 04/22/2025).
The combination of Chen, Cui, and Mbah teaches the invention(s) of claims 1, 3, 9, 15, 17, 19, 21, 26-27, 29, 32, 34, 36-37, and 43-46 as discussed in detail above and further incorporated herein.
However, the combination of Chen, Cui, and Mbah does not expressly teach the conditioned bulk density of claim 11, or the volume moment mean particle size of claim 13.
Carson teaches that bulk density, which can be measured as apparent density or tap density, is one of the fundamental properties of a powder (Carson, page 292, “Bulk Density”). Apparent density defines the actual volume occupied by a mass of loose powder and is typically measured in fixed position, such that pressure is maintained at a constant level, or a fixed pressure under consistent conditions, such that the density of the powder is controlled within close limits (Carson, page 292, “Apparent Density”). Apparent density of a powder depends on the density of the solid material, particle size, particle size distribution, particle shape, surface area and roughness of individual particles, and particle arrangement (Carson, page 292, “Factors Affecting Apparent Density”).
With no limiting definition of “compressed bulk density” provided in the instant specification, the definition of Carson’s apparent bulk density, which measures powder density under closely controlled, fixed conditions, is consistent with Applicant’s disclosure related to conditioned bulk density, which states that conditioned bulk density is representative of the normal condition of a powder without the influence of localized stress and excess air (Instant Specification, Paragraph 0082).
Goalard teaches the dispersion behavior of particles in liquids, which is used to give the final form to a product, wherein low bulk density and high porosity were found to achieve best immersion and dispersion (Goalard, page 2, “Introduction” and page 6, “Conclusion”).
Regarding claims 11 and 13: While Chen teaches that the colloidal sulfur particles are in microcapsule form, indicating that the particle size is in the micron range, the combination of Chen, Cui, and Mbah is silent as to the conditioned bulk density and volume moment mean particle size of the colloidal sulfur particles. Based on the teachings of Carson, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to optimize the relative concentrations of microcapsule components, which have varying densities, and/or the colloidal sulfur’s particle size distribution, which directly relates to the colloidal sulfur’s volume moment mean particle size, through routine experimentation to achieve a desired bulk density. One of ordinary skill in the art would have been motivated to manipulate the colloidal sulfur’s bulk density because Goalard teaches that lower bulk density results in best dispersion behavior of particles in liquids. Additionally, Mbah supports that crosslinking can be used to reduce the bulk density of gum arabic (Page 21, R. Col. and Page 22, Table 1).
One of ordinary skill in the art would have a reasonable expectation of success in modifying the prior art as proposed because Carson and Goalard teach that parameters such as conditioned bulk density and particle size are routinely optimized to improve the behavior of particles in liquids, and Chen and Cui teach a range of acceptable concentrations within which the sulfur, gum arabic, and magnesium aluminate can be adjusted to arrive at a desired formulation.
Response to Arguments
Applicant’s arguments submitted on 02/26/2026 with respect to rejections under 35 U.S.C. 103 have been fully considered in so far as they apply to the new or modified rejections of the instant Office action, but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
To the extent of Applicant’s argument that the particular combination of a polysaccharide gum, a water-insoluble inorganic, and a metal aluminate provides a colloidal composition having advantageous properties compared to the art applies to the new/revised grounds of rejection presented herein: The properties Applicant argues, such as improved dispersion of water-insoluble inorganic, are not unexpected in view of the prior art. For example, Chen teaches that gum arabic is known to improve the solubility and distribution of sulfur in solutions. Additionally, Mbah teaches that crosslinking gum arabic is a technique that is routinely used in the art to improve its physiochemical properties, including bulk density.
In view of the foregoing, the prior art rejections of record are maintained.
Conclusion
No claim is 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 SARAH CLINKSCALES WISTNER whose telephone number is (571)270-7715. The examiner can normally be reached Monday - Thursday 8:00 AM - 5:00 PM ET.
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, Sue Liu can be reached at (571)272-5539. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/SARAH C WISTNER/Examiner, Art Unit 1616
/Mina Haghighatian/Primary Examiner, Art Unit 1616