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 .
Election/Restrictions
Claims 1-10 and 15-20 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on October 2, 2025.
Claims 11-14 are examined on the merits.
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 11-13 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Zirwen et al. (WO 2010029005 A2, published on March 18, 2010) (“Zirwen” hereunder).
Claim 11 is directed to a process for preparing an antimicrobial and/or anti-inflammatory composition comprising an extract of Arthrospira, and at least one organic acid, comprising the following steps:
(i) obtaining an extract of Arthrospira; and
(ii) adding at least one agent to decolorize and/or deodorize the Arthrospira extract to provide the antimicrobial and/or anti-inflammatory composition, wherein the addition of the at least one agent produces the organic acid.
Zirwen discloses a method of preparing a hair coloring composition comprising providing at least one algae extract selected from the genus Spirulina (Arthrospira) and a dye-precursor in a cosmetic carrier and mixing the composition an oxidizing agent composition comprising hydrogen peroxide to form a homogeneous composition. See translation, p. 43, bridging paragraph - p. 45. last full par. The disclosed method step requires combining the extract of Arthrospira with hydrogen peroxide, a decolorizing and deodorizing agent of the present invention.
The recitation “to provide the antimicrobial and/or anti-inflammatory composition” in Claim 11 is a preamble which denotes the intended use and purposes of the method step and does not further add any structural limitations. See MPEP 2111.02. Since the disclosed hair coloring composition is for applying to keratinous fibers including hair and skin, and prepared by the same method steps of the present claims, the disclosed composition must inherently exhibit antimicrobial and anti-inflammatory effects upon contact.
Claim Rejections - 35 USC § 103
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.
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.
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.
Claim 14 is rejected under 35 U.S.C. 103 as being unpatentable over Zirwen as applied to claims 11-13 as above, and further in view of the teachings of the same reference.
The disclosed example fails to specifically mention adding an organic acid to the hair color composition comprising the Spirulina extract. However, Zirwen goes on to teach that “[u]sually” the pH of the composition is adjusted with organic acids such as citric acid, acetic acid, malic acid or tartaric acid. See translation, p. 35, 2nd full paragraph. The pH of the composition comprising the dye precursor and the Spirulina extract is adjusted to between 5-8.6. See p. 43, 2nd full par.
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the present application to follow the teachings and suggestions of the same reference to add one or more organic acids to the hair coloring composition comprising the Spirulina extract to adjust the pH to the recommended level.
Claims 11-14 are rejected under 35 U.S.C. 103 as being unpatentable over Oh (KR 20090079468 A, published on July 22, 2009) in view of Fukuda et al. (JP 2001037454 A, published on February 13, 2001) (“Fukuda” hereunder) and Maegawa et al. (WO 2011155352 A1, published on December 15, 2011) (“Maegawa” hereunder).
Claim 11 is directed to a process for preparing an antimicrobial and/or anti-inflammatory composition comprising an extract of Arthrospira, and at least one organic acid, comprising the following steps: (i) obtaining an extract of Arthrospira; and (ii) adding at least one agent to decolorize and/or deodorize the Arthrospira extract to provide the antimicrobial and/or anti-inflammatory composition, wherein the addition of the at least one agent produces the organic acid.
Oh discloses a method of making soothing and anti-pruritic compositions, the method comprising combining a spirulina (Arthrospira) extract and a cosmetic base comprising stearic acid or lactic acid. See translation, p, 12-13.
Oh fails to teach adding at least one decolorizing and/or deodorizing agent to the spirulina extract.
Fukuda teaches a method of deodorizing spirulina extract, the method comprising a method step of washing spirulina algae in hydrogen peroxide. See translation, p. 6, the 3rd full paragraph. The reference teaches that the deodorized spirulina extract can be used in food or cosmetics. See p. 10, 5th full paragraph.
Maegawa teaches bleaching raw algae, extract, filtrate with hydrogen peroxide to improve the colors well known. See translation, p. 6, 3. Post extraction treatment, second paragraph. The reference teaches that the bleaches algae can be used in food and drink, which suggests suitability for cosmetics. See translation, p. 5, first full paragraph.
It would have been obvious to one of ordinary skill in the art before the time of the effective filing date of the present application to modify the teachings of Oh and decolorize and/or deodorize the Spirulina extract to improve the odor and color of the extract, as motivated by Fukuda and Maegawa, respectively. Since Fukuda suggests that the deodorized Spirulina extract can be used for food and cosmetics and Maegawa also teaches the suitability of hydrogen-peroxide bleached algae in foods, the skilled artisan would have had a reasonable expectation of successfully preparing a safe, odorless and visually more attractive cosmetic composition comprising the Spirulina (Arthrospira) extract.
Conclusion
No claims are allowed.
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure: US 20200069750 A1 teaches a method of making an anti-inflammatory composition comprising extracts from Arthrospira.
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/GINA C JUSTICE/Primary Examiner, Art Unit 1617