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 Application
Claims 1-3, 5, 7-8, 12-21, 24-25, and 29-30 are pending
Claims 12, 19, 24-25 and 29-30 are withdrawn from examination as being drawn to a nonelected species.
Claims 1-3, 5, 7-8, 13-18, and 20-21 are under consideration in the instant office action.
Information Disclosure Statement
The information disclosure statements (IDS) submitted on 10/01/2025, 12/11/2025 comply with the provisions of 37 CFR 1.97, 1.98 and MPEP § 609. Accordingly, it has been placed in the application file and the information therein has been considered as to the merits. See attached copy of the PTO-1449.
Priority
This application claims benefit of PCT Application No. PCT/EP2021/084957 filed on 12/09/2021.
Election/Restrictions
Applicant’s election of Group I and 1,2-nonanediol in the reply filed on 11/19/2025 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
Claims 12, 19, 24-25 and 29-30 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention or species, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 11/19/2025.
Claim Rejections - 35 USC § 102
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)(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 1-3, 5, 7-8, 14-17, and 21 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Trunet (EP 2,842,607, as disclosed in IDS).
Trunet teaches a mixture comprising resorcinol derivatives, bisabolol, and alkandiols
(see abstract). Trunet teaches 1,2-nonandiol and 1,2-decandiol as preferred alkandiols (paragraph 0013). Trunet teaches such compositions further comprising agents against ageing of the skin, anti-acne agents, and surfactants (paragraph 0020). Trunet teaches such compositions in the form of a solution (paragraph 0068).
Therefore, the reference is deemed to anticipate the instant claims above.
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.
Claims 13, 18, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Trunet (EP 2,842,607, as disclosed in IDS) as applied to claims 1-3, 5, 7-8, 14-17, and 21 above.
The teachings of Trunet are presented above. Trunet further teaches bisabolol present in an amount of about 1 to about 20% and alkandiols present in an amount of 0 to about 60% (claim 5).
Trunet does not teach wherein the mixture comprising at least one first linear alkanediol and one or more second linear alkanediols comprises the first linear alkanediol and the second alkanediol in a ratio in a range of 50 : 50 to 99.9 : 0.1; wherein the at least one linear alkanediol or the mixture comprising at least one first linear alkanediol and one or more second linear alkanediols in an amount of 0.001 to 15.0%; wherein the at least one antimicrobial component in an amount of 0.001 to 15.0%.
Even though the range for concentrations as taught by Trunet is not the same as the claimed concentrations, Trunet does teach an overlapping range of concentrations, and it has been held that in the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). See MPEP § 2144.05(I). Furthermore, the determination of concentrations is well within the purview of those skilled in the art through routine experimentation, and it has been held that “it is not inventive to discover the optimum or workable ranges by routine experimentation.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See MPEP § 2144.05(II). It would have been obvious to one of ordinary skill in the art to optimize the concentrations in order to increase the synergy of the components.
The amounts of active agents to be used, the pharmaceutical forms, e.g., tablets, etc; mode of administration, flavors, surfactant are all deemed obvious since they are all within the knowledge of the skilled pharmacologist and represent conventional formulations and modes of administration.
Furthermore, no unobviousness is seen in the ratio claimed because once the usefulness of a compound is known to treat a condition, it is within the skill of the artisan to determine the optimum ratio.
Conclusion
Claims 1-3, 5, 7-8, 13-18, and 20-21 are rejected.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANDREW P LEE whose telephone number is (571)270-1016. The examiner can normally be reached Monday-Friday 9am-5pm.
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/ANDREW P LEE/Examiner, Art Unit 1691
/RENEE CLAYTOR/Supervisory Patent Examiner, Art Unit 1691